62010CC0618_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
Table of contents
I –  Introduction
II –  Legislative framework
A – EU law
B – National law
III –  Facts, main proceedings and questions referred for a preliminary ruling
IV –  Procedure before the Court
V –  Main arguments of the parties
VI –  Legal assessment
A – Introductory remarks
B – The first question
1. The role of the national court in the prevention of unfair terms according to the Court’s case-law
2. Applicability of the principles developed in case-law to the situation in the main proceedings
a) The approach taken by the Court in Pénzügyi
b) Arguments against the applicability of this case-law to the main proceedings
i) Comparison with Pénzügyi
– Different procedural situation
– Different kind of contractual term
– Conclusion
ii) Consequences of application to the order for payment procedure
– Fundamental modification of the operation of the order for payment procedure
– Compatibility with the principle of procedural autonomy
3. Conclusions
a) No obligation under EU law for the court to assess of its own motion and in limine litis in the order for payment procedure
b) Authorisation of the Member States to adopt more stringent rules
C – The second question
D – The third question
E – The fourth and fifth questions
F – The sixth question
VII –  Conclusion
I – Introduction
1. The present case arises from a reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, ‘the referring court’) under Article 267 TFEU, by which that court has referred to the Court of Justice a series of questions concerning the interpretation of Directive 93/13/EEC, (2) Directive 2009/22/EC, (3) Regulation (EC) No 1896/2006, (4) Directive 2008/48/EC (5) and Directive 2005/29/EC. (6)
2. The reference for a preliminary ruling has its origin in a dispute between the Banco Español de Crédito, S.A. (‘the applicant in the main proceedings’) and Joaquín Calderón Camino (‘the defendant in the main proceedings’) concerning the repayment of a loan together with interest on late payments. The applicant in the main proceedings, which had originally made its claims in the context of a national order for payment procedure, is now taking legal action against an order ruling, of the court’s own motion and in limine litis, that the contractual term concerning a rate of interest on late payments of 29% was void, reducing the interest rate to 19%, and requiring the applicant to produce a new calculation of the interest before admitting the action.
3. The purpose of the request for a preliminary ruling is to determine whether, in accordance with European Union (‘EU’) law, a national court is required, when evaluating the admissibility of a civil action, to assess of its own motion whether contract terms, drawn up in advance, concerning interest on late payments in a consumer credit agreement are unfair and is also required to modify their content. The referring court also raises several questions concerning the action to be taken by the financial institution if the loan is not repaid, from the point of view of the applicable EU law.
4. Consumer protection law in the European Union is currently undergoing a series of legislative adjustments, which bear witness to the Commission’s efforts to consolidate and modernise the acquis . Not only has Directive 93/13 been subject to selective amendments by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, (7) which adopts the approach of full harmonisation of national consumer protection rules. (8) In addition, by its Proposal of 11 October 2011 for a Regulation of the European Parliament and of the Council on a Common European Sales Law, (9) the Commission has initiated a legislative proposal which will make it possible in future to apply that legislation on a voluntary basis to cross-border sales contracts, upon an express agreement of the parties. (10) Even though these legal acts are not applicable ratione temporis
to the main proceedings, they will undoubtedly have an important influence on further developments in the field of consumer protection law.
II – Legislative framework
A – EU law
5. Under Article 1(1), the purpose of Directive 93/13 is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.
6. Article 3 of the 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. The Annex to that directive contains a list of the terms which may be regarded as unfair in accordance with Article 3(3):
‘1. Terms which have the object or effect of:
…
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
…’
8. Article 4(1) of the directive reads:
‘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.’
9. Article 6(1) of the directive provides:
‘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.
...’
10. Article 7(1) of the directive 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 – National law
11. Under Spanish law, the protection of consumers against unfair terms was originally provided by Ley General No 26/1984 para la defensa de los consumidores y usuarios (11) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users, ‘Law No 26/1984’). That law was subsequently amended by Ley No 7/1998 sobre condiciones generales de la contratación (12) (Law No 7/1998 of 13 April 1998 on general contractual conditions, ‘Law No 7/1998’), which transposed Directive 93/13 into national law in this regard. Through Real Decreto Legislativo No 1/2007 (‘Royal Legislative Decree No 1/2007’) (13) of 16 November 2007, lastly, the General Law for the protection of consumers and users was approved in its revised version.
12. Article 83 of Royal Legislat ive Decree No 1/2007 lays down the legal consequences of a finding that a contractual term is unfair. It states that ‘[u]nfair contractual terms shall be automatically void and deemed not to have formed part of the contract’. That article also provides that ‘[t]he part of the contract which has been deemed void shall be modified in accordance with the provisions of Article 1258 of the Civil Code and with the principle of good faith. To that end, the court which rules that such terms are void shall modify the contract and shall enjoy moderating powers regarding the rights and obligations of the parties, where the contract continues in existence, and regarding the consequences of its being ruled ineffective in the event of significant loss or damage to the consumer or user. Only where the remaining contractual terms result in an imbalance in the respective positions of the parties which cannot be remedied may the court rule that the contract is ineffective.’
13. Article 1108 of the Spanish Civil Code provides that if the liability consists in the payment of a sum of money and the debtor falls into arrears, unless otherwise agreed, compensation for damage and loss shall consist in the payment of the agreed interest, in the absence of agreement at the statutory interest rate.
14. Under Article 1258 of Spanish Civil Code, contracts are concluded by simple consent and from that point are binding, not only as to the performance of the matters expressly agreed, but also as to all consequences which, by their nature, are in accordance with good faith, custom and the law.
III – Facts, main proceedings and questions referred for a preliminary ruling
15. On 28 May 2007, the parties in the main proceedings concluded a loan agreement for the sum of EUR 30 000 for the purpose of purchasing a vehicle. As the order for reference explains in detail, the APR (Annual Percentage Rate of Charge) was 8.890%, the nominal interest rate 7.950% and the rate of interest on late payments 29%. Although the loan was not repayable until 5 June 2014, the applicant terminated the loan early because not all the 67 repayments originally agreed had been made by the defendant.
16. On 8 January 2009, the applicant submitted an application for an order for payment claiming EUR 29 381.95, contractual interest and costs. On 21 January 2010, the Juzgado de Primer Instancia No 2 de Sabadell issued an order in which it held that the term concerning interest on late payments in the loan agreement was void, fixed the interest on late payments at 19% and ordered the applicant to produce a new calculation of the interest for the same period in accordance with the requirements set out in the order. As grounds for its decision, the court held that the contractual term concerning interest on late payments was unfair. Because the provisions examined were of a mandatory nature, it also had the power, in the context of the order for payment procedure, to determine of its own motion that it was void.
