Judgment;Summary — ECLI:EU:C:2022:720
Date: 2022-09-22
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-335/21 – 1 
Case C-335/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
27 May 2021 
Referring court:  
Juzgado de Primera Instancia n.º 10 bis de Sevilla (Court of First 
Instance No 10 bis, Seville, Spain) 
Date of the decision to refer:  
24 May 2021 
Applicant:  
Vicente 
Defendant:  
Delia 
  
Subject matter of the main proceedings 
Action for the recovery of fees – Lawyers’ fees for services to clients – 
Determination of lawyers’ fees according to an indicative scale set by a bar 
association – Order of the Registrar concerning fees – Application to the court for 
review of that order 
Subject matter and legal basis of the request for a preliminary ruling 
Directive 93/13/EEC – Unfair terms in consumer contracts – Contract for the 
provision of legal services – Legal proceedings for the recovery of lawyers’ fees – 
Procedure that restricts the scope for the courts to examine of their own motion 
whether the terms in a consumer contract are unfair – Directive 2005/29 – Unfair 
business practices 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-335/21 
 
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Questions referred 
1. Is a summary procedure for the recovery of a lawyer’s fees, in which the 
court is unable to examine of its own motion whether the terms in the 
consumer contract are unfair, since the procedure does not provide for the 
court to intervene at any point unless the client challenges the claim and one 
of the parties subsequently applies to the court for a review of the final 
decision of the Letrado de la Administración de Justicia (Registrar), 
compliant with Directive 93/13 and the principle of the effectiveness of the 
directive, in conjunction with the right to an effective remedy in Article 47 of 
the Charter [of Fundamental Rights of the European Union]? 
2. Is the fact that, in this type of summary procedure, any consideration of the 
unfairness of terms by the courts, whether of their own motion or on the 
application of a party, takes place in the context of an application for review 
of the decision of a non-judicial body such as the Registrar, and that the 
courts must in principle restrict their consideration solely to the subject 
matter of the decision and may not examine any evidence other than the 
documentary evidence already submitted by the parties, compliant with 
Directive 93/13 and the principle of the effectiveness of the directive, in 
conjunction with the right to an effective remedy in Article 47 of the 
Charter? 
3. Must a term in a contract between a lawyer and a consumer such as the term 
at issue, which provides specifically for payment of fees in the event that the 
client discontinues proceedings before the case is concluded or reaches an 
agreement with the entity either without his or her legal team’s knowledge 
or against its advice, be deemed to fall within the terms of Article 4(2) of 
Directive 93/13, on the grounds that it is a main contract term that concerns 
the subject matter of the contract, in this case, the price? 
4. If the answer to the previous question is in the affirmative, can that term, 
which fixes the fees by reference to a fee scale set by a bar association 
which establishes different rules depending on the specific circumstances 
and which was not mentioned in the prior information, be considered plain 
and intelligible in accordance with the terms of the aforesaid Article 4(2) of 
Directive 93/13? 
5. If the answer to the previous question is in the negative, can the inclusion in 
a contract between a lawyer and a consumer of a term such as the one at 
issue, which fixes the lawyer’s fees purely by reference to a fee scale set by 
a Bar association which establishes different rules depending on the specific 
circumstances and which was not mentioned in the quotation for services or 
in the prior information, be deemed an unfair business practice under the 
terms of Directive 2005/29? 
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Provisions of EU law relied upon 
- Article 47 of the Charter of Fundamental Rights of the European Union. 
- Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, recitals 21 and 24, Articles 3 and 4, Article 6(1) and Article 7(1). 
- Directive 2005/29/EC of the European Parliament and of the Council of 11 May 
2005 concerning unfair business-to-consumer commercial practices in the internal 
market, Article 2(1)(d) and Articles 5, 6, 7 and 11. 
Provisions of national law relied upon 
- Ley de Enjuiciamiento Civil (Code of Civil Procedure; ‘LEC’). 
