{ "attribution": { "source": "legal.exploreworldai.com", "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-872-24", "cite_as": "NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-872-24)", "license": "https://legal.exploreworldai.com/revision", "version": "legal-2026-10-12", "fingerprint": "ewai:eu:6fc91c", "proof": "sha256:aafb992efa6b7eb002ebf7e99624ae651cef33dceb8fa338c22caa9bb608eac9", "jurisdiction": "eu", "lang": "en", "publisher": "NovaCopilot by ExploreWorld Legal", "terms": "https://legal.exploreworldai.com/om" }, "brand_source": "Source: NovaCopilot", "item": { "schema_version": "1.0.0", "id": "eu:c-872-24", "jurisdiction": "eu", "lang": "en", "brand_source": "Source: NovaCopilot", "brand": { "product": "NovaCopilot", "platform": "ExploreWorldAI", "infrastructure": "ExploreWorld Legal", "infrastructure_url": "legal.exploreworldai.com", "legal_entity": "Valkiv Ventures AB", "permanent_url": "https://legal.exploreworldai.com/novacopilot", "source": "Source: NovaCopilot", "powered_by": "Powered by NovaCopilot", "license": "https://legal.exploreworldai.com/licensvillkor" }, "sections": [ { "title": "Provisional text", "paragraphs": [] }, { "title": "JUDGMENT OF THE COURT (Eighth Chamber)", "paragraphs": [] }, { "title": "8 October 2026 ( * )", "paragraphs": [ "para_4", "para_5", "para_6" ] }, { "title": "Digi România SA", "paragraphs": [ "para_8", "para_9", "para_10" ] }, { "title": "Investcapital Ltd", "paragraphs": [ "para_12", "para_13", "para_14", "para_15", "para_16", "para_17", "para_18", "para_19", "para_20", "para_21", "para_22", "para_23" ] }, { "title": "Judgment", "paragraphs": [ "para_25", "para_26" ] }, { "title": "Legal context", "paragraphs": [] }, { "title": "European Union law", "paragraphs": [] }, { "title": "Directive 93/13", "paragraphs": [] }, { "title": "3         The eighth and nineteenth recitals of Directive 93/13 state:", "paragraphs": [ "para_31", "para_32", "para_33", "para_34" ] }, { "title": "5         Article 2 of that directive provides:", "paragraphs": [ "para_36", "para_37", "para_38", "para_39" ] }, { "title": "6         Article 3 of that directive provides:", "paragraphs": [ "para_41", "para_42", "para_43" ] }, { "title": "7         Under Article 4(2) of Directive 93/13:", "paragraphs": [ "para_45" ] }, { "title": "8         Article 6(1) of that directive reads as follows:", "paragraphs": [ "para_47" ] }, { "title": "9         Article 7(1) of that directive states:", "paragraphs": [ "para_49" ] }, { "title": "10       Under Article 8 of that directive:", "paragraphs": [ "para_51", "para_52" ] }, { "title": "Directive 2002/22", "paragraphs": [ "para_54", "para_55" ] }, { "title": "13       In its original version, Article 20(1) of Directive 2002/22 read as follows:", "paragraphs": [ "para_57" ] }, { "title": "Directive 2018/1972", "paragraphs": [] }, { "title": "14       Recital 258 of Directive 2018/1972 states:", "paragraphs": [ "para_60" ] }, { "title": "The VAT Directive", "paragraphs": [ "para_62", "para_63", "para_64", "para_65", "para_66" ] }, { "title": "Romanian law", "paragraphs": [ "para_68", "para_69", "para_70", "para_71" ] }, { "title": "17       Paragraph 1(i) of the annex to that law provides:", "paragraphs": [ "para_73" ] }, { "title": "The disputes in the main proceedings and the questions referred for a preliminary ruling", "paragraphs": [] }, { "title": "Case C ‑ 872 /24", "paragraphs": [ "para_76", "para_77", "para_78" ] }, { "title": "Case C ‑ 909 /24", "paragraphs": [ "para_80", "para_81", "para_82", "para_83", "para_84", "para_85", "para_86", "para_87", "para_88", "para_89", "para_90", "para_91", "para_92", "para_93", "para_94", "para_95", "para_96", "para_97", "para_98", "para_99" ] }, { "title": "Consideration of the questions referred", "paragraphs": [] }, { "title": "The first to fourth questions", "paragraphs": [ "para_102", "para_103", "para_104", "para_105", "para_106", "para_107", "para_108", "para_109", "para_110", "para_111", "para_112", "para_113", "para_114", "para_115", "para_116", "para_117", "para_118", "para_119", "para_120", "para_121", "para_122", "para_123", "para_124" ] }, { "title": "The fifth question", "paragraphs": [ "para_126", "para_127", "para_128", "para_129", "para_130", "para_131", "para_132", "para_133", "para_134" ] }, { "title": "The sixth and seventh questions", "paragraphs": [ "para_136", "para_137", "para_138", "para_139", "para_140", "para_141" ] }, { "title": "Costs", "paragraphs": [ "para_143" ] }, { "title": "On those grounds, the Court (Eighth Chamber) hereby rules:", "paragraphs": [ "para_145", "para_146", "para_147", "para_148", "para_149", "para_150", "para_151", "para_152" ] } ], "paragraphs": [ { "text": "Provisional text", "paragraph_id": "para_1" }, { "text": "JUDGMENT OF THE COURT (Eighth Chamber)", "paragraph_id": "para_2" }, { "text": "8 October 2026 ( * )", "paragraph_id": "para_3" }, { "text": "( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 3(1) and (3) and point 1(e) of the annex – Concept of ‘unfair term’ – Term which has the object or effect of requiring a consumer who fails to fulfil his or her obligation to pay a disproportionately high sum in compensation – Article 4(2) – Terms falling within the definition of the main subject matter of the contract – Contract for the provision of electronic communications services concluded between a consumer and seller or supplier – Term imposing a penalty on the consumer for each day of late payment – Term requiring the consumer, in the event of termination of the contract before the end of the minimum commitment period for a reason attributable to that consumer, to pay the seller or supplier the amount due for the remaining period )", "paragraph_id": "para_4" }, { "text": "In Joined Cases C‑872/24 and C‑909/24,", "paragraph_id": "para_5" }, { "text": "TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunalul Arad (Regional Court, Arad, Romania), by decision of 16 November 2024, received by the Court on 16 December 2024 (Case C‑872/24), and by decision of 5 November 2024, received by the Court on 16 December 2024 (Case C‑909/24), in the proceedings", "paragraph_id": "para_6" }, { "text": "Digi România SA", "paragraph_id": "para_7" }, { "text": "v", "paragraph_id": "para_8" }, { "text": "VK (C‑872/24),", "paragraph_id": "para_9" }, { "text": "and", "paragraph_id": "para_10" }, { "text": "Investcapital Ltd", "paragraph_id": "para_11" }, { "text": "v", "paragraph_id": "para_12" }, { "text": "PN (C‑909/24),", "paragraph_id": "para_13" }, { "text": "THE COURT (Eighth Chamber),", "paragraph_id": "para_14" }, { "text": "composed of S. Rodin, acting as President of the Chamber, N. Piçarra (Rapporteur) and O. Spineanu-Matei, Judges,", "paragraph_id": "para_15" }, { "text": "Advocate General: D. Spielmann,", "paragraph_id": "para_16" }, { "text": "Registrar: V. Di Bucci,", "paragraph_id": "para_17" }, { "text": "having regard to the written procedure,", "paragraph_id": "para_18" }, { "text": "after considering the observations submitted on behalf of:", "paragraph_id": "para_19" }, { "text": "–        Investcapital Ltd, by Y. Beşleagă, A. Stoica and V. Stoica, avocaţi,", "paragraph_id": "para_20" }, { "text": "–        the European Commission, by A. Boitoş and P. Kienapfel, acting