Opinion of the Advocate General — ECLI:EU:C:2019:921
Date: 2019-10-31
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Spain

summary nature of that ‘no evidence’ procedure. 25 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349). 26 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 46 and 47). In that case, the Court stated that it did not have before it ‘any evidence which might raise doubts as to the compliance of the legislation at issue … [with the principle of equivalence]’. 27 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 46). In accordance with the principle of effectiveness, the rules established under national law cannot make it ‘in practice impossible or excessively difficult to exercise the rights conferred on consumers by European Union law’. 28 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 49). 29 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 53). 30 The term in square brackets is that used by Regulation 1896/2006. The English translation of certain judgments, notably C‑618/10 Banco Español de Credito, and C‑176/17 Profi Credit Polska refer to ‘objection’. The French text of those judgments mirrors the regulation. 31 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 54) (emphasis added). 32 However, that list of criteria is not exhaustive: thus, the right of access to the court hearing the opposition must be the subject of an overall examination. See also, to that effect, Berthe, A., L’injonction de payer, Brussels, Larcier, 2017, p. 171. 33 See judgment of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraph 55). Emphasis added. 34 Judgment of 13 September 2018, (C‑176/17, EU:C:2018:711). 35 Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraphs 45 to 47). 36 Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 44 and the case-law cited). 37 Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 54). See, also Opinion of Advocate General Kokott in Profi Credit Polska (C‑176/17, EU:C:2018:293, point 28). 38 Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 63). 39 Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, operative part). Emphasis added. 40 The court seised was, in particular, to ‘refrain from an assessment of the merits of the claim at stake’ (recital 12 of the Proposal for a Regulation of the European Parliament and of the Council creating a European order for payment procedure, COM(2004) 173 final). For a detailed account of the history of the regulation, see Berthe, A., L’injonction de payer, Brussels, Larcier, 2017, pp. 230 to 238. 41 See, to that effect, Crifo, C., Cross-Border Enforcement of Debts in the European Union, Kluwer Law International, 2009, p. 111. 42 Recital 13 of Regulation No 1896/2006 emphasises, in that regard, the need to provide information that is sufficient to identify and support the claim in order to place the defendant in a position to make a well-informed choice either to oppose the claim or to leave it uncontested. 43 Berthe, A., L’injonction de payer, Brussels, Larcier, 2017, p. 273. See, also, to that effect: Payan, G., ‘La procédure d’injonction de payer européenne: entre efficacité et insécurité’, Ius et Actores, 2014, p. 264. 44 See Lopez de Tejada, M., and d’Avout, L., ‘Les non-dits de la procédure européenne d’injonction de payer’, Revue critique de droit international privé, 2007, p. 729, and Guinchard, E., ‘Réforme législative adoptée pour le règlement [instituant une procédure européenne de règlement des petits litiges] et réforme jurisprudentielle à venir pour le règlement [instituant une procédure européenne d’injonction de payer] ?’, Revue trimestrielle de droit européen, 2016, p. 435 et seq. 45 In that regard, I begin by noting that, on standard form A, the creditor-claimant is required to specify at the outset whether his co-contractor is a consumer. Section 11 of form A allows additional information to be supplied (thus making it possible, for example, to reproduce specific terms). 46 Under Article 10(1) of Regulation No 1896/2006, if the requirements referred to in Article 8 are met for only part of the claim, the court seised is to inform the claimant, who is then to be invited to accept (or refuse) a proposal for a European order for payment for the amount specified by that court. If the claimant accepts the court’s proposal, the court is to issue a European order for payment for that part of the claim accepted by the claimant. The consequences with respect to the remaining part of the initial claim are to be governed by national law (see Article 10(2)). 47 See also point 106 of this Opinion. 48 As the Court has recalled on several occasions, in principle EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair and those procedures accordingly fall within the domestic legal system of the Member States, provided that the principles of equivalence and effectiveness are complied with: see judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 46), and of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 57). It seems to me that that finding must apply, mutatis mutandis, to the European order for payment procedure, since Regulation No 1896/2006 contains no express provision which prevents the application of Directive 93/13 or which establishes detailed rules for reviewing any potentially unfair terms (within the meaning of that directive) in that context. 