Pursuant to Article 35 of the LEC, lawyers may demand payment of fees for their 
services from the party they represented. Once the demand for payment has been 
made, the letrado de la Administración de Justicia (Registrar) will serve notice on 
the debtor ordering him or her either to pay the amount claimed or to challenge 
the claim. In the event of a challenge to the claim, the Registrar is responsible for 
determining the lawyer’s fees by means of an order, with a warning that 
enforcement action will be taken in the event of non-payment. An application may 
be made to the court for review of the order. 
- Ley 2/1974, de 13 de febrero, sobre Colegios Profesionales (Law 2/1974 of 
13 February 1974 on Professional Bodies) as amended by Law 25/2009 of 
22 December 2009 (BOE No 308 of 23 December 2009). 
This Law stipulates that professional bodies may not establish indicative fee 
scales or other guidelines on professional fees, without prejudice to the fourth 
additional provision. This additional provision allows professional bodies to draw 
up indicative criteria for the sole purposes of taxation of costs and recovery of 
lawyers’ fees. 
- Real Decreto 658/2001, de 22 de junio, por el que se aprueba el Estatuto General 
de la Abogacía Español (Royal Decree 658/2001 of 22 June 2001 adopting the 
General Statute of the Spanish Bar) (BOE No 164 of 10 July 2001), in the version 
applicable to the facts of the main proceedings. 
The General Statute of the Spanish Bar, in the version applicable to the facts of 
the main proceedings, establishes that lawyers are entitled to receive appropriate 
payment for their services, and to reimbursement of their costs. The amount of the 
fees is to be freely agreed by the client and the lawyer, having regard to ethical 
standards and rules on unfair competition. The statute also provides that, in the 
absence of any express agreement to the contrary, when setting fees regard may be 
had, as a guide, to the indicative scales established by the Bar association for the 
area where the lawyer in question is practising; in all cases, such scales will 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-335/21 
 
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supplement any agreement and will apply where costs are awarded against the 
other party. 
- Real Decreto Legislativo 1/2007, de 16 de noviembre, por el que se aprueba el 
texto refundido de la Ley General para la defensa de los consumidores y usuarios 
y otras leyes complementarias (Royal Legislative Decree 1/2007 of 16 November 
2007 adopting the consolidated text of the General Law on Consumer Protection 
and other ancillary laws) (BOE No 287 of 30 November 2007), in the version in 
force at the material time. 
Article 20 of this Law provides that business practices must include at least the 
following information, if not already apparent from the context: the full final 
price, total price, with a breakdown, where appropriate, of the amount of any 
increases or discounts that may be applicable, expenses that may be passed on to 
the consumer or user . In other cases where, in view of the nature of the goods or 
services, the quotation for services cannot provide an exact price, information 
must be provided on the method of calculation to enable the consumer or user to 
confirm the price. Likewise, where, for objective reasons, any additional costs to 
be passed on to the consumer or user cannot be calculated in advance, the 
consumer or user must be informed of the existence of those additional costs and 
be provided with an estimate of the amount, where known. 
Article 60 of that Law provides that, before entering into a contract, the seller or 
supplier must provide the consumer or user with sufficient, relevant and truthful 
information, in plain, intelligible language, on the key features of the contract, in 
particular on the legal and financial terms and conditions and on the goods or 
services to which the contract applies. 
Brief summary of the facts and procedure 
1 On 9 February 2017, Delia (‘the client’) and the lawyer, Vicente, (‘the lawyer’) 
entered into a contract for the supply of legal services according to which the 
lawyer would claim repayment of certain sums paid to a bank by the client 
pursuant to certain unfair terms. 
2 That contract for the supply of legal services included a term which established 
that the client undertook to follow the lawyer’s instructions and that, if the client 
discontinued proceedings for any reason before the case was concluded, or 
reached an agreement with the bank without the lawyer’s knowledge or against his 
advice, she would have to pay the lawyer a sum to be calculated in accordance 
with the Scale for the Taxation of Costs established by the Seville Bar Association 
in connection with the claim that had been brought. 
