Opinion of the Advocate General — ECLI:EU:C:1999:620
Date: 1999-12-16
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary procedure which the applicant may use for disputes involving claims of limited value (between ESP 80 000 and ESP 800 000. 6: - See Article 1 of the Law of 17 July 1948 on the jurisdiction of municipal courts (BOE No 200 of 18 July 1948) and Article 32 of the Decree of 21 November 1952, which governs the 'cognición procedure (BOE No 337 of 2 December 1952). 7: - See also the 29th recital, which states that 'for the purposes of this Directive, the annexed list of terms can be of indicative value only and, because of the minimal character of the Directive, the scope of these terms may be the subject of amplification or more restrictive editing by the Member States in their national laws. 8: - Article 1469a of the Italian Civil Code, as supplemented by Law No 25 of 6 February 1996, implementing the Directive, states that, unless proved otherwise, a term which has the object or effect of establishing as the venue for the court having jurisdiction a place other than that in which the consumer resides or other than that of his address for service is presumed to be unfair (see Article 19(3); in France, the 'recommandation de synthèse (summary recommendation) No 91-02, adopted by the Commission des Clauses Abusives (Committee on Unfair Terms) set up by Article L-132.2 of the Code de la Consommation (Consumers' Code), includes among terms that are presumed to be unfair those which have the object or effect of derogating from the statutory rules governing territorial jurisdiction or conferred jurisdiction. 9: - See the first additional provision of the aforementioned Law No 7/1998, paragraph 27. The legislation previously in force contained wording of a general nature which could, in my view, be interpreted as including among the prohibited contractual terms the one that is the subject of this case [Article 10(1)(c), point 3, of the aforementioned Law No 26/1984]. 10: - It should be noted that this assessment is directly provided for in Article 7(2) of the Directive, which states that '[t]he means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms. This is obviously illustrative and for guidance and does not preclude other forms of action such as action by the court of its own motion but is particularly important in the system of protection guaranteed by the Directive in so far as it offers consumer bodies or associations access to dissuasive action that is of a preventive nature and thus not related to a specific dispute. This form ofprotection - which is particularly effective because of its general nature - is a totally novel feature for the legal systems of certain Member States, particularly those which follow the Roman law tradition, and that is why Member States were quite understandably expressly asked to make provision for this in their domestic law. As the French Government observed, it would be difficult to justify an interpretation of the Directive which, on the one hand, permitted 'preventive collective actions that have beneficial effects for all consumers and, on the other, precluded action of its own motion by a court that finds itself having to apply a manifestly unfair term in a specific dispute in which the consumer directly suffers harm. 11: - See, in this connection, the comparative evaluation undertaken by Paisant, G., 'La lutte contre les clauses abusives des contrats dans l'Union européenne, in Vers un code européen de la consommation, sous la direction de F. Osman, Brussels, 1998, p. 165 et seq., particularly p. 174, which shows that the majority of Member States have provided for an express sanction of nullity of unfair terms. 12: - In this connection I would observe that, in the context of transposition of the Directive, French legislation has expressly defined as being a matter of 'public policy consumer protection provisions in relation to unfair terms (see Code de la consommation, Article L-132.1); academic legal writers consider that, because of this classification, 'courts must henceforth raise of their own motion the nullity of the unfair term (Karimi, A., 'Les modifications des dispositions du code de la consommation conernant les clauses abusives par la loi no 95-96 du 1er février 1995, in Les petites affiches no 54, 1995, p. 4 et seq.). In Italy the new Article 1469d of the Italian Civil Code states that terms regarded as unfair 'are ineffective, while the remainder of the contract continues to be effective and then adds that 'they are ineffective only in respect of the consumer and that ineffectiveness may be raised of its own motion by the court. With regard to the Belgian system, see Balate, E., 'Le contrôle des clauses abusives: premier bilan, in Droit de la consommation, 1997, p. 321 et seq., in particular pp. 131 and 140, where it is stated that, as a result of the public policy nature of the provisions referred to, the court is required to apply them of its own motion, even if the consumer fails to appear. For a general discussion of these matters, see M. Tenreiro, 'The Community Directive on Unfair Terms and National Legal Systems, in European Review of Private Law, 1995, p. 273 et seq., in particular p. 282, where it is pointed out that the non-technical expression, namely that unfair terms 'are not binding on the consumer, enables practical conclusions to be drawn, in particular that 'the judge shall declare a term as unfair and refuse to enforce it ex officio, without any need for special demand from the consumer. 13: - Case 106/77 Simmenthal [1978] ECR 629, paragraphs 17 to 24. 