Opinion of the Advocate General — ECLI:EU:C:2012:700
Date: 2012-11-08
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (First Chamber), 14 March 2013 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Question bearing no relation to the purpose of the main action — No jurisdiction of the Court (Art. 267 TFEU) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation on the national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair — Scope (Council Directive 93/13) 3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim (Council Directive 93/13, Art. 6(1)) 4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Order for payment procedure — No possibility for the national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair, in the absence of an objection lodged by the consumer — Unlawful (Council Directive 93/13) 5. European Union law — Direct effect — National rules of procedure — Conditions under which applicable — Respect for the principles of equivalence and effectiveness 6. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings — No possibility for the national court to adopt interim measures — Unlawful — Incompatible with the principle of effectiveness (Council Directive 93/13) 7. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Assessment of unfairness by the national court — Criteria (Council Directive 93/13, Arts 3(1) and 4(1)) 1. See the text of the decision. (see paras 34, 35, 39) 2. See the text of the decision. (see paras 41, 46, 47) 3. See the text of the decision. (see paras 44, 45) 4. See the text of the decision. (see para. 48) 5. See the text of the decision. (see paras 50, 53) 6. Directive 93/13 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State which, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, does not permit the court before which declaratory proceedings have been brought, which does have jurisdiction to assess the unfairness of such a term, to grant interim relief, including, in particular, the staying of those enforcement proceedings, where the grant of such relief is necessary to guarantee the full effectiveness of its final decision. Without that possibility, in all cases in which 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. Thus, such procedural rules impair the effectiveness of the protection sought by the directive. (see paras 59-61, 64, operative part 1) 7. Article 3(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as follows: – the concept of ‘significant imbalance’, to the detriment of the consumer, must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out; – in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations. Article 3(3) of Directive 93/13 must be interpreted as meaning that the annex to which that provision refers contains only an indicative and non-exhaustive list of terms which may be regarded as unfair. Furthermore, Article 4(1) of that directive provides that the unfairness of a contractual term is to be assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of it. It follows that, in that respect, the consequences of that term under the law applicable to the contract must also be taken into account, requiring consideration to be given to the national legal system. (see paras 68-71, 76, operative part 2)