Information;Order — ECLI:EU:C:2020:67
Date: 2020-01-15
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary  C-381/19 — 1 
Case C-381/09 
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:  
15 May 2019 
Referring court:  
Curtea de Apel Cluj (Romania) 
Date of the decision to refer:  
3 April 2019 
Appellant:  
SC Banca E S.A. 
Respondent:  
G.D. 
  
Subject-matter of the main proceedings 
Appeal brought by the appellant S.C. Banca E. S.A. against the decision of 
16 October 2017 of the Tribunalul Specializat Cluj (Specialised Court, Cluj, 
Romania), in proceedings against the respondent G.D., concerning a finding that 
certain contractual terms are unfair 
Subject-matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling, made pursuant to Article 267 TFEU, 
concerns the interpretation of the principles of legal certainty and effectiveness.  
Question referred 
Given the primacy of EU law, must the principles of legal certainty and 
effectiveness be interpreted as precluding, in disputes concerning the protection of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-381/19 
 
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consumer rights, the alteration of the procedural rules, after the consumer has 
brought an action before the courts, by means of a binding decision of the Curtea 
Constituțională (Constitutional Court), to which effect is given in a law amending 
the Codul de procedură civilă (Code of Civil Procedure), which institutes a new 
means of appeal, one that can be used by the trader, with the result that the 
duration of the proceedings is extended and the costs of resolving the dispute are 
increased?  
Provisions of EU law and case-law of the Court of Justice cited 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, Article 1(1) 
Order of 7 September 2017, Demarchi Gino (C-177/17 and C-178/17, 
EU:C:2017:656), judgment of 9 November 2017, Ispas (C-298/16, 
EU:C:2017:843), judgment of 17 December 1970, Internationale 
Handelsgesellschaft (11/70, EU:C:1970:114), judgment of 3 December 1998, 
Belgocodex (C-381/97, EU:C:1998:589), judgment of 14 July 1994, Faccini Dori 
(C-91/92, EU:C:1994:292), judgment of 22 October 1987, Foto-Frost (C-314/85, 
EU:C:1987:452), judgment of 30 June 2016, Câmpean (C-200/14, 
EU:C:2016:494), judgment of 6 October 2015, Târșia (C-69/14, EU:C:2015:662) 
Provisions of national law cited 
The Constitution of Romania: Article 147(4) concerns the binding nature of 
decisions of the Curtea Constituțională (Constitutional Court, Romania) as from 
the date of their publication in the Monitorul Oficial al României (Official Journal 
of Romania). Article 148(2) provides that provisions of EU law that are binding 
take precedence over contrary provisions of domestic law.  
Legea nr. 193/2000 din 6 noiembrie 2000 privind clauzele abuzive din 
contractele încheiate între comercianți și consumatori (Law No 193/2000 of 
6 November 2000 on unfair terms in contracts between traders and 
consumers): Article 1(3) concerns the prohibition on economic operators 
stipulating unfair terms in contracts concluded with consumers. 
Legea nr. 2/2013 privind unele măsuri pentru degrevarea instanțelor 
judecătorești, precum și pentru pregătirea punerii în aplicare a Legii nr. 
134/2010 privind Codul de procedură civilă (Law No 2/2003 on certain 
measures to relieve the courts and to prepare for the implementation of Law 
No 134/2010 on the Code of Civil Procedure) in the version in force on 
9 December 2015, the date on which the originating application was lodged: 
Article XVIII(2) provided that, in judicial proceedings commenced between the 
date of entry into force of Law No 2/2013 and 31 December 2015, judgments 
delivered on certain applications listed in the provision, ‘as well as on other 
SC BANCA E 
 