17. The applicant in the main proceedings is now appealing against that order before the referring court. It relies on the need for effective legal protection and claims, in essence, that the court may not assess the agreed rate of interest on late payments of its own motion in limine litis, but only after an objection to that effect has been lodged by the defendant.
18. The referring court considers an interpretation of EU law to be necessary in order to give judgment in the case. The referring court asks in particular whether, in the light of the rules of EU law, a national court has the power, in the context of the order for payment procedure, to determine of its own motion and in limine litis
that a term concerning interest on late payments is void or whether it is required to leave it to the parties themselves to challenge whether such a term is void before a court, except in the case of contractual terms which are manifestly contrary to mandatory or other prohibitive provisions. For that reason it has stayed the proceedings and referred the following questions to the Court:
‘(1) Is it contrary to Community law, in particular the law on consumers and users, for a national court to avoid giving a ruling of its own motion and in limine litis or at any stage during the proceedings on whether or not a term concerning interest on late payments (in this case 29%) in a consumer credit agreement is void and on whether or not that term should be modified. May the court, without prejudicing the rights of the consumer under Community law, decide to leave any evaluation of such a term to the initiative of the debtor (by means of the appropriate procedural objection)?
(2) In the light of Article 6(1) of Directive 93/13/EEC and Article 2 of Directive 2009/22/EEC, what is the correct interpretation of Article 83 of Real Decreto Legislativo No 1/2007 (Royal Legislative Decree No 1/2007) (formerly Article 8 of Ley General No 26/1984, de 19 julio, para la Defensa de los Consumidores y Usarios) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users) for those purposes? What is the scope in that regard of Article 6(1) of Directive 93/13/EEC where it provides that unfair contract terms “shall not be binding on the consumer”?
(3) Is it possible to exclude judicial review of a court’s own motion and in limine litis
where the applicant clearly states in his application the rate of interest on late payments, the amount of the claim, including the principal and interest, the contractual penalties and the costs, the interest rate and the period of time for which that interest is demanded (or a statement that statutory interest is automatically added to the principle under the law of the Member State of origin), the cause of the action, including a description of the facts relied on as the basis of the claim and the interest demanded, and it is clearly stated whether it concerns statutory or contractual interest, capitalisation of interest or the interest rate for the loan, whether it has been calculated by the applicant and the number of percentage points above the Central Bank base rate, as is the case with the Community regulation on the European order for payment procedure?
(4) In the absence of their transposition, do Articles 5(1)(l) and (m) and 6(1)(i) of Directive 2008/48/EC, where they refer to “arrangements for its adjustment”, and Article 10(2)(1), where it refers to “arrangements for its adjustment”, require the financial institution specifically to include and to highlight in the contract (not in the body of the text, in an undifferentiated manner) as “pre-contractual information” references to the interest rate applicable in the case of late payments, in the event of default, set out clearly and in a prominent place, and the elements taken into account when determining them (financial costs, recovery costs etc.) and to include a warning regarding the consequences connected with those cost elements?
(5) Does Article 6(2) of Directive 2008/48/EEC include the requirement to notify the early termination of a credit or loan agreement which gives rise to the charging of interest on late payments? Is the principle of the prohibition on unjustified enrichment contained in Article 7 of Directive 2008/48/EEC applicable where the credit institution seeks not only the recovery of the goods (the loan capital), but also the application of an especially high rate of interest on late payments?
(6) In the absence of any transposing provision and in the light of Article 11(2) of Directive 2005/29/EC, may the court find of its own motion that it is an unfair practice to include in a contract a term concerning interest on late payments?’
IV – Procedure before the Court
19. The order for reference dated 29 November 2010 was lodged at the Registry of the Court of Justice on 29 December 2010.
20. Written observations were submitted by the applicant in the main proceedings, the Governments of the Kingdom of Spain and of the Federal Republic of Germany, and the European Commission within the period laid down in Article 23 of the Statute of the Court of Justice.
21. At the hearing on 1 December 2011, oral argument was presented by the agents of the applicant in the main proceedings, the Governments of the Kingdom of Spain and the Federal Republic of Germany, and the Commission.
V – Main arguments of the parties
22. The arguments of the parties will, in so far as they are relevant, be reproduced in the assessment of the individual questions.
VI – Legal assessment
A – Introductory remarks
23. Where a debtor does not settle the pecuniary claim against him, this is not always because he raises substantive objections against that claim. Often the debtor is simply unwilling or unable to pay. In such cases, there may seem to be little point, from the creditor’s perspective, in seeking a declaratory judgment by a court against that debtor. (14) Instead, he will look for simpler and cheaper ways to obtain an enforceable instrument. Many Member States have taken account of this demand for a simplified method of bringing proceedings by introducing into their codes of civil procedure various specific procedures for recovery of pecuniary claims, (15) although their organisation and practical importance may vary considerably from one national legal order to another. (16)
24. Because this procedure has now been largely formalised, in some legal orders, in order to ease the burden on the courts, competence for the procedure has, for example, been delegated to legally trained judicial officers, such as legal officers or court clerks, (17) whilst in other legal orders civil courts continue to have exclusive jurisdiction. (18) Furthermore, the need for simpler and quicker enforcement has led to many legal orders accepting derogations from the fundamental rules of civil procedure, for instance as regards hearing of the parties or the criterion to be applied for the substantiation and proof (plausibility or conclusiveness test) of the claim made. (19)
25. Evidence of the legislature’s effort to find an appropriate solution to the conflict between accelerated enforcement, on the one hand, and the safeguarding of procedural guarantees, on the other, is provided at EU level by Regulation No 1896/2006, which has introduced — alongside the national procedures — a European order for payment procedure in connection with uncontested pecuniary claims in civil and commercial matters in cross-border cases. This European order for payment procedure draws on the Member States’ experience of such simplified procedures in so far as it has incorporated numerous solutions which have been tried and tested at national level. These include, for example, granting the possibility of making a challenge where the defendant wishes to raise objections against the order for payment, in which case, as with most national order for payment procedures, (20) the procedure is continued before a court in accordance with the regular rules of civil procedure. (21)
26. The present case focuses on the Spanish order for payment procedure for the recovery of pecuniary claims ( proceso monitorio ), which displays several of the abovementioned typical characteristics. With its first question, the referring court raises the question which rules of EU law national judicial proceedings for the enforcement of pecuniary claims must satisfy, in terms of their organisation, so that the consumer is effectively protected against claims stemming from unfair terms in consumer credit agreements. Specifically, it concerns a possible obligation imposed on the national court by EU law to give a ruling, in limine litis
and of the court’s own motion, in the context of an order for payment procedure, on whether an unfair term in a consumer credit agreement is not binding, without the assessment of unfairness being made dependent on a procedural step taken by the debtor.
