Opinion of the Advocate General — ECLI:EU:C:2016:696
Date: 2016-09-15
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Spain

summary, I am therefore of the view that, in the context of the unpaid fee recovery procedure, the Secretario Judicial is a court or tribunal within the meaning of Article 267 TFEU because he adjudicates independently and autonomously on a legal dispute in inter partes proceedings and his decision is judicial in nature. 2. Other matters relating to admissibility 96. While the Commission raises the question of whether the Court has sufficient material at its disposal to be able to give an answer to the request for a preliminary ruling made by the Secretario Judicial, the Spanish Government takes the view that the questions of interpretation submitted to the Court are not relevant to the decision to be given in the main proceedings. a) Whether the request for a preliminary ruling is sufficiently detailed 97. The question of whether the information provided by the Secretario Judicial is sufficient must ultimately be answered, as the Commission answers it, in the affirmative. For, despite its concision, the request for a preliminary ruling describes not only the nature of the dispute to be adjudicated upon, the procedure concerned and the issue of the potential failure to provide the client with information on price, but also the legal bases of the unpaid fee recovery procedure and the doubts entertained by the Secretario Judicial with respect to the compatibility of that procedure with the acts of EU law whose interpretation he seeks. 98. The further, extensive, objections raised by the Spanish Government at the hearing, to the effect that the Secretario Judicial did not provide sufficient information on the precise details of the terms agreed between the lawyer and his client must therefore be dismissed. What is more, those objections fail to take into account that, in the present request for a preliminary ruling, the Court is asked to rule not on the compatibility of the content of particular terms with Directive 93/13 but on the compatibility of the unpaid fee recovery procedure with that directive. 99. The account given by the Secretario Judicial of the legal and factual context of the dispute in the main proceedings is therefore sufficient to enable a useful answer to be given to the questions referred. It also provided the parties to the proceedings with a genuine opportunity to submit observations. This is borne out not least by the content of the observations submitted to the Court. 100. Furthermore, although the foregoing submissions are based on extensive research, this has served only to confirm the concise account given by the Secretario Judicial. If the Spanish Government had not sewn what were ultimately unfounded doubts about the information contained in the request for a preliminary ruling, that research would have been unnecessary. b) Whether the questions referred are relevant to the decision to be given in the main proceedings 101. The Spanish Government submits that neither the interpretation of Directives 93/13 and 2005/29 nor the interpretation of Article 47 of the Charter is relevant to the decision to be given in the main proceedings i) Whether an interpretation of Directive 93/13 is relevant to the decision to be given in the main proceedings 102. With regard, first of all, to Directive 93/13, the Spanish Government takes the view that the questions referred are not relevant to the decision to be given by the Secretario Judicial. In its submission, the task of assessing the presence of unfair terms falls not to the Secretario Judicial but to the judge who will subsequently be responsible for enforcing that decision. 103. That objection must be dismissed. 104. On the one hand, as I have argued above, (52) it has by no means been demonstrated that the judge responsible for enforcing the decision to be given by the Secretario Judicial must ascertain ex officio whether there are unfair terms present. 105. On the other hand, it is settled case-law that Directive 93/13 applies to legal provisions relating to the powers of the national courts to determine whether contractual terms are unfair. (53) The unpaid fee recovery procedure pending before the Secretario Judicial thus falls within the scope of that directive. The question of whether it falls to the Secretario Judicial or to the judge subsequently responsible for enforcement to examine ex officio whether unfair terms are present may therefore, it is true, be a factor in the compatibility of the unpaid fee recovery procedure with Directive 93/13. However, that question must be addressed as part of the substantive examination of the questions referred and not as part of the examination of whether those questions are relevant to the decision to be given in the main proceedings and, therefore, whether they are admissible. ii) Whether an interpretation of Directive 2005/29 is relevant to the decision to be given in the main proceedings 106. The Spanish Government takes the view that Directive 2005/29 does not provide that national courts must ascertain ex officio whether there are unfair commercial practices present, but prescribes specific measures which Member States must adopt in order to combat such practices. 