Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 13 September 2018 (1)
Case C‑486/16
Bankia SA
v
Alfredo Sánchez Martínez,
Sandra Sánchez Triviño
(Request for a preliminary ruling from the Juzgado de Primera Instancia No 6 de Alicante (Court of First Instance No 6, Alicante, Spain))
(Reference for a preliminary ruling — Directive 93/13/EEC — Consumer protection — Unfair terms in consumer contracts — Accelerated repayment term in a mortgage loan agreement — Article 6(1) — Article 7(1) — Criteria for assessing unfairness — Principle of effectiveness)
I.      Introduction
1.        The present request for a preliminary ruling concerns the interpretation of Directive 93/13/EEC. (2) More specifically, the Juzgado de Primera Instancia No 6 de Alicante (Court of First Instance No 6, Alicante, Spain) has expressed doubts, inter alia, about the compatibility of the case-law of the Tribunal Supremo (Supreme Court, Spain) relating to the interpretation of early repayment terms in the context of the specific foreclosure procedure (‘mortgage enforcement proceedings’) with the system of consumer protection established by that directive.
2.        Therefore, the case in the main proceedings is within the same legal and judicial context as Cases C‑92/16, C‑167/16, C‑70/17 and C‑179/17. (3)
3.        The similarity between the questions giving rise to the present case and those referred by the national courts in Cases C‑70/17 and C‑179/17, in which my Opinion is being delivered today, will therefore allow me to refer, on certain points, to the arguments set out in the Opinion in those parallel cases in order to avoid repetition.
II.    Legal context
A.      European Union law
4.        According to the fourth recital of Directive 93/13, ‘it is the responsibility of the Member States to ensure that contracts concluded with consumers do not contain unfair terms’.
5.        Article 1(2) of Directive 93/13 provides:
‘The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive.’
6.        Article 3(1) and (2) of that directive provides:
‘1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.'
7.        Article 4 of that directive is worded as follows:
‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.'
8.        Article 6(1) of that directive is worded as follows:
‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.'
9.        Article 7(1) of Directive 93/13 provides:
‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.'
B.      Spanish law
10.      Article 1124 of the Código Civil (Civil Code) provides:
‘The power to terminate obligations is deemed to be applied in reciprocal obligations, if one of the contracting parties should fail to do what is required of him.
The injured party may choose to demand either the performance or the termination of the obligation, with compensation for damage and payment of interest in both cases. He may also request termination, even after choosing specific performance, if the latter should prove impossible.
The court shall order the termination requested, when there are no justified grounds authorising it to prescribe a period for performance.’
11.      Under Article 552(1) and (3) of Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on civil procedure) of 7 January 2000,(4) in the version applicable to the main proceedings (‘the LEC'), concerning the ex officio review of unfair terms:
‘1.      The court shall examine ex officio whether a term in one of the enforceable instruments referred to in Article 557(1) may be considered to be unfair. If it considers that one of those terms may be considered as such, it shall hear the parties within 15 days. After hearing the parties, it shall give a ruling within five working days, in accordance with the provisions of Article 56(1)(3).
...
3.      Once the order refusing enforcement has become final, the creditor may assert its rights only in the relevant ordinary procedure, if this is not precluded by the principle of res judicata of the judgment or the final decision on which the request for enforcement was based.'
12.      Article 557 of the LEC is worded as follows:
‘1. When enforcement is ordered on the basis of instruments referred to in Article 517(2)(4), (5), (6) and (7) and of other enforceable documents referred to in Article 517(2)(9), the party against whom enforcement is sought may lodge an objection, within the period and in the form provided for in the preceding article, only if he relies on one of the following grounds:
...
7º      the instrument contains unfair terms.
2.      If the objection referred to in the previous paragraph is made, the registrar shall suspend the enforcement by a measure of organisation of the procedure.'
13.      Under Article 561(1)(3) of the LEC:
‘If one or more terms are held to be unfair, the order to be made shall determine the consequences of such unfairness, directing either that enforcement is unavailable or ordering enforcement without application of the terms considered unfair.'
