Summary;Judgment — ECLI:EU:C:2022:723
Date: 2022-09-22
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Translation C-215/21 – 1 
Case C-215/21 
Request for a preliminary ruling 
Date lodged: 
6 April 2021 
Referring court: 
Juzgado de Primera Instancia No 2 de Las Palmas de Gran Canaria 
(Spain) 
Date of the decision to refer: 
12 March 2021 
Applicant: 
Zulima 
Defendant: 
Servicios Prescriptor y Medios de Pagos E.F.C. S.A.U. 
  
[…] 
ORDER 
MAKING A REFERENCE FOR A PRELIMINARY RULING TO THE 
COURT OF JUSTICE OF THE EUROPEAN UNION 
[…] [Identification of the proceedings, the referring court and the parties] 
FACTS 
FIRST. – In this court, Ms Zulima has brought against the commercial company 
SERVICIOS PRESCRIPTOR Y MEDIOS DE PAGOS E.F.C. S.A.U. (formerly 
EVOFINANCE E.F.C. S.A.U.), an application in ordinary proceedings 
constituting an ACTION FOR A DECLARATION AS TO THE NULLITY OF A 
CREDIT FACILITY AGREEMENT AND FOR AN ACTION FOR PAYMENT, 
whereby she alleges, on the basis of Article 2(b) of Council Directive 93/13/EEC, 
that she is acting in a context outside her trade, business or profession and is a 
consumer. 
EN 
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In the application, she sought a judgment DECLARING that the revolving credit 
agreement which she and the defendant commercial company Servicios 
Prescriptor y Medios de Pagos E.F.C. S.A.U had entered into on 21 September 
2016 was void because the terms were usurious. She sought an ORDER requiring 
the defendant entity to reimburse the difference between the capital sum genuinely 
lent and the amount actually paid back [OR.2] in excess of the capital lent under 
the aforementioned agreement, including both remunerative interest and 
commission, as well as any such payments as continue to be made, plus statutory 
interest thereon, the quantum of the entirety of the foregoing to be determined by 
injunctive relief and award as to costs. She also brings an action for a declaration 
as to the nullity of the general conditions of contract on the remunerative interest 
clause, for lack of transparency, under the EU directives and the legislation 
transposing them.  
SECOND. – […] [matters of domestic procedural law] 
[…] [The] defendant submitted a document requesting that the proceedings be 
discontinued on the ground that the heads of claim contained in the application 
had been settled out of court, in accordance with Article 22 of the LEC [Ley de 
Enjuiciamiento Civil (Law of Civil Procedure)]. In it, the defendant argued that it 
had cancelled/terminated/annulled the agreement, and that the customer cannot 
carry out any transactions using the [revolving credit] card; it also argued that the 
debit balance in respect of interest and commission had been cancelled, and noted 
finally that the refund would be equal to the sum overpaid by the applicant in the 
amount of [EUR] 326.04; it requested finally that costs not be awarded against it, 
in accordance with Article 22 of the LEC. 
THIRD. – By measure of organisation of procedure of 11 September 2020, and in 
accordance with Article 20(3) of the LEC, this court decided to notify the 
applicant of the request to discontinue the proceedings, on the ground that the 
applicant no longer had a legitimate interest in obtaining effective judicial relief. 
The applicant challenged the defendant’s contention, made on the basis of the 
arguments set out in the document it had submitted, that the matter had been 
settled out of court. In short, the applicant argues that, before bringing the 
application, she had issued to the defendant a letter of formal notice which went 
unheeded and did not secure the settlement of her claims. Secondly, she argues 
[that] the matter has not in fact been settled out of court, since her application 
contained three heads of claim: a declaration that the agreement is void because its 
terms are usurious; reimbursement of the sums unduly collected; and payment of 
the costs [of the proceedings]. 