49 It is for that reason in particular that, in Finanmadrid EFC, Advocate General Szpunar noted that ‘de lege ferenda, … it would be desirable to amend [the] regulation …, which potentially covers claims arising from consumer contracts, so as to make express provision for a court to review unfair terms of its own motion at the stage of adoption of a European order for payment’: see, in that connection, Opinion of Advocate General Szpunar in Finanmadrid EFC (C‑49/14, EU:C:2015:746, footnote 20). 50 See, to that effect, Opinion of Advocate General Kokott in Profi Credit Polska (C‑176/17, EU:C:2018:293, point 73 and the case-law cited). 51 Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 71). 52 Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349). 53 See points 73 and 79 of this Opinion. 54 See, to that effect, Lopez de Tejada, M., and d’Avout, L., ‘Les non-dits de la procédure européenne d’injonction de payer’, Revue critique de droit international privé, 2007, pp. 723 to 724. See also point 93 of this Opinion. 55 The European procedure thus differs from most non-documentary procedures, which in effect compensate for the absence of supporting documents by a time limit for bringing an action which is twice as long, and more favourable to the defendant. I am thinking, in particular, of the Mahnverfahren in German law. 56 While certain penalty or default interest clauses may be inherently unfair, the same is not true of other, more subtle, situations, where the unfair nature of the contract results from the interaction of several clauses. 57 This is (a fortiori) the case where the contract in question is governed by the law of a Member State other than that of the consumer: see, to that effect, the fifth recital of Directive 93/13. 58 See, to that effect, Chainais, C., ‘L’injonction de payer française, modèle d’une protection juridictionnelle monitoire’, in Justices et droit du procès. Du légalisme procédural à l’humanisme processuel, Paris, Dalloz, 2010, p. 646, No 51. 59 Rott, P., ‘Case Note on Banco Español de Crédito’, European Review of Contract Law, 2012, pp. 470 to 480. 60 See point 95 above. In my view, the reasoning here follows by analogy with Pannon GSM. The consumer should be notified beforehand of the potentially unfair nature of a term so that he is in a position to make a well-informed choice not to exercise his rights in that regard: see judgment of 4 June 2009 (C‑243/08, EU:C:2009:350, paragraph 33). 61 I note, moreover, that in practice the number of oppositions lodged against European orders for payment is limited (seemingly corroborating the lack of impact which that factor has on the exercise of the right to lodge a statement of opposition). For example, in 2012 in Austria, 96% of the orders for payment issued were not opposed by the debtor. See, in that regard, Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Regulation (EC) No 1896/2006 of the European Parliament and of the Council creating a European Order for Payment Procedure (COM(2015) 495 final, section 3.7). 62 Regulation No 1896/2006 sets a ceiling only on the court fees. Article 25 provides that ‘the combined court fees of a European order for payment procedure and of the ordinary civil proceedings that ensue in the event of a statement of opposition … shall not exceed the court fees of ordinary civil proceedings without a preceding European order for payment procedure in that Member State’. Those court fees are to comprise fees and charges to be paid to the court, the amount of which is fixed in accordance with national law. Those fees may in themselves sometimes exceed the amount of the claim concerned. If he is circumspect, a consumer will also take into account, in coming to a decision, any costs of legal representation (lawyers’ fees) and, where appropriate, any interest awarded by the court continuing to accrue against him during the proceedings. 63 Those provisions refer respectively to the cause of the action (including a description of the circumstances invoked as the basis of the claim and, where applicable, of the interest demanded) and the description of the evidence supporting the claim. 64 See point 95 above. That will be the case, inter alia, if the court seised has doubts as to the amount of interest lawfully payable or as to the amount requested on the basis of a contractual penalty. 65 I refer here to the wording of Article 7(2)(e) of Regulation No 1896/2006. 66 Judgment of 13 December 2012, Szyrocka (C‑215/11, EU:C:2012:794). 67 Judgment of 13 December 2012, Szyrocka (C 215/11, EU:C:2012:794, operative part). 68 See, to that effect, Payan, G., ‘La procédure d’injonction de payer européenne: entre efficacité et insécurité’, Ius et Actores, 2014, pp. 263 and 264. 69 Judgment of 13 December 2012, Szyrocka (C‑215/11, EU:C:2012:794). 