27. The sensitive nature of this question therefore lies in the fact, in particular, that an assessment of unfairness will generally require a thorough assessment of contractual rights and obligations by the national court, which is not, as a rule, carried out in the context of an order for payment procedure. If the Court should accept the existence of such an obligation under EU law, this would ultimately mean that the national legislature would be forced to made comprehensive modifications to its law of civil procedure in order to comply with the rules of EU law. At the same time, however, it would have to ensure that the national order for payment procedure does not lose its efficiency and is retained as an instrument for simple, low-cost enforcement. (22) In view of the fact that this question has particular relevance and the Court’s answer is likely to have far-reaching implications for the law of civil procedure in the Member States, it will be a particular focus of my analysis.
B – The first question
28. The question is formulated in fairly broad terms (‘at any
stage during the proceedings’), which might suggest that the referring court is seeking a general clarification of the powers of the national court in the prevention of unfair terms. However, such a reading of the question referred would disregard the fact that the Court has already addressed this subject extensively in its case-law on Article 6(1) of Directive 93/13. Rather, on a reasonable appraisal of the reference for a preliminary ruling having regard to the particular circumstances of the main proceedings, it must be assumed that the referring court wishes to know whether the principles developed by the Court in its case-law on consumer protection are also applicable to the national order for payment procedure. However, before examining this question, it would seem necessary briefly to recall these principles developed in case-law.
1. The role of the national court in the prevention of unfair terms according to the Court’s case-law
29. The Court has consistently held that 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 bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. (23) In view of this weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not binding on the consumer. As is clear from the case-law, this is a mandatory provision which aims to replace the formal balance which the latter establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. (24)
30. In order to guarantee the protection intended by Directive 93/13, the Court has held on several occasions that the imbalance which exists between the consumer and the seller or supplier may only be corrected by positive action unconnected with the actual parties to the contract. (25) It is in the light of those principles that the Court has therefore held that the national court is required to assess of its own motion whether a contractual term is unfair. (26) In the view of the Court, the national court’s power to determine of its own motion whether a term is unfair constitutes ‘a means both of achieving the result sought by Article 6 of Directive 93/13, namely preventing an individual consumer from being bound by an unfair term, and of contributing to achieving the aim of Article 7, since if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms in contracts concluded between consumers and sellers or suppliers’. (27) That power of the national court has been regarded as necessary for ensuring that ‘the consumer enjoys effective protection, in view in particular of the real risk that he is unaware of his rights or encounters difficulties in enforcing them’. (28)
31. In Pannon (29) the Court strengthened the procedural position of consumers, pointing out that the national court is required to examine, of its own motion, the unfairness of a contractual term ‘where it has available to it the legal and factual elements necessary for that task’. It also made clear that that duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction. (30) This case-law was clarified by the judgment of 9 November 2010 in Pénzügyi (31) in so far as the Court took the view that the national court ‘must investigate of its own motion
whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer, which is the subject of a dispute before it, falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair’. (32) With particular regard to the examination of the applicability of Directive 93/13 to a specific contract, the Court found that ‘the national court must thus, in all cases
and whatever the rules of its domestic law, determine whether or not the contested term was individually negotiated between a seller or supplier and a consumer’.
2. Applicability of the principles developed in case-law to the situation in the main proceedings
a) The approach taken by the Court in Pénzügyi
32. Of all the judgments cited above, Pénzügyi
would appear to be the most instructive in finding an answer to the first question, especially since the Court was faced with a similar issue in that case. The Court was asked the question whether, if the national court itself observes, where the parties to the dispute have made no application to that effect, that a contractual term is potentially unfair, it may undertake, of its own motion, an examination with a view to establishing the factual and legal elements necessary to that examination where the national procedural rules permit that only if the parties so request. As is clear from the passages of the judgment cited above, the Court not only answered that question in the affirmative. In fact, it imposed on the national court an obligation under EU law to investigate in order to establish the necessary facts and law. It thereby answered a question which was left open in Pannon, namely how precisely this was to be done. In the absence of more precise indications from the Court, it could therefore be assumed that regard should be had to the procedural law of each individual Member State.
33. The passages of the judgments cited in point 31 of this Opinion suggest that the Court possibly intended to depart from the principle that the subject-matter of a case is delimited by the parties in civil proceedings in order to ensure the effectiveness of consumer protection desired by the EU legislature in a particular situation. This approach is in keeping with the Court’s previous consumer-friendly case-law. Because a duty to investigate thoroughly is imposed on the national civil court, it is given the opportunity to intervene in the proceedings in order to protect consumers, even if its national law would not, as a rule, permit it to take such action. The power to intervene could then be derived directly from EU law, with the result that conflicting national procedural rules would have to be replaced, as a result of the primacy of EU law, as regards their application.
b) Arguments against the applicability of this case-law to the main proceedings
34. As desirable as this approach may appear from the point of view of consumer protection, I do not consider that it is simply possible to apply this case-law dogmatically, without reservation, to a procedure like the order for payment procedure. In my view, consideration must be given to the particular circumstances of the Pénzügyi
case on which the Court’s ruling was based. Furthermore, account must be taken of the consequences of applying that case-law to the order for payment procedure.
i) Comparison with Pénzügyi
– Different procedural situation
35. It should be pointed out, first, that the procedural situation of the consumer in that case was different to that in the main proceedings and it is not therefore possible, in my view, to draw parallels between the two cases. According to the statements contained in the Pénzügyi
judgment regarding the procedural history, (33) an application was made for an order for payment against the consumer because of the outstanding payment of a loan. The order sought had been made in ‘ ex parte ’ proceedings, which under Hungarian law do not require the court to hold a hearing or hear the other party. When it made the order, the referring court had not raised any question concerning its jurisdiction or concerning the term conferring jurisdiction in the loan contract.
36. However, it is also clear from the judgment that the consumer had appealed against the order for payment, with the result that the order for payment procedure became inter partes
proceedings, which were then governed by the provisions of the general national law on civil procedure. (34) It must therefore be assumed that proceedings for a declaratory judgment had been initiated. In the main proceedings, on the other hand, the order for payment procedure was initiated without the consumer having made a legal defence. Instead, the national court intervened of its own motion by declaring void the contractual term which was considered as unfair. Against this background, it must be assumed that the approach developed by the Court in Pénzügyi
is actually tailored to civil proceedings for a declaratory judgment and not to the order for payment procedure.