14: - I would point out that, with regard to the question of the relationship between the duties of the national court and the principles of domestic procedural law, the Court has stated on a number of occasions that, in the absence of Community rules on the matter, it is for the domestic legal system of each Member State to lay down the procedural regime for court actions intended to ensure that the rights derived by individuals as a consequence of Community law are protected. However, such a regime may not be less favourable than those concerning similar actions of a domestic nature nor may it make it virtually impossible or excessively difficult to exercise the rights conferred by the Community law. On this point, see Case 33/76 Rewe [1976] ECR 1989, paragraph 5, and Case 45/76 Comet [1976] ECR 2043, paragraphs 12 to 16; Case 68/79 Just [1980] ECR 501, paragraph 25; Case 199/82 San Giorgio [1983] ECR 3595, paragraph 14; Cases 331/85, 376/85 and 378/85 Bianco and Girard [1988] ECR 1099, paragraph 12; Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7; Cases 123/87 and 330/87 Jeunehomme and EGI [1988] ECR 4517, paragraph 17; Cases C-6/90 and C-9/90 Francovitch and Others [1991] ECR I-5357, paragraph 43; Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12; Cases C-31/91 to C-44/91 Lageder and Others [1993] ECR I-1761, paragraphs 27 to 29; Cases C-430/93 and C-431/93 Van Schijndel and Van Veen [1995] ECR I-4705, paragraphs 16 and 17, and Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12; Case C-242/95 GT-Link [1997] ECR I-4449, paragraphs 24 and 27; and Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraphs 31 to 41. 15: - See Article 10(1) and (4) of Law No 26/1984. 16: - In Case C-168/95 Arcaro [1996] ECR I-4705, I-4719, after rightly stating that Community law does not authorise national courts to eliminate national provisions that are contrary to a provision of a directive which has not been transposed, the Court added that reliance on a 'conforming interpretation reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive's provisions (paragraph 42). The Court therefore correctly rejected the idea that 'interpreting a national law in conformity with a Community directive which has not been transposed should lead to the imposition of a penalty upon an individual, particularly a penalty under criminal law, for contravening the non-transposed directive. 17: - Without claiming to be exhaustive, I shall confine myself to referring to the following authors: Simon, D., La directive européenne, Paris, 1997, p. 4 et seq., in which it is argued that 'the national court has an obligation, by reason of the principle of primacy, to disapply national rules that are contrary to Community law, even if the provision in question has no direct effect. Although the national court ... cannot assume the role of the transposing authority, there is nothing, on the other hand, to prevent it from disapplying a national rule that is incompatible with a provision which is hierarchically superior to it by reason of the principle of primacy. Conversely, any other solution which would have the effect of authorising the national courts to make a domestic provision that is incompatible with Community law prevail would directly call into question the primacy of Community law, in this instance, specifically, the binding effect and uniformity of application of directives. Admittedly, the proposed analysis presupposes a decoupling of direct effect and primacy, but this severance does indeed appear to constitute one of the principal threads in the recent development of the case-law both of the Court of Justice and of the national courts [in French added in the Opinion] (emphasis added); Prechal, 'Directives, in European Community Law, Amsterdam, 1955, in particular at pp. 121 and 122: 'if the theoretical underpinning of the principle of supremacy is the conception of an autonomous Community legal order involving a transfer of powers to the Community and consequent limitations of Member States' sovereign rights ..., national legal rules which are contrary to a directive cannot apply or cannot validly be adopted, as they are ultra vires. ... in practice the construction often amounts to giving directives and Community law in general a higher ranking in the hierarchy of norms which are valid within a national legal system; Ruggeri, A., 'Continuo e discontinuo nella giurisprudenza costituzionale, a partire dalla sent. n. 170 del 1984, in tema di rapporti tra ordinamento comunitario e ordinamento interno: dalla teoria della separazione alla prassi dell'integrazione intersistemica?, in Giurisprudenza costituzionale, 1991, p. 1583, 1608: 'if the period prescribed for theapplication of directives has expired to no avail, for a rigorous and consistent affirmation of primauté, conflicting laws which are not rapidly made to comply with Community obligations will have to be considered to have subsequently become unconstitutional, just as any conflicting laws that may be adopted at a later date would be unlawful. See also Timmermans, 'Directives: their Effects within the National Legal Systems, in Common Market Law Review, 1979, p. 533 et seq.; Galmot and Bonichot, 'La Cour de justice européenne et la transposition des directives en droit national, in Revue française de Droit administratif, 1988, p. 4 et seq.; Manin, 'L'invocabilité des directives: quelques interrogations, in Revue trimestrielle de droit européen, 1990, pp. 669 and 690; Bach, 'Direkte Wirkung von EG-Richtlinien, in JZ, 1990, p. 1108 et seq.; Lenaerts, 'L'égalité de traitement en droit communautaire, in Cahiers de droit européen, 1991, p. 38 and note 120; Slot, 'Commento alla sentenza CIA Security International SA, in Common Market Law Review, 1996, pp. 1036 and 1049; Timmermans, 'Community Directives Revisited, Yearbook of European Law, 1998, p. 1 et seq., and Barav, Rapport Général, XVIII Congrès FIDE, Stockholm, 1998, vol. III ('Les directives communautaires: effets, efficacité, justiciabilité), p. 433 et seq. On the uncertainty created by the case-law of the Court, see Holson, C. and Downes, T., 'Making Sense of Rights: Community Rights, in EC Law, European Law Review, 1999, p. 121 et seq. 18: - Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26; Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragraph 48. It will be noted that in the Marleasing case the Court of Justice asked the national court to interpret the Civil Code in such a way as to preclude application of the domestic provisions which provide for a declaration of nullity of the instrument of incorporation of a company with share capital on a ground other than those listed in a directive that has not been transposed. I therefore consider that this judgment can be cited as one of those where the Court has acknowledged that the non-transposed directive, irrespective of the 'vertical or 'horizontal nature of the relationship, has the effect of 'precluding incompatible domestic provisions. See Louis, L'ordre juridique communautaire, Brussels, 1993, pp. 147 to 149. 