3 Before the contract was signed, the lawyer had given the client a manuscript note 
containing details of the terms and conditions regarding the price for the legal 
services. There is no indication that the note provided specific information on the 
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term in question. The client also states that she contacted the lawyer via an 
advertisement on Facebook, which made no mention of the term either. 
4 On 22 February 2017 the lawyer submitted an out-of-court claim to the bank prior 
to lodging a claim with the court. 
5 On an unspecified date, the client received a reply from the bank, dated 2 June 
2017 and sent to her home address, in which the bank accepted the out-of-court 
claim and offered to repay her the overpayment of EUR 870.67. 
6 On 12 June 2017 the lawyer filed an application with the referring court for 
repayment of the amounts overpaid by the client under the unfair terms contained 
in the agreement with the bank. 
7 The client decided to accept the bank’s offer. 
8 On 13 June 2017 the lawyer sent the client a letter via bureaufax in which he said 
that, following their conversation that morning, he reiterated his opposition to her 
accepting the bank’s offer even though a claim had already been lodged with the 
court. 
9 On 25 September 2017 a document was lodged with the referring court stating 
that the client had discontinued the court action. The proceedings were therefore 
terminated. 
10 On 13 November 2017 the lawyer lodged an action for the recovery of fees with 
the referring court in the sum of EUR 1 105.50 plus value added tax (VAT), 
giving a total of EUR 1 337.65. The sum was calculated in accordance with a rule 
in the fee scale established by the Seville Bar Association. 
11 The client, assisted by a duty lawyer, challenged the fee claim on the grounds that 
the fees were not due. Notice of the challenge was served on the lawyer, who did 
not submit any arguments in the time allowed. On 15 October 2020 the Registrar 
made an order in which he dismissed the challenge, fixed the amount payable to 
the lawyer at EUR 1 337.65, and stipulated a payment period of 5 days, warning 
that enforcement action would be taken in the event of non-payment. The client 
lodged an application for review of the order with the referring court. The 
application was declared admissible and notice was served on the lawyer to enable 
him to challenge the application. The lawyer filed a written challenge seeking the 
dismissal of the client’s application and an award of costs against the client. 
12 The referring court has questions concerning the outcome of this application and 
has decided to make this reference for a preliminary ruling. 
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Main arguments of the parties to the main proceedings 
13 The client argues that her contract with the lawyer is unfair because, amongst 
other things, it contains a term which provides that, if the case is discontinued, the 
fees are to be calculated in accordance with a fee scale. She adds that the contract 
does not reflect the information she was given by the lawyer before the contract 
was signed, because he told her that the fees would be 10% of the sum received, 
and she has already paid that sum. The client also contends that the disputed term 
is not applicable because proceedings were not actually discontinued, since the 
claim did not get as far as being admitted to process. She also argues that the 
lawyer filed the claim purely in order to obtain higher fees. She is therefore 
applying to have the order by the Registrar set aside and for a ruling that the fees 
claimed by the lawyer are not due. 
14 The lawyer argues that there are no unfair terms, that he advised the client by 
bureaufax of the consequences of reaching an agreement on her own with the 
bank, that the claim was lodged with the court before the client reached an 
agreement with the bank, and that he had borne the cost of preparing the legal 
claim and other costs. He is therefore seeking the dismissal of the client’s 
application and an award of costs against her. 
Brief statement of the reasons for the request for a preliminary ruling 
15 The case raises both procedural and substantive issues. 
16 In terms of the procedural issues (addressed in the first and second questions 
referred), in Spain there are various routes by which lawyers can take legal action 
to recover the fees owed to them by their clients for services provided in previous 
legal proceedings; one of those routes is what is known as an action for the 
recovery of fees. 