107. By that argument, however, the Spanish Government also fails to take into account the dividing line between the admissibility and the substantive assessment of the request for a preliminary ruling. After all, the question of whether Directive 2005/29 requires national courts to ascertain ex officio whether there are unfair commercial practices present is concerned with the interpretation of that directive itself, not with its relevance to the main proceedings. However, the question of whether the interpretation of a legal act is necessary in the context of a reference for a preliminary ruling is concerned not with the interpretation of that legal act but with the preliminary matter of whether such an interpretation is necessary for the purposes of assessing the situation at issue in the light of EU law. 108. In this regard, the Secretario Judicial expressly states in the order for reference in the present case that there is no record of whether Mr Margarit Panicello informed Ms Hernández Martínez in advance about the costs of his services. It seems questionable to the Secretario Judicial, as he goes on to explain, whether it is appropriate to require Ms Hernández Martínez to pay a relatively large sum of money without being able to ascertain whether the failure to provide information on price constitutes an unfair commercial practice. 109. Furthermore, Directive 2005/29 applies to unfair commercial practices by traders in dealings with consumers before, during and after a commercial transaction in relation to any service. (54) In the light of the Court’s case-law concerning Directive 93/13, a contract between a lawyer and his client for the provision of legal services is to be regarded as a commercial transaction in relation to a service within the meaning of Directive 2005/29. (55) 110. Thus, if the Secretario Judicial were to find that Mr Margarit Panicello did not in fact inform his client about the price of his services and this caused her to take a transactional decision that she would not have taken otherwise, the failure to provide information on price would have to be regarded as an unfair commercial practice within the meaning of Directive 2005/29. (56) 111. In the light of the foregoing, there would seem to be nothing to indicate that the question concerning the interpretation of Directive 2005/29 bears no relation to the actual facts or subject matter of the dispute in the main proceedings or that it is irrelevant to the decision to be given in those proceedings. (57) iii) Whether Article 47 of the Charter is relevant to the decision to be given in the main proceedings 112. According to the Spanish Government, the unpaid fee recovery procedure does not fall within the scope of the Charter, in accordance with Article 51 thereof, there being no provision of EU law on the recovery of fees by lawyers. In its submission, therefore, an interpretation of Article 47 of the Charter cannot be relevant to the decision to be given in the main proceedings. 113. That argument is untenable. 114. It is after all clear from the judgment in Åkerberg Fransson that, if national legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights. (58) 115. In the present case, there is no doubt that the provisions governing the unpaid fee recovery procedure fall within the scope of EU law, since the contract at issue in the main proceedings was concluded between a lawyer and a consumer, and thus falls within the scope of Directive 93/13. (59) What is more, that directive is applicable to legal provisions which relate to the powers of the national court to determine whether contractual terms are unfair. (60) 116. Moreover, the Court has already held that the obligation for the Member States to ensure the effectiveness of the rights that individuals derive from Directive 93/13 against the use of unfair clauses implies a requirement of judicial protection, also guaranteed by Article 47 of the Charter, that is binding on the national court. (61) 117. The compatibility of national legislation with the requirements of Directive 93/13 in relation to the powers of examination exercised by the national court must therefore also be assessed in the light of the requirement of judicial protection enshrined in Article 47 of the Charter. 118. It must therefore be concluded that the questions referred are relevant to the decision to be given in the main proceedings. 