– Different kind of contractual term
37. It should also be noted that the Pénzügyi
case concerned a completely different kind of contractual term to the main proceedings. This aspect is particularly important and calls for a detailed examination. Consideration will have to be given to the different kinds of terms which are generally faced by the national court.
38. The Pénzügyi
case related to a term conferring jurisdiction
contained in a loan contract concluded between the seller or supplier and the consumer. A particular feature of that term was that it provided for the exclusive territorial jurisdiction
of a court which was not the court in whose jurisdiction the consumer lived or the one with jurisdiction for the place where the seller or supplier had its registered office, but the one which was situated close to the registered office of the seller or supplier both geographically and in terms of transport links. (35) In this regard, as the Court also rightly stated in Pénzügyi, that term conferring jurisdiction was similar to the term which had already been the subject-matter of Océano Grupo Editorial and Salvat Editores . The Court observed that in paragraph 24 of that judgment it had ruled that a term which confers exclusive jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business must be regarded as unfair within the meaning of Article 3 of the directive in so far as it causes, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. (36)
39. The Court regarded this as serious discrimination against the consumer, because such a term obliges the consumer to submit to the exclusive jurisdiction of a court which may be a long way from his domicile, which could make it difficult for him to exercise his rights on account of the costs relating to the consumer’s entering an appearance, particularly in the case of disputes concerning limited amounts of money. In the view of the Court, such a term thus fell within the category of terms which have the object or effect of excluding or hindering the consumer’s right to take legal action, a category referred to in paragraph 1(q) of the Annex to the directive. (37) The Court also regarded such a term as according undue preferential treatment to the seller or supplier, since such a term enables the seller or supplier to deal with all the litigation relating to his trade, business or profession in one court, which is not the one within whose jurisdiction the consumer lives, which makes it easier for the seller or supplier to arrange to enter an appearance and makes it less onerous for him to do so. (38)
40. Unlike Pénzügyi
and Océano Grupo Editorial and Salvat Editores, however, the subject-matter of the present case is not an agreement conferring jurisdiction, but a contractual term concerning interest on late payments . This distinction is important because the approach adopted by a national court in civil proceedings will be different depending on the kind of term in the respective case.
41. As I explained in my Opinion in Pénzügyi, (39) jurisdiction agreements must in principle be distinguished from terms which lay down substantive contractual obligations. A distinguishing feature of the latter is that they often contain detailed terms which are binding on the contracting parties and whose incompatibility with the requirement of good faith cannot always be determined prima facie, not least because of their complexity. Rather, such a finding often requires a thorough assessment by the national court having regard to all the circumstances of the individual case. This is also pointed out by the Commission. (40) Directive 93/13 itself implicitly requires the national court to conduct such a thorough assessment since, first, according to the definition contained in Article 3 a term may be regarded as unfair only ‘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’, which will have to be determined by means of careful investigation. Second, Article 4 of the directive provides that the unfairness of a contractual term under Directive 93/13 is to 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’. Taking these circumstances into account therefore requires an investigation of the term in question which goes far beyond a mere plausibility check.
42. The proposal for a regulation on a Common European Sales Law, which is mentioned in the introduction, (41) also takes account of the fact that certain terms often require careful assessment in order to be able to conclude that they are unfair. It includes provisions relating to ‘unfair contract terms’ in contracts between a trader and a consumer which are largely similar to those in Directive 93/13. (42) It should be mentioned in this connection that the proposal for a regulation also contains provisions relating to interest on late payments when the debtor is a consumer. (43) Of particular interest is a provision (44) under which, if a rate of interest higher than that provided in the proposal for a regulation is fixed, such a contractual term is to be regarded as not binding to the extent that such a term were assessed to be unfair according to the relevant provisions. The assessment itself is based on similarly strict criteria to those in Directive 93/13. (45) The question whether this provision will ever enter into force in this form certainly depends on the further course of the legislative process. In the case of contracts like those in the main proceedings, it would at least form a helpful basis for decision-making for a national court which is required to assess whether a term concerning interest on late payments is unfair, provided the contracting parties agree to the application of the Common European Sales Law.
43. If the term in question were, exceptionally, not legally standardised, for example by being mentioned in a list of terms which are to be regarded as unfair in any event, the national court will not be able to avoid having to give a positive assessment of the unfair character of a term. It should, however, be pointed out in this connection that this situation cannot be altered even by a standardisation like the definitions of terms in the annex to Directive 93/13. The Annex to which Article 3(3) of the directive refers contains only an indicative and non-exhaustive list of terms (46) which may be regarded as unfair. (47) A term appearing in the list need not necessarily be considered unfair and, conversely, a term that does not appear in the list may none the less be regarded as unfair. (48) It cannot therefore necessarily be inferred from the mere fact that a term appears in the list that it is also unfair. Despite the indicative character that such a factor has according to case-law, there must be a distinct, detailed assessment as to whether the contractual term in question might be unfair.
44. The situation is different, however, where the national court is confronted by a term conferring jurisdiction, as in Pénzügyi . As I stated in point 112 of my Opinion in Pénzügyi, a contractual term which, if reviewed, would have to be classified as unfair because it confers jurisdiction in respect of litigation arising from the contract on the court in the territorial jurisdiction of which the seller or supplier has his registered office could be examined by the national court as part of an examination, of its own motion, of its own jurisdiction, in which event the court would not be dependent on detailed submissions from the parties. It was not absolutely necessary to impose a comprehensive obligation to undertake an examination in order to achieve the aim of reviewing unfair terms pursued by Directive 93/13. Indeed, this assumption was confirmed by the procedural position in the main proceedings. As I explained in my Opinion, the documents before the Court showed that the referring court had noticed before setting the date for the oral hearing that the defendant’s place of residence was not situated within its territorial jurisdiction but that the claimant had made its application for the order for payment, on the basis of the standard contractual terms, to the court close to its registered office, which prompted dou bts on the part of the referring court in relation to the contractual provision in question. In this way, the referring court had effectively indicated its suspicion as to the existence of an unfair jurisdiction clause.