14.      According to Article 693(2) of the LEC, relating to the accelerated repayments of debt payable in instalments:
‘2.      The total amount of what is owed as regards capital and interest may be claimed when repayment in full has been agreed in the event of non-payment of at least three monthly instalments and the debtor has failed to fulfil his obligation to make payment or a number of instalments such that the debtor has failed to fulfil his obligation for a period at least equivalent to three months, and provided that the instrument creating the loan and the corresponding register contain such an agreement.'
15.      Article 695 of the LEC, concerning the objection to enforcement, is worded as follows:
‘1.      In proceedings under this chapter, an objection to enforcement by the party against whom enforcement is sought may be admitted only if it is based on the following grounds:
...
4º      the unfairness of a contractual term constituting the basis for enforcement or which has enabled the amount due to be calculated.
2.      If an objection is lodged under the preceding paragraph, the court registry shall stay enforcement and summon the parties to a hearing before the court which ordered the enforcement. There shall be at least 15 days between the summons and the date of the hearing in question. At that hearing, the court shall hear the parties, admit the documents that are submitted and issue the decision that it considers reasonable within two days in the form of an order.
3.      ...
If ground 4 [of paragraph 1 of this article] is upheld, enforcement shall be discontinued where it is based on the contractual term. In other cases, enforcement shall be continued without the application of the unfair term.
4.      An appeal may lie against the order discontinuing enforcement or disapplying an unfair term or rejecting the opposition on the ground laid down in paragraph 1(4) of the present article.
Save in those circumstances, no appeal shall lie against orders adjudicating upon the objection to enforcement referred to in the present article and the effects of those orders shall be confined exclusively to the enforcement proceedings in which they are made.'
16.      Article 698(1) of the LEC provides:
‘Any application made by a debtor, third-party holder or other interested party, which is not covered by the preceding articles, including applications concerning nullity of title, maturity, certainty, extinguishment or the amount of the debt, shall be settled by an appropriate judgment, without ever having the effect of staying or terminating the [judicial enforcement] proceedings provided for in the present chapter.'
17.      Directive 93/13 was transposed into the Spanish legal order by Ley 7/1998 sobre condiciones generales de la contratación (Law 7/1998 on general contractual conditions) of 13 April 1998, (5) and by Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (Royal Legislative Decree 1/2007 on the recast text of the general law on the protection of consumers and users and other supplementary laws) of 16 November 2007. (6)
18.      Under Article 83 of the texto refundido, as amended by Law 3/2014 of 27 March 2014: (7)
‘Unfair contract terms shall automatically be void and deemed not to have formed part of the contract. To that end, the court, after consulting the parties, shall declare the invalidity of unfair terms included in the contract, which shall nevertheless continue to bind the parties on the same terms if it is capable of continuing in existence without the unfair terms.'
III. The facts giving rise to the main proceedings and the questions referred for a preliminary ruling
19.      On 20 January 2006, the Caja de Ahorros de Valencia, Castellón y Alicante (Savings Bank of Valencia, Castellón and Alicante, now Bankia SA, ‘Bankia') concluded with Mr Alfredo Sánchez Martínez and Ms Sandra Sánchez Triviño a mortgage loan agreement in the amount of EUR 140 000 for a term of 35 years. That agreement was intended to finance the purchase of a property as their main residence. On 18 October 2006, the agreement was the subject of a novation in order to divide the loan into two tranches (tranches A and B).
20.      As regards the repayment of tranche A of the loan, following non-payment of the monthly instalments for February and March 2012 (which amounted to EUR 131.56 and EUR 131.92 respectively) and partial non-payment of the monthly instalment for April 2012 (the amount outstanding was EUR 31.21), Bankia declared the acceleration of the maturity date of tranche A of the loan. As regards the repayment of tranche B of the loan, payment of the monthly instalments was discontinued on 18 April 2012.
