# C_2016118EN.01000901.xml

| 4.4.2016 | EN | Official Journal of the European Union | C 118/9 |
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4.4.2016

EN

Official Journal of the European Union

C 118/9

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Request for a preliminary ruling from the Juzgado de Primera Instancia No 11 de Vigo (Spain) lodged on 6 January 2016 — Banco Popular Español, S.A. and PL Salvador, S.A.R.L. v María Rita Giráldez Villar and Modesto Martínez Baz

(Case C-7/16)

(2016/C 118/11)

Language of the case: Spanish

Referring court

Referring court

Juzgado de Primera Instancia No 11 de Vigo

Parties to the main proceedings

Parties to the main proceedings

Applicants: Banco Popular Español, S.A. and PL Salvador, S.A.R.L.

Applicants:

Defendants: María Rita Giráldez Villar and Modesto Martínez Baz

Defendants:

Questions referred

Questions referred

| 1. | Must Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts be interpreted, in the light of Articles 38 and 47 of the Charter of Fundamental Rights of the European Union, (2) as precluding judicial interpretation of a legislative provision of a Member State, like Article 1535 of the Spanish Civil Code, which limits its application to the declaratory stage of proceedings until such time as judgment is given, thereby precluding its application during the enforcement stage once judgment has been given or the period for contesting the claim for payment has expired, when full payment of the debt has not been made to the creditor in the meantime? |
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1.

Must Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts be interpreted, in the light of Articles 38 and 47 of the Charter of Fundamental Rights of the European Union, (2) as precluding judicial interpretation of a legislative provision of a Member State, like Article 1535 of the Spanish Civil Code, which limits its application to the declaratory stage of proceedings until such time as judgment is given, thereby precluding its application during the enforcement stage once judgment has been given or the period for contesting the claim for payment has expired, when full payment of the debt has not been made to the creditor in the meantime?

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| 2. | Do the provisions of EU law cited in the first question preclude a provision of national law, like Article 1535 of the Spanish Civil Code, which permits the assignment to a third party of a disputed debt contracted between an economic operator, on the one hand, and a consumer, on the other, without requiring authentic notification to the consumer of the very fact of the assignment, the instrument of assignment or its raison d’être, and without its being necessary to indicate, and substantiate by documentary evidence (in any case), the true price for which the debt was acquired, with a statement of the reduction or discount given? |
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2.

Do the provisions of EU law cited in the first question preclude a provision of national law, like Article 1535 of the Spanish Civil Code, which permits the assignment to a third party of a disputed debt contracted between an economic operator, on the one hand, and a consumer, on the other, without requiring authentic notification to the consumer of the very fact of the assignment, the instrument of assignment or its raison d’être, and without its being necessary to indicate, and substantiate by documentary evidence (in any case), the true price for which the debt was acquired, with a statement of the reduction or discount given?

raison d’être

| 3. | Must the judgment of the Court of Justice of the European Union of 9 March 1978 in Case [106/77] Simmenthal
   (3) be interpreted as meaning that, in order to attain the objective of Directive 93/13/EEC, cited in the first question referred, in the light of Articles 38 and 47 of the Charter of Fundamental Rights of the European Union, a national court must not apply a provision of national law, like Article 1535 of the Spanish Civil Code, which precludes the exercise of the right to extinguish disputed debts in the same proceedings as those for enforcement of the debt assigned, thereby imposing on the consumer the burden of commencing fresh declaratory proceedings, within the limitation period of nine days from notification of the assignment, together with the costs which that entails (lawyer, court agent, legal fees, determination of the court having jurisdiction when the assignee is not domiciled in Spain ...), against the new holder of the debt assigned in order to extinguish that debt? |
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3.

Must the judgment of the Court of Justice of the European Union of 9 March 1978 in Case [106/77] Simmenthal
   (3) be interpreted as meaning that, in order to attain the objective of Directive 93/13/EEC, cited in the first question referred, in the light of Articles 38 and 47 of the Charter of Fundamental Rights of the European Union, a national court must not apply a provision of national law, like Article 1535 of the Spanish Civil Code, which precludes the exercise of the right to extinguish disputed debts in the same proceedings as those for enforcement of the debt assigned, thereby imposing on the consumer the burden of commencing fresh declaratory proceedings, within the limitation period of nine days from notification of the assignment, together with the costs which that entails (lawyer, court agent, legal fees, determination of the court having jurisdiction when the assignee is not domiciled in Spain ...), against the new holder of the debt assigned in order to extinguish that debt?

Simmenthal

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(1)  OJ 1993 L 95, p. 29.

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(2)  OJ 2000 C 364, p. 1.

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(3)  EU:C:1978:49.

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