45. In the light of the above considerations, I consider that classification of the term in question as unfair by the national court in Pénzügyi
seemed obvious, for the following reasons: first of all, that court was dealing with a contractual term whose unfairness was beyond question in view of the assessment made by the Court of Justice itself in Océano Grupo . It can therefore rightly be claimed that the term was sufficiently standardised by EU law. Second, the referring court was able to obtain the ‘legal and factual elements necessary’ relatively easily, in examining its territorial jurisdiction, in order to comply with its duty to assess, of its own motion, whether the contractual term was unfair. In other words, the referring court was not dependent on a thorough assessment of unfairness having regard to all the circumstances of the individual case.
46. It is necessary to bear in mind these circumstances in order to be able to place Pénzügyi
in its correct context. In my view, this is because the obligation on the national court to investigate of its own motion, as proposed by the Court in paragraph 56 of that judgment, can only be understood against the background of the fact that the national civil court will, as a rule, examine its jurisdiction of its own motion and thereby be able to establish relatively easily whether a term is unfair, as in Océano Grupo
and Pénzügyi . In the case of a substantive term, for the reasons I have already mentioned, this will not be simply possible, especially where the finding of unfairness requires a careful assessment. The Pénzügyi
judgment therefore offers a reasonable solution for ensuring consumer protection only in the context of the particular circumstances of the main proceedings in that case.
– Conclusion
47. I therefore conclude that it is not possible to apply the Pénzügyi
case-law to a situation like the present case if it is connected with the obligation on the national court to give a ruling, in the context of an order for payment procedure, of its own motion and in limine litis, on whether a term concerning interest on late payments in a consumer credit agreement is void.
ii)
Consequences of application to the order for payment procedure
– Fundamental modification of the operation of the order for payment procedure
48. Should the Court take the opposite position and, contrary to my view, consider that there is nothing to prevent the application of the Pénzügyi
case-law to the main proceedings in the abovementioned circumstances, regard should nevertheless be had to the consequences which would ensue if the approach developed by the Court were applied to the order for payment procedure.
49. All the parties agree, rightly in my view, that the imposition of a duty to conduct a thorough investigation in the context of a national order for payment procedure and to give a ruling in limine litis
on whether a term concerning interest on late payments in a consumer credit agreement is void would lead to a fundamental, undesirable modification of the operation of that procedure. The doubts expressed are connected with the need both to safeguard the procedural guarantees for the parties and to maintain the efficiency of the national order for payment procedure in the long term.
50. In order to understand the scope of such an obligation imposed on the national court by EU law, it is necessary to bear in mind the importance of the order for payment procedure and the challenges posed in connection with its procedural form, in order to strike a reasonable balance between efficiency and the rule of law. As I have already explained in my introductory remarks, (49) whatever its specific organisation in the individual legal orders of the Member States, the order for payment procedure is intended to guarantee the simple, fast and efficient enforcement of uncontested pecuniary claims. (50) The restriction to uncontested pecuniary claims makes it possible to organise the order for payment procedure as a mass procedure. As the German Government rightly states, (51) the time benefit of the procedure plays an important role in avoiding or reducing the risk of late payment for small and medium-sized undertakings. The costs of legal proceedings can also be avoided.
51. A feature of such procedures is that an instrument is issued to the applicant without an oral procedure on the basis of an application submitted by form or by pleading. The respondent does not therefore participate in the procedure at the stage before the order for payment is made. In addition to examining its jurisdiction, the court reviews certain conditions governing applications, in particular whether the claim made is specified with sufficient precision. On the other hand, there is, as a rule, no substantive assessment of the claim made. The application for an order for payment may be refused only if the alleged claim is manifestly unfounded. (52) The substantive assessment of the claim made is reserved for the inter partes stage of the procedure, which may be initiated if the respondent appeals against the order for payment. In the subsequent inter partes
procedure, a court then always also assesses of its own motion whether the conditions for the claim made are satisfied. If a contractual term is relevant to the existence or non-existence of a claim, the national court then also assesses whether or not it is unfair.
52. An obligation on the national court, of its own motion, to investigate and disapply any unfair terms would have to be regarded as legally objectionable in so far as the order for payment procedure is not an inter partes procedure, with the result that, if the national court were to determine, of its own motion, that the contractual term was unfair and refuse the application for an order for payment, the seller or supplier would not be given any opportunity to respond to the allegation of using unfair terms in commercial practices. The right to a hearing, which is regarded as corollary of the rule of law and is one of the general principles of EU law recognised in case-law, (53) would not be adequately safeguarded.
53. Such an obligation on the national court would also be subject to certain limits connected with the formalities entailed by the order for payment procedure. Although the unfair character of a contractual term will be evident in some cases, e.g. where the kind of term in question is standardised by law, this will not always be the case. As has already been explained, the assessment whether a term is unfair with reference to the legal requirements in Articles 3 and 4 of Directive 93/13 may be quite complex. (54) In addition, doubts might arise as to whether the term in question was individually negotiated in accordance with Article 3(1). As the Commission rightly states, (55) it cannot be ruled out that the national court will be confronted with the tricky task of having to give a definitive ruling on the unfair character of a term, even though it has doubts in this regard or does not have all the factual information. The Commission rightly considers that it would be legally objectionable if the only options available to the court having jurisdiction would be, despite any remaining doubts, either to refuse the application — to the detriment of the creditor — or to grant it — to the detriment of the debtor.
54. If, contrary to its original intention, the order for payment procedure had to be adapted so that it provided the possibility to make oral observations, for example by allowing a hearing, in order that doubts are dispelled or the parties are granted a right to be heard before a decision is taken, it would have to be feared that it would lose one of its main efficiency benefits if it merely reproduced the inter partes
procedure.
55. It should also be borne in mind that in the order for payment procedure in some Member States competence does not rest with professional judges, but in the interest of easing the burden on the courts, has been delegated to judicial officers. (56) However, in view of the complexity of the assessment whether a contractual term is unfair and the consequences of a finding that a term is not binding on the contracting parties, this task should be reserved for a judge. If the Court were therefore to take the view that it is also possible to infer from Article 6 of Directive 93/13 a duty imposed on the national court by EU law to undertake a thorough investigation and to give a ruling in limine litis
on whether a term in a consumer credit agreement is void in the context of the order for payment procedure, this would require organisational modification on the part of the national judicial systems. Sufficient precautions would have to be taken to ensure that only judges deal with applications for orders for payment in consumer rights cases. Separating these cases from the normal order for payment procedure would mean, however, that the procedure would possibly become more complex and the effect of easing the burden on the national courts would, to some extent, be lost.
56. I therefore conclude that the imposition of a duty to undertake a thorough investigation in the context of the order for payment procedure and to give a ruling in limine litis
on whether a term concerning interest on late payments in a consumer credit agreement would result in a fundamental modification of the operation of that procedure, which would eliminate an important efficiency benefit of the order for payment procedure, namely the quick enforcement of uncontested pecuniary claims.