as Agents,", "paragraph_id": "para_21" }, { "text": "having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,", "paragraph_id": "para_22" }, { "text": "gives the following", "paragraph_id": "para_23" }, { "text": "Judgment", "paragraph_id": "para_24" }, { "text": "1         These requests for a preliminary ruling concern the interpretation of Article 56 TFEU, paragraphs 1 and 3 of Article 3 and Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), and point 1(e) of the annex to that directive, Article 20 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), Articles 101, 105 and 107 and Annex VIII, Part A, point 3(iv), and Annex IX, point 2.4, to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).", "paragraph_id": "para_25" }, { "text": "2         The requests have been made in proceedings between Digi România SA, an undertaking governed by Romanian law, and VK, a consumer (Case C‑872/24), and Investcapital Ltd, an undertaking governed by Romanian law, and PN, a consumer (Case C‑909/24), concerning the amounts claimed by those undertakings on the basis of terms in contracts for the provision of electronic communications services concluded with those consumers.", "paragraph_id": "para_26" }, { "text": "Legal context", "paragraph_id": "para_27" }, { "text": "European Union law", "paragraph_id": "para_28" }, { "text": "Directive 93/13", "paragraph_id": "para_29" }, { "text": "3         The eighth and nineteenth recitals of Directive 93/13 state:", "paragraph_id": "para_30" }, { "text": "‘Whereas the two Community programmes for a consumer protection and information policy … underlined the importance of safeguarding consumers in the matter of unfair terms of contract; … this protection ought to be provided by laws and regulations which are either harmonized at Community level or adopted directly at that level;", "paragraph_id": "para_31" }, { "text": "…", "paragraph_id": "para_32" }, { "text": "Whereas, for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject matter of the contract nor the quality/price ratio of the goods or services supplied; … the main subject matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; …’", "paragraph_id": "para_33" }, { "text": "4         Article 1(1) of the directive states that its purpose is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.", "paragraph_id": "para_34" }, { "text": "5         Article 2 of that directive provides:", "paragraph_id": "para_35" }, { "text": "‘For the purpose of this Directive:", "paragraph_id": "para_36" }, { "text": "…", "paragraph_id": "para_37" }, { "text": "(b)      “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;", "paragraph_id": "para_38" }, { "text": "(c)      “seller or supplier” means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’", "paragraph_id": "para_39" }, { "text": "6         Article 3 of that directive provides:", "paragraph_id": "para_40" }, { "text": "‘1.      A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.", "paragraph_id": "para_41" }, { "text": "…", "paragraph_id": "para_42" }, { "text": "3.      The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’", "paragraph_id": "para_43" }, { "text": "7         Under Article 4(2) of Directive 93/13:", "paragraph_id": "para_44" }, { "text": "‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’", "paragraph_id": "para_45" }, { "text": "8         Article 6(1) of that directive reads as follows:", "paragraph_id": "para_46" }, { "text": "‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’", "paragraph_id": "para_47" }, { "text": "9         Article 7(1) of that directive states:", "paragraph_id": "para_48" }, { "text": "‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’", "paragraph_id": "para_49" }, { "text": "10       Under Article 8 of that directive:", "paragraph_id": "para_50" }, { "text": "‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’", "paragraph_id": "para_51" }, { "text": "11       Point 1(e) of the annex to Directive 93/13, entitled ‘Terms referred to in Article 3(3)’, refers, in particular, to those terms which have the object or effect of ‘requiring any consumer who fails to fulfil his [or her] obligation to pay a disproportionately high sum in compensation’.", "paragraph_id": "para_52" }, { "text": "Directive 2002/22", "paragraph_id": "para_53" }, { "text": "12       Recital 30 of Directive 2002/22, which was repealed with effect from 21 December 2020, in accordance with Article 125 of Directive 2018/1972, stated that:", "paragraph_id": "para_54" }, { "text": "‘… In addition to the provisions of this Directive, the requirements of existing Community consumer protection legislation relating to contracts, in particular [Directive 93/13] and Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts [(OJ 1997 L 144 p. 19)], apply to consumer transactions relating to electronic networks and services. …’", "paragraph_id": "para_55" }, { "text": "13       In its original version, Article 20(1) of Directive 2002/22 read as follows:", "paragraph_id": "para_56" }, { "text": "‘Paragraphs 2, 3 and 4 shall apply without prejudice to Community rules on consumer protection, in particular Directives [97/7] and [93/13], and national rules which comply with Community law.’", "paragraph_id": "para_57" }, { "text": "Directive 2018/1972", "paragraph_id": "para_58" }, { "text": "14       Recital 258 of Directive 2018/1972 states:", "paragraph_id": "para_59" }, { "text": "‘… In addition to this Directive, the requirements of existing Union consumer protection law relating to contracts, in particular [Directive 93/13] and Directive 2011/83/EU of the European Parliament and of the Council [of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64)], apply to consumer transactions relating to electronic communications networks and services. …’", "paragraph_id": "para_60" }, { "text": "The VAT Directive", "paragraph_id": "para_61" }, { "text": "15       Under Article 2(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’), states:", "paragraph_id": "para_62" }, { "text": "‘The following transactions shall be subject to VAT:", "paragraph_id": "para_63" }, { "text": "…", "paragraph_id": "para_64" }, { "text": "(c)      the supply of services for consideration within the territory of a Member State by a taxable person acting as such;", "paragraph_id": "para_65" }, { "text": "…’", "paragraph_id": "para_66" }, { "text": "Romanian law", "paragraph_id": "para_67" }, { "text": "16       Article 4 of Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între profesioniști și consumatori (Law No 193/2000 on unfair terms in contracts concluded between sellers or suppliers and consumers) of 6 November 2000 (republished in Monitorul Oficial al României , Part I, No 543 of 3 August 2012), which transposed Directive 93/13 into Romanian law, provides:", "paragraph_id": "para_68" }, { "text": "‘(1)      A contract term which has not been directly negotiated with the consumer is regarded as being unfair if, considered in isolation or together with other provisions of the contract, it causes, to the detriment of the consumer and contrary to the requirements of good faith, a significant imbalance in the parties’ rights and obligations.", "paragraph_id": "para_69" }, { "text": "…", "paragraph_id": "para_70" }, { "text": "(4)      