# C_2022424EN.01001301.xml

| 7.11.2022 | EN | Official Journal of the European Union | C 424/13 |
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7.11.2022

EN

Official Journal of the European Union

C 424/13

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Judgment of the Court (Ninth Chamber) of 22 September 2022 (request for a preliminary ruling from the Juzgado de Primera Instancia No 10 bis de Sevilla — Spain) — Vicente v Delia

(Case C-335/21) (1)

(Reference for a preliminary ruling - Unfair terms in consumer contracts - Directive 93/13/EEC - Unfair business-to-consumer commercial practices - Principle of effectiveness - Article 47 of the Charter of Fundamental Rights of the European Union - Summary procedure for the recovery of lawyers’ fees - Potentially unfair terms contained in a fee agreement - National law not providing for the possibility of review by a court - Article 4(2) - Scope of the exception - Directive 2005/29/EC - Article 7 - Misleading commercial practice - Contract concluded between lawyer and client prohibiting the client from withdrawing, without the knowledge or against the advice of the lawyer, on pain of a financial penalty)

(2022/C 424/14)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 10 bis de Sevilla

Parties to the main proceedings

Applicant: Vicente

Defendant: Delia

Operative part of the judgment

| 1. | Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, read in the light of the principle of effectiveness and Article 47 of the Charter of the Fundamental Rights of the European Union,
  must be interpreted as:
  precluding a national law relating to a summary procedure for the recovery of lawyers’ fees pursuant to which the claim brought against the consumer client is the object of a decision delivered by a non-judicial authority, the intervention of a court being provided for only at the stage of a possible objection being raised against that decision, without the court seised on that occasion being able to ascertain, if necessary of its own motion, whether the terms contained in the contract giving rise to the fees claimed are unfair or to allow the production, by the parties, of evidence other than the documentary evidence already produced before the non-judicial authority. |
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1.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, read in the light of the principle of effectiveness and Article 47 of the Charter of the Fundamental Rights of the European Union,

must be interpreted as:

precluding a national law relating to a summary procedure for the recovery of lawyers’ fees pursuant to which the claim brought against the consumer client is the object of a decision delivered by a non-judicial authority, the intervention of a court being provided for only at the stage of a possible objection being raised against that decision, without the court seised on that occasion being able to ascertain, if necessary of its own motion, whether the terms contained in the contract giving rise to the fees claimed are unfair or to allow the production, by the parties, of evidence other than the documentary evidence already produced before the non-judicial authority.

| 2. | Article 4(2) of Directive 93/13, as amended by Directive 2011/83,
  must be interpreted as meaning that:
  the exception provided for in that provision does not cover a term of a contract concluded between a lawyer and his or her client pursuant to which the client undertakes to follow the instructions of that lawyer, not to act without the knowledge or against the advice of that lawyer and not to withdraw himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, on pain of a financial penalty. |
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2.

Article 4(2) of Directive 93/13, as amended by Directive 2011/83,

must be interpreted as meaning that:

the exception provided for in that provision does not cover a term of a contract concluded between a lawyer and his or her client pursuant to which the client undertakes to follow the instructions of that lawyer, not to act without the knowledge or against the advice of that lawyer and not to withdraw himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, on pain of a financial penalty.

| 3. | 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,
  must be interpreted as meaning that:
  the insertion, into the contract concluded between a lawyer and his or her client, of a term which provides for a financial penalty to be borne by the latter if he or she withdraws himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, that term referring to the fee-scale of a professional association and not having been referred to in the advertisement or in the information given prior to the conclusion of the contract, must be regarded as being a ‘misleading’ commercial practice, within the meaning of Article 7 of that directive, provided that it causes the consumer, or is likely to cause the consumer, to take a transactional decision that he or she would not otherwise have taken, which it is for the national court to ascertain. |
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3.

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,

must be interpreted as meaning that:

the insertion, into the contract concluded between a lawyer and his or her client, of a term which provides for a financial penalty to be borne by the latter if he or she withdraws himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, that term referring to the fee-scale of a professional association and not having been referred to in the advertisement or in the information given prior to the conclusion of the contract, must be regarded as being a ‘misleading’ commercial practice, within the meaning of Article 7 of that directive, provided that it causes the consumer, or is likely to cause the consumer, to take a transactional decision that he or she would not otherwise have taken, which it is for the national court to ascertain.

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(1)  OJ C 382, 20.9.2021.

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