Opinion of the Advocate General — ECLI:EU:C:2013:765
Date: 2013-11-21

summary proceedings were stopped, and the proceedings became adversarial. (35) For several reasons, (36) the Court observed that consumers were not generally liable to object to the procedure and therefore held the Spanish law in question to be incompatible with Directive 93/13. 76. Turning back to the question of when it becomes excessively difficult for consumers to exercise their rights effectively, this would also seem to depend on the importance of the interest restricting consumer protection. Case-law seems to indicate that certain legitimate interests have a better claim to outweigh the protection of consumers than others. (37) 77. However, it should be made perfectly clear that, as the German Government stated at the hearing, the principle of effectiveness requires only that national procedural rules must not make it excessively difficult for consumers to exercise their rights. In particular, it does not require the exercise of those rights to be ‘easy’ or subject to a particularly favourable treatment. (38) To adopt such a view would render the concept of procedural autonomy devoid of practical effect and, moreover, it would be at odds with the fact that Directive 93/13 only provides for minimum harmonisation. (39) 78. In light of the foregoing, I do not find it, on balance, excessive in itself to require consumers to initiate legal proceedings against the trader to suspend or halt an enforcement procedure such as that at issue. 79. This appears to be confirmed by case-law. In Banco Español de Crédito, the Court did not appear to reject outright the view that it is legitimate, in principle, that creditors have easy access to justice and that procedures operate rapidly. (40) Moreover, in Asturcom Telecomunicaciones, it held that a national court is neither required to compensate for a procedural omission on the part of a consumer who is unaware of his rights, nor to make up for total inertia on the part of that consumer. (41) Therefore, I concur with Advocate General Kokott that, generally speaking, it does not, in itself, appear to be an excessive impediment to the effective legal protection of consumers that the consumer must first initiate proceedings establishing certain conditions so that the court hearing the case can assess the terms of the agreement. (42) Indeed, it would not be wholly accurate to characterise the duty incumbent on the consumer as a duty to act of his own initiative without any prior motivation in this respect; rather, it is a duty to react to the intended course of action by the trader. I would stress that, in Aziz, the Court did not specifically object to the fact that the consumer had to bring declaratory proceedings before the Juzgado de lo Mercantil No 3 de Barcelona; rather, it was the fact that those proceedings were completely futile which led the Court ultimately to rule as it did. 80. Moreover, I fear that a requirement of compulsory ex ante judicial review, which seems to be supported by the Commission, would effectively serve no purpose. (43) Indeed, the assessment of whether a term is unfair requires an individual appraisal of all the relevant circumstances. (44) Although, in Banco Español de Crédito, the court hearing the matter at first instance was able to take a position without any input from the consumer, this will not generally be the case. On the contrary, save where such a court has before it all the legal and factual elements necessary, it will neither be able – nor obliged – to act independently of the consumer. 81. Lastly, the fact that the property in question might be the family home of the consumer does not, in itself, alter my view. In the absence of harmonised rules, Member States should not be prevented, simply by dint of the fact that the property at issue is the consumer’s home, from requiring the consumer to bring proceedings against an out-of-court enforcement procedure. 82. That said, I should stress, however, that where the property concerned by the procedure at issue is the consumer’s home, there must be specific guarantees. Failure to provide such guarantees may prove problematic from a fundamental rights perspective. (45) Indeed, the loss of a family home is one of the most extreme forms of interference with the rights of the consumer. (46) As respect for the home is a right guaranteed under Article 7 of the Charter of Fundamental Rights of the European Union, in the light of which Directive 93/13 must be interpreted, (47) any person at risk of an interference of this magnitude should be able to have the proportionality of such a measure reviewed by an independent judicial body. (48) 83. In sum, I find it to be compatible with Directive 93/13 for a Member State to require a consumer to take action in order to suspend or halt an enforcement of a contract which allegedly contains an unfair term. Having clarified this point of principle, I will now turn to the specific characteristics of the procedure at issue. 