# C_2011095EN.01000202.xml

| 26.3.2011 | EN | Official Journal of the European Union | C 95/2 |
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26.3.2011

EN

Official Journal of the European Union

C 95/2

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Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 29 December 2010 — Banco Español de Crédito, S.A. v Joaquín Calderón Camino

(Case C-618/10)

2011/C 95/03

Language of the case: Spanish

Referring court

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Parties to the main proceedings

Appellant: Banco Español de Crédito, S.A.

Appellant:

Respondent: Joaquín Calderón Camino

Respondent:

Questions referred

Questions referred

| 1. | Is it contrary to Community law, in particular the law on consumers and users, for a national court to avoid giving a ruling of its own motion and in limine litis or at any stage during the proceedings on whether or not a term concerning interest on late payments (in this case 29 %) in a consumer credit agreement is void and on whether or not that term should be modified. May the court, without prejudicing the rights of the consumer under Community law, decide to leave any evaluation of such a term to the initiative of the debtor (by means of the appropriate procedural objection)? |
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1.

Is it contrary to Community law, in particular the law on consumers and users, for a national court to avoid giving a ruling of its own motion and in limine litis or at any stage during the proceedings on whether or not a term concerning interest on late payments (in this case 29 %) in a consumer credit agreement is void and on whether or not that term should be modified. May the court, without prejudicing the rights of the consumer under Community law, decide to leave any evaluation of such a term to the initiative of the debtor (by means of the appropriate procedural objection)?

in limine litis

| 2. | In the light of Article 6(1) of Directive 93/13/EEC (1) and Article 2 of Directive 2009/22/EEC, (2) what is the correct interpretation of Article 83 of Real Decreto Legislativo No 1/2007 (Royal Legislative Decree No 1/2007) (formerly Article 8 of Ley General No 26/1984, de 19 julio, para la Defensa de los Consumidores y Usarios) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users) for those purposes? What is the scope in that regard of Article 6(1) of Directive 93/13/EEC where it provides that unfair contract terms ‘shall not be binding on the consumer’? |
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2.

In the light of Article 6(1) of Directive 93/13/EEC (1) and Article 2 of Directive 2009/22/EEC, (2) what is the correct interpretation of Article 83 of Real Decreto Legislativo No 1/2007 (Royal Legislative Decree No 1/2007) (formerly Article 8 of Ley General No 26/1984, de 19 julio, para la Defensa de los Consumidores y Usarios) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users) for those purposes? What is the scope in that regard of Article 6(1) of Directive 93/13/EEC where it provides that unfair contract terms ‘shall not be binding on the consumer’?

1

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| 3. | Is it possible to exclude judicial review of a court’s own motion and in limine litis where the applicant clearly states in his application the rate of interest on late payments, the amount of the claim, including the principal and interest, the contractual penalties and the costs, the interest rate and the period of time for which that interest is demanded (or a statement that statutory interest is automatically added to the principle under the law of the Member State of origin), the cause of the action, including a description of the facts relied on as the basis of the claim and the interest demanded, and it is clearly stated whether it concerns statutory or contractual interest, capitalisation of interest or the interest rate for the loan, whether it has been calculated by the applicant and the number of percentage points above the Central Bank base rate, as is the case with the Community regulation on the European order for payment procedure? (3) |
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3.

Is it possible to exclude judicial review of a court’s own motion and in limine litis where the applicant clearly states in his application the rate of interest on late payments, the amount of the claim, including the principal and interest, the contractual penalties and the costs, the interest rate and the period of time for which that interest is demanded (or a statement that statutory interest is automatically added to the principle under the law of the Member State of origin), the cause of the action, including a description of the facts relied on as the basis of the claim and the interest demanded, and it is clearly stated whether it concerns statutory or contractual interest, capitalisation of interest or the interest rate for the loan, whether it has been calculated by the applicant and the number of percentage points above the Central Bank base rate, as is the case with the Community regulation on the European order for payment procedure? (3)

in limine litis

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| 4. | In the absence of their transposition, do Articles 5(1)(l) and (m) and 6(1)(i) of Directive 2008/48/EC, (4) where they refer to ‘arrangements for its adjustment’, and Article 10(2)(1), where it refers to ‘arrangements for its adjustment’, require the financial institution specifically to include and to highlight in the contract (not in the body of the text, in an undifferentiated manner) as ‘pre-contractual information’ references to the interest rate applicable in the case of late payments, in the event of default, set out clearly and in a prominent place, and the elements taken into account when determining them (financial costs, recovery costs etc.) and to include a warning regarding the consequences connected with those cost elements? |
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4.

In the absence of their transposition, do Articles 5(1)(l) and (m) and 6(1)(i) of Directive 2008/48/EC, (4) where they refer to ‘arrangements for its adjustment’, and Article 10(2)(1), where it refers to ‘arrangements for its adjustment’, require the financial institution specifically to include and to highlight in the contract (not in the body of the text, in an undifferentiated manner) as ‘pre-contractual information’ references to the interest rate applicable in the case of late payments, in the event of default, set out clearly and in a prominent place, and the elements taken into account when determining them (financial costs, recovery costs etc.) and to include a warning regarding the consequences connected with those cost elements?

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| 5. | Does Article 6(2) of Directive 2008/48/EEC include the requirement to notify the early termination of a credit or loan agreement which gives rise to the charging of interest on late payments? Is the principle of the prohibition on unjustified enrichment contained in Article 7 of Directive 2008/48/EEC applicable where the credit institution seeks not only the recovery of the goods (the loan capital), but also the application of an especially high rate of interest on late payments? |
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5.

Does Article 6(2) of Directive 2008/48/EEC include the requirement to notify the early termination of a credit or loan agreement which gives rise to the charging of interest on late payments? Is the principle of the prohibition on unjustified enrichment contained in Article 7 of Directive 2008/48/EEC applicable where the credit institution seeks not only the recovery of the goods (the loan capital), but also the application of an especially high rate of interest on late payments?

| 6. | In the absence of any transposing provision and in the light of Article 11(2) of Directive 2005/29/EC, (5) may the court find of its own motion that it is an unfair practice to include in a contract a term concerning interest on late payments? |
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6.

In the absence of any transposing provision and in the light of Article 11(2) of Directive 2005/29/EC, (5) may the court find of its own motion that it is an unfair practice to include in a contract a term concerning interest on late payments?

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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).

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(2)  Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30).

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(3)  Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1).

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(4)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

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(5)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

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