21.      On 17 April 2013, Bankia submitted an initial application for mortgage enforcement before the Juzgado de Primera Instancia No 11 de Alicante (Court of First Instance No 11, Alicante, Spain), which, on 2 October 2013, ordered the seizure of the encumbered property on the basis of the enforceable instrument.
22.      On 12 March 2014, the debtors lodged an objection to the seizure on the grounds of unfair terms in the mortgage loan agreement, including Clause 6a relating to accelerated repayment. Under that clause, ‘[the bank] may declare the acceleration of the maturity date of the debt and demand immediate payment of the amounts owed in respect of capital and interest, including default interest, … in the following situations: (a) the borrower fails to pay, in whole or in part, when they become due, any of the capital or interest repayments in accordance with the terms of this deed'.
23.      On 26 May 2014, the Juzgado de Primera Instancia No 11 de Alicante (Court of First Instance No 11, Alicante) issued an order declaring that term unfair and stating that there were no grounds for ordering seizure.
24.      On 27 June 2014, Bankia lodged an appeal against that judgment with the Audiencia Provincial de Alicante (Provincial Court, Alicante, Spain), which dismissed it by order of 14 October 2014.
25.      On 20 May 2015, Bankia lodged a second application for enforcement before the Juzgado de Primera Instancia No 6 de Alicante (Court of First Instance No 6, Alicante) on the basis of the same enforceable instrument against Mr Sánchez Martínez and Ms Sánchez Triviño.
26.      By order of 14 October 2015, the referring court dismissed that application. On 11 February 2016, that order was quashed by the Audiencia Provincial de Alicante (Provincial Court, Alicante) on the ground that the debtors had failed to pay 38 monthly instalments. Since the order on appeal did not grant enforcement, the referring court must decide afresh in this matter.
27.      It was in those circumstances that the Juzgado de Primera Instancia No 6 de Alicante (Court of First Instance No 6, Alicante), by judgment of 28 July 2016, received at the Court of Justice on 12 September 2016, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: (8)
‘(1)      Is it contrary to the principle of effectiveness laid down in Article 7(1) of Directive [93/13] for an enforcement order to be made on the basis of an accelerated repayment term declared unfair by a final judgment given in previous mortgage enforcement proceedings between the same parties and based on the same mortgage loan agreement, even if that earlier judgment is not recognised under national law as having the positive effect of substantive res judicata, but national law does provide that fresh enforcement proceedings may not be brought on the basis of the same enforceable instrument?
(2)      In mortgage enforcement proceedings in which the court of first instance refused to make an enforcement order because the application was based on an accelerated repayment term declared unfair in other, earlier mortgage enforcement proceedings, based on the same instrument and between the same parties, and in which the refusal to make an enforcement order was overturned by the appeal court which referred the case back so that an enforcement order could be made at first instance, is it contrary to the principle of effectiveness laid down in Article 7(1) of Directive [93/13] to make the decision on appeal binding on the lower court or must national law be interpreted as meaning that the lower court is not bound by the decision on appeal when there is already an earlier final judgment annulling the accelerated repayment term on which the enforcement order is based and, in that case, must the application for enforcement again be ruled inadmissible?’
IV.    The procedure before the Court
28.      By decisions of the President of the Court of 18 March, 21 April and 10 October 2016, respectively, Cases C‑92/16, C‑167/16 and C‑486/16 were stayed pending delivery of the judgment of 26 January 2017, Banco Primus. (9)
29.      Following notification of that judgment, the referring court indicated, by order of 21 February 2017, that it wished to maintain the second and third questions referred.
30.      By order of the President of the Court of 24 October 2017, treatment of Cases C‑92/16, C‑167/16, C‑486/16, C‑70/17 and C‑179/17 was coordinated.
31.      By decision of 20 February 2018, the Court, pursuant to Article 29(1) of its Rules of Procedure, decided to refer Cases C‑92/16, C‑167/16 and C‑486/16 to the First Chamber with the same composition and, in accordance with Article 77 of those rules, arranged a joint hearing for those cases.
32.      Written observations have been submitted in the present case by Bankia, the Spanish Government and the European Commission.
