Opinion of the Advocate General — ECLI:EU:C:2018:293
Date: 2018-04-26
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (Second Chamber), 13 September 2018 1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation on the national court to examine of its own motion whether a term in a contract before it is unfair — Scope — Limits – Inapplicable if the legal and factual elements necessary for its review are unavailable (Council Directive 93/13, Art. 7(1)) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Means to prevent the continued use of unfair terms — Existence of detailed procedural rules enabling effective review by the national court — Criteria for assessment (Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 93/13, Art. 7(1)) 3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Means to prevent the continued use of unfair terms — Order for payment procedure founded on a promissory note that secures the obligations arising from a consumer credit agreement — Need for detailed procedural rules enabling observance of the consumer’s rights to be ensured (Council Directive 93/13, Art. 7(1)) 1. See the text of the decision. (see paras 42, 44) 2. So far as concerns the right to an effective remedy, the obligation resulting from Article 7(1) of Directive 93/13 to lay down detailed procedural rules that ensure observance of the rights which individuals derive from Directive 93/13 combating the use of unfair terms implies a requirement that there be a right to an effective remedy, a requirement also enshrined in Article 47 of the Charter of Fundamental Rights. The right to an effective remedy must apply both as regards the designation of courts having jurisdiction to hear and determine actions based on EU law and as regards the detailed procedural rules relating to such actions (see, to that effect, judgment of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 49 and the case-law cited). As the Advocate General has noted in point 77 of her Opinion, in order to determine whether a procedure, such as that at issue in the main proceedings, infringes a right to an effective remedy, the referring court must, as is apparent from the Court’s case-law, determine whether the detailed rules of the opposition procedure which national law lays down give rise to a significant risk that the consumers concerned will not lodge the objection required (see, to that effect, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 54; of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 58; and of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 52). Indeed, without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed (judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 46 and the case-law cited). The adequate and effective means that are to guarantee consumers a right to an effective remedy must include the possibility of bringing an action or lodging an objection under reasonable procedural conditions, so that the exercise of their rights is not subject to conditions, in particular time limits or costs, which reduce exercise of the rights guaranteed by Directive 93/13 (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 46 and the case-law cited). (see paras 59, 61-63) 3. Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which permits issue of an order for payment founded on a valid promissory note that secures a claim arising from a consumer credit agreement, where the court dealing with an application for an order for payment does not have the power to examine whether the terms of that agreement are unfair, if the detailed rules for exercising the right to lodge an objection against such an order do not enable observance of the rights which the consumer derives from that directive to be ensured. There is a significant risk that the consumers concerned will not lodge the objection required, be it because of the particularly short period prescribed for that purpose, or because they might be dissuaded from defending themselves in view of the costs which legal proceedings would entail in relation to the amount of the disputed debt, or because they are unaware of or do not appreciate the extent of their rights, or indeed because of the limited content of the application for the order for payment lodged by the seller or supplier, and thus the incomplete nature of the information available to them (see, to that effect, judgment of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 52 and the case-law cited, and order of 21 June 2016, Aktiv Kapital Portfolio, C‑122/14, not published, EU:C:2016:486, paragraph 37). It follows that detailed procedural rules such as those at issue in the main proceedings, in that they require the consumer to adduce within two weeks of service of the order for payment the factual and legal elements that enable the court to carry out the assessment and penalise him by the way in which the court fee is calculated, give rise to such a risk. (see paras 69-71, operative part)