Opinion of the Advocate General — ECLI:EU:C:2021:616
Date: 2021-07-15
Language of the case: Romanian
Subject matter: Consumer protection
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-725/19 — 1 
Case C-725/19 
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: 
1 October 2019 
Referring court: 
Judecătoria Sectorului 2 București (Romania) 
Date of the decision to refer: 
18 September 2019 
Applicant: 
IO 
Defendant: 
Impuls Leasing România IFN SA 
  
Subject matter of the main proceedings 
Objection to enforcement lodged by the applicant IO against the defendant Impuls 
Leasing România IFN SA by which the applicant seeks the annulment of 
enforcement measures and the restoration of the situation as it had been prior to 
the enforcement of a leasing contract 
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, the Judecătoria Sectorului 2 București (Court of 
First Instance, District 2, Bucharest, Romania) requests interpretation of Directive 
93/13/EEC on unfair terms in consumer contracts and of the principle of the 
effectiveness of EU law. 
Question referred 
Taking into account the principle of effectiveness, is Directive 93/13/EEC to be 
interpreted as precluding national legislation, such as the Romanian legislation in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-725/19 
 
2  
force concerning the conditions under which an objection to enforcement is 
admissible, namely Article 713(2) of the Code of Civil Procedure, as amended by 
Law No 310/2018, pursuant to which, in the context of an objection to 
enforcement, the examination, at the request of the consumer or by the court 
acting of its own motion, of whether the terms of a leasing contract that 
constitutes the enforceable instrument are unfair is precluded because it is possible 
to bring a common law action in which a contract concluded between a 
‘consumer’ and a ‘seller or supplier’ may be examined in order to determine 
whether it contains unfair terms within the meaning of that directive? 
Provisions of EU law relied on 
Articles 1, 3, 4, 5, 6 and 8 of Directive 93/13/EEC on unfair terms in consumer 
contracts 
Judgments of the Court of Justice of 4 June 2009, Pannon GSM (C-243/08, 
EU:C:2009:350); of 18 February 2016, Finanmadrid EFC (C-49/14, 
EU:C:2016:98); and of 26 June 2019, Kuhar (C-407/18, EU:C:2019:537) 
Provisions of national law relied on 
Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între 
profesioniști și consumatori (Law No 193/2000 on unfair terms in contracts 
concluded between sellers or suppliers and consumers), which transposed 
Directive 93/13 into national law 
Article 713(2) of the Codul de procedură civilă (Code of Civil Procedure), in the 
version in force prior to its amendment by Legea nr. 310/2018 (Law 
No 310/2018), pursuant to which, in the event that enforcement was carried out on 
the basis of an enforceable instrument other than a court decision, it was 
permissible to argue, in an objection to enforcement, points of fact or law relating 
to the substance of the right referred to in the enforceable instrument only if no 
specific procedural remedy for the annulment of such an instrument was provided 
for by law 
Article 713(2) of the Code of Civil Procedure, in the version currently in force, 
following its amendment by Law No 310/2018, pursuant to which, in the event 
that enforcement is carried out on the basis of an enforceable instrument other 
than a court decision, it is permissible to argue, in an objection to enforcement, 
points of fact or law relating to the substance of the right referred to in the 
enforceable instrument only if no procedural remedy for the annulment of such an 
instrument — including an action in common law — is provided for by law 
Article 8 of Ordonanța Guvernului nr. 51/1997 privind operațiunile de leasing și 
societățile de leasing (Government Order No 51/1997 on leasing transactions and 
IMPULS LEASING ROMÂNIA 
 
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leasing companies), pursuant to which leasing contracts constitute enforceable 
instruments 
Succinct presentation of the facts and the main proceedings 
1 On 20 August 2008 the defendant, Impuls Leasing România IFN SA, as the 
finance provider, and the applicant, IO, as the user, entered into a financial leasing 
contract relating to the transfer of the right of use of a motor vehicle for a period 
of 48 months. The total value of the contract was EUR 9 232.07. In 2010, the 
applicant became unable to meet her obligations relating to the payment of the 
leasing instalments and, on 19 March 2010, she returned that motor vehicle to the 
defendant. On 29 June 2010, the defendant sold the motor vehicle in question to a 
third party for EUR 5 294.12. 
2 On 15 October 2010, the defendant lodged with a court enforcement officer an 
application for enforcement against the applicant on the basis of the leasing 
contract concluded between them. After the sum of RON 5 168.28 (approximately 
EUR 1 200) had been recovered, the enforcement proceedings were stayed, on 
16 November 2016, on the ground that the applicant had no further attachable 
assets. 
3 On 26 March 2019, the defendant lodged with a different court enforcement 
officer a further application for enforcement against the applicant on the basis of 
the same leasing contract. On 8 May 2019, that court enforcement officer issued 
various attachment orders against the applicant’s accounts, with a view to 
recovering sums allegedly owed to the defendant by the applicant, including late 
payment penalties of RON 116 723.73 (approximately EUR 25 000), damages 
representing a capital shortfall of RON 25 155.43 (approximately EUR 5 300) and 
unpaid invoices amounting to RON 13 453.96 (approximately EUR 2 800). 
4 In those circumstances, IO lodged with the Judecătoria Sectorului 2 București 
(Court of First Instance, District 2, Bucharest) an objection to enforcement, 
seeking the annulment of the enforcement measures and the restoration of the 
situation as it had been prior to the enforcement of the leasing contract at issue. 
Succinct presentation of the reasons for the reference 
5 The referring court points out that, pursuant to Law No 193/2000 on unfair terms 
in contracts concluded between sellers or suppliers and consumers, contractual 
terms which oblige the consumer, should he fail to meet his contractual 
obligations, to pay sums of money that are disproportionately large by comparison 
with the loss suffered by the seller or supplier are unfair. 
6 The leasing contract on the basis of which the enforcement proceedings were 
commenced against the applicant contains two terms that could be regarded as 
unfair. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-725/19 
 
