Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 28 June 2021 – D. V. v M. A.
(Case C-395/21)
Language of the case: Lithuanian
Referring court
Lietuvos Aukščiausiasis Teismas
Parties to the main proceedings
Appellant in the appeal in cassation: D. V.
Other party in the appeal in cassation: M. A.
Questions referred
Must Article 4(2) of Directive 93/13 1 be interpreted as meaning that the words ‘the main subject matter of the contract’ cover a term – which has not been individually negotiated and is in a contract for legal services concluded by a businessman (lawyer) and a consumer – concerning the cost and the way in which it is calculated?
Must the reference in Article 4(2) of Directive 93/13 to the plainness and intelligibility of a contractual term be interpreted as meaning that it is sufficient to specify in the term in the contract regarding cost (which establishes the cost for services actually provided on the basis of an hourly rate) the amount of the hourly fee payable to the lawyer?
If the answer to the second question is in the negative: must the requirement of transparency be interpreted as encompassing an obligation of the lawyer to indicate in the contract the cost of services the specific rates of which can be clearly defined and specified in advance, or must an indicative cost of the services (a preliminary budget for the legal services provided) also be specified, if it is impossible to predict the number (or duration) of specific actions, and the fee for them, when concluding the contract, and the possible risks leading to an increase or decrease in the cost be indicated? When assessing whether the contractual term regarding cost complies with the requirement of transparency, is it relevant whether information relating to the cost of legal services and the way in which it is calculated is provided to the consumer by any appropriate means or is laid down in the contract for legal services itself? Can a lack of information in pre-contractual relations be compensated for by providing information during the performance of the contract? Is the assessment of whether the contractual term complies with the requirement of transparency affected by the fact that the final cost of the legal services provided becomes clear only after their provision has come to an end? When assessing whether the contractual term regarding cost complies with the requirement of transparency, is it relevant that the contract does not stipulate the periodic provision of reports of the lawyer in respect of the services provided or the periodic presentation of bills to the consumer, which would allow the consumer to decide in good time on the refusal of legal services or a change of the contract price?
If the national court decides that the contractual term establishing the cost for services actually provided on the basis of an hourly rate is not in plain intelligible language as required under Article 4(2) of Directive 93/13, must it examine whether that term is unfair within the meaning of Article 3(1) of that directive (that is to say, when examining whether the contractual term may be unfair, it must be established whether that term causes a ‘significant imbalance’ in the rights and obligations of the parties to the contract, to the detriment of the consumer) or, nevertheless taking into account the fact that that term covers essential information under the contract, is the mere fact that the term regarding cost is not transparent sufficient for it to be found unfair?
Does the fact that, when the contractual term regarding cost has been found to be unfair, the contract for legal services is not binding, as indicated in Article 6(1) of Directive 93/13, mean that it is necessary to restore the situation in which the consumer would have been in the absence of the term which has been found to be unfair? Would the restoration of such a situation mean that the consumer does not have the obligation to pay for the services already provided?
If the nature of a contract for services provided for consideration means that it is impossible to restore the situation in which the consumer would have been in the absence of the term which has been found to be unfair (the services have already been provided), would the establishment of remuneration for the services provided by the lawyer be contrary to the objective of Article 7(1) of Directive 93/13? If the answer to this question is in the negative, would the real balance by which the equality of the parties to the contract is restored be achieved: (i) if the lawyer were paid for the services provided at the hourly rate specified in the contract; (ii) if the lawyer were paid the minimum cost of legal services (for example, that specified in a national legal measure, namely recommendations on the maximum amount of the fee for assistance provided by a lawyer); (iii) if the lawyer were paid a reasonable amount for the services that was determined by the court, regard being had to the complexity of the case, the lawyer’s qualifications and experience, the client’s financial situation and other relevant circumstances?
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1 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).