33.      The representatives of the parties in the main proceedings, the Spanish Government and the Commission presented oral argument at the joint hearing held on 16 May 2018.
V.      Analysis
34.      In the present case, I wish to refer, at the outset, to the considerations which I have set out in my Opinion in Cases C‑70/17 and C‑179/17, concerning the issues in the main proceedings and the analysis of the questions submitted to the Court by the referring court.
A.      General considerations concerning consumer protection and the relevant case law of the Court
35.      In order to reply to the questions referred in these cases, account should be taken of the general considerations set out in points 51 to 56 of my Opinion in Cases C‑70/17 and C‑179/17 and of the relevant case-law of the Court analysed in points 65 to 82 of that Opinion. Those considerations and that case-law of the Court form not only the basis for the proposed answers to the questions of law raised by the referring courts in Cases C‑70/17 and C‑179/17, but also the legal framework and case-law applicable to the examination of the questions raised by the referring court in the present case.
36.      As regards the general considerations, they make it possible, first, to define the context of Directive 93/13, secondly to note how EU law, by means inter alia of that directive, has put consumer protection at the heart of the European integration process and, lastly, to note an essential aspect of that directive, namely the fact that harmonisation of consumer protection is deemed necessary in order to strengthen the internal market and economic and social life. (10)
37.      As regards the relevant case-law of the Court, the presentation in points 65 to 82 of my Opinion in Cases C‑70/17 and C‑179/17 has highlighted the key issue, namely that the process of reviewing unfair terms by the national court contains two consecutive and different steps which involve two separate operations or exercises. The first step is the classification, by the national court, of the contractual term as an unfair term, whereas the second step concerns the consequences that that court must draw from the classification of the term as unfair. That practice by the national court which consists in establishing all of the consequences of the finding that the term is unfair is different, with regard to both time and substance, from the classification which preceded it. The fact that the two operations are consecutive should not lead us to confuse them. Moreover, their differences are clearly shown in the case-law of the Court, as we shall see below. (11)
38.      It is therefore apparent from the relevant case-law that, after having found the accelerated repayment term to be unfair (first stage), (12) the general rule, well established in the settled case-law of the Court, which derives from the wording of Article 6(1) of Directive 93/13, is that the referring court must draw all the consequences from that finding (second stage), that is to say that it must exclude application of an unfair term and is not authorised to revise its content. The contract must subsist, in principle, with no amendment other than that resulting from removal of unfair terms, since, under the national rules of law, that subsistence of the agreement is legally possible. (13)
39.      It is also apparent from the relevant case-law that that general rule has, to date, only one exception: that in the judgment in Kásler and Káslerné Rábai. (14) However, as I have pointed out in points 80 to 82 of my Opinion in Cases C‑70/17 and C‑179/17, for the exception recognised in that judgment to be applicable by the national court in accordance with Directive 93/13 and the Court’s case-law, the Court has made it subject to certain conditions. Thus, where a contract concluded between a seller or supplier and a consumer cannot continue in existence after an unfair term has been deleted, Article 6(1) of Directive 93/13 does not preclude a rule of national law enabling the national court to remedy the invalidity of that term by replacing it with a supplementary provision of national law.(15) However, two conditions must be satisfied. First, that susbstitution must be able to lead to ‘the result that the contract may continue in existence in spite of the fact that [the unfair term] has been deleted' and that it ‘continues to be binding for the parties'. (16) Second, where the court is obliged to annul the contract in its entirety, that substitution must have the effect of preventing the consumer from being exposed to ‘particularly unfavourable consequences, so that the dissuasive effect resulting from the annulment of the contract could well be jeopardised'. (17)
40.      It is therefore necessary to answer the questions referred by the national court in the present case in the light of the case-law set out above and examined in detail in points 65 to 82 of my Opinion in Cases C‑70/17 and C‑179/17.
B.      The issues in the case
41.      It is apparent from the order for reference that the bank twice requested an order for seizure of the mortgaged property. The two corresponding mortgage enforcement proceedings were between the same parties and based on the same mortgage loan agreement.
