UNFAIR COMMERCIAL PRACTICES
A possible advantage for one of the parties is no reason to annul a contract as a whole when it contains one or more unfair terms
• Directive 93/13 does not preclude a Member State to declare a contract void as a whole, where that will ensure better consumer protection
33. Consequently, Article 6(1) of Directive 93/13 cannot be interpreted as meaning that, when assessing whether a contract containing one or more unfair terms can continue to exist without those terms, the court hearing the case can base its decision solely on a possible advantage for the consumer of the annulment of the contract as a whole.
35. Directive 93/13 does not therefore preclude a Member State from laying down, in compliance with European Union law, national legislation under which a contract concluded between a trader and a consumer which contains one or more unfair terms may be declared void as a whole where that will ensure better protection of the consumer.
Indicating an APR lower than the real rate in a credit agreement is misleading
• The competent court may base its assessment of the unfairness of contractual terms relating to the costs of the loan granted to the consumer on the unfairness of a commercial practice, but this has no direct effect on the assessment of the validity of the credit agreement concluded
41. A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an APR lower than the real rate constitutes false information as to the total cost of the credit and hence the price referred to in Article 6(1)(d) of Directive 2005/29. In so far as the indication of such an APR causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, which is for the national court to ascertain, that false information must be regarded as a ‘misleading’ commercial practice under Article 6(1) of the directive.
45. As regards the consequences to be drawn from a finding that the incorrect statement of the APR constitutes an unfair commercial practice for the purposes of assessing, from the point of view of Article 6(1) of Directive 93/13, the validity of the contract in question as a whole, it suffices to observe that Directive 2005/29 applies, as Article 3(2) states, without prejudice to contract law and in particular to the rules on the validity, formation or effect of a contract.
46. Consequently, a finding that a commercial practice is unfair has no direct effect on whether the contract is valid from the point of view of Article 6(1) of Directive 93/13.