The Annex, which is an integral part of this Law, contains, by way of example, a list of terms regarded as unfair.’", "paragraph_id": "para_71" }, { "text": "17       Paragraph 1(i) of the annex to that law provides:", "paragraph_id": "para_72" }, { "text": "‘Contractual terms which require a consumer who fails to perform his or her contractual obligations to pay compensation in an amount disproportionate to the damage suffered by the seller or supplier shall be regarded as unfair terms’.", "paragraph_id": "para_73" }, { "text": "The disputes in the main proceedings and the questions referred for a preliminary ruling", "paragraph_id": "para_74" }, { "text": "Case C ‑ 872 /24", "paragraph_id": "para_75" }, { "text": "18       On 5 September 2013, VK concluded a contract with Digi România for the provision of electronic communications services relating to mobile telephony and internet access, which was extended by an amendment dated 27 June 2016. As VK had failed to pay the monthly instalments due, Digi România invoked the automatic termination clause contained in that contract and, for the period between 2019 and 2022, claimed from VK the sum of 807.25 Romanian lei (RON) (approximately EUR 161.45) in respect of the principal debt corresponding to the overdue and unpaid invoices, to which were added late-payment penalties calculated at the rate of 0.2% of the principal debt for each day of delay.", "paragraph_id": "para_76" }, { "text": "19       Digi România brought proceedings before the Judecătoria Arad (Court of First Instance, Arad, Romania) against VK seeking recovery of the amount due in respect of unpaid invoices, as well as compensation of RON 289.92 (approximately EUR 57.98) for the activation of the service and use of the unlimited Optim package.", "paragraph_id": "para_77" }, { "text": "20       By judgment of 21 March 2024, the Judecătoria Arad (Court of First Instance, Arad) partially dismissed that claim. That court declared unfair the contractual term providing for penalties for late payment of 0.2% of the principal debt per day of delay, on the ground that it imposed on the consumer, in the event of non-performance of his or her contractual obligations, compensation in an amount that is manifestly disproportionate to the damage suffered by the seller or supplier. It pointed out that, calculated on an annual basis, the rate of penalties for late payment was 73% of the principal debt, significantly exceeding the statutory interest rate, set at the reference interest rate of the Banca Națională a României (National Bank of Romania), plus four percentage points.", "paragraph_id": "para_78" }, { "text": "Case C ‑ 909 /24", "paragraph_id": "para_79" }, { "text": "21       Between 23 November and 8 December 2017, PN concluded four contracts with Orange România S.A. for the provision of electronic communications services relating to mobile telephony and internet access. Since PN did not pay the monthly instalments due, Orange România invoked the automatic termination clause contained in those contracts and claimed from PN, first, the sum of RON 272.62 (approximately EUR 54.52) in respect of the principal debt corresponding to the services provided and not paid for, to which were added late-payment penalties calculated at the rate of 0.5% of the principal debt per day of delay, and, second, the sum of RON 5 648.64 (approximately EUR 1 129.72) by way of damages for failure to comply with the 24-month commitment period provided for in those contracts.", "paragraph_id": "para_80" }, { "text": "22       Following the assignment by Orange România to Investcapital, on 30 March 2022, of the claim held against PN under the contracts referred to in the previous paragraph, Investcapital brought proceedings against PN before the Judecătoria Arad (Court of First Instance, Arad), seeking recovery of the amounts corresponding to that claim, plus statutory interest from the date the case was brought before that court.", "paragraph_id": "para_81" }, { "text": "23       By judgment of 22 February 2024, the Judecătoria Arad (Court of First Instance, Arad) declared, for reasons identical to those set out in its judgment of 21 March 2024, referred to in paragraph 20 of the present judgment, that the contractual term imposing penalties for late payment of 0.5% of the principal debt per day of delay was unfair. It also declared unfair the contractual term authorising the seller or supplier to claim damages in the event of early termination, for a reason attributable to the consumer, of a contract providing for a 24-month commitment period, in so far as, first, that term had not been directly negotiated with that consumer and, second, it required the consumer to pay compensation in an amount exceeding that of the damage suffered by the seller or supplier as a result of that termination.", "paragraph_id": "para_82" }, { "text": "24       Hearing the appeals brought by Investcapital and Digi România against, respectively, the judgments delivered on 22 February and 21 March 2024, the Tribunalul Arad (Regional Court, Arad, Romania), which is the referring court, considers it necessary, in the first place, to determine whether and, if so, to what extent Directive 93/13 is applicable to terms imposing penalties for late payment contained in the contracts for the provision of electronic communications services at issue in the cases in the main proceedings, since the national legislation applicable to that sector of activity, like that governing late-payment interest in general, does not provide for any limitation as regards the penalties for late payment that may be imposed on the consumer, unlike the national legislation applicable, in particular, to banking services. The referring court considers that those terms may be assessed in the light of Directive 93/13 and asks whether that directive allows the penalties for late payment provided for in those terms to be reduced.", "paragraph_id": "para_83" }, { "text": "25       In the second place, as regards the term in the contracts for the provision of electronic communications services concluded in Case C‑909/24, under which the consumer, in the event of early termination of the contract for a reason attributable to him or her, is required to pay damages corresponding to the amount for which he or she would have been liable for the remaining commitment period, the referring court asks whether the fact that the Court characterised such an amount as remuneration for a ‘supply of services for consideration’, within the meaning of Article 2(1)(c) of the VAT Directive, implies that the contractual term which provides for that amount must be classified as a term relating to the definition of the main subject matter of the contract, within the meaning of Article 4(2) of Directive 93/13. That court considers that that question must be answered in the affirmative and that, therefore, under Article 4(2) of that directive, such a term cannot be the subject of an assessment in the light of the latter directive as to whether it is unfair.", "paragraph_id": "para_84" }, { "text": "26       In those circumstances, the Tribunalul Arad (Regional Court, Arad) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling in Case C‑872/24:", "paragraph_id": "para_85" }, { "text": "‘(1)      Does the fact that a national rule – which imposes a certain limitation on default interest in respect of legal relationships that do not arise from the operation of a business – has a different normative content with regard to legal relationships that arise from the operation of a business, with the result that it does not set a limit on the corresponding penalties applicable to legal relationships between an operator of electronic communications services (mobile telephony and internet provision) and a consumer but does set such a limit for other relationships, such as banking activities, mean that it must be regarded as a constituent element of the freedom to [provide] services laid down in Article 56 et seq. of the [TFEU], as that right is regulated in the electronic communications sector by Directive [2002/22] and by Directive [2018/1972], or, on the contrary, can a limitation of the corresponding penalties in favour of consumers be achieved by judicial means, on the basis of the provisions of Article 3(3) of Directive [93/13] and in particular [point 1(e)] of the [a]nnex to that directive, according to which a term may be regarded as unfair if it grants the seller or supplier the right to require from any consumer who fails to fulfil his or her obligation the payment of a disproportionately high sum in compensation?", "paragraph_id": "para_86" }, { "text": "(2)      Do the interpretation and application of the provisions of Article 3(3) of Directive [93/13,] (and in particular [point 1(e)] of the [a]nnex to that directive), imply, in the context of the analysis of the potentially unfair nature of a penalty clause that sets the amount of default interest payable by a consumer for non-payment on the due date of invoiced amounts for electronic communications services (mobile telephony and internet provision) at 0.2% for each day of delay:", "paragraph_id": "para_87" }, { "text": "–        an obligation on the part of the court to refer to the amount of that interest calculated for one year, that is to say, at the rate of 73% per annum, with the result that the determination of the unfair nature of those penalties can be made exclusively by means of a comparative analysis of those penalties against the amount of statutory interest that would be applicable if the parties had not themselves set a specific amount of default interest,", "paragraph_id": "para_88" }, { "text": "or alternatively", "paragraph_id": "para_89" }, { "text": "–        is the court also obliged to take into account the actual period of time for which the penalty payment of 0.2% is demanded, that is to say, the number of days relating to that demand, and to take into account in its assessment the actual amount demanded by way of penalty payment in relation to the amount of the principal charge?", "paragraph_id": "para_90" }, { "text": "(3)      In the context of the analysis of the potentially unfair nature of a penalty clause that sets the amount of default interest payable by a consumer for non-payment on the due date of invoiced amounts for electronic communications services (mobile telephony and internet provision) at 0.2% for each day of delay, do the interpretation and application of the provisions of Article 3(3) of Directive [93/13,] (and in particular [point 1(e)] of the [a]nnex to that directive), require the court to take into consideration, in addition to the sums owed by the consumer, the possible damage suffered by the seller or supplier which, in turn, is locked into legal relationships under which that seller or supplier has similar obligations in terms of the amount of the default interest it would be liable to pay as a result of failure to meet the associated payment obligations?", "paragraph_id": "para_91" }, { "text": "(4)      Can a specifically determined quantum of penalties for late payment be regarded as unfair in so far as it exceeds the amount of the principal charge payable by a consumer?’", "paragraph_id": "para_92" }, { "text": "27       In Case C‑909/24, the Tribunalul Arad (Regional Court, Arad) decided to stay proceedings and refer to the Court four questions for a preliminary ruling identical to those referred in Case C‑872/24, as well as the following fifth to seventh questions for a preliminary ruling:", "paragraph_id": "para_93" }, { "text": "‘(5)      Can the classification made by the [Court in its judgment of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942)] of the predetermined amount received by an economic operator where a contract for the provision of services with a minimum commitment period is terminated early by its customer or for a reason attributable to the customer, which corresponds to the amount that the operator would have received for the remainder of that period if that contract had not been terminated, to the effect that that amount should be regarded as payment for a supply of services for consideration and, as such, subject to [VAT], be construed as autonomous, with the result that that classification is only relevant with regard to the interpretation and application of the VAT directives, or can it also be considered in the interpretation and application of Article 4(2) of Directive [93/13] on unfair terms in consumer contracts, in order to exclude from the scope of that directive a clause establishing such costs, after it has been determined as relating to the definition of the subject matter of the contract and to the adequacy of the price or remuneration in relation to the services or goods supplied in exchange for them, in so far as that clause is deemed to be worded in plain, intelligible language?", "paragraph_id": "para_94" }, { "text": "(6)      If the answer to [the preceding] question is that the interpretation given by [the Court] in the judgment cited is autonomous in nature and, therefore, that interpretation is applicable only in relation to the VAT directives, does – and, if so, to what extent – the interpretation of the provisions of Article 3(1) and (3) of Directive [93/13], in conjunction with the provisions of Article 20 of Directive [2002/22], and with those of Articles 101, 105 and 107, of point 3(iv) of [Part] A of Annex VIII and point 2.4 of Annex IX of Directive 2018/1972, make it possible to classify as unfair a contractual term included in a contract for electronic communications services (mobile telephony and internet provision) falling within the scope of Directive [2002/22] or Directive [2018/1972] which establishes an amount that can be received by way of compensation by an economic operator and that corresponds to the amount that the operator would have received for the remainder of that period if that contract had not been terminated, in the situation in which that contract is terminated early by its consumer customer, or for a reason attributable to the customer, for a contract with a minimum commitment period which, in terms of its duration, complies with the 24-month limit imposed by Article 105 of Directive [2018/1972]:", "paragraph_id": "para_95" }, { "text": "–        in relation to the quantum of that amount and on the basis of its assessment as disproportionate to the