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applications of a value not exceeding RON 1 000 000’, were not amenable to 
appeal (on a point of law). 
Judgment No 369, of 30 May 2017, of the Curtea Constituțională 
(Constitutional Court), published in the Monitorul Oficial al României on 
20 July 2017, in which the court ruled that the phrase ‘as well as on other 
applications not exceeding a value of RON 1 000 000’, appearing in Article 
XVIII(2) of Law No 2/2013, was unconstitutional. 
Judgment No 52, of 18 June 2018, of the Înalta Curte de Casație și Justiție — 
Completul pentru dezlegarea unor chestiuni de drept (High Court of 
Cassation and Justice — Panel for the Resolution of Points of Law, 
Romania), in which the panel ruled that the effects of Judgment No 369, of 
30 May 2017, of the Curtea Constituțională (Constitutional Court), applied to 
judicial decisions delivered after its publication in the Monitorul Oficial al 
României, in cases not exceeding a value of RON 1 000 000 brought after the date 
of publication of the judgment (20 July 2017). 
Judgment No 874, of 18 December 2018, of the Curtea Constituțională 
(Constitutional Court), in which the court held that the interpretation of the 
effects of Judgment No 369/2017 of the Curtea Constituțională given by the Curte 
de Casație și Justiție (High Court of Cassation and Justice) in Judgment No 52 of 
18 June 2018 was unconstitutional, and ruled admissible all appeals brought 
against decisions delivered on appeal after 20 July 2017 (the date of publication in 
the Monitorul Oficial of Judgment No 369/2017 of the Curtea Constituțională) in 
disputes of a value not exceeding RON 1 000 000, irrespective of the date of 
lodging of the originating application, which could have been before or after 
20 July 2017. 
In order to enact in legislation the interpretation given by the Curtea 
Constituțională (Constitutional Court) in Judgment No 874/2018, Legea nr. 
310/2018 pentru modificarea și completarea Legii nr. 134/2010 privind Codul 
de procedură civilă, precum și pentru modificarea și completarea altor acte 
normative (Law No 310/2018 amending Law No 134/2010 on the Code of 
Civil Procedure and other statutory acts) amended the second sentence of 
Article XVIII(2) of Law No 2/2013, with the result that judgments delivered in 
proceedings of a value not exceeding RON 1 000 000, registered in the judicial 
roll before 20 July 2017, are amenable to appeal (on a point of law). 
Outline of the facts and the main proceedings 
1 On 9 December 2015, G.D. issued proceedings against Banca E. S.A. before the 
Judecătoria Turda (Court of First Instance, Turda, Romania) seeking a declaration 
that certain terms of a credit agreement, dated 15 October 2007, in respect of a 
real-estate loan of EUR 37 500 repayable over a period of 300 months, were 
unfair. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-381/19 
 
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2 By civil judgment of 15 November 2016, the Judecătoria Turda (Court of First 
Instance, Turda), partly upheld the action and, pursuant to Law No 193/2000, 
which transposes Directive 93/13 into domestic law, declared certain contractual 
terms unfair and consequently ordered that the contractual balance thus disturbed 
be re-established by means of the deletion of the terms in question and the 
restitution of the sums paid under them. 
3 By judgment of 16 October 2017, the Tribunalul Specializat Cluj (the 
Specialised Court, Cluj) dismissed as unfounded the appeals brought by both 
parties against the judgment of 15 November 2016. 
4 On 7 December 2017, Banca E. S.A brought an appeal (on a point of law) 
against the judgments before the referring court.  
5 The appellant (and defendant at first instance) has argued that its appeal is 
admissible following Judgment No 369/2017 of the Curtea Constituțională 
(Constitutional Court), which ruled that, in disputes of a value not exceeding RON 
1 000 000, such as the present dispute, an appeal (on a point of law) may be 
brought. 
6 The respondent (and applicant at first instance) submits that the appeal is 
inadmissible and refers, in this connection, to the interpretation given by the Înalta 
Curte de Casație și Justiție (High Court of Cassation and Justice) in Judgment 
No 52/2018, from which it is apparent that the present case does not fall within the 
scope of the ruling in Judgment No 369/2017 of the Curtea Constituțională 
(Constitutional Court). The respondent has also invoked the principle of legal 
certainty enshrined in the case-law of the Court of Justice of the European Union. 
7 Pursuant to Article XVIII(2) of Law No 2/2013, in the version in force when the 
application was brought before the court of first instance, that is, on 9 November 
2015, judgments delivered in cases having a value not exceeding RON 1 000 000, 
such as the present case, were amenable to appeal, but not to an appeal on a point 
of law. 
8 During the course of the proceedings, the Curtea Constituțională (Constitutional 
Court) delivered Judgment No 369 of 30 May 2017, in which it ruled that the 
phrase ‘as well as on other applications not exceeding a value of RON 1 000 000’, 
appearing in Article XVIII(2) of Law No 2/2013, was unconstitutional.  
9 The practical application by the courts of Judgment No 369/2017 of the Curtea 
Constituțională (Constitutional Court) was the subject of Judgment No 52, of 
18 June 2018, of the Înalta Curte de Casație și Justiție — Completul pentru 
dezlegarea unor chestiuni de drept (High Court of Cassation and Justice — Panel 
for the Resolution of Points of Law), the effect of which was that an appeal (on a 
point of law) against the appeal decision in the present case was not possible, 
because the judgment of the Curtea Constituțională (Constitutional Court) was not 
applicable.  
SC BANCA E 
 
