Judgment;Summary — ECLI:EU:C:2024:182
Date: 2024-02-29
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary reasons, had not revealed the existence of any unfair terms and that, in the absence of an objection within the period laid down by national law, the consumer would be time-barred from asserting the possible unfairness of those terms (judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 51). 43 It is also apparent from the case-law that, in the case where, in a previous examination of a contract in dispute which led to the adoption of a decision which has become res judicata, the national court limited itself to examining of its own motion, with regard to Directive 93/13, one or certain terms of that contract, that directive requires a court, before which subsequent proceedings have been properly lodged, to assess, at the request of the parties or of its own motion where it is in possession of the legal and factual elements necessary for that purpose, the potential unfairness of other terms of that contract. In the absence of such a review, consumer protection would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of such terms, contrary to Article 7(1) of that directive (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 52 and the case-law cited). 44 As regards, in particular, the statement of reasons to be provided by a court which has examined whether contractual terms are unfair, the Court has held that that statement of reasons must enable a court hearing a subsequent action to identify, first, the terms or parts of terms which were examined in the light of Directive 93/13 in the earlier proceedings and, secondly, the reasons, even if set out in summary form, for the finding of the court hearing those earlier proceedings that those terms or parts of terms were not unfair (see, to that effect, order of 18 December 2023, Eurobank Bulgaria, C‑231/23, EU:C:2023:1008, paragraph 34). 45 It follows from the foregoing that a court’s review of whether terms in a contract concluded between a consumer and a seller or supplier are unfair is consistent with the principle of effectiveness in the light of Directive 93/13 if, first, the consumer has been informed of the existence of that review and of the consequences of his or her inaction as regards the time-barring of the right to assert the possible unfairness of the contractual terms, and, secondly, the decision taken following that review contains a sufficient statement of reasons making it possible to identify the terms which were examined on that occasion and the reasons, even if set out in summary form, for the finding of the court that those terms are not unfair. A judicial decision which meets those requirements may have the effect of preventing a further review of whether the contractual terms are unfair in subsequent proceedings. 46 In the present case, it is apparent from the file submitted to the Court that, in the course of the order for payment procedure, the court examined of its own motion, pursuant to its obligation under the amended LEC, the terms of the credit agreement and, since it was unsure whether those terms were unfair, invited the parties to submit observations in that regard. The consumer did not respond to that invitation or appeal against the court’s order finding that there were no such terms, following which the judicial officer issued an order for payment. It is also apparent that the consumer did not lodge an objection to the order for payment, with the result that the judicial officer’s decision of 9 July 2019 constitutes the decision terminating the order for payment procedure. 47 Furthermore, it should also be noted that it does not transpire from the order for reference that procedural constraints might have deterred the consumer from asserting his rights in the order for payment procedure. 48 Consequently, in the light of the case-law cited in paragraphs 42 and 44 of the present judgment, provided, first, that the consumer was aware of the existence of the review by the court of its own motion, in the course of the order for payment procedure, of whether the contractual terms were unfair and of the consequences of his inaction, and, secondly, that the order made by the court following that review contains a sufficient statement of reasons, the review carried out by the court in the course of that procedure appears to meet the requirement of effectiveness in the light of Article 7 of Directive 93/13, which is, however, for the referring court to ascertain. 49 It should also be borne in mind that it was open to the consumer, if he believed he had grounds for doing so, to challenge, within the time limits set for that purpose, the finding that the terms of the contract were not unfair by means of an appeal brought against the judicial decision taken by the court in the order for payment procedure. 50 In its written observations, the European Commission states that as no reasoning at all was given for the judicial officer’s decision terminating the order for payment procedure, it cannot result in the review of whether the contractual terms are unfair being time-barred. 51 However, having regard to the principle of procedural autonomy, referred to in paragraph 30 above, Member States remain free to organise their rules of procedure in such a way that a review under Directive 93/13 may be carried out not only when the decision terminating the order for payment procedure is taken but at any stage of that procedure, provided that it is carried out by a court and complies with the principle of effectiveness. Since, under Spanish rules of procedure, such a review takes place in the course of the order for payment procedure, the fact that it can no longer be carried out during the procedure to enforce the order for payment is not, in itself, capable of undermining the effectiveness of that directive. 