3. Interim conclusion 119. Consequently, the request for a preliminary ruling is admissible and the Court must answer the questions so referred. C – The questions referred 120. In the following analysis, I shall begin by addressing the first part of the first question and the second question referred, which concern the compatibility of the unpaid fee recovery procedure with Directives 93/13 and 2005/29 in conjunction with Article 47 of the Charter. I shall then deal with the third question referred, which asks in particular whether the powers of the Secretario Judicial to take evidence in the course of the unpaid fee recovery procedure satisfy the requirements of Directive 93/13. 1. The first part of the first question and the second question referred a) The requirements governing the powers of examination exercised by national courts under Directive 93/13 and whether they are transposable to Directive 2005/29 121. Since the imbalance between consumers and traders may be corrected only by positive action on the part of a third party, it falls to the national courts to guarantee the effectiveness of the rights conferred on consumers by Directive 93/13. For that reason, the national courts are required to assess of their own motion whether a contractual term falling within the scope of Directive 93/13 is unfair. (62) 122. The Court does not yet appear to have ruled on whether such an obligation also exists under Directive 2005/29 and whether the national court is also required to assess ex officio whether unfair commercial practices are present. 123. The Commission takes the view that the relevant case-law concerning Directive 93/13 can be transposed to Directive 2005/29. The Spanish Government, on the other hand, submits that that case-law is not transposable, since Articles 11 and 12 of Directive 2005/29 require Member States not to ensure generally that the courts assess ex officio whether commercial practices are unfair, but to prescribe specific measures to combat such commercial practices. 124. In the present case, however, the question of whether the principles developed in the context of Directive 93/13 with respect to the ex officio assessment by the national courts of the presence of unfair terms is generally transposable to Directive 2005/29 can be left unanswered. 125. After all, as is clear from the information provided by the Secretario Judicial, in a situation such as that in the main proceedings, the potential existence of an unfair commercial practice consisting in the failure to provide information on price would be relevant not in itself but only for the purposes of assessing whether the terms of the contract concluded between the lawyer and his client are unfair. 126. In this connection, the finding that a commercial practice is unfair is one element among others upon which the assessment of the unfairness of a term may be based, since under Article 4(1) of Directive 93/13 the unfairness of a term is to be assessed taking into account all the circumstances attending the conclusion of the contract. The foregoing is not precluded by the fact that a finding that a commercial practice is unfair is not such as to establish, automatically and on its own, that a contractual term is unfair, since Article 3(2) of Directive 2005/29 provides that that directive ‘is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract’. (63) 127. In a situation such as that at issue here, therefore, the national court has an obligation, when assessing whether there are unfair terms present, to take into account also the potential presence of unfair commercial practices and thus Directive 2005/29. 128. It must be concluded from the foregoing that, in a situation such as that in the main proceedings, the principles developed in the context of Directive 93/13 with respect to the need for an ex officio assessment of the presence of unfair terms must be transposed to Directive 2005/29 in so far as an assessment of the unfairness of contractual terms under Directive 93/13 must necessarily be carried out in the light of an assessment of the unfairness of commercial practices under Directive 2005/29. 129. The forgoing is not precluded by Article 4(2) of Directive 93/13. It is true that that provision states that the assessment of the unfair nature of contractual terms is not to relate to the adequacy of the price, on the one hand, as against the services in exchange, on the other. However, this applies only in so far as those terms are in plain intelligible language. 