42.      In the first mortgage enforcement proceedings, the Juzgado de Primera Instancia No 11 de Alicante (Court of First Instance No 11, Alicante), having held that the accelerated repayment term was unfair, declared that there were no grounds for ordering seizure. The decision of that court to discontinue proceedings was upheld by the court of appeal, on the ground that non-payment of two monthly instalments was not sufficiently serious to declare accelerated repayment.
43.      In the second mortgage enforcement proceedings, the referring court issued an order by which it refused to order seizure on the ground that it was clear from the file that, during the previous proceedings, the court of first instance had decided to discontinue the proceedings owing to the unfairness of the accelerated repayment term. That decision, made on the basis of Article 552(3) of the LEC, (18) was annulled by the same court of appeal, on the ground that the non-payment was more serious than in the first proceedings.
44.      The particularity of the present case therefore lies in the fact that the reference has been made in the context of the second mortgage enforcement proceedings.
45.      The referring court states that, in those second proceedings, the order of the appellate court ‘seems to be on the same lines' as the judgment of the Tribunal Supremo (Supreme Court) of 23 December 2015 relating to the accelerated repayment term, (19)confirmed by the judgment of 18 February 2016. (20) In those judgments, the Tribunal Supremo (Supreme Court) held that the validity of accelerated repayment terms required that such terms be adapted to the seriousness of the infringement, depending on the duration and amount of the loan, and allow the consumer to avoid their application by acting diligently to remedy the situation. The Tribunal Supremo (Supreme Court) stated, however, that mortgage enforcement could be continued if the option of declaring accelerated repayment of the loan had not been exercised unfairly, owing to the benefits that the specific procedure gave to the consumer. Moreover, the Tribunal Supremo (Supreme Court) had allowed the supplementary application of a provision of national law, such as Article 693(2) of the LEC, in order to be able to continue with the mortgage enforcement. (21)
46.      The referring court therefore argues that, having regard to the case-law of the Tribunal Supremo (Supreme Court), the appeal court referred the case back to the referring court to grant the application for enforcement, on the ground that the failure of the borrowers in the meantime was sufficiently serious, and to order mortgage enforcement.
47.      In the main proceedings, the referring court considers that it must respect the order of the court of appeal but, nevertheless, has doubts concerning the compliance of the interpretation of the Tribunal Supremo (Supreme Court) and, consequently, of that order, with Directive 93/13.
48.      It is apparent from the foregoing that the questions referred have certain specific features in comparison with the questions raised in Cases C‑92/16, C‑167/16, C‑70/17 and C‑179/17. However, it is clear from the order for reference that the issue in the present case nevertheless has the same legal and judicial context as Cases C‑92/16, C‑167/16, C‑70/17 and C‑179/17. This Opinion should therefore be read in conjunction with that which I am delivering simultaneously in Cases C‑70/17 and C‑179/17.
C.      The questions referred for a preliminary ruling
49.      By its questions, which, in my view, should be considered together, the referring court seeks, in essence, to ascertain whether, in the light of the principle of effectiveness, Article 6(1) and Article 7(1) of Directive 93/13 preclude an interpretation of national procedural rules which require a lower court to order enforcement of a mortgage on the basis of an accelerated repayment term declared unfair by a final judgment given by a higher court in earlier mortgage enforcement proceedings between the same parties on the basis of the same enforceable instrument.