damage suffered by the communications service provider, or respectively", "paragraph_id": "para_96" }, { "text": "–        on the basis of the finding that a legal imbalance exists between the rights and obligations of the parties as a result of the fact that it is only the consumer, and not also the communications services provider, that is liable for such a penalty, in a context in which the same contract requires the provider to pay compensation equal to the fee for the service not provided or improperly provided in the event that the latter does not comply with the quality parameters laid down?", "paragraph_id": "para_97" }, { "text": "(7)      In the context of the examination in the previous question, what is the relevance of the fact that a consumer who has concluded a contract for electronic communications services (mobile telephony and internet provision) for a minimum period of 24 months has benefited from certain offers of a promotional nature consisting of price reductions on the purchase of a device or services, when the factual situation established in the present case shows that the value of the discounts is included in the subscription charge calculated for the entire contractual period?’", "paragraph_id": "para_98" }, { "text": "28       By decision of the President of the Court of 7 February 2025, Cases C‑872/24 and C‑909/24 were joined for the purposes of the written and oral parts of the procedure and the judgment.", "paragraph_id": "para_99" }, { "text": "Consideration of the questions referred", "paragraph_id": "para_100" }, { "text": "The first to fourth questions", "paragraph_id": "para_101" }, { "text": "29       As a preliminary point, it must be observed that, under the procedure laid down by Article 267 TFEU, providing for cooperation between referring courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may, where necessary, reformulate the questions referred to it. Furthermore, the Court may deem it necessary to consider rules of EU law to which the national court has not referred in its questions and the taking into consideration of which may render superfluous the interpretation of certain rules of that law referred to in those questions (see, to that effect, judgments of 20 March 1986, Tissier , 35/85, EU:C:1986:143, paragraph 9, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 44).", "paragraph_id": "para_102" }, { "text": "30       In the present case, the referring court rightly considers that the contractual terms at issue providing for penalties for late payment may be examined in the light of Article 3(3) of Directive 93/13, in particular point 1(e) of the annex to that directive, in order to determine whether their object or effect is to require a consumer who fails to fulfil his or her obligation to pay compensation of a disproportionate amount and, if so, whether that amount may be reduced. Those provisions, read in conjunction with Article 1(1), Article 2(b) and (c), Article 6(1) and Article 7(1) of that directive, to which that court did not refer in the wording of its first to fourth questions, are sufficient to give a useful answer to the referring court, without there being any need to interpret Article 56 TFEU.", "paragraph_id": "para_103" }, { "text": "31       In those circumstances, it must be held that, by its first to fourth questions, the referring court asks, in essence, whether Article 3(3) of Directive 93/13 and point 1(e) of the annex thereto, read in conjunction with Article 1(1), Article 2(b) and (c), Article 6(1) and Article 7(1) of that directive, must be interpreted as meaning that a term in a contract for the provision of electronic communications services concluded between a seller or supplier and a consumer which imposes on the consumer penalties for late payment of a certain amount falls within the scope of that directive, even though the national legislation applicable to that sector of activity, unlike that governing other sectors of economic activity, does not impose any limitation on the amount of those penalties. If the answer is in the affirmative, that court asks, first, what criteria must be taken into account in order to assess whether the amount of the contractual penalties imposed on the consumer is disproportionate and, second, whether that directive allows the national court to reduce such an amount.", "paragraph_id": "para_104" }, { "text": "32       In the first place, as the Court has already pointed out, Directive 93/13 is a general directive on consumer protection. In accordance with Article 1(1) thereof, read in the light of the eighth recital of that directive, that directive is intended to apply to unfair terms in contracts concluded between a seller or supplier and a consumer, as defined in Article 2(c) and (b) respectively, of that directive, irrespective of the sector of economic activity concerned (see, to that effect, judgment of 20 March 2025, Arce (C‑365/23, EU:C:2025:192, paragraph 44 and the case-law cited).", "paragraph_id": "para_105" }, { "text": "33       Consequently, Directive 93/13 applies to contracts for electronic communications services such as those at issue in the main proceedings, concluded between a seller or supplier and a consumer, without the existence of national legislation specific to that sector providing for no cap on late-payment penalties that may be imposed on the consumer having any bearing in that regard. It follows that terms in such contracts may be assessed as to whether they are unfair, in particular under Article 3 of that directive and point 1(e) of the annex thereto.", "paragraph_id": "para_106" }, { "text": "34       That conclusion is, moreover, confirmed both by Article 20(1) of Directive 2002/22, read in the light of recital 30 thereof, and by recital 258 of Directive 2018/1972, from which it expressly follows that the provisions of Directive 93/13 apply to transactions relating to electronic communications networks and services entered into by consumers.", "paragraph_id": "para_107" }, { "text": "35       Under Article 3(1) of Directive 93/13, a term in a contract concluded between a consumer and a seller or supplier is to be regarded as unfair if it has not been individually negotiated and, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under that contract, to the detriment of the consumer.", "paragraph_id": "para_108" }, { "text": "36       The annex to which Article 3(3) of that Directive refers contains an indicative and non-exhaustive list of the contractual terms which may be regarded as unfair, including, under point 1(e) of that annex, those which have the object or effect of requiring any consumer who fails to fulfil his or her obligation to pay a disproportionately high sum in compensation.", "paragraph_id": "para_109" }, { "text": "37       In that regard, the Court emphasised that the amount of such compensation must be proportionate to the nature of the consumer’s failure to fulfil obligations (see, to that effect, order of 24 October 2019, Topaz , C‑211/17, EU:C:2019:906, paragraphs 58 and 59).", "paragraph_id": "para_110" }, { "text": "38       Furthermore, in order to assess whether the level of the default interest rate fixed by a clause establishing penalties for late payment