COMMISSION IMPLEMENTATION OF DIRECTIVES

With the application submitted in the Court’s Register on 21 April 1999, the Commission of the European Communities, pursuant to Article 169 of the Convention in question, filed a lawsuit stating that they would not accept the laws, regulations and administrative provisions. This situation is not fulfilled, although it is necessary for the full transfer of Directive 93/13 / EEC of 5 April 1993 to the Dutch Law on unfair terms in consumer contracts. Therefore, the case was opened for this reason (Commission of the European Communities v. Kingdom of the Netherlands, Case C-144/99).

As regards the transposition of a directive into national law without legal action, the implementation of national law provisions, as provided for in Article 198 of the EC Treaty, also takes account of the application of member states. However, it should be noted that it is not mandatory to implement the legislative action of the member states. In some cases, such as the application will not be found in some cases. The directive of any of the Member States is of special importance for the citizens of other Member States (Commission of the European Communities v. Kingdom of the Netherlands, Case C-144/99).

  1. Description of Substance

Article 1 of the aforementioned regulation relates to the purpose of a contract between a seller or supplier and a consumer. This Convention states that laws, regulations and administrative provisions concerning inequality will be applied. In Article of 3. rule, it is seen that there is an arrangement regarding unfair terms. Article 4 of the directive is an arrangement made in respect of the state of the goods and services. The conditions in the contract are evaluated and an arrangement regarding the duration of the contract is included. Also, it is explained how the conditions are found between the parties and whether it creates inequality between the parties. The remuneration of selling goods and services is addressed (Judgement of 10. 5. 2001 — Case C-144/99).

Considering the articles included in the regulation, the regulation on the legal responsibility of a seller or supplier in the event of the death of the consumer is also included. How the responsibility of the seller or the supplier will not be fulfilled if the customer does not fulfill his obligation to the consumer. In addition, to make a binding agreement with the consumer; the submission and performance of services by the seller or supplier is subject to its own voluntary condition. However, it relates to Article 4 of the regulation for existing purposes. Article 4 provides guidance on the assessment of whether a contract condition is unfair and the regulation set forth in Article 4 relates to the assessment of the cases where the parties are not equal. Moreover, the definition of the main subject of the contract is neither the price nor the remuneration. On the one hand, against the services or goods provided in return, as long as these terms are in an understandable language  (Judgement of 10. 5. 2001 — Case C-144/99).

In the regulation laid down in Article 5 of the rule, it is arranged that the contract submitted to the consumer should be simple and understandable. It has been arranged that the interpretation of the unrecognized parts will be accepted but the provision contained in the second paragraph of Article 7 is the exception. Considering the regulation set out in Article 6, an arrangement is made in which provisions are not binding on the consumer. On the other hand, In accordance with the provisions of Article 10, what provisions should be in place for the implementation of the contract. Pursuant to the provisions of Article 10 of the Directive, it was noted that the member states had to comply with the directive not later than 31 December 1994. States shall adopt such measures, refer to this directive or shall accompany them in their official publications (Judgement of 10. 5. 2001 — Case C-144/99).

When the Dutch Civil Code, which is the national legislation, is considered, it is seen that general rules and obligations related to the property are included. Considering the provision contained in the third book of this regulation, it is seen that there is an arrangement regarding the declaration of will between the parties. In the sixth book, the standard term is mentioned. Except for terms that define the obligations under the contract, it is expressed as one or more terms in writing, to be included in a number of conventions. In accordance with the provisions of Article 233, an arrangement concerning the interests of the parties to the contract is included. If there are provisions that are difficult to implement in terms of the parties, it is stated in this case whether the provision will be considered valid or not. The purpose of this regulation is to prevent disproportionate use of one party by the other party (Judgement of 10. 5. 2001 — Case C-144/99).

 

  1. Legal Problem

In the light of the parties’ submissions, the Commission argued that the court should declare that the Dutch Government had not fulfilled its obligations to the effect that the transposition of the directive into Dutch Law was incomplete in terms of the chosen form and method and in the outcome. Specifically, the Commission disputes that only in very closely defined cases, a directive if indirectly may be considered transposed into national law, because the provisions in accordance with that Directive exist in the legal system of that Member State. This, as in the present case, is important when the purpose of the directive is to provide protection by providing consumers with special rights. Nevertheless, irrespective of these general considerations, the Commission objected to the claim that the provisions of the Civil Code were sufficient to ensure that the provisions of Articles 4 and 5 of the Directive were properly implemented in practice (Opinion of Advocate General Tizzano, 2001).