2. Assessment of the procedure at issue 84. As for the procedure at issue, it follows from Paragraph 151m(1) of the Slovak Civil Code that – save where specific rules exist on the subject – a public auction can take place at the earliest 30 days after notification of the enforcement to the debtor (or the guarantor, as the case may be). Similarly, under Paragraph 17(3) of the Law on Voluntary Auctions, a public auction can take place at the earliest 30 days after notification of the forthcoming auction in the Trade Journal. Paragraph 17(5) of that law also provides that the auctioneer must notify the person proposing the public auction, together with the debtor and the owner of the immovable property (if not the same person as the debtor), of the forthcoming public auction before the same deadline. At the hearing, the Slovak Government confirmed that these time-limits may run concurrently, meaning at least a 30-day period following notification to all relevant parties and bodies. 85. After the public auction has taken place, pursuant to Paragraph 21(2) of the Law on Voluntary Auctions, the sale of the property can generally be contested up to three months afterwards. 86. During that period, the debtor can still enjoy use of the property put up for public auction. However, pursuant to Paragraph 29 of the Law on Voluntary Auctions, where the property put up for public auction is immovable property, the debtor (or guarantor, as the case may be) is obliged to surrender the property after the sale without undue delay, following the registration of the sale by public auction in a notarial deed. 87. The Commission claims that this is tantamount actually to dispossessing the consumer of that property. I have a certain measure of sympathy for that view. (49) Nevertheless, I am satisfied by the arguments submitted at the hearing by the Slovak Government, according to which Paragraph 29 of the Law on Voluntary Auctions does not prevent a debtor from requesting a court to suspend the procedure at issue and the surrender of the property, even after the sale has taken place. (50) If that interpretation of national law is correct – which it is for the referring court to verify – I do not find that Paragraph 29 of that law, in itself, exacerbates the situation, provided that the court seised will take the action described in point 97 below. 88. Moreover, where the debtor has in fact surrendered his property, there is a possibility of recovering that property if the sale by public auction is annulled under Paragraph 21(5) of the Law on Voluntary Auctions and the challenge has been recorded in the land registry. (51) Under Paragraph 21(3) of that law, the party challenging the sale by public auction is required to inform the competent authority of such a challenge. 89. Therefore, as I interpret national law, it may be concluded that a consumer has at least 30 days after all the relevant notifications have been made to challenge a public auction ex ante, (52) and ex post up to three months after the sale has taken place (or even longer where the sale is linked to criminal activity). 90. Potentially, a consumer therefore has a minimum of four months overall in which to contest a sale by public auction. 91. That is not comparable to the 20-day limit for objecting in Banco Español de Crédito, which made it excessively difficult for consumers to exercise their rights to protection under Directive 93/13 effectively. 92. Moreover, I do not find that the procedure at issue confines the rights of consumers to mere subsequent economic compensation, which would admittedly be insufficient according to Aziz. 93. Indeed, it is true that the main proceedings constitute, in some ways, a ‘reverse Aziz’. (53) However, unlike the Spanish rules applicable to enforcement proceedings at issue in Aziz, (54) it appears on the basis of the foregoing that, under Slovak law, an objection to the procedure at issue – even the possibility of staying that procedure on the basis that it is incompatible with Directive 93/13 – does exist. That is attested, furthermore, by the circumstances of the main proceedings. 94. Those circumstances show that the procedure at issue does not render the effective exercise of the rights of the consumer excessively difficult. Indeed, as the referring court had before it the necessary legal and factual material enabling it to express doubts as to the fairness, inter alia, of some of the penalty clauses inserted in the contested contract against the requirements of Directive 93/13, it issued an interim measure suspending the public auction and referred the matter to this Court. It did so notwithstanding the argument raised by the Commission that it is not altogether clear from the wording of Paragraph 21(2) of the Law on Voluntary Auctions whether such a court actually has jurisdiction to annul the public auction process on grounds of the unfairness of certain contractual terms. (55) The referring court therefore rightly applied, to the extent possible, its internal procedural rules in such a way as to achieve the result required under Articles 6(1) and 7(1) of Directive 93/13, read together. (56) 95. It can, of course, be claimed that the fact that Mr and Mrs Macinský successfully lodged proceedings in due time to contest the sale at public auction merely bears witness to their particular resourcefulness, and cannot be taken as evidence that consumer