Information;Order — ECLI:EU:C:2024:716
Date: 2024-09-03
Language of the case: Romanian
Court formation: Seventh Chamber
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-658/23 – 1 
Case C-658/23 
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:  
3 November 2023 
Referring court:  
Judecătoria Sectorului 3 București (Romania) 
Date of the decision to refer:  
2 November 2023 
Applicant: 
Investcapital Ltd 
Defendant: 
TK 
  
Subject matter of the main proceedings 
Application by which Investcapital LTD, applicant, a company established in 
Malta, as assignee of a claim initially held by a company providing mobile 
telephone services, requests the Judecătoria Sectorului 3 București (Court of First 
Instance of the Third District of Bucharest, Romania), in a summary procedure for 
the resolution of small claims, to order TK to pay the sum of 4,652.95 Romanian 
lei (RON). 
Subject matter and legal basis of the request 
The interpretation of certain provisions of Directive 2008/52 and Directive 93/13 
and of the principles of primacy of EU law, equivalence, effectiveness and legal 
certainty is sought on the basis of Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/23 
 
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Questions referred for a preliminary ruling 
1) Must Article 3(a), read in conjunction with Article 5(2) of Directive 2008/52 
on certain aspects of mediation in civil and commercial matters, be interpreted, in 
the light of recitals 8 and 13 of that directive, as not precluding legislation of a 
Member State which provides that, in certain types of dispute, such as that at issue 
in the main proceedings, the parties are required to attend an information meeting 
to discuss the advantages of mediation, failing which the document instituting the 
proceedings will be declared inadmissible? 
2) Must the principle of the primacy of EU law be interpreted as precluding 
national legislation or a national practice according to which the ordinary national 
courts are bound by decisions of the national Constitutional Court and may not, 
for that reason and at the risk of committing a disciplinary offence, of their own 
motion, disapply the case-law resulting from those decisions, even if, in light of a 
judgment of the Court of Justice, they take the view that the case-law in question 
is contrary to Article 3(a), read in conjunction with Article 5(2) of Directive 
2008/52 on certain aspects of mediation in civil and commercial matters, 
interpreted in the light of recitals 8 and 13 of that directive? 
3) In the light of the nature of the dispute, must Article 2(b), Article 6(1) and 
Article 7(1) of Directive 93/13 and the principles of equivalence, effectiveness 
and legal certainty be interpreted as precluding a judicial interpretation of national 
legislation according to which, where it is established that a contractual interest 
term is unfair in part, as in the pending dispute, the national court may, of its own 
motion, limit the amount of that interest by reducing the penalty clause within a 
reasonable limit? 
Provisions of European Union law and European Union case-law relied on 
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 
2008 on certain aspects of mediation in civil and commercial matters; recitals 8 
and 13, Article 1, Article 3(a) and Article 5(2) 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts; Article 2(b), Article 6(1) and Article 7(1) 
Judgments of 18 March 2010, Alassini and Others (C-317/08 to C-320/08), 
paragraph 63 and operative part; of 14 June 2017, Menini and Rampanelli 
(C-75/16), paragraphs 55, 57, 61 and operative part; of 22 February 2022, RS 
(Efficacy of the decisions of a Constitutional Court) (C-430/21), paragraph 2 of 
the operative part; of 18 October 2012, Nolan (C-583/10), paragraphs 46 and 47; 
of 16 June 2016, Rodríguez Sánchez (C-351/14), paragraphs 61 and 62; of 
18 October 1990, Dzodz v État belge (Belgian State) (C-297/88 and C-197/89), 
paragraphs 35 to 37; of 18 May 2021, Asociația ‘Forumul Judecătorilor din 
România’ (C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19), 
paragraph 7 of the operative part; of 21 December 2021, Euro Box Promotion and 
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Others (C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19), paragraph 4 of 
the operative part; of 26 February 2015, Matei (C-143/13). 