– Compatibility with the principle of procedural autonomy
The law of civil procedure in the systems of EU law and national law
57. Furthermore, it is uncertain how such an interpretation, which has far-reaching consequences for the national order for payment procedure, could actually be reconciled with the Court’s case-law on the procedural autonomy of the Member States.
58. In accordance with settled case-law, in the absence of European Union rules in the field it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. (57) In the final analysis, this power held by the Member States can be attributed to the fact that the procedural law of the Member States is not, in principle, subject to any harmonisation. The European Union also does not have any general rule-making power in this field. This holds in particular for the law of civil procedure, which is at issue in the present case, even though EU law has increasingly gained influence. (58) The influence of EU law on the national law of civil procedure has now found expression in provisions of civil procedure in individual pieces of secondary legislation, (59) principles of EU law and, in particular, the Court’s case-law.
59. An important limitation of the procedural autonomy of the Member States follows, above all, from the general principles of EU law, for example in connection with the enforcement of subjective rights conferred by the EU legal order. Thus, on the other hand the Court has accorded the Member States, in the light of the competence they retain in this field, a broad discretion in laying down the procedural rules for safeguarding rights which individuals derive from EU law, whilst, on the other, it has made clear the limits imposed by EU law on this competence held by the Member States, pointing out that the procedures in question may not be less favourable than those governing similar domestic actions (principle of equivalence) or render in practice impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (60)
60. These principles developed in case-law are also applicable to the system introduced by Directive 93/13 to protect consumers against unfair terms in commercial practices. Thus, most recently in Asturcom Telecomunicaciones
the Court pointed to the importance of the principle of procedural autonomy in the context of the judicial review of contractual terms. That case concerned the question whether Directive 93/13 must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has acquired the force of res judicata
and was made in the absence of the consumer is required to determine of its own motion whether an arbitration clause in a contract concluded between a consumer and a seller or supplier is unfair and to annul the award. (61) The Court answered this question with reference to its case-law, according to which ‘Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision of Community law, regardless of its nature, on the part of the decision at issue’. (62) After finding that there was an absence of EU legislation in this area, the Court held that ‘the rules implementing the principle of res judicata
are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States’, recalling that ‘those rules must not be less favourable than those governing similar domestic actions; nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law’. (63)
61. It can be inferred from this judgment that, in the view of the Court, the national law of civil procedure is subject only to the principles of equivalence and effectiveness, in the absence of more specific rules of EU law. (64) An infringement of EU law can thus be taken to exist only where it does not comply with those principles. Consequently, it is possible to answer the question whether a modification of the national order for payment procedure is necessary, in accordance with the first question, in order to enforce consumer protection only if that national procedure, the main features of which have already been described, does not comply with the principles of equivalence and effectiveness. This will be examined below.
No breach of the principle of equivalence
62. The principle of equivalence requires that a national rule be applied without distinction, whether the infringement alleged is of EU law or national law, where the purpose and cause of action are similar. (65) Applied to the specific context of consumer protection, which is relevant in this instance, this means that the question must be raised whether the protection of consumers against unfair terms in commercial practices, which the EU legislature seeks to achieve with Directive 93/13, has the same procedural guarantees at national level as the protection of consumers against infringements of similar legal positions protected under national law. A breach of the principle of equivalence could therefore be taken to exist only in the case of comparatively unfavourable procedural rules governing enforcement of claims stemming from Directive 93/13.
63. In its case-law the Court has developed a number of general criteria on the basis of which to assess the equivalence of national legal protection with regard to the safeguarding of legal positions established under EU law. The actual assessment essentially consists in an evaluative comparison of the relevant procedural rules. The Court takes the view that the purpose, the cause of action and the essential characteristics of the purportedly comparable actions concerning national law must be used as relevant criteria for assessing the similarity of those actions. (66) The Court has also found that in order to determine whether a national procedural provision is less favourable, the national court must take account of the role of that provision in the procedure, viewed as a whole, of the conduct of that procedure and of its special features. (67)
64. Although the Court has, in principle, delegated this task to the national courts, so as to utilise their direct knowledge of the national law of procedure, (68) it has insisted on making statements on the interpretation of EU law (69) and occasionally even making its own findings on compliance with the principle of equivalence in a specific case, (70) if it has had sufficient relevant information. However, the Court is attempting to do nothing more than provide the national courts with useful guidance to help them with their own decision. (71) Against this background, it would appear to be permissible to make a few general statements on certain features of the main proceedings.
65. With regard to the specific situation in the main proceedings, there is, in my view, nothing in the statements made by the referring court at least to suggest that, in the context of the national order for payment procedure, the Spanish law of civil procedure would lay down less favourable rules governing the review of unfairness of terms in consumer credit agreements, in accordance with Directive 93/13, than for the review of the compatibility of such consumer credit agreements with national law. Consequently, there is nothing to suggest a breach of the principle of equivalence in the context of the national order for payment procedure at issue in the present case.
66. For the purposes of the present preliminary ruling proceedings, the principle of equivalence must therefore be considered to have been complied with.
No breach of the principle of effectiveness
67. Lastly, it must be examined whether the main features of the national order for payment procedure are consistent with the principle of effectiveness. That principle requires that the application of EU law is not rendered impossible or excessively difficult. Reference should be made in this connection to the aim laid down by the EU legislature in Article 7(1) of Directive 93/13 ‘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’. From a legal point of view, that aim constitutes a criterion by which the national order for payment procedure must be assessed.
68. An obligation on the national court to conduct a thorough investigation and to give a ruling in limine litis
on whether an unfair term in a consumer credit agreement is void would effectively protect the consumer even before a decision on a pecuniary claim having force of res judicata
has been made. The national order for payment procedure would thus be supplemented by a preventive judicial protection mechanism. However, it is uncertain whether such a mechanism is absolutely necessary effectively to guarantee the protection of consumers against the use of unfair terms in commercial practices. As has already been mentioned, the order for payment procedure in the Member States is generally organised in such a way that the assessment whether a contractual term is unfair is transferred to an inter partes
procedure which is initiated when an appeal is brought. (72) It is in the context of that inter partes
procedure that the national court has the opportunity to perform its duty under EU law to assess whether a term is unfair. In other words, the consumer also is granted legal protection under this model. However, this will be made dependent on the consumer making known his intention to make a legal challenge in the context of the order for payment procedure.