protection is effectively ensured, particularly as regards more vulnerable consumers. (57) 96. However, it is undeniable that Paragraph 21 of the Law on Voluntary Auctions does provide consumers with a legal remedy against a public auction. Admittedly, this remedy requires the consumer to act. Nevertheless, as I stated in points 78 and 79 above, I do not find this, in itself, to restrict excessively the effective protection of consumers. In the absence of harmonisation in this area, it is for the Member States to set the level of protection in enforcement proceedings which they deem sufficient for consumers, so long as the consumers are not deprived of the protection intended by Directive 93/13. Nevertheless, in the case of particularly vulnerable persons, it is understood that the Member States remain responsible for the compatibility of such rules with fundamental rights. (58) 97. Moreover, it should be made patently clear that, once a consumer has challenged a sale by public auction before the Slovak courts under Paragraph 21 of the Law on Voluntary Auctions, that challenge triggers the application of the case-law of the Court on the role and responsibilities of the national courts under Directive 93/13, as referred to in point 63 above. This means that, where a national court has available to it the legal and factual material necessary for that task, it is required to assess of its own motion whether a term in a consumer contract forming the basis of an enforcement procedure such as that at issue is unfair. If that is the case, it is for that court to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that term. That may entail – where necessary – the ordering of interim measures suspending the sale or the effects thereof pending a final decision on the fairness of that term; if, for instance, such a decision were to fall within the competence of a different jurisdiction. (59) 98. As the facts of this case show that to be possible under Slovak law, I would recommend, in the event that the Court chooses to answer the question referred, that – provided the national court has jurisdiction to take the action referred to in the preceding point, which it is for the referring court to verify – the Court declare that Directive 93/13 does not preclude a procedure such as that at issue. C – The request for limiting the temporal effects of the judgment 99. The Slovak Government has requested that the temporal effects of the judgment be limited, should the Court hold the procedure at issue to be in breach of Directive 93/13. The following observations are therefore only relevant to the extent that the Court disagrees with me both on the point of admissibility and on the merits of the case. 100. At the outset, I would call attention to the fact that an interpretation given by the Court of a rule of EU law is intended to clarify and define the meaning and scope of that rule as it ought to have been understood and applied from its entry into force. Accordingly, the rule – as interpreted by the Court – is to be applied to all legal relationships, including those which arose and were established before the judgment in which the ruling on interpretation was given. As a matter of principle, the Court can therefore limit the temporal effects of its judgments only in exceptional circumstances. (60) 101. The Court limits the temporal effects of a judgment only where two (cumulative) conditions are met. First, a ‘risk of serious economic repercussions’ must be established. Those repercussions must stem, in particular, from a large number of legal relationships entered into in good faith on the basis of rules considered at the time to be validly in force. Second, the unlawful practices must have been based on objective, significant uncertainty concerning the interpretation and scope of the EU law provisions in question. In that connection, the Court has attached particular importance to the conduct of other Member States and the Commission, which may have contributed to the unlawful conduct in question. (61) 102. In its request, the Slovak Government has produced a table specifying the number of times the procedure at issue has taken place between 2003 and 2012. That number increased from 217 in 2003 to 3 916 in 2012. That government states that between 1 May 2004 and 31 December 2012, a total of 17 309 public sales took place. On that basis, the Slovak Government claims that a large number of transactions have been concluded in good faith and in reliance of the procedure at issue being compatible with Directive 93/13. 103. However, in response to a question put during the hearing, the Slovak Government stated that those figures were aggregate figures. It was unable, therefore, to indicate how many of those public sales arose from consumer contracts, that is to say, in situations involving a consumer and a trader, rather than in other contractual situations. It could not even make an informed guess. 104. As the Slovak Government is unable even to provide an objective estimate of the number of legal relationships involving a consumer and allegedly established in good faith, the Court cannot be reassured of the need to restrict the temporal effects of the judgment in accordance with the principle of legal certainty. The request must therefore be refused. 