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10 Nevertheless, that interpretation was overturned in Judgment No 874, of 
18 December 2018, of the Curtea Constituțională (Constitutional Court), whose 
ruling was enacted by Article III of Law No 310/2018, which amended Article 
XVIII(2) of Law No 2/2013. The consequence of that legislative amendment is 
that, in the present case, an appeal against the judgment delivered on appeal is 
admissible. 
The principal arguments of the parties in the main proceedings 
11 The respondent (and applicant at first instance) submits that the appeal on a point 
of law brought by SC Banca E S.A. is inadmissible and invokes the principle of 
legal certainty which follows from the case-law of the Court of Justice of the 
European Union, which prohibits the institution of a new legal remedy/level of 
appeal during the resolution of a dispute. In that context, the judgments of the 
Curtea Constituțională (Constitutional Court) apply only to the extent that they are 
not inconsistent with the case-law of the Court of Justice of the European Union. 
12 According to the appellant (and defendant at first instance) the review of the 
constitutionality of laws carried out by the Curtea Constituțională (Constitutional 
Court) is a legal duty that cannot contravene the principle of legal certainty.  
Succinct presentation of the reasons for the request for a preliminary ruling 
13 In the opinion of the referring court, to amend, following a binding decision of the 
Curtea Constituțională (Constitutional Court), the procedural rules which apply to 
a case that is still pending, with the result that a new procedural stage (an appeal 
on a point of law) is added, is contrary to the principles of legal certainty and 
effectiveness, as set out in the case-law of the Court of Justice of the European 
Union. 
14 The principle of legal certainty constitutes a source of law, is part of the acquis 
of the Union and takes precedence over contrary provisions of domestic law. 
Moreover, as is clear from the ruling of the Court of Justice in Internationale 
Handelsgesellschaft (11/70), EU law takes precedence even over the supreme law 
of a Member State (paragraph 3 of the judgment). 
15 As has been made clear in legal academic writing, the principle of legal certainty, 
which was outlined for the first time in the judgment in Belgocodex (C-381/97, 
paragraph 26) and has subsequently been repeated constantly in the case-law of 
the Court of Justice, essentially states that citizens must be protected from dangers 
which emanate from the law and from uncertainties created by the law or which 
the law risks creating. 
16 The principle correlates with the principle of legitimate expectations. According 
to the case-law of the Court of Justice (for example, the judgments in Facini Dori 
(C-91/92) and Foto-Frost (314/85)), the principle of legitimate expectations 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-381/19 
 