69. I doubt that the effectiveness of EU law is affected because legal protection is made dependent on an expression of intent by the consumer. In case-law, the Court has considered it to be compatible with Articles 6 and 7 of Directive 93/13 for a positive intervention by the national court in order to compensate for the imbalance between the consumer and the trader to be made dependent on the consent of the consumer.
70. Reference should be made, first to Pannon GSM, in which the Court highlighted the obligation on the national court to disapply terms where it considers such terms to be unfair, ‘except if the consumer opposes
that non-application’. (73) In its grounds, the Court stated that the requirement of an assessment of the court’s own motion is necessary to ensure the effectiveness of the protection intended to be given by the provisions of the directive. At the same time, it made clear that ‘the national court is not, however, required ... to exclude the possibility that the term in question may be applicable, if the consumer, after having been informed of it by that court, does not intend
to assert its unfair or non-binding status’.
71. Reference should also be made to Martín Martín, (74) in which the Court addressed the question whether a national court may raise, of its own motion, an infringement of Article 4 of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (75) and declare a contract falling within the scope of that directive void on the ground that the consumer was not informed of his right of cancellation, even though the consumer, at no stage, pleaded that the contract was void before the competent national courts. (76) In that judgment, the Court pointed out that ‘EU law does not, in principle, require national courts to raise of their own motion an issue concerning the breach of provisions of EU law, where examination of that issue would oblige them to go beyond the ambit of the dispute defined by the parties themselves and rely on facts and circumstances other than those on which the party with an interest in application of those provisions has based his claim’. (77) The Court further stated that ‘that limitation on the power of the national court is justified by the principle that, in a civil suit, it is for the parties to take the initiative, and that, as a result, the court is able to act of its own motion only in exceptional cases where the public interest requires its intervention’. (78) The Court nevertheless considered a positive intervention by the national court to be justified in a situation like the main proceedings on the ground that Article 4 of Directive 85/577 comes under the public interest. As the Court stated with reference to my Opinion in that case, (79) ‘the obligation to give notice of the right of cancellation laid down in Article 4 of Directive 85/577 plays a central role in the overall scheme of that directive, as an essential guarantee for the effective exercise of that right and, therefore, for the effectiveness of consumer protection sought by the Community legislature’. (80) It should be pointed out in this connection that the Court included the possibility of declaring the contract in dispute void among the ‘appropriate consumer protection measures’ within the meaning of the third paragraph of Article 4 of the directive in the case of failure to comply with the obligation to give notice. It should be mentioned, however, that the Court also made clear, with reference to the abovementioned passage of the judgment of Pannon GSM, (81) that ‘the national court seised may also have to take account, in certain circumstances, of the consumer’s wish
not to have the contract at issue cancelled’. (82)
72. Lastly, reference should be made again to the judgment in Asturcom Telecomunicaciones, in which the Court was asked the question whether a national court or tribunal hearing an action for enforcement of an arbitration award which has acquired the force of res judicata
and was made in the absence of the consumer is required to determine of its own motion whether an arbitration clause in a contract concluded between a consumer and a seller or supplier is unfair and to annul the award. (83) The Court drew a notable distinction with Mostaza Claro
in that it pointed out that, unlike that case, the consumer did not in any way become involved
in the various proceedings relating to the dispute between her and the company in question and, in particular, did not bring an action for annulment of the arbitration award
in order to challenge the arbitration clause on the ground that it was unfair, so that that award now had the force of res judicata . (84) Contrary to my proposal, (85) the Court ruled that no such obligation should be imposed on the national court. Instead, it left it to the national legal orders to clarify the question referred and simply examined whether the relevant Spanish law of procedure was consistent with the principles of equivalence and effectiveness. The Court accepted an obligation on the national court to assess, of its own motion, whether an arbitration clause is unfair in connection with enforcement only in so far as, under the national law of procedure, such an assessment was actually possible in similar actions of a domestic nature. (86)
73. The cited case-law shows that the Court endeavours to interpret EU law in a manner which takes due account of the individual interests of consumers, by giving them the opportunity to decide independently whether they wish to avail themselves of the protection offered by consumer protection law in civil proceedings, which are governed by the principle of the active role of the parties . (87) This understanding of the procedural position of the consumer is consistent with the model of the consumer also developed in case-law (88) who is ‘reasonably well informed and reasonably observant and circumspect’. A particular feature of the approach taken in Pannon GSM
is that it refrains from imposing protection on the consumer and is based on the idea of protecting consumers by providing them with information. The Court takes account of the fact that in a specific case the consumer may be keen to retain the term in question, for example in the case of an agreement conferring jurisdiction, where the consumer wishes to take legal action at the place provided for in the term. (89) Conversely, the Court also seems to tend to take account of a waiver by the consumer of his rights, as is shown by the judgment in Asturcom Telecomunicaciones . Accordingly, the obligation imposed on national courts by EU law to protect the consumer against unfair terms through positive intervention appears to extend only as far as is permitted by the national law of procedure.
74. In the light of the foregoing, I conclude that the effectiveness of the system introduced by Directive 93/13 is not affected if the national court is not required to give a ruling, in limine litis
and of its own motion, on whether an unfair term in a consumer credit agreement is not binding. In this respect, it is possible to concur with the unanimously held view of all the parties, that it appears sufficient, in order to ensure that consumers are protected against claims based on unfair contractual terms, if, as is generally envisaged in a national order for payment procedure, the consumer in respect of whom an application for an order for payment has been made is given the opportunity to make a legal challenge by bringing an appeal. This cannot be regarded as a breach of the principle of effectiveness.
75. It is true that these considerations concern only the protection of consumers . However, it should not be forgotten that Article 7(1) of Directive 93/13 also expressly requires the introduction of adequate and effective means ‘in the interests of ... competitors’. In other words, procedures must be established which take into account the interests of both contracting parties equally. By transferring the review of unfairness to an inter partes
procedure initiated by means of an appeal, it is also possible to avoid a situation where a national court determines that a certain contractual term is not binding without the seller or supplier being given a prior opportunity to submit observations. This adequately ensures the effectiveness of the legal protection of the seller or supplier, as the Commission rightly argues. (90)
Interim conclusion
76. Consequently, it must be stated that the principles of equivalence and effectiveness do not require the obligation to be imposed on the national court to give a ruling, in limine litis
and of its own motion, on whether an unfair term in a consumer credit agreement is not binding. I do not therefore see any need to restrict the procedural autonomy of the Member States in order to enforce consumer protection.
