Information;Order — ECLI:EU:C:2019:950
Date: 2019-11-06
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-75/19 — 1 
Case C-75/19 
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: 
31 January 2019 
Referring court: 
Tribunalul Specializat Mureș (Romania) 
Date of the decision to refer: 
27 December 2018 
Appellant: 
MF 
Respondents: 
BNP Paribas Personal Finance SA Paris Sucursala București 
Secapital Sàrl 
  
Subject matter of the main proceedings 
Appeal brought before the Tribunalul Specializat Mureș (Specialised Court, 
Mureș) by the appellant MF (a debtor against whom enforcement has been 
exercised) against the judgment of the Judecătoria Târgu-Mureș (Court of First 
Instance, Târgu-Mureș) dismissing on the ground of lateness the objection to 
enforcement by means of which the appellant was seeking annulment of all 
enforcement measures, enforcement itself and the decision authorising Secapital 
Sàrl to proceed to enforcement 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation is sought, pursuant to Article 267 TFEU, of recitals 12, 21 and 23 
and of Article 2(b), Article 6(1), Article 7(2) and Article 8 of Council Directive 
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-75/19 
 
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Questions referred 
1. Do the provisions of Council Directive 93/13/EEC [of 5 April 1993] on 
unfair terms in consumer contracts, in particular recitals 12, 21 and 23 and 
Article 6(1), Article 7(2) and Article 8 thereof, preclude national courts from 
adopting an interpretation according to which a consumer may not, in the context 
of opposing enforcement (which in national law is a special action that may be 
brought only under certain restrictive conditions and within a certain time limit 
after enforcement proceedings have been commenced), rely on the existence of 
unfair terms in a credit agreement which he has concluded with a seller or supplier 
(that credit agreement constituting, under national law, the enforceable instrument 
on the basis of which the enforcement proceedings have been commenced against 
the consumer) for the reason that such a ground is inadmissible in that type of 
action, the national legislation providing instead for an action pursuant to ordinary 
law, not subject to any time limit, by means of which a consumer may at any time 
apply for a declaration of the existence of unfair contractual terms, which will thus 
not be binding, even though the judgment on such an action may not have any 
direct consequences for the enforcement proceedings, there being a risk that 
enforcement will be completed before the judgment in the action pursuant to 
ordinary law is obtained? 
2. If the first question is answered in the affirmative, do those same provisions 
of Directive 93/13/EEC preclude a provision of national law which sets a time 
limit of 15 days from the date of communication of the first enforcement measures 
(that time limit being mandatory and a matter of public policy, and failure to 
comply with it entailing the dismissal of the action for having been brought out of 
time) within which period a consumer opposing enforcement (a debtor against 
whom enforcement is being exercised) may argue the unfair nature of contractual 
terms in a credit agreement concluded with a seller or supplier, bearing in mind 
that the same regime applies under national law to the making of similar 
objections that will be treated as arguments in defence on the merits, and also 
bearing in mind that, according to the settled case-law of the Court of Justice, 
national courts are under an obligation to consider, of their own motion, whether 
contractual terms are unfair, once they have at their disposal the necessary 
elements of fact and law to do so? 
Provisions of EU law and EU case-law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: recitals 12, 21 and 23 and Article 2(b), Article 6(1), Article 7(2) and 
Article 8 
Judgments of 4 June 2009, Pannon GSM (C-243/08, EU:C:2009:350), 
paragraphs 32 and 33; of 21 February 2013, Banif Plus Bank (C-472/11, 
EU:C:2013:88), paragraphs 24, 25, 26, 28 and 29; of 26 January 2017, Banco 
Primus (C-421/14, EU:C:2017:60); of 14 June 2012, Banco Español de Crédito 
BNP PARIBAS PERSONAL FINANCE SA PARIS SUCURSALA BUCUREȘTI AND SECAPITAL 
 
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(C-618/10, EU:C:2012:349); and of 14 March 2013, Aziz (C-415/11, 
EU:C:2013:164) 
Provisions of national law relied on 
Legea nr. 93/2009 privind instituțiile financiare nebancare (Law No 93/2009 on 
financial institutions other than banks), Article 52, pursuant to which credit 
agreements concluded with a financial institution other than a bank and real or 
personal guarantees offered to secure a loan constitute enforceable instruments 
Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între 
profesioniști și consumatori, republicată, astfel cum a fost modificată în 2014 
(Law No 193/2000 on unfair terms in contracts concluded between sellers or 
suppliers and consumers, in its republished version, as amended in 2014): 
‒ Articles 1, 2 and 6, which prohibit sellers or suppliers from stipulating unfair 
terms in contracts concluded with consumers, lay down the definitions of ‘seller 
or supplier’ and ‘consumer’, and provide that unfair terms are not binding on 
consumers; 
‒ Article 14, which provides that consumers who have suffered damage as a result 
of the conclusion of a contract in breach of the provisions of Law No 193/2000 
have the right to bring the matter before the courts in accordance with the 
provisions of the Codul Civil (Civil Code) and of the Codul de procedură civilă 
(Code of Civil Procedure). 