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requires that legislation be clear and predictable, consistent and coherent. It also 
requires that there be limits on the amendment of legal norms and that the rules 
established by legal norms are stable. The importance of these precepts is all the 
more obvious if one considers that a lack of predictability may have adverse 
consequences for individuals and businesses (the judgment in Unibet 
International, C-49/16, paragraph 43). 
17 In the opinion of the referring court, the principle of legal certainty has been 
breached in the present case. Indeed, at the time when the applicant brought his 
action before the court of first instance, he (as consumer) foresaw his procedural 
strategy (in terms of the duration of the proceedings, time-limits, procedural steps, 
costs and so on) with reference to the two procedural stages provided for by the 
legislation at that point in time. Only later did he discover, to his surprise, almost 
at the end of the proceedings, that a new means of appeal had been instituted, 
which his opponent may exercise in order to challenge the final decision delivered 
on appeal. The consequences which flow from that state of affairs include an 
extension of the duration of the entire proceedings, additional costs and further 
procedural steps, as well as uncertainty as to the final outcome. 
18 The principle of effectiveness is set out in paragraph 39 of the judgment in 
Câmpean (C-200/14) as follows: ‘the detailed procedural rules governing actions 
for safeguarding the rights which taxpayers derive from EU law must not be any 
less favourable than those governing similar domestic actions (principle of 
equivalence) and must not be framed in such a way as to render impossible in 
practice or excessively difficult the exercise of rights conferred by the legal order 
of the European Union … ’ 
19 In the opinion of the referring court, this principle has been breached in the 
present case. On the one hand, the applicant (a consumer) seeks, on the basis of 
the provisions of Law No 193/2000, which transposed into domestic law the 
provisions of Directive 93/13/EEC, the annulment of certain unfair terms in a 
credit agreement concluded with a trader. 
20 On the other hand, the exercise by the applicant (a consumer) of the rights which 
the legal order of the European Union has thus conferred on him became 
excessively difficult as a result of the institution, during the course of the 
proceedings, of a new means of appeal, one which the trader may exercise, after 
judgment at first instance and a first appeal. 
21 Although the question referred for a preliminary ruling essentially concerns the 
principles of legal certainty and effectiveness in the context of a system of 
appeals, a clear link to EU law is apparent from the specific field to which the 
dispute relates, namely consumer protection, which is governed by primary and 
secondary EU law.  
22 In the present case, there is no dispute regarding the legal relationship between the 
consumer and the trader at issue in the proceedings, or regarding the effect of the 
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special rules contained in Law No 193/2000, which transposed Directive 
93/13/EEC into domestic law. 
23 In addition to infringement of rights specific to the substantive legal relationship, 
in this particular case the consumer also raises a new issue: the breach of certain 
principles recognised in the case-law of the Court of Justice resulting from the 
institution of a further means of appeal in the proceedings which he has brought 
against the trader (which is a bank), one that did not exist at the time when the 
proceedings were commenced. 
24 In the opinion of the referring court, this new means of appeal (on a point of law) 
increases the procedural burden on the consumer, prolonging the duration of the 
proceedings and increasing the costs required to complete a new stage of appeal 
under the jurisdiction of a court of appeal, and extending the situation of 
uncertainty regarding the legal protection of the rights expressly conferred on him 
by Directive 93/13/EEC, transposed into domestic law by Law No 193/2000. 
25 The consumer is thus entitled to question whether he would have lodged his 
originating application if he had known from the start that the dispute would be 
settled in three stages of legal proceedings, rather than two, and over a 
considerably longer period of time and with the expenditure of much greater 
material resources. Even if the consumer’s claim is upheld, in part or in its 
entirety, at first instance and on appeal, as it was in the present case, there remains 
a further stage of appeal (on a point of law), one which has arisen inopportunely. 
His opponent, being a trader, has the necessary means to pursue this extraordinary 
means of appeal, in which only points of law may be argued. 
26 As for the admissibility of the request for a preliminary ruling, the referring 
court cites, by analogy, the order in Demarchi Gino (C-177/17 and C-178/17), in 
which, at paragraph 18, the Court pointed out that, according to its settled case-
law, ‘the fundamental rights guaranteed in the legal order of the European Union 
are applicable in all situations governed by EU law, but not outside such 
situations’. The Court then went on to note that ‘the concept of “implementing 
Union law”, as referred to in Article 51 of the Charter, requires a certain degree of 
connection above and beyond the matters covered being closely related or one of 
those matters having an indirect impact on the other’ (paragraph 19). 
27 The referring court infers from this that the existence of a certain degree of 
connection with EU law is necessary even in the case of certain rights conferred 
on consumers by certain principles outlined in the case-law of the Court of Justice, 
such as the principle of legal certainty and the principle of effectiveness. 
28 It also notes that, in numerous cases resulting from a request for a preliminary 
ruling, the Court of Justice has ruled exclusively on the interpretation of 
principles, rather than legal norms. A good example of this is to be found in Ispas, 
C-298/16, in which the Court ruled on the interpretation of the EU law principle 
of observance of the rights of the defence.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-381/19 
 
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29 In that context, the referring court regards as relevant the observations expressed 
in the Opinion of Advocate General Bobek in Ispas, cited above, on the question 
of the Court’s ability to interpret a principle and the connection which its 
application in practice must have with EU law.  
30 The Advocate General observed that ‘the case-law has … advanced several 
elements which can be used to “test” the connection with EU law. Some of the 
elements devised by the Court to ascertain whether a legal situation falls under the 
scope of EU fundamental rights are “whether the national legislation at issue is 
intended to implement a provision of EU law, what the character of that 
legislation is, and whether it pursues objectives other than those covered by EU 
law … ”’ (point 46). Furthermore, ‘some degree of specificity … is required. 
There does not necessarily have to be an explicit connection with the national rule 
at issue. Moreover, the content of the national rule at issue does not have to be 
completely determined by EU law. National provisions are not required to 
“mirror” provisions of EU law so as to fall within the scope of EU law. … the 
degree of specificity should still go beyond the mere existence of a connection 
with an EU objective or field of competence: it must reach a certain level of 
specificity in normative terms’ (point 48). 
31 With reference to procedural rights, in point 51 of his Opinion, the Advocate 
General observed that ‘EU law does not always determine or establish specific 
procedural rules. Rather, it concentrates on the substantive side of the right or 
obligation. However, procedural rights are necessary to ensure the effectiveness 
of EU law.’ 
32 The referring court considers that, applying those observations expressed in the 
case-law of the Court of Justice to the present case, it may be inferred that the 
situation under consideration does have a sufficiently strong connection with EU 
law. 
33 First of all, the two principles of which interpretation is sought are defined in a 
consistent and extensive body of the Court of Justice’s case-law and they thus 
form an integral part of the legal order of the European Union. 
34 Secondly, interpretation of these two principles is sought in the context of a 
dispute in the field of consumer protection, which has been governed by a 
succession of EU legislative actions, including Directive 93/13, which was 
transposed into domestic law by Law No 193/2000.