70 Judgment of 13 December 2012, Szyrocka (C‑215/11, EU:C:2012:794, paragraph 31, emphasis added). In the same vein, I note that Advocate General Mengozzi also highlighted the fact that equal access to the order for payment procedure in question for all claimants and defendants in the European Union depends on the predictability and uniformity of the requirements laid down by Regulation No 1896/2006, thereby making it possible to safeguard the independence of that procedure: see the Opinion of Advocate General Mengozzi in Szyrocka (C‑215/11, EU:C:2012:400, points 33 to 36). 71 I refer here to the criteria highlighted in the Opinion of Advocate General Mengozzi in Szyrocka (C‑215/11, EU:C:2012:400, points 33 to 36). 72 To paraphrase the judgment in Szyrocka (cited above), the exercise of such a power will not lead to an ‘increase in the complexity, duration and costs of the European order for payment procedure’. 73 I am obviously aware of the possible issue of the costs of translating a contract. However, it seems to me that that problem is largely theoretical. It is reasonable to expect that the contract will be drawn up in the language commonly used by the debtor (since he signed the contract) — the language which will, in most cases, also be that of the court seised (because of the rule of jurisdiction in Article 6(2) of Regulation No 1896/2006, which provides that ‘if the defendant is the consumer, only the courts in the Member State in which the defendant is domiciled … shall have jurisdiction’). 74 Under Article 7(5) of Regulation No 1896/2006, it is possible to submit an electronic application for a European order for payment. Article 8 also allows for examination by means of an ‘automated procedure’. The European legislature thus seems to favour encouraging the computerisation of the procedure: the proposed solution does not prevent that development. See also, to that effect, Payan, G., ‘La procédure d’injonction de payer européenne: entre efficacité et insécurité’, Ius et Actores, 2014, p. 265. 75 The court seised does not rule on the substance and does not annul the contractual provisions called into question. It simply refuses to issue an enforceable instrument under Regulation No 1896/2006 relying on a prima facie case — without prejudging the creditor’s rights, which must be the subject of an exchange of arguments before the court adjudicating on the substance. See also points 137 and 138 below. 76 In its Resolution of 1 December 2016 on the application of the European Order for Payment Procedure (2016/2011(INI)), the European Parliament emphasised that: ‘the streamlined nature of the procedure does not mean that it can be misused to enforce unfair contractual terms, since Article 8 of Regulation [No 1896/2006] calls on the court to examine whether the claim is founded on the basis of the information available to it, thus ensuring compatibility with the relevant case-law of the Court of Justice on this subject’ (see recital J of that resolution). 77 See point 65 above and the case-law cited. 78 For the sake of completeness, it should also be pointed out that Article 12 TFEU laid down the cross-cutting nature of that requirement for a high level of consumer protection, so that ‘consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities’. That cross-cutting nature also supports an interpretation of Regulation No 1896/2006 in accordance with the requirements of Article 38 of the Charter and Articles 6 and 7 of Directive 93/13. 79 See Article 169 TFUE and point 58 of this Opinion. 80 Judgment of 14 June 2012, (C‑618/10, EU:C:2012:349). See also point 76 above. 81 See Article 815(4) of the LEC (point 26 above). 82 That, moreover, is the purpose of the mandatory scheme established by Directive 93/13. The aim of Article 6 of Directive 93/13 would not be achieved if the consumer were himself obliged to raise the unfair nature of a term (see, to that effect, judgment of 27 June 2000, Océano Grupo Editorial and Salvat Editores (C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 26)). However, that would indeed be the situation if a consumer had to lodge a statement of opposition in order to be able to benefit from a judicial review of the potentially unfair terms and prevent their implementation. See also points 62, 63 and 99 above and the case-law cited. 83 For further discussion on that point, see Sinopoli, L., ‘Le droit au procès équitable à l’ombre de l’inversion du contentieux. À propos de quelques décisions de la Cour de justice en droit judiciaire européen’, Revue de droit commercial belge, 2015, pp. 7 to 18. 84 Without prejudice to the rules of jurisdiction set out in Regulation No 1215/2012. Articles 17 to 19 of that regulation lay down protective rules on jurisdiction, where one of the parties to a dispute concerning a contract is a consumer. 85 It should be recalled that, under Article 1(2) of that regulation, there is nothing to prevent a claimant from ‘pursuing a claim … by making use of another procedure available under the law of a Member State or under Community law’. Under Article 11(3) thereof, ‘the rejection of the application shall not prevent the claimant from pursuing the claim by means of a new application for a European order for payment or of any other procedure available under the law of a Member State’.