The Netherlands Government rejects the Court’s view that the present provisions of the Civil Code should refuse the act on the grounds that it has already established comprehensive provisions for the matters covered by the directive. First of all, it has concluded that the third paragraph of Article 189 of the Treaty is free to choose the form and methods necessary for the transposition of a directive into national law, and that certain implementation measures are not indispensable if the court complies with the objectives that the national legal system fulfills the objectives of the directive. The situation in this case is equivalent to the above provisions of the Civil Code, which the Dutch Government has analyzed for a long time, and the provision which is accepted in this legal system and in need of interpretation, in the same way, in all respects, corresponds to the provision of the second sentence of Article 5 of the Directive (Opinion of Advocate General Tizzano, 2001).

In view of the fact that the directive was not fully transposed into Dutch Law within the specified period, the Commission initiated the violation procedure. After Netherlands gave an official notification to express its views, the Commission expressed a reasonable opinion calling the Netherlands to take the necessary measures to comply with the Directive within two months of the receipt of the opinion. Netherlands did not comply with the justified opinion requirements. The Commission argues that the transposition of the Directive into Dutch Law is inadequate in terms of the chosen form and method and in terms of its effects. According to the Commission, the provisions in line with this directive exist in the legal system of the Member State concerned. As in the present case, the aim of the directive is to protect consumers by granting them special rights; agreed implementation measures should be clear and clear (Judgement of 2001 — Case C 144/99).

The Dutch Government disputes the third paragraph of Article 189 of the Treaty, claiming that the directive was fully released in order to choose the form and methods necessary for the transposition of a directive into national law. In addition to the other cases, on the basis of the previous judgments, the national legal system argues that certain implementation measures are not indispensable if they have fulfilled the objectives envisaged by the directive. In this context, according to the case-law, it was stated that the legal procedures in part of each member state should not necessarily be required for the implementation of a directive; the national laws would effectively implement the national authorities and directives (Judgement of 2001 — Case C 144/99).

The Court, as the Court notes, is particularly important where the directive is intended to grant the rights of citizens of other Member States. It is sufficient to note, even in cases where the agreed case law of the Member State interprets national provisions. It arises from a law which is considered to meet the requirements of a directive and cannot provide the clarity and clarity required to fulfill the requirement of legal certainty. It is also related to the issue of consumer protection (Judgement of 2001 — Case C 144/99).

The Court explained that Member States should comply with the provisions of the national legal system in the relevant sector. Not only was it concerned with the content and directive of the relevant national legislation, but also with regard to the competence of this legislation and its legal suitability, in order to eliminate all doubts or uncertainties. For this reason, it is stated that the administrative practice or the ministerial circular is not sufficient for the purpose of transferring a directive to the national law correctly. As a result, the requirement to ensure the full and complete implementation of the provisions of the Member State in so far as it conforms to any directive cannot be stipulated. In this respect, the Court accepts that special implementation measures are not indispensable, but less legislative action (Opinion of Advocate General Tizzano, 2001).

In the present case, it means that the national legislation does not have to be in line with the directive if the Member State in question does not violate its obligations. The subject of the dispute relates to the full and correct implementation of the directive in the member states. As a result, they must ensure that the rights of this directive are fully protected. In addition, the court should be cautious in order to ensure that there is no doubt about the directive’s effects on the legal position of individuals. The Court should ensure that individuals enjoy a clear and definite legal situation so that they can fully determine the scope of their rights (Opinion of Advocate General Tizzano, 2001).

One of the issues that have caused conflict is the interpretation. According to the principles of interpretation, the Government of the Netherlands maintains that, in the case of a contract containing ambiguous or incomprehensible terms, there is no disparity between the Directive and the Dutch Law (Opinion of Advocate General Tizzano, 2001).