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7 In the first place, there is the term which stipulates that, in the event of delay in 
the payment of any sum of money owed by the user, the finance provider will be 
entitled to apply late payment penalties at the rate of 0.35% of the outstanding 
amount for each day of delay and the sum of those penalties may exceed the 
amount by reference to which those penalties have been calculated. Pursuant to 
that term, the defendant claims late payment penalties in the sum of 
RON 116 723.73 (approximately EUR 25 000), in respect of a leasing contract of 
a total value of EUR 9 232.07. 
8 In the second place, there is the term which governs the extent of the damages 
which may be claimed in the event of the user’s failure to meet her contractual 
obligations. On the basis of that term, the defendant seeks compensation, inter 
alia, for a capital shortfall of RON 25 155.43 (approximately EUR 5 300) and 
unpaid invoices amounting to RON 13 453.96 (approximately EUR 2 800). 
9 The referring court emphasises that, under national law, an obligation assumed 
pursuant to an unfair contractual term is null and void, and that that sanction must 
be applied by courts and tribunals of their own motion. Equally, according to the 
settled case-law of the Court of Justice of the European Union, national courts and 
tribunals are under an obligation to examine, of their own motion, whether a 
contractual term is unfair. 
10 The referring court also points out that, under Article 713(2) of the Code of Civil 
Procedure, in the version in force prior to its amendment by Law No 310/2018, in 
the event that enforcement was carried out on the basis of an enforceable 
instrument such as a leasing contract, it was permissible to argue, in an objection 
to enforcement, that certain terms of the contract were unfair only if no specific 
procedural remedy for the annulment of such an instrument was provided for by 
law. 
11 The expression ‘specific procedural remedy for annulment’ contemplated a 
specific mechanism governed by the legislature and made available to interested 
parties by which it was possible to obtain the annulment of an enforceable 
instrument, rather than any remedy consisting in an action in common law. 
12 Consequently, in so far as leasing contracts were concerned, there being no 
specific procedural remedy for their annulment, it was permissible to argue that 
certain terms of the contract were unfair in the context of an objection to 
enforcement. 
13 By contrast, following the amendment of Article 713(2) of the Code of Civil 
Procedure by Law No 310/2018, that provision now provides that, in the event 
that enforcement is carried out on the basis of an enforceable instrument such as a 
leasing contract, it is permissible to argue, in an objection to enforcement, that 
certain terms of the contract at issue are unfair only if no procedural remedy for 
the annulment of such an instrument — including an action in common law — is 
provided for by law. 
IMPULS LEASING ROMÂNIA 
 
5 
14 A common law action of that type can be brought pursuant to Law No 193/2000 
on unfair terms in contracts concluded between sellers or suppliers and 
consumers. 
15 This means that a court or tribunal may no longer examine in the context of an 
objection to enforcement whether terms of a contract such as that at issue in the 
present case are unfair, since it is possible to bring a common law action in which 
such a contract may be examined in order to determine whether it contains unfair 
terms. 
16 In the referring court’s view, national enforcement mechanisms must, in 
accordance with the principle of effectiveness, satisfy the condition of not making 
it impossible or excessively difficult to exercise the rights which EU law confers 
on consumers. These rights can be protected effectively only if the national 
procedural system also permits an ex officio examination of the potentially unfair 
nature of the terms of a contract in the context of enforcement proceedings. 
However, the current national procedural system obliges any consumer who 
wishes to argue that terms of a contract which constitutes an enforceable 
instrument are unfair to bring a common law action for annulment on the basis of 
Law No 193/2000, with the result that such a consumer is no longer able to 
exercise the rights conferred on him by Directive 93/13 by way of an objection to 
enforcement. 
17 According to the referring court, adequate and effective means to stop the 
subsequent use of unfair terms in contracts concluded between sellers or suppliers 
and consumers must include provisions enabling consumers to be guaranteed 
effective judicial protection by making it possible for them to challenge such 
contracts even in the enforcement phase and under reasonable procedural 
conditions which do not make it excessively difficult or impossible for them to 
exercise the rights guaranteed by Directive 93/13. 
18 In that context, the referring court has decided to stay the proceedings and to refer 
to the Court of Justice, of its own motion, a question for a preliminary ruling on 
the interpretation of Directive 93/13 and the principle of the effectiveness of EU 
law.