130. In a situation such as that in the present one, it is therefore entirely possible that a contractual term the assessment of which might need to take into account the failure to provide information on price would be concerned with the adequacy of the price in relation to the service provided. In such circumstances, however, the term in question would presumably not be drafted in plain intelligible language, in which case Article 4(2) of Directive 93/13 would not preclude the assessment of its content by the national court. (64) b) Compatibility of the unpaid fee recovery procedure with Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter 131. In line with the foregoing considerations, the first part of the first question and the second question are to be understood as meaning that the Secretario Judicial wishes to ascertain whether Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter precludes national legislation, such as that governing the unpaid fee recovery procedure, which does not make it possible for the decision-making body to assess ex officio the presence of unfair terms or unfair commercial practices. 132. Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter precludes a procedure which makes it possible for a trader to obtain the enforcement of a claim against a consumer but the procedure culminating in enforcement does not include a stage involving the ex officio assessment of the presence of unfair terms or unfair commercial practices. Consequently, if the procedure is divided into an initial phase, during which the enforceable instrument is obtained, and a second stage, during which the claim is actually enforced, an assessment of the presence of unfair terms and unfair commercial practices must be included in at least one of those two phases. (65) 133. That principle might at first give the impression that the question referred by the Secretario Judicial could adequately be answered as follows: Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter precludes the impossibility of an assessment of the presence of unfair terms and unfair commercial practices by the Secretario Judicial, responsible for implementing the unpaid fee recovery procedure, only where the judge subsequently responsible for enforcing the decision adopted by the Secretario Judicial is also not empowered to carry out such an assessment. This answer would be consistent with the stance taken by the Spanish Government in these proceedings. 134. Such an answer must be rejected, however. 135. An examination of the procedure for the adoption and enforcement of a decision under the unpaid fee recovery procedure in its entirety clearly shows that it would not be expedient to move the assessment of the presence of unfair terms and unfair commercial practices to the enforcement phase. (66) After all, in that event, a consumer would be asked, under the threat of subsequent enforcement, to settle a claim potentially based on unfair terms or unfair commercial practices in the course of the prior procedure for the issue of the enforceable instrument. 136. The notion of deferring the assessment of the presence of unfair terms and unfair commercial practices to the enforcement stage must therefore be rejected on grounds of both procedural economy and the effective implementation of the EU legislation concerned. Such a deferment would, after all, give rise to the not insignificant risk that, because of the authority naturally attaching to the decision of the Secretario Judicial, the debtor might proceed to make payment immediately upon receiving that decision, in which event a subsequent enforcement procedure would not even be necessary. After all, the very existence of an enforceable decision exerts a not to be underestimated pressure on the consumer to discharge his (alleged) payment obligations, particularly where, as here, the procedure for the issue of the enforceable instrument is configured as an inter partes procedure intended to lead to a decision of a judicial nature. Furthermore, as the Commission rightly pointed out at the hearing, an objection lodged in the course of the enforcement procedure bears no comparison to the possibility of challenging the decision adopted by the Secretario Judicial. This is particularly true given that, as I have submitted above, (67) the lodging of such an objection during the enforcement procedure would not have suspensory effect in the present case. 137. Carrying out the assessment as to the existence of unfair terms and unfair commercial practices not in the course of the procedure before the Secretario Judicial but in the course of the subsequent enforcement procedure would thus promote the settlement of claims which, although declared enforceable in the unpaid fee recovery procedure, are nonetheless potentially founded on unfair terms or unfair commercial practices. Such a solution would clearly be at odds with the consumer protection required by Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter. 138. I therefore propose that the Court’s answer to the first part of the first question and the second question referred should be as follows: Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the body responsible for implementing the unpaid fee recovery procedure may not assess ex officio the unfairness of a term contained in a contract between a lawyer and a consumer or the existence of unfair commercial practices. 