17 An action for the recovery of fees is a summary procedure offering limited 
safeguards, the sole purpose of which is to obtain an order requiring the lawyer’s 
client to pay the lawyer the outstanding fees or risk becoming the subject of 
enforcement action. The procedure is conducted by the Registrar who, according 
to the case-law of the Spanish Tribunal Constitucional (Constitutional Court) and 
the judgment of the Court of Justice of 16 February 2017, Margarit Panicello 
(C-503/15, EU:C:2017:126), does not exercise judicial functions. In an action for 
the recovery of fees, the Registrar assesses whether the fees are a proper reflection 
of the professional services provided by the lawyer, decides on the lawyer’s rights 
against the party who engaged the lawyer to represent him, and determines the 
amount owed. 
18 An action for the recovery of fees may concern contracts to which Directive 93/13 
applies, given that, according to the judgment of the Court of Justice of 15 January 
2015, Birutė Šiba (C-537/13, EU:C:2015:14), contracts between lawyers and their 
clients are covered by that directive. However, the procedure is configured in such 
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a way that the courts may never get to examine the contract. The courts will 
intervene only if the client challenges the fee claim and one of the parties applies 
to the courts for a review of the Registrar’s decision on that challenge. The 
procedure does not therefore provide at any point for the courts to examine of 
their own motion whether the terms of the contract are unfair. 
19 Although the case-law of the Court of Justice enshrines the requirement for the 
courts to examine of their own motion whether a term is unfair as soon as they 
have sufficient factual and legal information, the particular characteristics of the 
procedure for the recovery of fees require some clarification in this regard. Those 
particular characteristics are as follows: the Registrar is not a judicial body; the 
proceedings are summary proceedings; and the courts’ involvement is limited to 
the final stage of proceedings and arises only where the client opts to challenge 
the fee claim and one of the parties then decides to lodge an application for review 
of the order made by the Registrar. It should also be noted that such a situation 
would usually entail an examination of substantive issues such as the nature of the 
disputed term, the level of information provided, or the extent to which the 
contract is a pre-formulated standard contract; but it is difficult to examine these 
types of issues during the final stage of summary proceedings, where the grounds 
for challenge and the scope to offer evidence are very limited. 
20 Furthermore, although it is true that the client could subsequently commence 
declaratory proceedings in order to claim that the terms of his contract with the 
lawyer were unfair, directing the client down this route, which necessarily 
requires legal representation and may result in an award of costs if the application 
is dismissed, would not appear to be consistent with the principle of effectiveness 
in Directive 93/13. Similarly, with regard to the enforcement procedure for the 
collection of fees, once the action for the recovery of fees has been concluded, the 
commencement of enforcement action, in which the courts are indeed involved, is 
dependent on the lawyer (and it may be that the client makes the payment 
voluntarily, and there is no need even to commence enforcement proceedings); 
moreover, there is no provision under the enforcement procedure for the consumer 
to argue that the terms are unfair. 
21 As we know, in the order of the Court of Justice of 25 October 2018, Elena Barba 
Giménez (C-426/17, EU:C:2018:858), the Court ruled that ‘in the context of 
proceedings which come under the jurisdiction of the Registrar, such as the main 
proceedings, it is for the court with power to enforce the debt to examine ― if 
necessary, of its own motion ― whether a term in the contract between a court 
agent or a lawyer and his client is unfair’. However, this statement was based on 
what was said in the judgment of 16 February 2017, Margarit Panicello 
(C-503/15, EU:C:2017:126), although that judgment appears to draw a different 
conclusion. The focus of the Margarit Panicello judgment would seem to be on 
identifying which court would have jurisdiction to make the reference for a 
preliminary ruling, but it does not seem to conclude that the procedure for the 
recovery of fees is compliant with EU law because it allows the courts to review 
the unfairness of terms at the enforcement stage. In this regard, the Court of 
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Justice has held on several occasions that the question of unfairness should be 
examined before enforcement action is taken against a consumer [see, for 
example, Profit Credit Polska (C-176/17, EU:C:2018:711), paragraphs 44, 61 to 
64 and 71]. 
22 In view of all the above considerations, the question arises as to whether the 
procedure for the recovery of fees is compliant with Directive 93/13 and the 
principle of effectiveness enshrined therein, in conjunction with the right to an 
effective remedy established by Article 47 of the Charter of Fundamental Rights 
of the European Union. 