Case-law of the European Court of Human Rights (ECtHR) 
Judgment of 26 March 2015 in Momčilović v. Croatia (application no. 11239/11), 
in which the ECtHR held that the obligation laid down, before bringing 
proceedings before the court, to use a procedure aimed at an amicable settlement 
of the dispute is compatible with the European Convention on Human Rights and 
does not infringe Article 6 thereof. Indeed, the ECHR considered that such an 
obligation did not constitute a disproportionate interference with the exercise of 
the applicants’ right of access to a court, since the procedure was provided for by 
law and pursued the legitimate aim of ensuring the efficient and economic 
management of justice. Moreover, the right of access to a court is not absolute and 
may be made subject to legitimate requirements. The ECtHR considered that 
neither the applicants’ obligation, following the dismissal of their first action as 
inadmissible because they had not used the preliminary procedure for an amicable 
settlement, to have recourse to that procedure and, where appropriate, to bring a 
new action, nor the 3-month duration of such a preliminary procedure, constituted 
such an interference. 
Provisions of national law and national case-law relied on 
Legea nr. Legea nr. 192/2006 privind medierea și organizarea profesiei de 
mediator (Law No 192/2006 on mediation and the organisation of the profession 
of mediator), as subsequently amended and supplemented, in force at the time of 
the request for a preliminary ruling. 
Article 1 “(1) Mediation is a means of settling disputes in an amicable manner, 
with the assistance of a third party qualified to act as mediator, in conditions of 
neutrality, impartiality, confidentiality and with the consent of the parties. 
(2) Mediation shall be based on the trust which the parties place in the mediator, 
as a person capable of facilitating negotiations between the parties and assisting 
them in the settlement of the dispute by reaching a mutually viable, effective and 
sustainable solution.’ 
Article 2 “(1) Unless otherwise provided, the parties, whether natural or legal 
persons, may settle their disputes of any kind by means of the mediation 
procedure, even after legal proceedings have been brought. 
(1l) Evidence of participation in the information meeting to discuss the 
advantages of mediation shall be provided by means of an information certificate 
issued by the mediator who provided the information. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/23 
 
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(12) The court shall reject the document instituting the proceedings as 
inadmissible if the applicant has failed to fulfil its obligation to attend the 
mediation information meeting before filing the document instituting the 
proceedings or after the commencement of the proceedings within the time limit 
set by the court for that purpose, for disputes covered by Article 60l (1) (a) to (f). 
[…]”. 
Article 601, (1)(a) and (f) “(1) In disputes which, according to the law, may 
be the subject of mediation or other alternative means of resolving disputes, the 
parties and/or the person concerned, as the case may be, are required to 
demonstrate that they participated in the information meeting to discuss the 
advantages of mediation, in the following areas: 
a) regarding consumer protection, where the consumer claims damage resulting 
[…] from the existence of unfair terms in contracts concluded between consumers 
and economic operators or from the infringement of other rights provided for in 
national or EU consumer protection legislation; 
[…] 
f) in civil disputes where the amount contended is less than RON 50,000 […]”. 
Legea 193/2000 privind clauzele abuzive în contractele încheiate între 
profesioniști și consumatori (Law 193/2000 on unfair terms in contracts 
concluded between sellers or suppliers and consumers), Article 4 (1), which 
provides that ‘a contractual term which has not been directly negotiated with the 
consumer is regarded as unfair if, considered in isolation or together with other 
provisions of the contract, it causes a significant imbalance in the parties’ rights 
and obligations, to the detriment of the consumer, contrary to the requirement of 
good faith’. 
Codul de procedură civilă (Code of Civil Procedure), Article 466, according to 
which judgments given at first instance may be subject to appeal; Article 1026, 
which provides that Title X, which regulates the small claims procedure, is to 
apply where the value of the claim, excluding interest, procedural costs and other 
additional income, does not exceed RON 10,000 on the date on which the court 
was seised, and Article 1030, according to which the small claims procedure is 
intended to be a written process, conducted entirely in chambers. 
