# C_2016038EN.01003201.xml

| 1.2.2016 | EN | Official Journal of the European Union | C 38/32 |
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1.2.2016

EN

Official Journal of the European Union

C 38/32

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Request for a preliminary ruling from the Juzgado de Primera Instancia No 1 de Jerez de la Frontera (Spain) lodged on 16 November 2015 — Banco Santander, S.A. v Cristobalina Sánchez López

(Case C-598/15)

(2016/C 038/45)

Language of the case: Spanish

Referring court

Referring court

Juzgado de Primera Instancia de Jerez de la Frontera

Parties to the main proceedings

Parties to the main proceedings

Applicant: Banco Santander, S.A.

Applicant:

Defendant: Cristobalina Sánchez López

Defendant:

Questions referred

Questions referred

| 1. | Is it contrary to the abovementioned provisions and the objectives of the Directive (1) for legislation such as the Spanish legislation to establish a procedure like that of Article 250.1.7 of the Law of Civil Procedure, requiring the national court to give a ruling ordering the dwelling subject to enforcement to be handed over to the person who acquired it in extrajudicial enforcement proceedings, in which, under the current regime contained in Article 129 of the Law on Mortgages in the version contained in Law 1/2000 of 8 January and Articles 234 to 236-0 of the Mortgage Rules, in the wording of Royal Decree 290/1992, there could be no review ex officio of unfair terms and the debtor could not raise an effective objection on those grounds, either in the extrajudicial enforcement procedure or in separate legal proceedings? |
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1.

Is it contrary to the abovementioned provisions and the objectives of the Directive (1) for legislation such as the Spanish legislation to establish a procedure like that of Article 250.1.7 of the Law of Civil Procedure, requiring the national court to give a ruling ordering the dwelling subject to enforcement to be handed over to the person who acquired it in extrajudicial enforcement proceedings, in which, under the current regime contained in Article 129 of the Law on Mortgages in the version contained in Law 1/2000 of 8 January and Articles 234 to 236-0 of the Mortgage Rules, in the wording of Royal Decree 290/1992, there could be no review ex officio of unfair terms and the debtor could not raise an effective objection on those grounds, either in the extrajudicial enforcement procedure or in separate legal proceedings?

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ex officio

| 2. | Is it contrary to the abovementioned provisions and the objectives of the Directive for legislation, such as the Fifth Transitional Provision of Law 1/2013, to allow the notary to suspend extrajudicial enforcement proceedings already commenced when Law 1/2013 came into force only if the consumer establishes that he has lodged a claim concerning the unfairness of a clause in the mortgage loan agreement on which the extrajudicial sale is based, or which determines the amount payable on enforcement, provided that the separate claim has been lodged by the consumer within a period of one month from publication of Law 1/2013, without the consumer having been notified in person of that period, and in any case before the notary has made the award? |
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2.

Is it contrary to the abovementioned provisions and the objectives of the Directive for legislation, such as the Fifth Transitional Provision of Law 1/2013, to allow the notary to suspend extrajudicial enforcement proceedings already commenced when Law 1/2013 came into force only if the consumer establishes that he has lodged a claim concerning the unfairness of a clause in the mortgage loan agreement on which the extrajudicial sale is based, or which determines the amount payable on enforcement, provided that the separate claim has been lodged by the consumer within a period of one month from publication of Law 1/2013, without the consumer having been notified in person of that period, and in any case before the notary has made the award?

| 3. | Are the abovementioned provisions of the Directive, the objective it pursues and the obligation it imposes on national courts to examine of their own motion the unfairness of unfair terms in consumer contracts without the consumer having to request it to be interpreted as allowing the national court, in proceedings such as that established in Article 250. 1.7 of the Law of Civil Procedure or in the ‘extrajudicial sale’ procedure governed by Article 129 of the Law on Mortgages, to disapply national law when the latter it does not permit that judicial review of the court’s own motion, in view of the clarity of the provisions of the Directive and of the affirmations of the CJEU concerning the obligation of national courts to review of their own motion the existence of unfair terms in cases relating to consumer contracts? |
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3.

Are the abovementioned provisions of the Directive, the objective it pursues and the obligation it imposes on national courts to examine of their own motion the unfairness of unfair terms in consumer contracts without the consumer having to request it to be interpreted as allowing the national court, in proceedings such as that established in Article 250. 1.7 of the Law of Civil Procedure or in the ‘extrajudicial sale’ procedure governed by Article 129 of the Law on Mortgages, to disapply national law when the latter it does not permit that judicial review of the court’s own motion, in view of the clarity of the provisions of the Directive and of the affirmations of the CJEU concerning the obligation of national courts to review of their own motion the existence of unfair terms in cases relating to consumer contracts?

| 4. | Is it contrary to the abovementioned provisions and the objectives of the Directive for national legislation, such as Article 129 of the Law on Mortgages, in the wording of Law 1/2013, merely to confer on a notary, as sole effective remedy for protecting the consumer rights enshrined in the Directive, and in respect of extrajudicial enforcement procedures with consumers, the power to warn of the existence of unfair terms; or to give the consumer against whom extrajudicial enforcement is sought an opportunity of lodging a claim in separate legal proceedings before the notary has awarded the property subject to enforcement? |
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4.

Is it contrary to the abovementioned provisions and the objectives of the Directive for national legislation, such as Article 129 of the Law on Mortgages, in the wording of Law 1/2013, merely to confer on a notary, as sole effective remedy for protecting the consumer rights enshrined in the Directive, and in respect of extrajudicial enforcement procedures with consumers, the power to warn of the existence of unfair terms; or to give the consumer against whom extrajudicial enforcement is sought an opportunity of lodging a claim in separate legal proceedings before the notary has awarded the property subject to enforcement?

| 5. | Is it contrary to the abovementioned provisions and the objectives of the Directive for national legislation, such as Article 129 of the Law on Mortgages, in the wording provided by Law 1/2013, and Articles 234 to 236 of the Mortgage Rules in the wording given in Royal Decree 290/1992, to establish an extrajudicial procedure for the enforcement of mortgage loan agreements concluded with consumers by sellers or suppliers in which there is no opportunity whatsoever for review ex officio of unfair terms? |
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5.

Is it contrary to the abovementioned provisions and the objectives of the Directive for national legislation, such as Article 129 of the Law on Mortgages, in the wording provided by Law 1/2013, and Articles 234 to 236 of the Mortgage Rules in the wording given in Royal Decree 290/1992, to establish an extrajudicial procedure for the enforcement of mortgage loan agreements concluded with consumers by sellers or suppliers in which there is no opportunity whatsoever for review ex officio of unfair terms?

ex officio

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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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