50.      In order to analyse those questions, I think it may be useful to make four points.
51.      I should point out, in the first place, that, in accordance with the settled case-law of the Court, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national court and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. (22)
52.      In the second place, in the light of the argument which I propounded in points 84 to 136 of my Opinion in Cases C‑70/17 and C‑179/17, I cannot agree with the argument put forward by the Spanish Government in its written observations that the two mortgage enforcement proceedings had been initiated on two different bases. The Spanish Government contends, in fact, that the first mortgage enforcement proceedings were initiated on the basis of the unfair accelerated repayment term whereas the second proceedings were brought on the basis of Article 693(2) of the LEC, in accordance with judgment No 705/2015 of the Tribunal Supremo (Supreme Court). (23)
53.      I note, in that regard, that the Court has already held that Directive 93/13 precluded an interpretation in the case-law of a provision of national law governing accelerated repayment terms in loan agreements, such as Article 693(2) of the LEC, which prohibits the national court which has found such a contractual term to be unfair from declaring that term null and void and removing it where the seller or supplier did not in fact apply it, but complied with the requirements laid down in that provision of national law. (24)
54.      In the present case, the fact that the bank initiated the mortgage enforcement proceedings only after non-payment of 38 successive monthly instalments is a fact which should not be taken into account when assessing the unfairness of a contractual term which was designed to allow the bank to resort to mortgage enforcement in the event of non-payment of just one monthly instalment. I note in that regard that, in the area of consumer protection, reasonable conduct in the context where a contractual term is unfair does not render the term fair. (25)
55.      I would also point out that it is apparent from the observations set out in points 127 to 133 of my Opinion in Cases C‑70/17 and C‑179/17, particularly point 124 of that Opinion, that it follows from the case-law of the Court that an unfair term declared to be invalid is deemed never to have existed or produced any effect. Therefore, the application in the present case of Article 6(1) of Directive 93/13 would have the consequence, in practice that, where the national court establishes that the accelerated repayment term is invalid, mortgage enforcement proceedings could not be initiated or, if they have been initiated, could not be continued since the accelerated repayment term concerning the agreement of the parties and the reference to a single repayment entered in the register has been declared unfair and, accordingly, null and void. It should also be noted that if it were possible to remedy the invalidity of the term by applying the minimum number of three monthly instalments set in Article 693(2) of the LEC, that would effectively amount to allowing national courts to amend that term. However, as the Court pointed out in the judgment in Gutiérrez Naranjo and Others, ‘the national court may not revise the content of unfair terms, lest it contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms'. (26)
56.      In the third place, I would point out that, in the absence of harmonisation of the national mechanisms for enforcement, the rules implementing the ground of objection allowed in mortgage enforcement proceedings and the powers conferred on the court which enjoys jurisdiction to analyse the lawfulness of the contractual clauses on the basis of which the right to seek enforcement was established are a matter for the national legal order of each Member State in accordance with the principle of the procedural autonomy of the Member States, on condition however that they are no less favourable than those governing similar domestic actions (principle of equivalence) and do not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness). (27)
57.      As regards the principle of equivalence, it should be observed that the order for reference does not contain any information which might raise doubts as to the compliance of the national procedural rules with that principle.
58.      As regards the principle of effectiveness, according to the case-law of the Court, every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. (28)
59.      The referring court notes that Article 552(3) of the LEC provides that, once the order refusing enforcement has become final, the creditor may assert its rights only in the relevant ordinary procedure, if the authority of res judicata of the judgment or the final decision on which the request for seizure was based does not preclude this. (29)
60.      I note, in that regard, that it is apparent from the order for reference that the unfairness of the accelerated repayment term has already been established by a final judicial decision in the earlier mortgage enforcement proceedings between the same parties and on the basis of the same enforceable instrument. However, following the decision of the referring court in the second mortgage enforcement proceedings that there was no need to adjudicate, the court of appeal, on the basis of the case-law of the Tribunal Supremo (Supreme Court), referred the case back to the referring court to grant the application for seizure, on the ground that the high number of monthly instalments unpaid was now sufficiently serious, and to order enforcement of the mortgage.
61.      I take the view that an interpretation of the applicable national procedural law which does not allow the referring court to disregard the accelerated repayment term because it is bound by the second decision, contrary to EU law, of the court of appeal, infringes the principle of effectiveness, in that it would mean, in practice, that the consumer is bound by an unfair contractual term. In those circumstances, it would be impossible or excessively difficult for the consumer to assert his rights.
