Order — ECLI:EU:C:2013:759
Date: 2013-11-14
Language of the case: Spanish
Court formation: First Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Order of the Court (First Chamber), 14 November 2013 1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim (Council Directive 93/13) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation for the national court to examine of its own motion the unfairness of a term in a contract subject to its assessment — Scope (Council Directive 93/13) 3. EU law — Direct effect — National rules of procedure — Conditions under which applicable — Observance of the principles of equivalence and effectiveness 4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings — No power for the national court to assess of its own motion or at the request of a consumer the unfairness of a term in a loan agreement or to grant interim relief in that regard — Not permissible — Failure to comply with the principle of effectiveness (Council Directive 93/13, Art. 7(1)) 5. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Definition — Term in a consumer contract accelerating the repayment of a mortgage — Option for the seller or supplier to unilaterally cancel the loan agreement without prior notification and to require the repayment of the outstanding principal plus interest on account of events of default occurring within a limited period — Assessment of the unfairness of such a term by the national court — Criteria (Council Directive 93/13, Art. 3(1) and (3), Annex, points 1(e) and (g) and 2(a)) 1. See the text of the decision. (see paras 39, 40) 2. See the text of the decision. (see paras 41-44) 3. See the text of the decision. (see paras 45, 48) 4. Directive 93/13 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State 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. Without that possibility, where enforcement in respect of the mortgaged immovable property took place before the judgment of the court in the declaratory proceedings declaring unfair the contractual term on which the mortgage is based and annulling the enforcement proceedings, that judgment would enable that consumer to obtain only subsequent protection of a purely compensatory nature, which would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of that term, contrary to Article 7(1) of Directive 93/13. That applies all the more strongly where the mortgaged property is the family home of the consumer whose rights have been infringed, since that means of consumer protection is limited to payment of damages and interest and does not make it possible to prevent the definitive and irreversible loss of that dwelling. Such a procedure is capable of undermining the effectiveness of the protection intended by Directive 93/13. In those circumstances, the national legislation at issue appears not to comply with the principal of effectiveness because it makes it impossible or excessively difficult, in proceedings initiated by suppliers and sellers in which consumers are defendants, the application of the protection which that directive seeks to confer on those consumers. (see paras 54-57, 59, 60, operative part 1) 5. Article 3(1) and (3) of Directive 93/13 on unfair terms in consumer contracts 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 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; – 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 – 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 referring court to carry out that assessment in relation to all the circumstances of the particular case before it. (see paras 69-71, operative part 2)