In the light of the applicant’s challenge, this court, by measure of organisation of 
procedure of 25 September 2020, summoned the parties to enter an appearance in 
court for the purposes set out in Article 22(2) of the LEC, which it scheduled for 
19 November 2020.  
SERVICIOS PRESCRIPTOR Y MEDIOS DE PAGOS E.F.C. S.A.U. 
 
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FOURTH. – Before making this reference for a preliminary ruling in accordance 
with Article 19(3)(b) of the Treaty on European Union, Article 267 of the Treaty 
on the Functioning of the European Union and Article 4a of the Ley Orgánica del 
Poder Judicial (Basic Law on the Judiciary), this court, by order of 24 November 
2020, decided to grant a hearing to the parties represented, given the impact of EU 
law on the proceedings concerned, with a view in particular to obtaining their 
opinion on the interpretation of Article 6(1) and Article 7(1) of Directive 93/13 in 
conjunction with Article 22 of the LEC, concerning the award of costs in cases in 
which the matter has been settled out of court or has become devoid of purpose. 
Counsel for the applicant put forward arguments challenging the making of a 
reference for a preliminary ruling. Counsel for the defendant did not put forward 
any arguments. 
LAW 
[OR.3] FIRST. – Subject matter of the dispute in the main proceedings 
1 The application originating the proceedings sought a judgment DECLARING the 
revolving credit agreement entered into by the parties on 21 September 2016 to be 
void because the interest agreed under the loan was usurious. In her application, 
the consumer brings, principally, an action under Spanish law for a declaration 
that the credit agreement is void because the interest rate is usurious. 
2 At the same time, the applicant brought an action for a declaration as to the failure 
to include, and/or the nullity of, certain general conditions of contract (the 
remunerative interest clause, for lack of information and transparency) under the 
EU Directives and the legislation transposing them. 
3 […] [Reiteration that the applicant has the status of consumer] 
4 Within the time limit for lodging a defence, the defendant submitted a document 
contending that the matter has been settled out of court and stating that the heads 
of claim raised by the applicant have been met, in accordance with Article 22 of 
the Ley de Enjuiciamiento Civil (Law of Civil Procedure). The applicant 
challenged the request to settle the matter out of court and the parties were 
summoned to enter an appearance in court, as provided for in such circumstances 
in the LEC, at which the parties each put forward their arguments. 
5 It would appear to follow from the purport of the arguments which have been put 
forward and the evidence which has been furnished in the present proceedings that 
an out-of-court offer to settle has indeed been made, the defendant having agreed 
to cancel the agreement at issue and reimburse the sums unduly received. The 
documents before this court attest to the existence of letters of formal notice sent 
by Burofax declaring the agreement signed to be void and seeking reimbursement 
of the sums unduly collected; the defendant responded to the letters of formal 
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notice by refusing to desist from applying remunerative interest and to reimburse 
the sums unduly collected. 
SECOND. – Matters at issue in the main proceedings 
6 In the event that the matter is found to have been settled out of court, inasmuch as 
the consumer’s claims have been met in full, Article 22 of the LEC provides that 
neither of the parties is to be ordered to pay the costs. 
7 It is therefore necessary to seek a preliminary ruling on the question of whether 
the national rule, laid down in Article 22 of the LEC, as to the non-award of costs 
in cases of out-of-court settlement of a matter relating to a consumer constitutes 
an infringement of Article 6(1) in conjunction with Article 7(1) of Directive 93/13, 
in the context of proceedings in which a consumer brings actions for a declaration 
as to the nullity of unfair terms (in particular, the nullity of remunerative interest 
on the ground of lack of transparency), and whether the out-of-court settlement 
must be consistent with the principle that consumers are not bound by unfair terms 
and the principle that sellers and suppliers must be deterred from using such 
terms, and must therefore entail an award of costs against the seller or supplier.  
8 Account must also be taken of the fact that the regime laid down in the LEC does 
not make it possible for the court to assess the existence of letters of formal notice 
[OR.4] or bad faith on the part of the defendant seller or supplier as a basis for 
awarding costs against the seller or supplier in cases of out-of-court settlement. 