Judgment of the Curtea Constituțională (Constitutional Court) No 266 of 7 May 
2014, in which that court, ruling on a plea of unconstitutionality, held that the 
provisions of Article 2 (1) and (12), of Law No 192/2006 conflict with article 21 
of the Constitution, which guarantees free access to justice. The Constitutional 
Court considered that, although Law No 196/2006, the Code of Civil Procedure 
and Directive 2008/52 establish that the institution of mediation is an optional, 
alternative and informal procedure, the obligation to participate in the information 
meeting to discuss the advantages of mediation, failing which the application 
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initiating proceedings is inadmissible, calls into question the irrebuttable 
presumption ‘nemo censetur ignorlegem’ and, moreover, not only limits, but 
denies free access to justice, thereby constituting an obstacle to the realisation and 
acquisition by citizens of their rights in legal proceedings. In that context, when 
analysing recital 13, Article 3(a) and Article 5(1) of Directive 2008/52, the 
Constitutional Court held that ‘the provisions of Directive 2008/52 refer only to 
the possibility, and not the obligation, for the parties to use the mediation 
procedure, there is therefore no obligation regarding mediation, let alone the 
preliminary information procedure to discuss the advantages of mediation’. It also 
stated that, following the declaration confirming the unconstitutionality of 
Article 2 (1) and (12), of Law No 192/2006, Article 60(1) of that law, which is not 
unconstitutional, must be understood as meaning that participation in the 
information meeting will no longer constitute an obligation for the parties 
concerned, but a voluntary choice by those parties to have recourse to such a 
method for the settlement of disputes. 
Judgment of the Constitutional Court No 560 of 18 September 2018, on the 
objection of unconstitutionality of several provisions of the Law amending and 
supplementing Law No 192/2006. By that judgment, the Constitutional Court, 
reviewing the constitutionality of the law before promulgation of the enactment, 
held that Article I (10) (with reference to Article 43 (21), of Law No 192/2006), 
Article I (16) (with reference to the introductory part of paragraph (1), Article 601 
of Law No 192/2006) and Article I (21) [with reference to Article 76 of Law 
No 192/2006] were unconstitutional. In essence, it considered that the proposed 
amendments infringed the provisions of Article 147 (4) (binding nature of the 
judgments of the Constitutional Court) and Article 21 (free access to justice) of 
the Constituția (Constitution), in that they make the mediation information 
procedure mandatory, even though that procedure had been declared 
unconstitutional by judgment No 266 of 7 May 2014 of the Constitutional Court. 
The provisions establishing, in certain cases, the obligation for the court to refer 
the parties to mediation have also been declared unconstitutional. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Investcapital LTD, applicant, requests the Court of First Instance of the Third 
District of Bucharest, Romania, the referring court, in the context of a summary 
procedure for the resolution of small claims provided for in Article 1026 et seq. of 
the Code of Civil Procedure, to order TK, defendant, to pay the sum of 
RON 4,652.95, as the principal debt and the penalty payments invoiced and 
calculated at 0.5% for each day’s delay beyond the contractual due date, together 
with statutory interest from the date of assignment of the claim until full 
settlement. 
2 For that type of dispute, decided in chambers, without summoning the parties, 
Article 2(12), of Law No 192/2006 requires the applicant to comply with the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/23 
 
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obligation to participate in the mediation information meeting, failing which the 
application will be inadmissible. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
3 The referring court states, first of all, that it is called upon to resolve a dispute 
relating to property rights, by means of the simplified small claims procedure, in 
which the national courts may establish that contractual provisions are unfair. 
4 On the first two questions, after providing a summary of judgments Nos 266/2014 
and 560/2018 of the Constitutional Court relating to Law No 192/2006, in which, 
when examining the constitutionality of certain provisions of that law, the 
Constitutional Court referred, in particular, to the preamble and Articles 3 and 5 of 
Directive 2008/52, the referring court notes that, in the light of the case-law of the 
Court of Justice – and refers, in that regard, to the judgments in Nolan, Rodríguez 
Sánchez and Dzodzi – the interest in ensuring a uniform interpretation of the 
provisions of EU law is obvious. 