23 In terms of the substantive issues (addressed in questions three to five of the 
questions referred), it is necessary to clarify the nature of the term in the contract 
between the lawyer and the client which determines the fees payable in the event 
that the client discontinues proceedings for any reason before the case is 
concluded or reaches an agreement with the bank without her lawyer’s knowledge 
or against his advice. 
24 If the Court of Justice rules that, when deciding an application for review in the 
course of an action for the recovery of fees, national courts may examine whether 
the terms are unfair, the question then arises as to whether the disputed term falls 
within the scope of Article 4(2) of Directive 93/13, as interpreted by the Court of 
Justice. 
25 The disputed term could be seen as an indemnifying or penalty clause rather than 
a clause that directly concerns the price, because it addresses a specific situation, 
namely the case where the client discontinues proceedings once they have been 
commenced, or unilaterally reaches an agreement with the bank. If this is deemed 
to form part of the price, the term could be deemed unfair if it has not been drafted 
in plain, intelligible language. The nature of the term will therefore determine the 
type of examination to be undertaken and the form of the review to which it may 
be subject. 
26 If the disputed term is considered to fall within the scope of Article 4(2) of 
Directive 93/13, then, in order to resolve the dispute, one has in turn to determine 
whether the term can be considered plain and intelligible. This question arises 
because, in the present case, the term does not establish a precise amount, a 
percentage or a calculation method, referring instead to the indicative scale drawn 
up by a Bar association. 
27 These scales were formerly approved by the Bar associations. Following the 
amendment introduced by Law 25/2009, the Law on Professional Bodies has 
prohibited the use of indicative fee scales or other guidelines on professional fees 
other than for purely indicative purposes in judicial proceedings for taxation of 
costs and recovery of fees; in such proceedings the LEC provides for an opinion to 
be sought from the bar association on the appropriateness of the lawyers’ fee 
claims. Under the General Statue of the Spanish Bar as it applied when the 
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contract between the client and the lawyer was signed, in the absence of any 
express agreement, in setting fees regard was to be had to the fee scales, although 
that contravenes the amendment to the Law on Professional Bodies introduced by 
Law 25/2009. In the present case, as provided for in the contract between the 
client and the lawyer, the lawyer has used the scale to set his fees in a situation 
where the client has discontinued proceedings or concluded an agreement with the 
bank without her lawyer’s knowledge or against his advice. 
28 However, there is no indication that the lawyer informed the client of the contents 
of the disputed term, since there is no mention of it in the manuscript note he 
provided to the client, nor is there any clear reference to in the contract they 
signed. Nor has the scale been shown to be in the public domain, which would 
have enabled the client in this case to access it. Moreover, the wording of the fee 
scale is considered to be unclear. It does not specify the basis on which the 
lawyer’s fees will be calculated and it refers to various rules, the choice of which 
rests with the lawyer. Therefore, while it may not be possible to fix the precise 
amount at the time the contract is signed, there should be certain minimum 
requirements in terms of establishing the method of calculation which would give 
the client an idea of the approximate amount of the fees he or she would have to 
pay. 
29 As the Court of Justice has declared in various judgments, such as that of 
15 March 2012, Jana Pereničová (C-453/10, EU:C:2012:144), a lack of 
transparency does not automatically mean that a term is unfair within the meaning 
of Article 3(1) of the directive. Moreover, a finding that a commercial practice is 
unfair is one element, amongst others, on which the court with jurisdiction can 
base its assessment of the unfairness of the terms in accordance with Article 4(1) 
of Directive 93/13. 
30 Accordingly, we believe it is appropriate to ascertain whether a term in a contract 
between a client and a lawyer which fixes the lawyer’s fees by reference to a fee 
scale established by a Bar association can be considered an unfair commercial 
practice for the purposes of Directive 2005/29 where there has been no mention of 
the term in the quotation for services or in the prior information.