2. The third question referred 139. By his third question, the Secretario Judicial wishes to ascertain whether the provisions governing the unpaid fee recovery procedure infringe Directive 93/13 because they limit the powers of that official to take evidence and thus restrict the consumer’s right to produce evidence. 140. First, there is some doubt as to the admissibility of this question, since the Secretario Judicial reflects on the fact that his limited powers of investigation in the course of the unpaid fee recovery procedure might prevent him from examining factors, such as any changes to the terms and conditions of the contract, part payments of fees which have already been made or customary practice with respect to the settlement of fees, which bear no relation to the presence of unfair terms. However, the question referred by the Secretario Judicial might also be understood as meaning that he wishes to ascertain whether the restrictions on the taking of evidence in the unpaid fee recovery procedure render Directive 93/13 ineffective. 141. The role of the national courts in the implementation of Directive 93/13 is not limited to a mere power to rule on the possible unfairness of contractual terms, but also consists of the obligation to examine that issue of its own motion. (68) The national courts thus play an active role in the protection of consumers under Directive 93/13. What is more, it follows generally from the requirements laid down by EU law with respect to the effectiveness of judicial review in the implementation of Directive 93/13 that national procedural rules must not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by that directive. (69) 142. A situation in which a court has before it indications that certain contractual terms are unfair but cannot investigate these because its powers of examination are restricted would thus be manifestly problematic. (70) 143. In the present case, it is clear from the provisions of the LEC governing the unpaid fee recovery procedure that, for the purposes of examining the claim, the Secretario Judicial takes into account not only the case-file from the judicial proceedings the lawyer’s services in which gave rise to the fee claim but also the lawyer’s fee note and other documents, such as a cost estimate or contract. Furthermore, in cases where the claim is challenged on the ground that it is excessive, the Secretario Judicial must give the lawyer a hearing and, if the latter refuses to reduce the claim, forward the case-file for examination to the Bar Association. (71) Those powers of investigation should generally be sufficient to enable the Secretario Judicial to examine and assess the presence of unfair terms. 144. As the Commission points out, more extensive powers of investigation, such as in particular the right to hear witnesses, might be necessary to enable the Secretario Judicial to assess the presence of unfair terms at most in cases in which only a verbal contract was made. The Commission takes the view, however, that, in the light of the case-law established by the Spanish Constitutional Court in this regard, the provisions of the LEC might be interpreted as being compatible with EU law if the powers of examination exercised by the Secretario Judicial could, in legitimate cases, also extend beyond the examination of documentary evidence and thus include the hearing of witnesses. 145. In the light of those considerations, I propose that the answer to the third question referred should be that Directive 93/13 does not preclude national legislation such as that at issue in the main proceedings, provided that it allows sufficient evidence to be taken to enable an effective assessment of the presence of unfair terms. This is a matter for the national court to determine. V – Conclusion 146. In the light of the foregoing submissions, I propose that the Court’s answers to the questions referred by the Secretario Judicial attached to the Juzgado de Violencia sobre la Mujer Único de Terrassa (Single-Judge Court dealing with matters involving Violence against Women, Terrassa, Spain) should be as follows: (1) In the context of the procedure governed by Articles 34 and 35 of Law 1/2000, the Secretario Judicial is to be regarded as a court or tribunal with standing to make a request for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. (2) Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the body responsible for implementing the unpaid fee recovery procedure may not assess ex officio the unfairness of a term contained in a contract between a lawyer and a consumer or the existence of unfair commercial practices. (3) Directive 93/13 13 does not preclude national legislation such as that at issue in the main proceedings, provided that it allows sufficient evidence to be taken to enable an effective assessment of the existence of unfair terms. This is a matter for the national court to determine. 