5 On the one hand, the referring court refers to the judgment in Alassini and Others 
and to the judgment in Menini and Rampanelli, in which the Court held that EU 
law does not preclude national legislation which requires the prior implementation 
of an out-of-court settlement procedure and that, respectively, recourse to a 
mediation procedure, as a condition for the admissibility of the application to the 
court, is not contrary to EU law, provided that such a requirement does not 
prevent the parties from exercising their right of access to the judicial system. 
6 On the other, the referring court states that Article 3(a) of Directive 2008/52 
defines mediation as a voluntary process, whilst stating that that process may not 
only be initiated by the parties, but also be ordered by a court or prescribed by the 
law of a Member State. Article 5(2) of that directive maintains, along the same 
lines, the option for Member States to make the ‘use’ of mediation compulsory 
under their national legislation. That form of words indicates clearly that Member 
States may provide that a party is required to use a mediation procedure. As stated 
in recital 13 of that directive, the voluntary nature of the mediation resides, not in 
the freedom of the parties to choose whether or not to use that process, but in the 
fact that ‘the parties are themselves in charge of the process and may organise it as 
they wish and terminate it at any time’ 
7 In those circumstances, it takes the view that the decisions of the constitutional 
court should be disapplied. 
8 However, in the national legal framework, such a choice to disapply the decisions 
of the constitutional judge may give rise to disciplinary liability on the part of the 
judge. As regards that liability, there is settled case-law of the Court of Justice (the 
aforementioned judgment Asociația, ‘Forumul Judecătorilor din România’, the 
judgment Euro Box Promotion and Others and the judgment RS (Efficacy of 
decisions of a Constitutional Court). 
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9 Under Article 271(s) of Legea nr. 303/2022 privind statutul judecătorilor și 
procurorilor (Law No 303/2022 on the status of judges and prosecutors), 
republished, ‘The following constitute a disciplinary offence: […] (s) the 
performance of duties in bad faith or with gross negligence”. In judgment No 520 
of 9 November 2022, the Constitutional Court held that, although non-compliance 
with the decisions of the Constitutional Court or the decisions of the Înalta Curte 
de Casație și Justiție on appeals in the interests of the law was no longer regulated 
as a separate disciplinary offence in the new law, this does not mean that that 
failure cannot give rise to the disciplinary liability of the judge/prosecutor, 
provided that it is established that the he or she has performed his or her duties in 
bad faith or with gross negligence. According to the Constitutional Court, breach, 
as a result of bad faith or gross negligence, of Article 147 (4) of the Constitution, 
which establishes the general binding nature of decisions of the Constitutional 
Court, constitutes a disciplinary offence within the meaning of Article 271(s) of 
Law No 303/2022. 
10 As regards the third question, the referring court notes that point (i) of the Annex 
to Law No 193/2000, according to which ‘The following contractual terms shall 
be regarded as unfair terms: […] i) those requiring a consumer who fails to 
perform his or her contractual obligations to pay compensation in a 
disproportionately high amount in with respect to the damage suffered by the 
seller or supplier», applies fully to the present case. Indeed, in the present case, if 
the penalty payments/interest were to continue to be calculated until the principal 
debt is actually paid, this could clearly give rise to a situation in which 
penalties/interest would by far exceed the amount of the principal debt. 
11 According to the established practice of the national courts, a clause relating to the 
payment of penalty payments of 0.5% for each day’s delay, which provides that 
the total amount of penalty payments may exceed the amount on the basis of 
which they are calculated, is unfair. 
12 On the one hand, the referring court states that the clause referred to in Article 5 
of the contract, which provides that penalty payments are calculated at 0.5% for 
each day’s delay, up to the date of full settlement of the outstanding amounts, is 
unfair. On the other, a clause providing for the payment of penalties for each day’s 
delay calculated on the residual debt, which may not exceed the value of the debt, 
does not create a significant imbalance between the rights and obligations of the 
parties. 
13 In finding that there is a foreign element, namely the fact that the applicant 
company is established in Malta and operates in the territory of the European 
Union, and having regard to the need for uniform application of EU law, the 
referring court refers the third question to the Court of Justice for a preliminary 
ruling.