THIRD. – European Union law. 
9 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts. 
Article 6 
1. Member States shall lay down that unfair terms in a contract concluded with a 
consumer by a seller or supplier shall, as provided for under their national law, not 
be binding on the consumer and that the contract shall continue to bind the parties 
upon those terms if it is capable of continuing in existence without the unfair 
terms. 
Article 7 
[1.] Member States shall ensure that, in the interests of consumers and of 
competitors, adequate and effective means exist to prevent the continued use of 
unfair terms in contracts concluded with consumers by sellers or suppliers. 
10 Twenty fourth recital of Directive 93/13: ‘the courts or administrative 
authorities of the Member States must have at their disposal adequate and 
SERVICIOS PRESCRIPTOR Y MEDIOS DE PAGOS E.F.C. S.A.U. 
 
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effective means of preventing the continued application of unfair terms in 
consumer contracts’. 
11 Judgment of the Court of Justice of 21 December 2016 (Case C-154/15) 
‘… 53. Under Article 6(1) of Directive 93/13, Member States are to lay down that 
unfair terms used in a contract concluded with a consumer by a seller or supplier 
are, as provided for under their national law, not to be binding on the consumer’.  
‘54. That provision must be regarded as a provision of equal standing to that of 
national rules that have, within the domestic legal system, the character of rules of 
public policy to that effect, judgment of 30 May 2013, Asbeek Brusse and de Man 
Garabito, C-488/11, EU:C:2013:341, paragraph 44)’. 
‘56. Given the nature and significance of the public interest constituted by the 
protection of consumers, who are in a position of weakness vis-à-vis sellers or 
suppliers, Directive 93/13, as is apparent from Article 7(1) thereof, read in 
conjunction with its twenty-fourth recital, obliges the Member States to provide 
for adequate and effective means “to prevent the continued use of unfair terms in 
contracts concluded with consumers by sellers or suppliers” (judgment of 30 April, 
Kásler and Káslerné Rábai, C-26/13, EU:C:2014:282, paragraph 78)’. 
12 Judgment of the Court of Justice (Third Chamber) of 5 December 2013 (Case 
C-413/12) 
‘… 30. In the absence of harmonised legal procedural means available to 
consumer protection associations to prevent the continued use of unfair terms […] 
in the interests of both consumers and competitors, it is for the internal legal order 
of each Member State, under the principle of procedural autonomy, to establish 
such [OR.5] rules, provided however that they are not less favourable than those 
governing similar situations subject to domestic law (principle of equivalence) and 
that they do not make it impossible in practice or excessively difficult to exercise 
the rights conferred by European Union law on consumer protection associations 
(principle of effectiveness) (see, by analogy, Case C-415/11 Aziz [2013] ECR, 
paragraph 50, and Case C-565/11 Irimie [2013] ECR, paragraph 23 and the case-
law cited) […]’. 
13 Judgment of the Court of Justice (Fourth Chamber) of 16 July 2020 in Joined 
Cases C-224/19 and C-259/19 
‘96. […] Nonetheless, it is necessary to rule on the question of whether it is 
compatible with the principle of effectiveness for the consumer to be made to bear 
the costs of proceedings depending on the sums reimbursed to him, even if he has 
been successful in his claim in relation to the unfairness of the contested term’. 
‘98. In this case, Directive 93/13 confers on a consumer the right to apply to a 
court to have a contractual term declared unfair and to have it disapplied. 
However, making the outcome of the apportionment of the costs of such 
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proceedings conditional only upon the sums unduly paid and ordered to be 
refunded may dissuade consumers from exercising that right in view of the costs 
which legal proceedings would entail (see, to that effect, the judgment of 
13 September 2018, Profi Credit Polska, C-176/17, EU:C:2018:711, 
paragraph 69)’. 