2 – . Original language: German. 3 – . Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011. 4 – . See the information provided by the referring body in Case-269/16, the proceedings in which are currently stayed, to the effect that it alone has pending before it more than 50 unpaid fee recovery procedures which it has stayed until such time as judgment is given in the present proceedings. 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). 6 – . Ley Orgánica 6/1985, de 1 julio, del Poder Judicial, BOE 157 of 2 July 1985. 7 – . Ley Orgánica 7/2015, de 21 julio, por la que se modifica la Ley Orgánica 6/1985, de 1 julio, del Poder Judicial, BOE 174 of 22 July 2015, which entered into force on 1 October 2015. 8 – . For the sake of completeness, it should be pointed out that the provisions of the LOPJ that are relevant to the present proceedings do not appear to have been the subject of any amendments introduced by Basic Law 7/2015 that would have a bearing on the assessment of whether the Secretario Judicial constitutes a court or tribunal or on the answers to the questions referred. 9 – . BOE 17 of 20 January 2006. 10 – . BOE 7 of 8 January 2000. 11 – . Ley 13/2009 de reforma de la legislación procesal para la implantación de la nueva Oficina judicial (Law 13/2009 amending the procedural legislation for the purposes of the establishment of the new Judicial Administration Support Bureau), BOE 266 of 4 November 2009. 12 – . See the preamble to Law 13/2009 amending the procedural legislation for the purposes of the establishment of the new Judicial Administration Support Bureau. 13 – . Ley 42/2015, de 5 de octubre, de reforma de la Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil, BOE 239 of 6 October 2015. 14 – . It should be pointed out that that Law does not appear to have introduced to those provisions of the LEC that are relevant to the present proceedings any amendments which would have a bearing on the assessment of whether the referring Secretario Judicial constitutes a court or tribunal or on the answers to the questions referred. A number of notable amendments are nonetheless mentioned in footnotes 16, 17, 20 and 42 below. These references are useful from the point of view of two further requests for a preliminary ruling (Cases C‑609/15 and C‑269/16) pending before the Court, and currently stayed, which also concern the unpaid fee recovery procedure but which, it would appear, do fall within the scope of the LEC rules as amended by Law 42/2015. 15 – . See the description given in the Opinion of Advocate General Szpunar in Finanmadrid EFC (C‑49/14, EU:C:2015:746, points 27 and 46): unlike in the case of the unpaid fee recovery procedure at issue here, however, an objection raised in the order for payment procedure triggers the transition to an ordinary procedure. On simplified procedures for the recovery of pecuniary claims in general, see the Opinion of Advocate General Trstenjak in Banco Español de Crédito (C‑618/10, EU:C:2012:74, points 23 to 25, 50 and 51). 16 – . In accordance with the judgment of the Spanish Constitutional Court of 25 March 1993 in Case 110/1993, BOE 100 of 27 April 1993. 17 – . In the version as amended by Law 42/2015, the LEC further provides that, before issuing that decree, the Secretario Judicial must inform the creditor of the objection and give him the opportunity to comment on it: see the second subparagraph of Article 35(2) in conjunction with the second subparagraph of Article 34(2) of the LEC, as amended by Law 42/2015. 18 – . As amended by Law 42/2015, the LEC further provides that, even before the determination of costs procedure provided for in Article 241 et seq. of the LEC is initiated, the Secretario Judicial must give the lawyer the opportunity to comment and to accept a reduced fee: see the third subparagraph of Article 35(2) of the LEC, as amended by Law 42/2015. 19 – . ‘Resoluciones procesales o arbitrales’. 20 – . ‘Titulos no judiciales ni arbitrales’. 21 – . While the version of the LEC applicable in the present case refers only to the ‘finding’ that unfair terms are present (‘Cuando el tribunal apreciare que alguna de las cláusulas incluidas en un título ejecutivo … pueda ser calificada como abusiva’), the second subparagraph of Article 552(1) of the LEC, as amended by Law 42/2015, expressly imposes on the court a duty to conduct an examination ex officio (‘El tribunal examinará de oficio si alguna de las cláusulas incluidas en un título ejecutivo … puede ser calificada como abusiva’). 