Legea nr. 134/2010 privind Codul de procedură civilă (Law No 134/2010 
establishing the Code of Civil Procedure): 
‒ Article 712, which provides, inter alia, in paragraph 1, that persons concerned 
by or harmed by enforcement may oppose enforcement, enforceable instruments 
issued by court enforcement officers and any other enforcement measures; 
‒ Article 713, which concerns the conditions of admissibility of opposition to 
enforcement and provides, in paragraph 2, that, where enforcement is effected on 
the basis of an enforceable instrument other than a court decision, points of fact or 
law relating to the legal basis of the enforceable instrument may be pleaded in 
opposition to enforcement only where the law does not provide, in relation to that 
enforceable instrument, for a specific procedural remedy for its annulment; 
‒ Article 715, which concerns time limits and provides, in paragraph 1, that 
opposition to enforcement in the strict sense may be made within 15 days, inter 
alia, of the date on which the person concerned becomes aware of the enforcement 
measure in question and, in paragraph 3, that opposition for the purposes of 
obtaining clarification of the meaning, scope or application of an enforceable 
instrument may be made at any time within the limitation period applicable to the 
right to proceed to enforcement; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-75/19 
 
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‒ Article 720, which concerns the effects of a decision on an objection to 
enforcement and provides, in paragraph 1, that, where a court upholds an 
objection to enforcement, it may, having regard to the object of enforcement and, 
depending on the circumstances of the case, rectify or annul the enforceable 
instrument that has been contested, order the annulment or suspension of the 
enforcement itself, or annul or clarify the enforceable instrument. 
Succinct presentation of the facts and the main proceedings 
1 On 27 October 2008 MF concluded with the non-bank financial institution SC 
CETELEM IFN SA Bucharest, which, during the course of the proceedings, was 
taken over by BNP Paribas Personal Finance SA Paris Sucursala București, a 
credit agreement concerning a loan in the amount of RON 3 498.00 for the 
purchase of consumer goods. The agreement stipulated an annual interest rate of 
12.70%, a monthly fee of 0.87%, a monthly insurance premium of RON 7.52 and 
an annual percentage rate (APR) of 29.82%. Annex 1 to the agreement contained 
the general terms and conditions, which defined the terms and expressions used, 
the level of fees, and the penalties for delay. 
2 On 5 December 2013 Secapital Sàrl, as the transferee of the loan referred to 
above, lodged with a court enforcement officer an application for enforcement in 
respect of the sum of RON 4 209.19, comprising RON 2 955.52 in respect of the 
principal owed, RON 510.42 in interest, RON 220.00 in penalties and RON 
523.25 in outstanding bank fees. The judicial authority initially seised of the 
enforcement proceedings rejected that application, but the application was then 
granted on appeal. 
3 On the basis of that declaration of enforceability, the court enforcement officer 
issued, on 2 April 2014, the first enforcement measures, which were 
communicated on 7 April 2014. On 21 May 2014 the court enforcement officer 
ordered the attachment of the debtor’s salary, a measure which was communicated 
to the debtor on 8 October 2014. 
4 On 7 November 2014 the debtor MF, as opponent, lodged with the Judecătoria 
Târgu-Mureş (Court of First Instance, Târgu-Mureș), the court hearing the 
enforcement proceedings, an objection to enforcement, seeking annulment of all 
the enforcement measures and of the enforcement itself, annulment of the decision 
containing the declaration of enforceability — as a consequence of a finding that 
the right to apply for enforcement was time-barred — suspension of the 
enforcement and an order requiring the creditor to pay the costs. 
5 Secapital lodged a counter-claim, arguing, inter alia, that the objection to 
enforcement had been made out of time. 
6 On 5 January 2015 the court hearing the enforcement proceedings suspended the 
enforcement. MF then lodged, at the hearing held on 4 May 2015, a pleading 
entitled ‘addendum to the opposition to the instrument’, asking the court to 
BNP PARIBAS PERSONAL FINANCE SA PARIS SUCURSALA BUCUREȘTI AND SECAPITAL 
 
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declare the absolute partial invalidity of the enforceable instrument constituted by 
the credit agreement, relying in that regard on the unfair nature of the clauses 
concerning the 0.87% fee and the APR stipulated in the special terms and 
conditions, and of the clauses concerning the early repayment fee of 5%, the 
commission and the APR stipulated in the general terms and conditions. 