is appropriate for securing the attainment of the objectives which it pursues without going beyond what is necessary for that purpose, the competent court must take account, in particular, of the provisions of national law applicable in the absence of agreement between the parties and, in particular, compare the contractually agreed rate of default interest with the statutory rate of interest (see, to that effect, judgment of 14 March 2013, Aziz , C‑415/11, EU:C:2013:164, paragraph 74).", "paragraph_id": "para_111" }, { "text": "39       In that regard, it should be added that the Member States may, on the basis of Article 8 of Directive 93/13 – which allows them to adopt or retain, in the area covered by that directive, the most stringent provisions compatible with the Treaty, to ensure a maximum degree of protection for the consumer – establish a national list of terms which must be regarded as unfair (see, to that effect, judgment of 21 September 2023, mBank (Polish register of unlawful terms) , C‑139/22, EU:C:2023:692, paragraphs 39, 40 and 42 and the case-law cited).", "paragraph_id": "para_112" }, { "text": "40       Where the Member States thus extend the protection provided for in Article 3(1) and (3) of Directive 93/13 and in the annex thereto by declaring, as a general rule, that the standard terms listed in point 1 of that annex are unfair, no further examination of the contractual term at issue in accordance with the criteria set out in Article 3(1) of Directive 93/13 is required, provided that such a term is materially equivalent, having regard, in particular, to the effects which it produces, to that referred to in the national list (see, to that effect, judgment of 21 September 2023, mBank (Polish register of unlawful terms) , C‑139/22, EU:C:2023:692, paragraphs 42 and 44 and the case-law cited).", "paragraph_id": "para_113" }, { "text": "41       It is apparent from the order for reference that Article 4(4) of Law No 193/2000 and the annex to that law are intended to establish a national list of terms to be classified as unfair (see, to that effect, judgment of 26 February 2015, Matei , C‑143/13, EU:C:2015:127, paragraph 61). The standard terms listed in that annex include, in paragraph 1(i), the term requiring a consumer who fails to perform his or her contractual obligations to pay compensation in an amount disproportionate to the damage suffered by the seller or supplier.", "paragraph_id": "para_114" }, { "text": "42       Therefore, in accordance with the case-law cited in paragraph 40 of the present judgment, contractual terms at issue in the main proceedings which impose default interest on a consumer who fails to fulfil his or her obligations do not require further examination in accordance with the criteria set out in Article 3(1) of Directive 93/13, provided that, in the light of all the relevant circumstances of the individual case, those terms are materially equivalent, having regard, in particular, to the effects which they produce, to the term set out in paragraph 1(i) of the annex to Law No 193/2000. In that regard, the seller or supplier concerned must be able to challenge that equivalence before the court having jurisdiction, in the context of adversarial proceedings in accordance with the procedures laid down in that regard by national rules of procedure (see, to that effect, judgment of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) , C‑531/22, EU:C:2024:58, paragraph 72 and the case-law cited).", "paragraph_id": "para_115" }, { "text": "43       In the second place, as regards determining whether a court of a Member State may, where it finds that a contractual term imposing penalties for late payment is unfair, without however capping the amount of those penalties, reduce that amount on the basis of Directive 93/13, it follows from Article 6(1) of that directive that unfair terms in a contract concluded with a consumer by a seller or supplier are not binding on that consumer, as provided for by the law of the Member State concerned. The second part of that provision specifies that such a contract will continue to bind the parties ‘upon those terms’ if it is capable of continuing in existence ‘without the unfair terms’.", "paragraph_id": "para_116" }, { "text": "44       The Court has inferred from the wording of Article 6(1) of that directive that national courts are required to exclude the application of an unfair contractual term in order that it does not produce binding effects with regard to the consumer, unless the latter objects, without being authorised to revise the content of that term. The contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair term, in so far as, in accordance with the rules of national law, such continuity of the contract is legally possible (see, to that effect, order of 3 September 2024, Investcapital , C‑658/23, EU:C:2024:716, paragraphs 48, 52 and 56).", "paragraph_id": "para_117" }, { "text": "45       That interpretation is borne out by the objective and overall scheme of Directive 93/13. Given the importance of the public interest underlying the protection afforded to consumers, who are in a weak position vis-à-vis the seller or supplier as regards both bargaining power and the level of information, Article 7(1) of that directive provides for the creation of adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’ (see, to that effect, order of 3 September 2024, Investcapital , C‑658/23, EU:C:2024:716, paragraph 50 and the case-law cited).", "paragraph_id": "para_118" }, { "text": "46       If it were open to the national court to revise the content of unfair terms included in such contracts, such a power would be liable to compromise attainment of the long-term objective of Article 7, since it would weaken the dissuasive effect on sellers or suppliers of the straightforward non‑application of those unfair terms with regard to the consumer (see, to that effect, judgment of 30 May 2013, Asbeek Brusse and de Man Garabito , C‑488/11, EU:C:2013:341, paragraph 58 and the case-law cited).", "paragraph_id": "para_119" }, { "text": "47       It follows that Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) thereof, must be interpreted as meaning that it does not allow the national court, in the case where it has established that a clause imposing late-payment penalties contained in a contract concluded between a seller or supplier and a consumer is unfair, to confine itself, even if national law so permits, to reducing the amount of the penalty imposed on the consumer by that clause, but requires it to exclude the application of that clause in its entirety with regard to the consumer (see, to that effect, judgment of 30 May 2013, Asbeek Brusse and de Man Garabito , C‑488/11, EU:C:2013:341, paragraph 60 and the case-law cited, and order of 3 September 2024, Investcapital , C‑658/23, EU:C:2024:716, paragraph 58).", "paragraph_id": "para_120" }, { "text": "48       In the light of the foregoing, the answer to the first to fourth questions referred is that Article 3(3) of Directive 93/13 and point 1(e) of the annex thereto, read in conjunction with Article 1(1), Article 2(b) and (c), Article 6(1) and Article 7(1) of that directive, must be interpreted as meaning