As the Court observes, it is of particular importance when the directive is intended to qualify for the citizens of other Member States. One of the objectives of this directive is that it is the object of this dispute, considering that the member states are to protect the citizen’s role as a consumer while receiving the goods and services under the contracts governed by the laws of the member states with the exception of their own laws. In this dispute, the Netherlands accuses the Commission of its maintenance duties and violations of the data contained in the evaluation report for certain reasons, as it cannot examine the decision (Opinion of Advocate General Tizzano, 2001).

In the defense proposed by the Dutch Government, the national courts of these provisions place particular emphasis on the application. It has been prepared for a regulation governing the standard terms which include the provisions of the Directive, together with the approval given by the Dutch Legal System in full compliance with the Directive. In any event, even if the Government of the Netherlands maintains this position, a law has been designed to clarify the provisions of the Civil Code, which regulate the standard conditions in contracts. However, it emphasizes that this law does not change the pre-existing law applied to unfair conditions in standard conventions but expresses only the principles of the law in force in the domestic legal system (Judgement of 10. 5. 2001 — Case C-144/99).

In this action brought by the European Commission in accordance with Article 169 of the EC Treaty (now referred to in Article 226), determine whether the Court of Justice has an obligation to pass the Council Directive on national law to the national law. 93/13 / EEC of 5 April 1993 may be considered to have been terminated as the Civil Code of the Netherlands contains the provisions alleged to be in accordance with the Directive. In particular, the Court was asked whether certain provisions concerning obligations and contracts in general in this Code, in particular in the light of the relevant case-law of the Netherlands, had obtained the result sought in Articles 4 and 5 of the Directive (Judgement of 10. 5. 2001 — Case C-144/99).

It was concluded that the Dutch legal system already had a general principle similar to the principle set out in the second sentence of Article 5 of the Directive, and that interpretation should be valid for the consumer. According to the Dutch Government, this principle normally constitutes a law of interpretation applied by the courts. It was rejected that this principle constituted a ”rule of law (Opinion of Advocate General Tizzano, 2001).

The Commission considers the Article 233 of the Civil Code. The automatic cancellation of a term that is contrary to the principle of transparency, the application of the interpretation rule envisaged in the Directive, should be valid for the consumer. In addition, it is emphasized that the criteria for being reasonable in the interpretation of the terms stated in Article 248 of the Civil Code and which are not justified or understood are not in line with the criteria set forth by the Directive, and that the most appropriate interpretation for the consumer should be preferred. However, in another provision of the Civil Code, it is not equivalent to the rule that unclear or incomprehensible terms cannot be used against the consumer and that the most appropriate interpretation to the consumer can be trusted. It has been assessed whether the Dutch law is in conformity with Article 4 and whether it complies with the third sentence of Article 5. He therefore stated that the specific provisions were not necessary because the objectives of the above provisions could be met by a schematic interpretation of the Dutch Legislation (Opinion of Advocate General Tizzano, 2001).

It does not seem to me that a comparable measure of clarity and openness to the rules and their implications can be achieved by the scholarly interpretation of the Civil Code by the national courts. On the contrary, as the Civil Code is now, in accordance with Article 233 of the Civil Code, it seems that a vendor or supplier has prevented the consumer from requesting the cancellation of terms that define the material, by preventing the contractual obligations. Moreover, the removal of the requirements of Article 231 from the scope of the standard terms of reference to the terms of the contract, means that the seller or supplier can always rely on this provision to avoid classification of these terms as standard conditions (Opinion of Advocate General Tizzano, 2001).

An important limitation of the scope of the Directive has been established by subtracting the terms that define the contractual obligations from the rules governing the standard terms. Another difficulty arises in relation to the third sentence of Article 5 of the Directive. Under the provisions of this provision, where a vendor or supplier is required to prevent the continued use of a standard contract term which is uncertain, the seller or supplier cannot rely on the principle that the most appropriate interpretation to the consumer should be valid, so that he or she can withstand the order sought. As the Commission pointed out, the purpose of this provision is to prevent a principle to protect the consumer from being used against him. In the case of the adoption of a schematic interpretation of domestic law, as the Dutch Government has proposed, this will be frustrated because the Civil Code will in any case allow the respondent vendor or supplier to rely on this principle (Opinion of Advocate General Tizzano, 2001).