105. Accordingly, it is not necessary to address the issue of whether legal relationships purportedly established in good faith should be accorded more weight than the right of consumers to seek redress for infringements of Directive 93/13, in reliance on the judgment of the Court. By the same token, there is no need to explore whether the principles set out in Banco Español de Crédito and Aziz (in which no limitation of the temporal effects of those judgments was sought) might have removed any uncertainty as to the compatibility of the procedure at issue with Directive 93/13. 106. That said, a refusal to limit the temporal effects of the judgment does not preclude the application of the Slovak rules on the time-barring of actions, to the extent that they are consistent with the principles of equivalence and effectiveness. Suffice it to say in that respect that, according to the table produced by the Slovak Government, some of the public auctions took place more than 10 years ago. 107. On that basis, should the Court hold the question referred to be admissible and the procedure at issue to be incompatible with Directive 93/13, I would advise against limiting the temporal effects of the judgment. IV – Conclusion 108. In light of the foregoing, I propose that the Court declare the question referred by the Okresný súd Prešov (Slovakia) inadmissible. 1 – Original language: English. 2 – See, inter alia, Case C‑346/93 Kleinwort Benson [1995] ECR I‑615, paragraph 24; see also Opinion 1/91 [1991] ECR I-6079, point 61. 3 – Council Directive of 5 April 1993 (OJ 1993 L 95, p. 29). 4 – The referring court does not state, in the order for reference, when the interim measure is set to expire (if at all). 5 – Moreover, the Slovak Government stated that, when preparing for the hearing, it had – exceptionally – been in informal contact with the referring court and had learned that the judgment of 21 March 2012 had been challenged by Getfin, but that that challenge was dismissed on 13 May 2013. 6 – It strikes me, therefore, that the only ‘voluntary’ element in such a procedure lies in the fact that the original agreement, containing a clause allowing the creditor to have recourse to an enforcement procedure of that kind, was (obviously) entered into with the debtor’s consent. 7 – See, in particular, Case C‑618/10 Banco Español de Crédito [2012] ECR I‑0000, and Case C‑415/11 Aziz [2013] ECR I‑0000. See also Joined Cases C‑537/12 and C‑116/13 Banco Popular Españoland Banco de Valencia [2013] ECR I-0000; essentially confirming, by way of order, the outcome in Aziz. 8 – See Case C‑34/13 Kušionová, currently pending before the Court, in which the Krajský súd v Prešove (Prešov Regional Court) (Slovakia) has requested the Court to give a preliminary ruling on a series of questions which essentially concern the same issues as those raised in the present proceedings. See also Case C‑280/13 Barclays Bank, currently pending before the Court. 9 – It being understood that in proceedings under Article 267 TFEU, the Court cannot rule upon the compatibility of a provision of domestic law with EU law. It may, however, provide the national court with an interpretation of EU law so as to enable that court to determine this for itself. 10 – Directive 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 (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22). 11 – Directive of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30). 12 – This last piece of information was, however, not verifiable, as neither Getfin nor Mr and Mrs Macinský participated in the hearing before the Court. 13 – I would point out, in this respect, that as stated in point 30 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2012 C 338, p. 1), in such proceedings, it is incumbent on the referring court to properly inform the Court of any procedural step that may affect the referral, in the interests of the proper conduct of the preliminary ruling proceedings before the Court and in order to maintain their effectiveness. 14 – This is evidenced in points 35 to 37 of the Opinion of Advocate General Kokott in Aziz, who agreed that the first question referred in that case appeared, on the face of it, to be hypothetical, although an answer might have an impact on the possibility of compensation following completion of the enforcement procedure. 15 – See Aziz, paragraphs 38 and 39. 16 – See, inter alia, Case C‑235/95 Dumon and Froment [1998] ECR I‑4531, paragraph 25 and case-law cited. 17 – See, to that effect, Case C‑236/02 Slob [2004] ECR I‑1861, paragraph 29, and Case C‑226/07 Flughafen Köln/Bonn [2008] ECR I‑5999, paragraph 37. 18 – They argue that the judgment of 21 March 2012 neither voids the loan agreement nor the secured interest and that Getfin is allegedly not bound by the recalibration of the debt made in the operative part of that judgment. However, as for this last claim, they also state in that very same letter that under Article 151(2) of the Slovak Code of Civil Procedure, the operative part of a judgment is binding on the parties. 