that:", "paragraph_id": "para_121" }, { "text": "–        a term in a contract for the provision of electronic communications services concluded between a seller or supplier and a consumer which imposes on the consumer penalties for late payment of a certain amount falls within the scope of that directive and may be declared unfair, even if the national legislation applicable to that sector of activity, unlike that governing other sectors of economic activity, does not impose any limitation on the amount of those penalties;", "paragraph_id": "para_122" }, { "text": "–        where national law expressly classifies as unfair a contractual term the object or effect of which is to impose on a consumer who fails to fulfil his or her obligations compensation of a disproportionately high amount, terms which are materially equivalent, having regard, in particular, to the effects they produce, to that referred to in national law, which must be determined in the course of an adversarial hearing between the seller or supplier and the consumer, in accordance with the procedures laid down for that purpose by national rules of procedure, may be regarded as unfair without a further examination in accordance with the criteria set out in Article 3(1) of Directive 93/13 being carried out;", "paragraph_id": "para_123" }, { "text": "–        the national court must exclude the application of such terms without being able to reduce the amount of the penalties for late payment which they lay down.", "paragraph_id": "para_124" }, { "text": "The fifth question", "paragraph_id": "para_125" }, { "text": "49       By its fifth question, the referring court asks, in essence, whether Article 4(2) of Directive 93/13 must be interpreted as precluding an assessment of the unfairness of a contractual term requiring the consumer, in the event of early termination of a contract for the provision of services providing for a minimum commitment period for a reason attributable to him or her, to pay to the seller or supplier concerned compensation in an amount corresponding to the remaining monthly instalments, even though such compensation has been classified by the Court, for the purposes of the application of the VAT Directive, as ‘remuneration for a supply of services for consideration’ within the meaning of Article 2(1)(c) of that directive.", "paragraph_id": "para_126" }, { "text": "50       Under Article 4(2) of Directive 93/13, read in conjunction with the nineteenth recital thereof, the assessment of whether contractual terms are unfair does not, in particular, relate to the definition of the main subject matter of the contract, in so far as those terms are in plain intelligible language.", "paragraph_id": "para_127" }, { "text": "51       That provision thus provides for an exception to the substantive review of unfair terms provided for in the system of consumer protection put in place by that directive and, as such, must be interpreted strictly (see, to that effect, judgment of 12 January 2023, D.V. (Lawyers’ fees – Principle of an hourly rate) , C‑395/21, EU:C:2023:14, paragraph 30).", "paragraph_id": "para_128" }, { "text": "52       Contractual terms falling within the concept of the ‘main subject matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it. By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within the concept of the ‘main subject matter of the contract’ (judgment of 12 January 2023, D.V. (Lawyers’ fees – Principle of an hourly rate) , C‑395/21 P, EU:C:2023:14, paragraph 31 and the case-law cited).", "paragraph_id": "para_129" }, { "text": "53       In the present case, it is apparent from the documents before the Court that the contractual term at issue in Case C‑909/24 does not determine the essential terms of the contract, namely the provision of electronic communications services and the price which the consumer must pay in return for those services, but is intended to penalise the consumer’s conduct in the event of termination of the contract for a reason attributable to the consumer before the end of the minimum commitment period laid down. In those circumstances, subject to the verifications to be carried out by the referring court, that term does not fall within the category of those relating to the concept of ‘main subject matter of the contract’, since it is intended to penalise the breach of a contractual obligation, and not to determine its content (see, to that effect, judgment of 22 September 2022, Vicente (Action for the recovery of lawyers’ fees) , C‑335/21, EU:C:2022:720, paragraphs 78 and 79).", "paragraph_id": "para_130" }, { "text": "54       The unfairness of that term may therefore be assessed in the light of Directive 93/13. In that regard, it is irrelevant that the Court, in its judgment of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942, paragraph 57) characterised, for the purposes of the VAT Directive, the predetermined amount that the consumer had to pay to an economic operator, in the event of early termination of the contract for the provision of services providing for a minimum commitment period for a reason attributable to that consumer, as ‘remuneration for a supply of services for consideration’ within the meaning of Article 2(1)(c) of that latter directive.", "paragraph_id": "para_131" }, { "text": "55       Such a conclusion is supported by the distinct objectives pursued by Directive 93/13 and the VAT Directive. The objective of Directive 93/13 is to safeguard the public interest constituted by the protection of consumers against unfair terms included in contracts which they enter into with sellers or suppliers (see, to that effect, judgment of 7 August 2018, Banco Santander and Escobedo Cortés , C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 75), whereas the VAT Directive seeks to establish a VAT system which does not distort conditions of competition and does not impede the free movement of goods and services (judgment of 1 August 2025, Galerie Karsten Greve , C‑433/24, EU:C:2025:600, paragraph 35 and the case-law cited).", "paragraph_id": "para_132" }, { "text": "56       Given that, in accordance with the objective of Directive 93/13 referred to in the preceding paragraph, the provisions of Romanian law referred to in paragraph 41 of the present judgment expressly classify as unfair any term which requires the consumer who has failed to perform his or her contractual obligations to pay compensation in an amount disproportionate to the damage suffered by the seller or supplier, those provisions would be largely deprived of their effectiveness if, on the basis of Article 4(2) of Directive 93/13, the competent courts were, from the outset, prevented from assessing whether a contractual term such as that at issue in Case C‑909/24 is unfair (see, to that effect, judgment of 26 February 2015, Matei , C‑143/13, EU:C:2015:127, paragraphs 60 and 61).", "paragraph_id": "para_133" }, { "text": "57       In the light of the foregoing, the answer to the fifth question is that Article 4(2) of Directive 93/13 must be interpreted as not precluding an assessment of the unfairness of a contractual term requiring the consumer, in the event of early termination of a contract for the provision of services