Finally, it is necessary to consider whether the Dutch laws fully comply with the obligation of transparency given to the seller or the supplier when preparing the terms of the standard contracts for the purposes of the first clause of Article 5 of the Directive. The package of provisions on which the Kingdom of the Netherlands is based on the applicable comparable factor depends on the criteria of reasonable and fairness. However, as pointed out by the Commission, this is just an indirect way of the searched end (Opinion of Advocate General Tizzano, 2001).

  1. View of The Court

Regarding the relevant directive, as the Court stated, whether the national law was adopted before or after the directive concerning the non-transfer of a directive in relation to the subject, the national court should be interpreted that in order to obtain the result pursued by the directive, the law should be interpreted as far as possible in the light of the expression and purpose of the directive was expressed (Opinion of Advocate General Tizzano, 2001).

The third clause of Article 189 of the Treaty on EU was to be respected. In accordance with this provision, the result will be binding for each Member State together with this directive. The national authorities will only be granted a freedom to apply the rules of procedure. In this case, the court decided by defining the meaning and scope of this provision. The Court held that, for the purpose in question, Member States should be allowed to choose the means and means for ensuring the application of this directive (Opinion of Advocate General Tizzano, 2001).

  1. Our Interpretation Against The Decision of The Court

In the case, it is supported by the Dutch Courts, but this approach is not a built-in feature of Dutch law, it is not of particular importance for the present purposes. This is indicative of support for a general policy. A dispute before the Court, in order to ensure the full and proper implementation of the directive, should be evaluated whether the existing national law is sufficient.

In our view, the principle that national law should be interpreted to conform to community laws is a principle that the ECHR applies to cases where a directive is not transposed to national laws within the prescribed period. It should be noted that the interpretation principle does not solve the problem in question. It is designed for the transposition of a directive into national law.

It cannot be accepted as an excuse for non-transfer or insufficient transfer. In accordance with the principles stipulated by the ECtHR, a national court’s interpretation of national law in the light of community law does not affect the obligation imposed on all other authorities. The legislative body of the Member State, within its jurisdiction, must take all necessary measures to ensure the implementation of community rules and the achievement of the result.

The directive aims to create rights for individuals. The persons concerned can identify all of their rights and, where appropriate, rely on them before the national courts. The national domestic law, which interprets the provisions of domestic law in a manner that is assessed in accordance with the requirements of a directive, is not sufficient to translate these provisions into measures which replace those directives. Consistent with this approach, the Court notes in the same case that in order to meet the legal certainty requirement, individuals should benefit from a clear and definitive legal situation which makes them possible.

It is another proof of the inadequacy of inconsistencies that may arise in the case-law, lacking openness and transparency, but at the same time uncertain and temporary, and at the same time based on the approaches to which they are inevitably vulnerable. In our view, even the case law expressed by the Government of the Netherlands does not compensate for the apparent inadequacy of Dutch Laws in order to have a clear and clear impact. For this reason in our opinion, the action taken by the Commission must be supported.

However, we are not entirely sure that the Dutch Law is fully in line with the conditions described above. In other words, it should be ensured that the Dutch Law regulating the issues covered by the Directive fully complies with the Directive or in any case, the lack of clarity and uncertainty, the rights of the persons concerned and the possibility of trusting them in the national court when necessary.

Pursuant to the Rules of Procedure, they will be required to pay the costs if they apply for an unfair party. In our opinion, the Commission should not take these costs, since it has applied for the costs of the commission and takes into account my recommendation on how to decide this case.

On the contrary, we can say that the interpretation of the opinions of the parties at this point indirectly indicates that the interpretation of these rules is far from uncertainty and uncertainty and how big it is. The fact that the debate is largely focused on the results and the importance given to the decisions made by the judicial bodies in the Netherlands has given weight to the suspicions described above. The difficulties in interpreting should affect the application in a member state, the importance and scope of the directive, and individuals should be able to use their legal rights accordingly.

 

REFERENCES

 

Judgement of 10. 5. 2001 — Case C-144/99, Judgement of the Court (Fifth Chamber).

Commission of the European Communities v. Kingdom of the Netherlands, Case C-144/99.

Commission v Netherlands Opinion of Advocate General Tizzano, on 23 January, 2001.

Council Directive 93/ 13/EEC of 5 April 1993, On Unfair Terms in Consumer Contracts.

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