19 – According to the grounds stated in the judgment of 21 March 2012, the contract was declared void on the basis of the ordinary rules on the invalidity of contracts laid down in the Slovak Civil Code and not the special rules on consumer protection which, according to that judgment, must be invoked if damages are to be obtained under Paragraph 5(3) of Law No 250/2007 on the Protection of Consumers. 20 – It should be recalled that Financreal ceded its right to repayment to Getfin under the loan agreement, which was later declared void. The referring court does not mention the possibility that Financreal – or Getfin – could be held liable to pay damages to the consumers for reasons other than the fairness of the terms of the agreement. 21 – Article 11(1) and (2) of Directive 2005/29, and Articles 1(1) and 2 of Directive 2009/22. 22 – See, to that effect, Banco Español de Crédito, paragraphs 59 and 60, as well as paragraphs 85 to 87. 23 – For recent applications of that case-law, see Case C-82/13 Società cooperativa Madonna dei miracoli [2013] ECR I-0000, paragraphs 12 and 14; Case C‑180/12 Stoilov i Ko [2013] ECR I-0000, paragraph 47; and Case C-313/12 Romeo [2013] ECR I-0000, paragraphs 39 and 40. 24 – See the Opinion of Advocate General Kokott in Aziz, points 55 and 56. 25 – See, inter alia, Aziz, paragraph 46 and case-law cited. 26 – I refer to Banco Español de Crédito, paragraph 46, and Aziz, paragraph 50; see also, to that effect, C‑397/11 Jőrös [2013] ECR I‑0000, paragraph 50. Since the entry into force of the Treaty of Lisbon, aspects of the principle of effectiveness are now also enshrined in Article 19(1) TEU. 27 – Paragraph 21(2) of the Law on Voluntary Auctions allows a longer period for the lodging of proceedings for the annulment of a sale by public auction in certain cases where the sale is a result of a criminal offence. However, that obviously does not exclude the public auction of a consumer’s property under an unfair contractual term which might have been concluded in the context of such an offence. 28 – See also, concerning the duties of the national courts under Directive 93/13, Case C‑40/08 Asturcom Telecomunicaciones [2009] ECR I‑9579, in respect of the enforcement of an arbitral award; and Jőrös, in relation, inter alia, to the fact that national law only designated certain courts as competent to hear cases involving alleged unfair terms (see the second question referred in that case). 29– See Banco Español de Crédito, paragraph 45, and Aziz, paragraph 49. While the Court distinguished, prima facie, in paragraph 49 of Aziz, that case from Banco Español de Crédito, the reason for this seems to me to lie merely in the somewhat different procedural setup of both cases (see points 72 and 75 below). 30 – See, to that effect, Banco Español de Crédito, paragraphs 55 and 56, and Aziz, paragraphs 62 and 63. 31 – See Banco Español de Crédito, paragraph 39, and Aziz, paragraph 44. 32 – See Banco Español de Crédito, paragraph 49, and Aziz, paragraph 53. 33 – See Aziz, paragraphs 59 and 60. 34 – Conversely, the recent order in Banco Popular Españoland Banco de Valencia would also seem to constitute an instance of impossibility (see points 54 and 55). 35 – See Banco Español de Crédito, paragraphs 25 and 26. Advocate General Trstenjak mentioned in her Opinion, moreover, that if an appeal was lodged against the order for payment, the proceedings would also become adversarial, see points 51 and 68. 36 – The Court referred to the brevity of the period allowed; the potentially prohibitive costs; the consumers’ lack of awareness of their rights; and the laconic content of the application for the order for payment (see paragraph 54). 37 – In Asturcom Telecomunicaciones, the effective protection of consumers was weighed against the principle of res judicata. The Court found in favour of the latter, emphasising the importance of that principle (see paragraphs 35 to 37). In Banco Español de Crédito, however, it was found that the promotion of easy access to justice for creditors and swift procedures could not, in those circumstances, outweigh the application of effective consumer protection. Interestingly, the Court seems, in the former case, to have lowered the level of effective consumer protection, and in the latter, to have raised it. Most recently, in Jőrös, the Court held that the right for Member States to set up their own legal system may, in principle, outweigh the right of a national court to set aside an unfair term of its own motion if the competence to do so lies with another jurisdiction. However, the internal procedural rules of that national court must, as far as possible, be interpreted in such a way as to achieve the result prescribed by Article 6(1) of Directive 93/13 (see Jőrös, paragraphs 50 to 52). 38 – Indeed, according to the Court, Article 6(1) of Directive 93/13 is intended only to re-establish equality between the consumer and the trader; see, inter alia, Aziz, paragraph 45. 39 – See Article 8 of Directive 93/13 and the 12th recital in the preamble thereto. 40 – See Banco Español de Crédito, paragraph 51. 41 – See Asturcom Telecomunicaciones, paragraph 47. 