52 In the light of the foregoing, the answer to the first parts of questions 1 and 2 is that Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as not precluding national legislation which, because of a time-bar, does not allow a court hearing the enforcement of an order for payment to review, of its own motion or at the consumer’s request, whether the terms of a credit agreement concluded between a seller or supplier and a consumer are unfair, where such a review has already been carried out by a court in the course of the order for payment procedure, provided that that court has identified in its decision the terms which were reviewed, that it has set out, even in summary form, the reasons why those terms were not unfair, and that it has stated that, if the remedies provided for under national law against that decision have not been exercised within the time limit set for that purpose, the consumer will be time-barred from asserting the possible unfairness of those terms. The second parts of questions 1 and 2 53 By the second parts of questions 1 and 2, which should be considered together, the referring court asks whether Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, precludes national legislation which does not allow a court hearing the enforcement of an order for payment to adopt of its own motion investigative measures in order to determine the factual or legal material needed to review whether the terms contained in a credit agreement concluded between a seller or supplier and a consumer are unfair. 54 As a preliminary point, it should be noted that those questions are justified only if, following the analysis which the referring court is required to conduct in the light of the first parts of questions 1 and 2, it concludes that the review carried out in the course of the order for payment procedure does not meet the requirements of the principle of effectiveness as regards Directive 93/13 and that the onus is therefore on it to carry out a further review. 55 In order to answer the second parts of those questions, it should be noted that, according to settled case-law, the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge (see, inter alia, to that effect, judgment of 4 May 2023, BRD Groupe Societé Générale and Next Capital Solutions, C‑200/21, EU:C:2023:380, paragraph 24 and the case-law cited). 56 The imbalance between the consumer and the seller or supplier may be corrected only by positive action unconnected with the parties to the contract (see, inter alia, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 25 and the case-law cited). 57 If the referring court concludes that, since no effective review was carried out in the course of the order for payment procedure, it is for that court itself to review whether the terms contained in the credit agreement are unfair, it must have the possibility of taking of its own motion the necessary investigative measures for that purpose (see, to that effect, judgment of 22 September 2022, Vicente (Action for the recovery of lawyers’ fees), C‑335/21, EU:C:2022:720, paragraph 73 and the case-law cited). 58 In the light of the foregoing, the answer to the second parts of questions 1 and 2 is that Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which does not allow a court hearing the enforcement of an order for payment to adopt of its own motion investigative measures in order to determine the factual or legal material needed to review whether the terms contained in a credit agreement concluded between a seller or supplier and a consumer are unfair, where the review carried out by the court having jurisdiction in the course of the order for payment procedure does not meet the requirements of the principle of effectiveness as regards that directive. Costs 59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Ninth Chamber) hereby rules: 1. Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of the principle of effectiveness, must be interpreted as not precluding national legislation which, because of a time-bar, does not allow a court hearing the enforcement of an order for payment to review, of its own motion or at the consumer’s request, whether the terms of a credit agreement concluded between a seller or supplier and a consumer are unfair, where such a review has already been carried out by a court in the course of the order for payment procedure, provided that that court has identified in its decision the terms which were reviewed, that it has set out, even in summary form, the reasons why those terms were not unfair, and that it has stated that, if the remedies provided for under national law against that decision have not been exercised within the time limit set for that purpose, the consumer will be time-barred from asserting the possible unfairness of those terms. 2. Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which does not allow a court hearing the enforcement of an order for payment to adopt of its own motion investigative measures in order to determine the factual or legal material needed to review whether the terms contained in a credit agreement concluded between a seller or supplier and a consumer are unfair, where the review carried out by the court having jurisdiction in the course of the order for payment procedure does not meet the requirements of the principle of effectiveness as regards that directive. [Signatures] * Language of the case: Spanish.