‘99. […] Article 6(1) and Article 7(1) of Directive 93/13 and the principle of 
effectiveness must be interpreted as meaning that they preclude a system whereby 
the consumer may be made to bear part of the costs of proceedings depending on 
the level of the unduly paid sums which are refunded to him following a finding 
that a contractual term is void for being unfair, given that such a system creates a 
substantial obstacle that is likely to discourage consumers from exercising the 
right to an effective judicial review of the potential unfairness of contractual terms 
such as that conferred by Directive 93/13’. 
FOURTH. – National legal framework applicable to the dispute in the main 
proceedings. 
14 Article 22 of the Ley de Enjuiciamiento Civil (Law of Civil Procedure) 
[…] Article 22. Termination of the proceedings because the matter has been 
settled out of court or has become devoid of purpose. 
1. Where, on account of circumstances arising after the application and the 
counterapplication have been made, there ceases to be a legitimate interest in 
obtaining the judicial relief sought, because the heads of claim raised by the 
applicant and, where appropriate, the defendant bringing the counterapplication 
have been met of court or for any other reason, this fact shall be disclosed and, 
with the parties’ consent, the Registrar shall order the termination of the 
proceedings, without any award of costs. 
2. Should either party submit that a legitimate interest remains, by giving a 
reasoned rebuttal of the assertion that his claims have been met, or by relying on 
other arguments, the Registrar shall, within ten days, summon the parties to enter 
an appearance in court for the sole purpose of debating this issue. 
[OR.6] Following that appearance, the court shall, within the following ten days, 
decide whether or not the proceedings should be continued, the costs of such 
proceedings being awarded against the party whose claim is dismissed. 
3. An order for the continuation of proceedings shall not be open to appeal. An 
order for the termination of proceedings shall be open to appeal to a higher court. 
15 Article 394 of the Law of Civil Procedure 
SERVICIOS PRESCRIPTOR Y MEDIOS DE PAGOS E.F.C. S.A.U. 
 
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1. In proceedings for declaratory relief, costs at first instance shall be awarded 
against the party all of whose claims have been dismissed, unless the court finds, 
and gives reasons for finding, that the case exhibited serious doubts of fact or law. 
FIFTH. – Problems relating to interpretation and the consistency of national 
law with EU law which are relevant to the judgment to be given in the 
dispute in the main proceedings. The request for a preliminary ruling. 
16 It is necessary to determine whether the limitation which domestic procedural law 
permits in connection with the non-award of costs in cases of out-of-court 
settlement is compatible with the principle of effectiveness. In other words, it 
must be determined whether the [contested] provision itself makes it impossible or 
excessively difficult to exercise before the courts the rights which EU law confers 
on consumers, inasmuch as the fact that a consumer should have to bear the 
economic cost of proceedings triggered by unlawful conduct on the part of the 
seller or supplier imposes a limitation on that consumer – particularly in situations 
such as that in the present case, where the consumer issued letters of formal notice 
to the seller or supplier but those letters went unheeded when first issued – by 
compelling him or her to bear his or her own procedural costs, which does not 
seem reasonable. 
17 Directive 93/13 confers on a consumer the right to apply to a court to have a 
contractual term declared unfair and disapplied. However, making the outcome of 
the apportionment of the costs of such proceedings conditional upon the particular 
procedural conduct of the defendant, irrespective of the existence of letters of 
formal notice that were issued by the consumer but went unheeded, may dissuade 
the consumer from exercising that right in view of the costs which legal 
proceedings would entail (see, to that effect, the judgment of 13 September 2018, 
Profi Credit Polska, C-176/17, EU:C:2018:711, paragraph 69). 
18 It follows from the case-law of the Court of Justice that the apportionment of the 
costs of legal proceedings brought before the courts falls within the sphere of the 
procedural autonomy of the Member States, provided that the principles of 
equivalence and effectiveness are observed. 