7 In response to that addendum, Secapital argued that it is not possible to examine 
unfair terms in the context of proceedings concerning opposition to enforcement, 
since, under Article 713(2) of the Code of Civil Procedure, points of fact or law 
relating to the legal basis of the enforceable instrument may be pleaded only 
where the law does not provide for a specific procedural remedy for the 
annulment of that instrument. It maintains that the procedure governed by 
Article 14 of Law No 193/2000 is such a specific procedural remedy. Secapital 
also raised an objection of inadmissibility with reference to Articles 35 and 713 of 
the Code of Civil Procedure on the basis that the court was in fact seised of two 
actions: the opposition to enforcement and the action to establish the unfair nature 
of the contractual terms. 
8 The court [hearing the enforcement proceedings] dismissed the objection of 
inadmissibility on the ground that, although, in accordance with Article 713(2) of 
the Code of Civil Procedure, where enforcement is effected on the basis of an 
enforceable instrument other than a court decision, the opponent may plead points 
of fact or law relating to the legal basis of the enforceable instrument only where 
the law does not provide for another procedure in relation to that enforceable 
instrument, bearing in mind that, in the case in point, the provisions of Law 
No 193/2000 relied on by the respondent in its counter-claim are substantive 
provisions of substantive law, and not procedural provisions. Thus, the remedy 
entailing the annulment of the enforceable instrument consisting in a credit 
agreement is the legal action by which opposition is made pursuant to the 
provisions of Article 712(1) of the Code of Civil Procedure. 
9 The court hearing the enforcement proceedings upheld the objection that the 
opposition to enforcement had been made out of time and dismissed the 
opponent’s application on that ground. An appeal against that decision has been 
brought before the referring court. 
Essential arguments of the parties in the main proceedings 
10 The appellant MF submits that the provisions of national law which prescribe a 
period of 15 days from the date of communication of the first enforcement 
measures within which, in the context of opposition to enforcement, a party may 
argue the existence of unfair contractual terms infringe the principles established 
by Directive 93/13/EEC. 
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Succinct presentation of the reasons for the reference 
11 In the referring court’s view, for the purposes of its decision in the main 
proceedings, it is necessary to determine the proper application and interpretation 
of the Court of Justice’s case-law on consumer protection in the case of debtors 
such as MF and the extent to which, in a situation such as that at issue in the main 
proceedings, such debtors continue to be entitled to rely on the unfair nature of 
terms included in the enforceable instrument. 
12 Analysing the opposition to enforcement, the referring court points out that, in 
accordance with Articles 712 and 713 of the Code of Civil Procedure, the 
opposition may be directed against enforcement measures, in which case it will be 
an opposition to enforcement in the strict sense, or may be formulated as an 
opposition to the enforceable instrument. 
13 From the perspective of the legislature, opposition to enforcement in the strict 
sense should be the first reaction of the debtor against whom enforcement is 
sought, who will be subject, in the formulation of that opposition, to a time limit 
closely correlated with the time when he becomes aware of the enforcement. The 
debtor thus has a final possibility to argue defects in the right being enforced 
which have arisen prior to the commencement of enforcement. After that time, it 
will only be possible to challenge enforcement measures issued in the course of 
the enforcement process. 
14 As a rule, opposition to enforcement in the strict sense permits, in the case of 
enforceable instruments other than court decisions, the formulation of points of 
fact or law challenging the basis of the right itself, with one exception: where a 
specific procedural remedy exists for the annulment of the enforceable instrument. 
15 For the purposes of formulating this type of opposition, as well as for any other 
subsequent grounds, the time limit of 15 days after the communication of the first 
enforcement measures must be observed, otherwise the right to pursue this type of 
civil action will be lost and an application made out of time will be dismissed. 
16 By contrast, in the case of opposition to an enforceable instrument, the 
legislature’s solution is, under Article 715(3) of the Code of Civil Procedure, the 
diametric opposite, inasmuch as opposition for the purposes of obtaining 
clarification of the meaning, scope or application of an enforceable instrument 
may be made at any time within the limitation period applicable to the right to 
proceed to enforcement. 
17 However, the manner in which those provisions have been interpreted in the legal 
literature and in the case-law is not consistent. The referring court has identified 
four opinions. 
18 According to the first of those opinions, which propounds a broad interpretation of 
the concept of a ‘specific procedural remedy for the annulment of the enforceable 
instrument’ used in Article 713(2) of the Code of Civil Procedure, the existence of 
BNP PARIBAS PERSONAL FINANCE SA PARIS SUCURSALA BUCUREȘTI AND SECAPITAL 
 
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the action pursuant to ordinary law provided for by Article 14 of Law 
No 193/2000 for the purposes of obtaining a declaration that contractual terms in 
an enforceable instrument are unfair renders inadmissible any reliance on the 
unfair terms in the context of opposition to enforcement as grounds for that 
opposition. In practice, a distinction is thus drawn between claims seeking a 
declaration of the unfair nature of terms depending on whether they are regarded 
as a claim pursuant to ordinary law that will be registered as a separate action and 
decided independently of opposition to enforcement and incapable of influencing 
directly the manner in which enforcement is carried out. 
