# C_2014102EN.01000302.xml

| 7.4.2014 | EN | Official Journal of the European Union | C 102/3 |
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7.4.2014

EN

Official Journal of the European Union

C 102/3

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Order of the Court (First Chamber) of 14 November 2013 (requests for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No. 1 de Catarroja and the Juzgado de Primera Instancia No. 17 de Palma de Mallorca — Spain) — Banco Popular Español SA v Maria Teodolinda Rivas Quichimbo, Wilmar Edgar Cun Pérez (C-537/12), and Banco de Valencia SA v Joaquín Valldeperas Tortosa, María Ángeles Miret Jaume (C-116/13)

(Joined Cases C-537/12 and C 116/13) (1)

1

((Directive 93/13/EEC - Article 99 of the Rules of Procedure of the Court of Justice - Consumer contracts - Mortgage loan agreement - Mortgage enforcement proceedings - Powers of the national court responsible for enforcement - Unfair terms - Criteria for assessment))

2014/C 102/04

Language of the case: Spanish

Referring court

Referring court

Juzgado de Primera Instancia e Instrucción No. 1 de Catarroja (Spain) and the Juzgado de Primera Instancia No. 17 de Palma de Mallorca

Parties to the main proceedings

Parties to the main proceedings

Applicants: Banco Popular Español SA (C-537/12), Banco de Valencia SA (C-116/13)

Applicants:

Defendants: Maria Teodolinda Rivas Quichimbo, Wilmar Edgar Cun Pérez (C-537/12), Joaquín Valldeperas Tortosa, María Ángeles Miret Jaume (C-116/13)

Defendants:

Re:

Re:

(C-537/12)

Request for a preliminary ruling — Juzgado de Primera Instancia e Instrucción — Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Protection of consumers in relation to mortgages — Ground for application raised in enforcement proceedings based on an unfair term in the mortgage agreement — National legislation on civil procedure applicable to the enforcement proceedings which precludes such a ground of opposition — Lack of competence of the national courts to assess whether such a term is unfair.

(C-116/13)

Request for a preliminary ruling — Juzgado de Primera Instancia de Palma de Mallorca — Interpretation of Article 3(1) and 3(7) of Council Directive 93/13/EEC and points 1(e) and (g) and 2(a) of the annex of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Protection of consumers in relation to mortgages — National legislation on civil procedure applicable to mortgage enforcement proceedings — Powers of the national court.

Operative part of the order

Operative part of the order

| 1. | Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court responsible for the enforcement, in mortgage enforcement proceedings, either to assess of its own motion or at the consumer’s request, the unfairness of a term contained in the contract which gives rise to the debt claimed and which constitutes the basis of the right to enforcement, or to grant interim relief capable of staying or terminating the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of the final decision of the court hearing the declaratory proceedings before which the consumer argues that that term is unfair. |
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1.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court responsible for the enforcement, in mortgage enforcement proceedings, either to assess of its own motion or at the consumer’s request, the unfairness of a term contained in the contract which gives rise to the debt claimed and which constitutes the basis of the right to enforcement, or to grant interim relief capable of staying or terminating the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of the final decision of the court hearing the declaratory proceedings before which the consumer argues that that term is unfair.

| 2. | Article 3(1) and (3) of Directive 93/13 and Points 1(e) and (g) and 2(a) of the annex thereto must be interpreted as meaning that, in order to assess the unfairness of a contractual term accelerating the repayment of a mortgage, such as that at issue in the main proceedings, the following are of decisive importance:






  — | whether the right of the seller or supplier to cancel the contract unilaterally is conditional upon the non-compliance by the consumer with an obligation which is of essential importance in the context of the contractual relationship in question, |
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2.

Article 3(1) and (3) of Directive 93/13 and Points 1(e) and (g) and 2(a) of the annex thereto must be interpreted as meaning that, in order to assess the unfairness of a contractual term accelerating the repayment of a mortgage, such as that at issue in the main proceedings, the following are of decisive importance:

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whether the right of the seller or supplier to cancel the contract unilaterally is conditional upon the non-compliance by the consumer with an obligation which is of essential importance in the context of the contractual relationship in question,

| — | whether that right is provided for in cases in which such non-compliance is sufficiently serious in the light of the contractual term and amount of the loan, |
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whether that right is provided for in cases in which such non-compliance is sufficiently serious in the light of the contractual term and amount of the loan,

| — | whether that right derogates from the rules applicable in the absence of agreement between the parties, so as to make it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence, and |
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whether that right derogates from the rules applicable in the absence of agreement between the parties, so as to make it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence, and

| — | whether national law provides for adequate and effective means enabling the consumer subject to such a contractual term to remedy the effects of the unilateral cancellation of the loan agreement. |
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whether national law provides for adequate and effective means enabling the consumer subject to such a contractual term to remedy the effects of the unilateral cancellation of the loan agreement.

It is for the national court to make such an assessment on the basis of the specific circumstances of the case before it.

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(1)  OJ C 38, 9.2.2013.

1

OJ C 171, 15.6.2013.

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