providing for a minimum commitment period for a reason attributable to him or her, to pay to the seller or supplier concerned compensation in an amount corresponding to the remaining monthly instalments, even though such compensation has been classified by the Court, for the purposes of the application of the VAT Directive, as ‘remuneration for a supply of services for consideration’, within the meaning of Article 2(1)(c) of that latter directive.", "paragraph_id": "para_134" }, { "text": "The sixth and seventh questions", "paragraph_id": "para_135" }, { "text": "58       As has been recalled in paragraph 29 of the present judgment, in the procedure laid down in Article 267 TFEU providing for cooperation between the courts of the Member States and the Court of Justice, the Court may find it necessary to consider rules of EU law to which the national court has not referred in its question and the taking into consideration of which may render the interpretation of rules of that law referred to in that question superfluous.", "paragraph_id": "para_136" }, { "text": "59       That is the case here, given that taking into account the provision in point 1(e) of the annex to Directive 93/13, which is not referred to in the wording of the sixth question, in order to provide the referring court with a useful answer enabling it to resolve the dispute before it, renders superfluous the interpretation of Articles 101, 105 and 107, as well as point 3(iv) of Part A of Annex VIII and point 2.4 of Annex IX of Directive 2018/1972, which are referred to in the wording of that question.", "paragraph_id": "para_137" }, { "text": "60       In those circumstances, it must be understood that, by its sixth and seventh questions, which may be examined together, the referring court asks, in essence, whether Article 3(1) and (3) of Directive 93/13, read in conjunction with point 1(e) of the annex to that directive, must be interpreted as allowing a contractual term included in a contract for electronic communications services concluded for a minimum period of 24 months to be declared unfair, where, in the event of early termination of that contract attributable to the consumer, the consumer is required to pay the seller or supplier, by way of compensation, the amount due for the remaining period, calculated by including the amount of any discounts granted to the consumer for the services and goods supplied.", "paragraph_id": "para_138" }, { "text": "61       As set out in paragraphs 37 to 41 of the present judgment, while it follows from a combined reading of Article 3(3) of Directive 93/13 and point 1(e) of the annex thereto that the contractual term requiring a consumer who fails to fulfil his or her obligation to pay the seller or supplier disproportionately high compensation is included in an indicative and non-exhaustive list of terms which may be regarded as unfair; on the other hand, Article 4(4) of Law No 193/2000 and paragraph 1(i) of the annex to that law require, in order to afford consumers a higher level of protection, that such a term be classified as unfair, without the need for a further assessment carried out in accordance with the criteria set out in Article 3(1) of that directive.", "paragraph_id": "para_139" }, { "text": "62       It is therefore in accordance with that rule, as the referring court expressly acknowledges, that the unfairness of the contractual term at issue in Case C‑909/24 must be assessed, subject to the conditions set out in paragraph 42 of the present judgment.", "paragraph_id": "para_140" }, { "text": "63       In the light of the foregoing, the answer to the sixth and seventh questions is that Article 3(1) and (3) of Directive 93/13, read in conjunction with point 1(e) of the annex thereto, must be interpreted as allowing a contractual term in a contract for electronic communications services concluded for a minimum period of 24 months to be declared unfair, where, in the event of early termination of that contract that is attributable to the consumer, the consumer is required to pay the seller or supplier, by way of compensation, the amount due for the remaining commitment period, calculated by including the amount of any discounts granted to the consumer for the services and goods supplied.", "paragraph_id": "para_141" }, { "text": "Costs", "paragraph_id": "para_142" }, { "text": "64       Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.", "paragraph_id": "para_143" }, { "text": "On those grounds, the Court (Eighth Chamber) hereby rules:", "paragraph_id": "para_144" }, { "text": "1.       Article 3(3) and point 1(e) of the annex to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Article 1(1), Article 2(b) and (c), Article 6(1) and Article 7(1) of that directive, must be interpreted as meaning that", "paragraph_id": "para_145" }, { "text": "–         a term in a contract for the provision of electronic communications services concluded between a seller or supplier and a consumer which imposes on the consumer penalties for late payment of a certain amount falls within the scope of that directive and may be declared unfair, even if the national legislation applicable to that sector of activity, unlike that governing other sectors of economic activity, does not impose any limitation on the amount of those penalties;", "paragraph_id": "para_146" }, { "text": "–         where national law expressly classifies as unfair a contractual term the object or effect of which is to impose on a consumer who fails to fulfil his or her obligations compensation of a disproportionately high amount, terms which are materially equivalent, having regard, in particular, to the effects they produce, to that referred to in national law, which must be determined in the course of an adversarial hearing between the seller or supplier and the consumer, in accordance with the procedures laid down for that purpose by national rules of procedure, may be regarded as unfair without a further examination in accordance with the criteria set out in Article 3(1) of Directive 93/13 being carried out;", "paragraph_id": "para_147" }, { "text": "–         the national court must exclude the application of such terms without being able to reduce the amount of the penalties for late payment which they lay down.", "paragraph_id": "para_148" }, { "text": "2.       Article 4(2) of Directive 93/13 must be interpreted as not precluding an assessment of the unfairness of a contractual term requiring the consumer, in the event of early termination of a contract for the provision of services providing for a minimum commitment period for a reason attributable to him or her, to pay to the seller or supplier concerned compensation in an amount corresponding to the remaining monthly instalments, even though such compensation has been classified by the Court, for the purposes of the application of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as ‘remuneration for a supply of services for consideration’, within the meaning of Article 2(1)(c) of that latter directive.", "paragraph_id": "para_149" }, { "text": "3.       Article 3(1) and (3) of Directive 93/13, read in conjunction with point 1(e) of the annex thereto, 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