Order — ECLI:EU:C:2015:508
Date: 2015-07-16
Language of the case: Spanish
Court formation: First Chamber
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Order of the Court (First Chamber), 16 July 2015 1. Questions referred for a preliminary ruling — Questions identical to questions already answered in the case-law — Application of Article 99 of the Rules of Procedure (Art. 267 TFEU; Rules of Procedure of the General Court, Art. 99) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation for the national court to examine of its own motion whether a term in a contract referred to it for assessment is unfair — Scope (Council Directive 93/13, Art. 7(1)) 3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 —Mortgage enforcement proceedings — No power for the national court to assess of its own motion or at the request of a consumer the unfairness of a term in a loan agreement or to grant interim relief in that regard — Not permissible — Failure to comply with the principle of effectiveness (Council Directive 93/13, Art. 7(1)) 4. EU law — Direct effect — National rules of procedure — Conditions under which applicable — Respect for the principles of equivalence and effectiveness (Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 93/13) 5. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings — Right of the consumer to bring an appeal against a decision rejecting its opposition to the enforcement only where the first instance court rejects the ground of objection alleging the unfairness of a contractual term on which the right to seek enforcement is based — Lawfulness — Right of the seller or supplier to appeal any decision bringing an end to the proceedings independently of the ground of objection — No effect (Charter of Fundamental Rights of the European Union, Arts 7 and 47; Council Directive 93/13, Art. 7(1)) 1. See the text of the decision. (see paras 21, 22) 2. See the text of the decision. (see paras 26-28) 3. See the text of the decision. (see paras 29, 30) 4. See the text of the decision. (cf. points 33-36) 5. Article 7(1) of Directive 93/13 on unfair terms in consumer contracts, read in conjunction with Articles 7 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national provision, by which the consumer, as a mortgage debtor against whom enforcement proceedings have been brought, may bring an appeal against the decision rejecting his objection to the enforcement only when the court of first instance has not upheld an objection based on the unfairness of the contractual term upon which the enforcement is based even though the sellers or suppliers may, by contrast, appeal against any decision terminating proceedings regardless of the ground of objection on which that decision is based. First, the amended national procedural rules regarding mortgage enforcement, taken as a whole, no longer expose the consumer to the risk of final and irreversible loss of their dwelling in a forced sale before a court has even been able to assess the unfairness of the contractual term upon which the seller or supplier bases his application for mortgage enforcement. Furthermore, those procedural rules effectively reinforce review by the courts in that regard, in providing that an appeal court may, at second instance, review whether the assessment of such a term carried out at first instance by the court responsible for enforcement was well founded. Similarly, as regards, second, compliance with the principle of equality of arms against the use of unfair terms falling within the scope of Directive 93/13, in national mortgage enforcement proceedings, following the amendment of the provision at issue, those national procedural rules do indeed provide the consumer with a reasonable opportunity to take legal action based on rights deriving from that directive in conditions that no longer place him in a clearly less advantageous position than the seller or supplier, namely the creditor seeking enforcement. (see paras 47, 48, 50, operative part)