62.      In the fourth and last place, the referring court points out that Spanish law does not recognise the positive effects of res judicata in respect of a final judgment given by a court of appeal in mortgage enforcement proceedings (Article 222 and Article 695(4) of the LEC) but provides that further mortgage enforcement proceedings may not be initiated on the basis of the same enforceable instrument (Article 552(3) of the LEC).
63.      Consequently, in the present case, as is apparent from the order for reference, the question referred to the Court does not concern in any way the principle of the authority of res judicata in the context of mortgage enforcement proceedings in the Spanish legal system, but rather the obligation imposed on a lower court to comply with the directions of a higher court in the interpretation of provisions of EU law necessary for resolving a dispute.
64.      However, I would point out, as the Court has repeatedly held, that the existence of a rule of national law whereby courts against whose decisions there is a judicial remedy are bound on points of law by the rulings of a court superior to them cannot, on the basis of that fact alone, deprive the lower courts of the power provided for in Article 267 TFEU to refer to the Court of Justice questions on the interpretation of EU law. (30) Moreover, the Court has also held that a court which is not ruling at final instance must be free, particularly if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions which concern it. (31) As a consequence, where a national court before which the case is pending considers that a question concerning the interpretation or validity of EU law has arisen in that case, it has the discretion, or is under an obligation, to request a preliminary ruling from the Court of Justice, and the national rules imposed by legislation or case-law cannot interfere with that discretion or that obligation. (32)
65.      Consequently, in the light of all the foregoing considerations, I consider that, in the light of the principle of effectiveness, Article 6(1) and Article 7(1) of Directive 93/13 preclude an interpretation of procedural rules of national law which requires a lower court to order mortgage enforcement on the basis of an accelerated repayment term which has been declared unfair in a final judgment of a higher court in earlier mortgage enforcement proceedings between the same parties and based on the same enforceable instrument.
VI.    Conclusion
66.      In the light of those considerations I propose that the Court should answer the Juzgado de Primera Instancia No 6 de Alicante (Court of First Instance No 6, Alicante, Spain) as follows:
In the light of the principle of effectiveness, Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts preclude an interpretation of procedural rules of national law which requires a lower court to order mortgage enforcement on the basis of an accelerated repayment term which has been declared unfair in a final judgment of a higher court in earlier mortgage enforcement proceedings between the same parties and based on the same enforceable instrument.
1      Original language: French.
2      Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
3      For an overall view of the legal problems at the heart of the requests for a preliminary ruling in Cases C‑92/16, C‑167/16, C‑486/16, C‑70/17 and C‑179/17, I refer to my Opinions in Cases C‑70/17 and C‑179/17 and in Cases C‑92/16 and C‑167/16.
4      BOE No 7 of 8 January 2000, p. 575.
5      BOE No 89 of 14 April 1998, p. 12304.
6      BOE No 287 of 30 November 2007, p. 49181.
7      BOE No 52 of 1 March 2014, p. 19339.
8      Following notification of the judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60), the referring court, by order of 21 February 2017, stated that it wished to maintain the second and third questions referred. Since the first question has been withdrawn, it is therefore not reproduced in this Opinion. See, also, in that regard, point 29 of this Opinion.
9      C‑421/14, EU:C:2017:60.
10      See points 51 to 57 of my Opinion in Cases C‑70/17 and C‑179/17.
11      See point 65 of my Opinion in Cases C‑70/17 and C‑179/17.
12      See points 66 to 71 of my Opinion in Cases C‑70/17 and C‑179/17 and the case-law cited.
13      See points 72 to 79 of my Opinion in Cases C‑70/17 and C‑179/17 and the case-law cited. I think it is important to refer to point 79 of that Opinion, in which I stress an essential point: there can be no doubt that restoration of the balance between the consumer and the seller or supplier cannot be effected by the possibility of amending unfair contractual terms. Such a possibility would be contrary to Article 6(1) of Directive 93/13, which would be rendered meaningless and, consequently, to the effectiveness of the protection it intended to provide. Also, that possibility would not maintain the deterrent effect on sellers and suppliers caused by the impossibility of applying such clauses to the consumer.