22 – . ‘Las demás resoluciones procesales y documentos que, por disposición de esta … ley, lleven aparejada ejecución’. 23 – . ‘Otros documentos con fuerza ejecutiva a que se refere el número 9.º del apartado 2 del artículo 517’. 24 – . See above, point 25 and footnote 10. 25 – . ‘[C]on el objeto de unificar la terminología y adaptarla a las nuevas compentencias del Secretario judicial, se utiliza la expresión ‚resoluciones procesales’, para englobar tanto las resoluciones judiciales … como las del Secretario judicial …’ 26 – . See, for example, judgment of 24 May 2016 in MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraph 23 and the case-law cited). 27 – . See order of 12 January 2010, Amiraike Berlin (C‑497/08, EU:C:2010:5, paragraph 17 and the case-law cited); judgment of 31 January 2013, Belov (C‑394/11, EU:C:2013:48, paragraph 39 and the case-law cited). 28 – . See judgment of 31 January 2013, Belov (C‑394/11, EU:C:2013:48, paragraph 40 and the case-law cited); see also judgment of 19 December 2012, Epitropos tou Elegktikou Synedriou (C‑363/11, EU:C:2012:825, paragraph 21 and the case-law cited); thus, in proceedings in which it acts as an administrative authority, a national court does not have the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU; see, for example, in relation to a German Amtsgericht (Local Court) hearing proceedings for the appointment of a ‘supplementary’ liquidator, the order of 12 January 2010, Amiraike Berlin (C‑497/08, EU:C:2010:5). 29 – . See judgment of 31 January 2013, Belov (C‑394/11, EU:C:2013:48, paragraph 44 and the case-law cited). 30 – . See Articles 440 to 469a of the LOPJ (see point 16 et seq. above) and Real Decreto 1608/2005 (see point 21 et seq. above); on the permanent nature of Secretarios Judiciales, see also, in particular, Article 81(1)(a) of Real Decreto 1608/2005 (see point 24 above). 31 – . Judgments of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraph 52), and of 22 December 2010, RTL Belgium (C‑517/09, EU:C:2010:821, paragraph 40); see, similarly, judgment of 6 July 2000, Abrahamsson and Anderson (C‑407/98, EU:C:2000:367, paragraphs 34 to 37), and order of 14 May 2008, Pilato (C‑109/07, EU:C:2008:274, paragraph 24). 32 – . See Article 446 of the LOPJ (see above, point 18). 33 – . Judgments of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraphs 50 and 51), and of 22 December 2010, RTL Belgium (C‑517/09, EU:C:2010:821, paragraph 39), as well as order of 14 May 2008, Pilato (C‑109/07, EU:C:2008:274, paragraph 23); see, similarly, judgment of 6 July 2000, Abrahamsson and Anderson (C‑407/98, EU:C:2000:367, paragraph 34). 34 – . See order of 14 May 2008, Pilato (C‑109/07, EU:C:2008:274, paragraph 24 and the case-law cited); judgment of 31 January 2013, D. and A. (C‑175/11, EU:C:2013:45, paragraph 97). 35 – . See Articles 442 and 450 of the LOPJ as well as Article 81(1)(a) of Real Decreto 1608/2005 (see points 18 and 24 above). 36 – . See Article 443(2) and the second subparagraph of Article 468c(2) of the LOPJ in conjunction with the first subparagraph of Article 468a(1) thereof (see point 18 above). 37 – . See Article 452(1) of the LOPJ (see point 19 above). 38 – . See Article 465(8) of the LOPJ (see point 20 above), as well as Articles 16(h) and Article 21(2) of Real Decreto 1608/2005 (see points 22 and 23 above). 39 – . See Article 440 and the first sentence of Article 452(1) of the LOPJ (see points 18 and 19 above). 40 – . See above, footnote 37. 41 – . In accordance with the case-law of the Court, the requirement that a procedure be adversarial is not an absolute criterion in the determination of whether a body constitutes a court or tribunal within the meaning of Article 267 TFEU; see judgments of 17 September 1997, Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 31); of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 63 and point 1 of the operative part of the judgment); and of 31 January 2013, D. and A. (C‑175/11, EU:C:2013:45, paragraph 88). 42 – . See points 41 and 44 above. 43 – . The version of the LEC applicable to these proceedings provides for such a hearing in cases where the debtor lodges an objection based on the excessive nature of claims to fees for which no cost estimate accepted by the client is present; the version of the LEC as amended by Law 42/2015 requires that the lawyer be given a hearing in the event of an objection on any grounds (see point 46 and footnotes 16 and 17 above). 44 – . The parallels drawn by the Spanish Government with cases in which the Court has found the referring body not to constitute a court or tribunal because it was acting as an administrative authority and was not required to resolve a legal dispute must therefore be rejected; see judgment of 15 January 2002, Lutz and Others (C‑182/00, EU:C:2002:19, paragraphs 13 and 14). 