A ruling is therefore required on the question of whether it is compatible with the 
principle of effectiveness for the consumer to be made to bear the costs of 
proceedings in cases of out-of-court settlement, as provided for in Article 22 of the 
LEC, in particular in situations where letters of formal notice have been issued but 
gone unheeded and the consumer has therefore had to apply to the courts and bear 
the costs attendant upon doing so, regard being had to the fact that an out-of-court 
settlement assumes in essence that all of the consumer’s claims as to the 
unfairness of the term introduced by the seller or supplier have been upheld. 
[OR.7] 
19 Accordingly, in a situation in which a matter has been settled out of court or 
become devoid of purpose within the meaning of Article 22 of the LEC, and in 
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which, following the entry of an appearance in court as provided for in that article, 
the consumer’s case is found to have indeed been settled, inasmuch as the seller or 
supplier recognises the nullity of the contested term, the procedural rules state that 
there is to be no award of costs, meaning that the consumer will have had to bear 
the costs of the proceedings. Is it necessary in such circumstances, in order not to 
deter the consumer, to ensure that the consumer does not suffer loss and infringe 
Article 22 of the LEC, inasmuch as it provides that no party is to incur procedural 
costs in cases of out-of-court settlement, even if the issue of letters of formal 
notice by the consumer shows the seller or supplier to have acted in bad faith, and 
in any event to award the costs of the proceedings against the defendant financial 
institution? 
20 The question, in essence, is whether, in the light of the principle that unfair terms 
are non-binding and the principle that sellers or suppliers must be deterred from 
using them, laid down in Directive 93/13, Article 6(1) and Article 7(1) of 
Directive 93/13 are to be interpreted as meaning that they preclude a regime 
which allows a consumer to bear the costs of proceedings in cases of out-of-court 
settlement in which the seller or supplier recognises that a contractual term is void 
because it is unfair. It follows from the documents before this court, after all, that 
the effect of applying Article 22 of the LEC might be that the seller or supplier is 
not ordered to pay the full costs [of the proceedings] in a situation in which: an 
action for a declaration as to the nullity of a contractual term brought by a 
consumer is effectively upheld because the seller or supplier fully recognises the 
unfairness of that term; there is evidence of the consumer having issued letters of 
formal notice to the same effect that went unheeded by the seller or supplier; and 
the consumer is compelled to apply to the courts but the latter do not thereafter 
recognise his right to have his costs paid in the event of an out-of-court settlement. 
21 Finally, the rules on costs laid down in Article 22 of the LEC would seem, 
according to the interpretation which the national courts have been adopting of 
them and in the absence of any indication of the presence of special circumstances 
that might justify an award of costs against the defendant, to be capable of 
deterring the consumer from bringing an action for a declaration of nullity if he or 
she must bear the costs of legal proceedings by virtue of the seller’s or supplier’s 
conduct in choosing to settle the consumer’s claims out of court. 
On the basis of the arguments set out above, 
[…] 
I ORDER 
That the proceedings be stayed at this stage, which is crucial to the outcome of the 
dispute, and that a reference be made to the Court of Justice for a preliminary 
ruling on the following: 
SERVICIOS PRESCRIPTOR Y MEDIOS DE PAGOS E.F.C. S.A.U. 
 
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QUESTION: 
Where a consumer raises a complaint against an unfair term under Directive 
93/13/EC and an out-of-court offer to settle is made, Article 22 of the Ley de 
Enjuiciamiento Civil (Law of Civil Procedure) has the effect of compelling the 
consumer to bear the costs of the proceedings without regard to the seller’s or 
supplier’s prior conduct in having failed to heed the letters of formal notice 
[issued to him]. Do those Spanish rules of procedure constitute a significant 
obstacle capable of dissuading a consumer from exercising the right to effective 
judicial review of the potentially unfair nature of a contractual term [OR.8] 
contrary to the principle of effectiveness and Article[s] 6(1) and 7(1) of Directive 
93/13? 
[…] [Closing procedural formulae]