19: - It should be noted that, in a different context, this distinction is clearly apparent in the Racke judgment (Case C-162/96 [1998] ECR I-3655), with regard to relations between a secondary Community act and a general provision of international law. Given that the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances are binding upon the Community institutions and form part of the Community legal order (paragraph 46), the Court pointed out that '[i]n this case, however, the plaintiff is incidentally challenging the validity of a Community regulation under those rules in order to rely upon rights which it derives directly from an agreement of the Community with a non-member country. This case does not therefore concern the direct effect of those rules (paragraph 47, emphasis added). Ultimately, as in the case with which we are dealing, the higher-ranking rule is used as a parameter of the legality of the lower-ranking rule, irrespective of the existence, in so far as the individual is concerned, of a right upon which he can rely in legal proceedings. While it is true that the present case, unlike the Racke case, concerns relations between the Community legal order and the national legal system, I believe that this factor should not lead to a different solution, particularly bearing in mind the typically 'monist approach which the Court has always followed when defining relations between the two legal systems. 20: - Case C-194 [1996] ECR I-2201. 21: - OJ 1983 L 109, p. 8, as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75). 22: - The circumstances of the Unilever Italia case (C-443/98, a case which is pending before the Court) are similar to those of the CIA Security International case. 23: - Case C-129/94 [1996] ECR I-1829. 24: - OJ, English Special Edition 1972 II, p. 360. 25: - C-431/92 [1995] ECR I-2189 et seq. See also Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 59 et seq. 26: - Council Directive 85/337/EEC of 27 June 1985 (OJ 1985 L 175, p. 40). 27: - In support of this interpretation see D. Edward, 'Direct Effect, The Separation of Powers and the Judicial Enforcement of Obligations, in Studi in onore di Giuseppe Frederico Mancini, volume II, Diritto dell'Unione europea, Milan, 1998, pp. 423 and 438. 28: - Case C-215/97 [1998] ECR I-2191. 29: - OJ 1986 L 382, p. 17. 30: - In this connection, it should be noted that the Court often interprets provisions of a directive in disputes between individuals by using those provisions, irrespective of national transposition rules, as the regime applicable to the specific case in point. See, to cite just some of the more recent judgments, Butterfly Music (Case C-60/98 [1999] ECR I-3939) and Allen (Case C-234/98 [1999], not yet published in the ECR). While it is true, as the Court stated, that 'regardless of the effects of the directive, in cases such as the present, an interpretation of the directive may be helpful to the national court so as to ensure that the law adopted for the implementation of the directive is interpreted and applied in a manner which conforms to the requirements of Community law (Case 111/75 Mazzalai [1976] ECR 657, paragraph 10), this clarification cannot be taken into account if it is established, as in the present case or in the Bellone case referred to above, that there is an incurable incompatibility between Community law and national law. Nor is it an answer to say that the judgment of the Court could be construed as a useful assessment for the purposes of the possible liability of the Member State for breach of the obligation to implement the directive, inasmuch as this would involve a departure from the dispute in question, which concerns two private parties and not the Member State, and conferring on the Court the task, which it has always refused, of ruling on hypothetical questions (Case C-343/90 Lourenço Dias [1992] ECR I-4673). It should next be noted that the facts of the case in the main proceedings here are different from those in the Spano and Others (C-472/93 [1995] ECR I-4321), in which the Court, in a dispute between two private persons, interpreted the content of a directive that had not been transposed because the national court sought to determine 'the extent to which national law, more particularly Article 2112 of the Civil Code, [could] be applied in conformity with the directive (paragraph 18). 31: - This was in fact how the judgment was interpreted by the Italian courts. See Judgment No 4817 of the Corte Suprema di Cassazione, sez. Lavoro (Supreme Court of Cassation, Labour Section) of 18 May 1999, which precluded application, in a dispute between private persons, of the national provision which the Court ruled was not in conformity with the directive. 32: - A question of this kind is the subject of a case pending before the Court ( Case C-343/98 Collino and Chiappero), in which the Court is called upon to interpret, in a dispute between private persons, Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 161, p. 26). 33: - Simmenthal case, cited above, paragraph 17. 34: - Case 48/71 Commission v Italy [1972] ECR 529, paragraph 7. 35: - Case C-101/91 Commission v Italy [1993] ECR I-191, paragraph 23.