19 The second of those opinions propounds a narrow interpretation of the concept of 
a ‘specific procedural remedy for the annulment of the enforceable instrument’ 
used in Article 713(2) of the Code of Civil Procedure. Some courts consider that 
reliance on unfair terms in a credit agreement — which is the enforceable 
instrument being enforced — as a means of opposing enforcement is real 
opposition to enforcement in the strict sense. Those courts reject criticisms 
relating to the inadmissibility of the grounds for opposition, since they take the 
view that the consumer may choose whether to bring an action pursuant to 
ordinary law (which will be subject to a certain legal regime: action for a 
declaration, not subject to time limits, no stamp duty payable) or to defend himself 
by way of opposition to enforcement (which will be subject to its own legal 
regime: action for performance, subject to certain time limits, stamp duty 
payable). In their opinion, to make distinctions in such cases would have an effect 
on the wishes of the consumer who has chosen one of those two remedies. These 
courts also consider that, in order to formulate an opposition, it is imperative to 
observe the 15-day time limit. 
20 According to the third opinion, opposition to enforcement in which a declaration 
of the unfair nature of the contractual terms included in the enforceable instrument 
is sought must be regarded as opposition to the enforceable instrument, which 
paralyses the mandatory effect of the 15-day time limit which applies to 
opposition to enforcement in the strict sense. 
21 Some courts, adopting the fourth opinion, consider opposition to enforcement in 
the course of which reliance is placed on unfair terms as a means of opposing 
enforcement in the strict sense, since, in their view, challenging an enforceable 
instrument is possible only when the instrument being enforced is a judicial 
decision. However, they then reject the restrictive 15-day time limit, doing so 
directly on the basis of EU law, having regard to the legal regime for the 
protection of consumers against unfair terms, as outlined in the case-law of the 
Court of Justice. 
22 In this context, the referring court makes some references to case-law, more 
specifically, to the judgments of the Court of Justice mentioned above in the 
section dealing with the EU case-law relied on. 
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23 On the basis of that case-law, which reveals a broadening of the protection granted 
to consumers, the referring court considers that the strict application of so short a 
time limit as the 15-day time limit is inconsistent with the requirements of the 
protection of consumers’ rights. It suggests that EU law in this area should be 
directly applied, in the sense that no effect should be given to national law that is 
contrary to EU law and that the penalty of prescription should not follow from 
failure to observe that time limit. 
24 That solution would eliminate, first, the restrictions imposed by national law on 
the amendment of an opposition to enforcement by way of the addition of new 
grounds and, secondly, the disparities in practice referred to above, since the 
grounds for opposition arising from the consumer’s right to rely on the unfair 
nature of terms in the enforceable instrument would not be dependent on any other 
provision of domestic law, but would instead be admissible directly on the basis of 
EU law. 
25 However, the referring court also observes that it does not take the view that it is 
possible to raise grounds for opposition based on the unfair nature of certain 
clauses at any time in the course of enforcement, regardless of the lapse of time 
since communication of the first enforcement measures, because compliance with 
a time limit is necessary in order not to undermine the principle of the certainty of 
legal relations, especially given that the procedural remedy under Article 14 of 
Law No 193/2000 is available to the consumer without any possibility of 
prescription. 
26 Referring to the judgment in Case C-421/14, Banco Primus, in which the Court 
held that a one-month time limit was not reasonable and sufficient, the referring 
court observes that a longer time limit should apply where reliance is placed on 
the unfair nature of terms, either by the consumer or by a court of its own motion. 
27 The referring court also mentions the new wording of Article 713(2) of the Code 
of Civil Procedure, as amended by Legea nr. 310/2018 (Law No 310/2018), 
published in the Monitorul Oficial al României (Official Gazette of Romania) of 
21 December 2018, which provides that: ‘Where enforcement is effected on the 
basis of an enforceable instrument other than a court decision, points of fact or 
law relating to the legal basis of the enforceable instrument may be pleaded in 
opposition to enforcement only where the law does not provide, in relation to that 
enforceable instrument, for a procedural remedy for its annulment, including an 
action pursuant to ordinary law.’ 
28 Referring to the Court’s judgments in Banco Español de Crédito (C-618/10) and 
Aziz (C-415/11), the referring court observes that whenever an action pursuant to 
ordinary law governed by the provisions of Law No 193/2000 is possible in order 
to obtain a declaration of the unfair nature of terms in a contract concluded with a 
consumer, the provisions of procedural law governing opposition to enforcement 
will preclude the subsequent reliance, by the debtor or by a court acting of its own 
motion, on the unfair terms in the context of that procedural remedy.