45 – . See point 25 above. 46 – . See point 43 above. 47 – . On these criteria, see judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 23 and the case-law cited). 48 – . Judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraphs 23 to 25). 49 – . See above, points 48 to 50. 50 – . In this regard, the decision adopted by the Secretario Judicial in the unpaid fee recovery procedure differs from decisions at issue in other requests for a preliminary ruling, the lack of any force of res judicata attaching to which was the reason why the referring bodies were held not to constitute courts or tribunals; see judgment of 19 December 2012, in Epitropos tou Elegktikou Synedriou (C‑363/11, EU:C:2012:825, paragraph 27); see also order of 17 July 2014, Emmeci (C‑427/13, EU:C:2014:2121, paragraph 30). 51 – . See above, points 53 to 59. 52 – . See points 51 to 60 above. 53 – . See, to that effect, judgment of 30 April 2014, Barclays Bank (C‑280/13, EU:C:2014:279, paragraphs 38-40). 54 – . See Article 3(1) in conjunction with Article 2(a) to (d) of Directive 2005/29. 55 – . See judgment of 15 January 2015, Šiba (C‑537/13, EU:C:2015:14, paragraphs 24 and 35). 56 – . See, to that effect, judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraph 41). 57 – . In this regard, the situation in the present case differs from that at issue in the judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 85-87), where there was no evidence of the existence of an unfair commercial practice. 58 – . Judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 19). 59 – . See point 109 above. 60 – . See, to that effect, judgment of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraphs 38-40. 61 – . Judgment of 17 July 2014. Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 35); order of 16 July 2015, Sánchez Morcillo and Abril García (C‑539/14, EU:C:2015:508, paragraph 36). 62 – . See judgment 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 41 to 43 and the case-law cited). See also judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 46 and the case-law cited). 63 – . See judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraphs 42-44); for further explanation, see also the Opinion of Advocate General Trstenjak in Pereničová and Perenič (C‑453/10, EU:C:2011:788, points 82 to 85, 88 et seq., [91] and 111). 64 – . Judgment of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid (C‑484/08, EU:C:2010:309, paragraphs 32); see also, to that effect, order of 16 November 2010, Pohotovosť (C‑76/10, EU:C:2010:685, paragraphs 73 and 77), and judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraph 43). For a detailed discussion of this issue, see the Opinion of Advocate General Trstenjak in Pereničová and Perenič (C‑453/10, EU:C:2011:788, points 115 to 119). 65 – . See judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 57 and point 1 of the operative part of the judgment), in the light of the judgment of 18 February 2016 , Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraph 55 and point 1 of the operative part of the judgment). With regard to the background to the procedures at issue in those two cases, it should be noted that the order for payment procedure which still lay within the jurisdiction of a court at the time of the proceedings in Banco Español de Crédito had been transferred to the Secretario Judicial by the time of the proceedings in Finanmadrid; see judgment of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraphs 37 and 38). With regard to the specific case of notaries, which cannot be transposed to the main proceedings here, see judgment of 1 October 2015, ERSTE Bank Hungary (C‑32/14, EU:C:2015:637, paragraphs 47 to 49, 59, 64 and 65). 66 – . See also, to that effect, the Opinion of Advocate General Szpunar in Finanmadrid EFC (C‑49/14, EU:C:2015:746, point 53 et seq.). 67 – . See point 60 above. 68 – . Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 43). 69 – . See, to that effect, judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 46). 70 – . In this connection, the Court has already held that the national court must investigate of its own motion whether a term falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair; see judgments of 9 November 2010, Pénzügyi Lízing (C‑137/08, EU:C:2010:659, paragraph 56 and point 3 of the operative part of the judgment); of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 44); and of 21 February 2013, Banif Plus Bank (C‑472/11, EU:C:2013:88, paragraph 24). 71 – . Following the amendments introduced by Law 42/2015, not yet applicable at the material time of the present case, the lawyer must be given a hearing in the event of an objection on any grounds (see footnote 16 above).