42 – See the Opinion of Advocate General Kokott in Aziz, point 55. Such a view was also expressed by Advocate General Trstenjak in her Opinion in Banco Español de Crédito, point 74; although the Court admittedly did not share that view. 43 – I should, furthermore, point out that an obligatory ex ante judicial review may come at extra cost for the trader (such as court fees for launching the proceedings), even where the contract at issue does not contain unfair terms. 44 – See Article 4(1) of Directive 93/13, as well as Article 3(3), which refers to a list of non-exhaustive and indicative terms which may be considered as unfair, annexed to Directive 93/13; see furthermore, to that effect, Aziz, paragraphs 66 and 68 to 71. 45 – See, to that effect, the judgments of the European Court of Human Rights in Rouskv. Sweden, no. 27183/04, ECHR 25 July 2013, which concerned the public sale of the debtor’s home and his eviction therefrom at the request of a public authority in respect of a claim for payment of a tax debt amounting to SEK 6 721 (approximately EUR 800) (see, in particular, the findings of that Court at §§ 91, and 137 to 139); and Zehentner v. Austria, no. 20082/02, ECHR 2009, concerning the judicial sale of a private property to secure the recovery of a debt of approximately EUR 2 150 in a matter between two private parties, where the debtor was legally incapacitated and therefore unable to defend herself adequately against the claim (see, in particular, §§ 54, 59, 61, 75 and 76). 46 – See, to that effect, Aziz, paragraph 61. 47 – See my Opinion in Case C-363/12 Z, currently pending before the Court, point 73, and the authorities cited in its footnote 38. See also, inter alia, Lenaerts, K., ‘Exploring the Limits of the EU Charter of Fundamental Rights’, European Constitutional Law Review, (8)2012, p. 376. For the interplay between the procedural autonomy of Member States, the principles of equivalence and effectiveness, and the Charter, see Case C‑93/12 Agrokonsulting [2013] ECR I-0000, paragraphs 59 to 61. 48 – See Rousk v. Sweden, § 137. 49 – See also, in this regard, Zehentner v. Austria, § 54. 50 – According to the observations of the Slovak Government in Kušionová, Paragraphs 74(1) and 76(1)(f) of the Slovak Code of Civil Procedure do indeed grant courts general powers to issue interim measures in proceedings before them. 51 – I refer, for further detail, to Paragraphs 39(3) and 43(2) of Law No 162/1995 on the Land Registry and the Registration of Rights of Property and Other Rights in Respect of Immovable Goods. It follows from those provisions that, if informed of a challenge, the Land Registry Services will record that information until the challenge has been dealt with. See, in a different context, Aziz, paragraphs 56 to 58. 52 – I should add that there is nothing to prevent a consumer from seeking a court declaration that a contractual term is unfair even before the publication of the notice of sale. 53 – In contrast to Aziz, in the case under consideration, the question of the compatibility of the procedure at issue with Directive 93/13 arose in the context of the enforcement of the claim against the consumers and not the proceedings on the substance. Moreover, the main proceedings, which relate to the enforcement, were lodged by the consumers, whereas the proceedings on the merits were brought by the trader. 54 – See Aziz, paragraphs 54 and 55. 55 – Referring to Paragraph 7(2) of the Law on Voluntary Auctions, the Slovak Government confirmed at the hearing that Slovak courts enjoy such jurisdiction. 56 – See, to that effect, Jőrös, paragraph 52. 57 – In this respect, case-law does not make it clear how well-informed and active a consumer must be. Banco Español de Crédito and Aziz seem to favour a more vulnerable type of consumer, whereas Asturcom Telecomunicaciones rather seems to require the consumer to be more of a bonus pater familias litigant. The lack of clarity is exacerbated by the fact that, in Asturcom Telecomunicaciones, Advocate General Trstenjak urged the Court to oblige a national court to halt the enforcement of an arbitral award issued on the basis of a contract containing an unfair term (see point 76 of her Opinion in Asturcom Telecomunicaciones) – which the Court did not do – after which she argued in Banco Español de Crédito, in specific reference to this outcome (but equally in vain), that the Court should adopt a model of the consumer who is ‘reasonably well informed and reasonably observant and circumspect’ (see points 72 and 73 of her Opinion in Banco Español de Crédito). 58 – In both judgments of the European Court of Human Rights referred to above, the debtor was arguably in a more vulnerable position than usual. In Rousk v. Sweden, the creditor was the State, and in Zehentner v. Austria, the debtor was legally incapacitated. 59 – See, to that effect, Jőrös, paragraphs 50 to 52. 60 – See Joined Cases C‑338/11 to C-347/11 FIM Santander Top 25 Euro Fi [2012] ECR I‑0000, paragraph 59 and case-law cited. In addition, the Court has consistently held that such a restriction may be allowed only in the actual judgment ruling on the interpretation sought. See, for example, Case C‑292/04 Meilicke and Others [2007] ECR I‑1835, paragraph 36 and case-law cited. 61 – See, inter alia, FIM Santander Top 25 Euro Fi, paragraph 60 and case-law cited.