14      Judgment of 30 April 2014 (C‑26/13, EU:C:2014:282).
15      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 85). See, also, order of 11 June 2015, Banco Bilbao Vizcaya Argentaria (C‑602/13, not published, EU:C:2015:397, paragraph 38 and the case-law cited): ‘the Court has also recognised the possibility for the national court of substituting a supplementary provision of national law for an unfair term, provided that that substitution is consistent with the objective of Article 6(1) of Directive 93/13 and enables real balance between the rights and obligations of the parties to be restored. However, that possibility is limited to cases in which the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to disadvantageous consequences'. See, also, footnote 13 of this Opinion and point 79 of my Opinion in Cases C‑70/17 and C‑179/17.
16      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 81).
17      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 83).
18      See point 11 of this Opinion.
19      Judgment No 705/2015 (ES:TS:2015:5618).
20      Judgment No 79/2016 (ES:TS:2016:626).
21      As the referring courts in Cases C‑92/16 and C‑167/16, the referring court in the present case cites the dissenting opinion in the judgment at issue of the Tribunal Supremo (Supreme Court). According to the referring court, it is apparent from that opinion that ‘... the creditor can no longer, following the finding that the early repayment clause is unfair, base its application for enforcement on compliance with the conditions set out in Article 693(2) of the LEC ..., because that statement is incorrect, in so far as that provision was not negotiated and included in the mortgage deed, which [makes] reference to “any failure of the debtor”. ... In such cases, application of Article 693(2) of the LEC therefore constitutes an infringement of the case-law of the Court on a matter falling within its competence and amounts to revising the term held to be unfair, since the main effect of the automatic nullity provided for by the scheme of ineffectiveness is not respected, since the enforcement proceedings have not been suspended, and to depriving that regime of its effects or its role as a deterrent'. See, in that regard, footnote 125 of my Opinion in Cases C‑70/17 and C‑179/17 and point 25 of my Opinion in Cases C‑92/16 and C‑167/16. According to academic lawyers, dissenting opinions may be a source of inspiration for the future development of the national case-law. See Wathelet, M., ‘La Cour de justice de l’Union européenne sera-t-elle le dernier des mohicans?', in Lenaerts, K. (ed.), Liber Amicorum Antonio Tizzano. De la Cour CECA à la Cour de l’Union: le long parcours de la justice européenne, G. Giappichelli Editore, 2018, p. 1031.
22      For a recent illustration of that settled case-law, see judgments of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 19), and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 29).
23      With regard to the scope of the finding of the unfairness of an early repayment clause in the light of the case-law of the Court, see points 84 to 109 of my Opinion in Cases C‑70/17 and C‑179/17 and the case-law cited. As regards, in particular, the analysis of the possibility of continuing with the mortgage enforcement proceedings by means of the supplementary application of a provision of national law, such as Article 693(2) of the LEC, see points 110 to 133 of that Opinion and the case-law cited.
24      Judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 75). See, also, the considerations set out in points 118 to 120 of my Opinion in Cases C‑70/17 and C‑179/17.
25      See my Opinion in Banco Primus (C‑421/14, EU:C:2016:69, point 85).
26      Judgment of 21 December 2016(C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 60, 61 and 66).
27      Judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 50).
28      Judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 53), and of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 49).
29      The referring court emphasises that ‘a decision upholding in its entirety an application objecting to enforcement confirms that no enforcement order ought ever to have been ordered in the present case because the debt claimed was based on an unfair term'.
30      See judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 4); of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 42); and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 48).
31      See judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 4); of 9 March 2010, ERG and Others (C‑378/08, EU:C:2010:126, paragraph 32); of 15 November 2012, Bericap Záródástechnikai (C‑180/11, EU:C:2012:717, paragraph 55); and of 6 November 2014, Cartiera dell’Adda (C‑42/13, EU:C:2014:2345, paragraph 27).
32      See, inter alia, judgment of 5 April 2016, PFE (C-689/13, EU:C:2016:199, paragraph 34).