3. Conclusions
a) No obligation under EU law for the court to assess of its own motion and in limine litis in the order for payment procedure
77. I therefore conclude that it is not possible to apply the Pénzügyi
case-law to the main proceedings. Such application is precluded, first, by the difference in the circumstances of the two cases, in particular the procedural situation (91) — an order for payment procedure in contrast with an inter partes
procedure — and the kind of contractual term (92) — a substantive term in contrast with an agreement conferring jurisdiction — with which the national court is dealing. A further argument against applying that case-law to the main proceedings is that an obligation to give a ruling, in limine litis
and of the court’s own motion, on whether an unfair term in a consumer credit agreement is not binding would result in a fundamental modification of the operation of the order for payment procedure (93) which would restrict the procedural autonomy of the Member States without this being absolutely necessary to ensure the effectiveness of Directive 93/13. (94) Accordingly, an obligation to that effect imposed on the national court by EU law must be rejected.
78. In view of the fact that EU law does not require such action on the part of the national court, it is also not contrary to EU law for a national court to avoid giving a ruling, of its own motion and in limine litis, on whether a term concerning interest on late payments in a consumer credit agreement is not binding.
b) Authorisation of the Member States to adopt more stringent rules
79. It should be remembered, however, that, as is clear from its 12th recital, Directive 93/13 undertakes no more than partial and minimum harmonisation of national legislation relating to unfair terms. (95) A fundamental normative expression of the minimum harmonisation approach on which that directive is based is the authorisation in Article 8, which expressly provides for the Member States to have the right to adopt more stringent provisions compatible with the Treaty in the area covered by the directive to ensure a greater degree of protection for the consumer. As I have already stated in my Opinion in Caja de Ahorros y Monte de Piedad de Madrid, that minimum harmonisation approach leaves the Member States considerable discretionary scope, (96) which is restricted only by the general limits to EU law, and above all by primary law. (97) Consequently, the Member States are free, in principle, to provide, in their national rules of civil procedure, for an obligation on their courts to assess, of their own motion and in limine litis
in the order for payment procedure, whether a contractual term is unfair.
C – The second question
80. The second question needs to be reformulated in order to be able to give the national court a useful answer. In so far as, according to its wording, it asks the Court for a correct interpretation for the purposes of the directive of Article 83 of Royal Legislative Decree No 1/2007 in the light of Article 6(1) of Directive 93/13 and Article 2 of Directive 2009/22, it would have to be declared inadmissible in the absence of an admissible subject of interpretation. (98)
81. It must be recalled that it is not the task of the Court, in preliminary ruling proceedings under Article 267 TFEU, to rule upon the compatibility of national law with EU law or to interpret national law. The Court is, however, competent to give the national court full guidance on the interpretation of EU law in order to enable it to determine the issue of compatibility for the purposes of the case before it. (99) To that end, it is for the Court to extract from all the information provided by the national court, and in particular the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject-matter of the proceedings. (100)
82. Having regard both to the points raised in the main proceedings, as discussed in the order for reference, and to the first question (‘whether or not a term in a consumer credit agreement is void and whether or not that term should be modified ’), the second question must be construed to the effect that the referring court is essentially seeking an interpretation of Article 6(1) of Directive 93/13. It would like to know whether, in the light of the legal consequence, provided for in that provision of the directive, of unfair contractual terms not being binding on consumers, it has the power to replace a contractual term which has been established to be unfair by another term which is not to be regarded as unfair.
83. In my view, the answer to this question follows both from the wording and from the regulatory purpose of Article 6(1) of Directive 93/13.
84. It should be stated, first, that Directive 93/13 does not expressly provide for the ‘replacement’ of unfair terms or for a judicial power to that effect. Instead, Article 6(1) of the directive merely prescribes the legal consequence of such terms not being binding on the consumer. (101) The same follows from the 21st recital in the preamble. This rule is mandatory for the Member States, in so far as it extends, with the result that no derogations are permitted. According to its purpose, Article 6(1) of the directive must also lead, in the context of implementation, to the compulsory and contractually mandatory legal consequence of not being bound.
85. It should also be stated that Article 6(1) of the directive provides that, after an unfair term has been found not to be binding, the contract continues ‘to bind the parties upon those terms ’ if it is capable of continuing in existence without the unfair terms. The 21st recital in the preamble states that ‘if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms
if it is capable of continuing in existence without the unfair provisions’. Article 6(1) of the directive must therefore be understood to mean that, after the unfair terms have been removed, the contract must continue in existence in unmodified form as to the remaining terms, if that is legally possible, which notionally precludes any replacement of terms or modification of the contract.
86. If we take a closer look at the regulatory purpose of Article 6(1) of the directive, it is possible to see further arguments against a power held by the national court to modify a term. As has already been explained, a finding by the national court that unfair terms are not binding is intended to prevent the consumer remaining bound by such terms. However, this serves another long-term aim of Directive 93/13, to prevent the continued use of unfair terms in commercial practices, as is mentioned in Article 7(1) of the directive. For that purpose, as the Court has expressly recognised in its case-law, Directive 93/13 employs the deterrent effect which a judicial review of unfairness has on sellers or suppliers. (102)
87. In order to ascertain whether a modification of the agreement by replacing the unfair term in question with another term, as happened in the main proceedings, is contrary to Directive 93/13, it must therefore be examined whether such modification is likely to have a lasting adverse effect on the deterrent effect of an assessment of unfairness. This would mean that the effectiveness of the directive could no longer be ensured, which would run counter to the prohibition under EU law on national implementing measures frustrating the aims of a directive.
88. Such modification of the agreement means that the risks to a seller or supplier from the use of unfair terms in commercial practices are reduced considerably. Whilst the seller or supplier possibly has grounds to fear that, by virtue of a finding that a term is not binding, he will continue to be bound by an agreement which may be less favourable for him, a modification along the lines described above ultimately results in the terms of the agreement being modified in accordance with the law and thus to a state which is acceptable to the seller or supplier. (103) However, even in situations where the unfairness of one or more terms would lead to the overall invalidity of the agreement, the seller or supplier may rely on the fact that the agreement will nevertheless retain its validity, which may not be in the interest of the consumer. The prospect of curing the grounds for invalidity of an agreement and clarity over risks for the seller or supplier could have the reverse effect to that desired by the legislature. They could in fact give him an incentive simply to ‘try his luck’ and to include as many unfair terms as possible in the agreement in the hope that most of them will be overlooked by the national court. As the Commission rightly notes, (104) the seller or supplier may ultimately feel provoked by such a legal situation, especially since he would have nothing to lose by attempting to impose his terms on the consumer. These examples show that the possibility of a subsequent modification of the agreement by the court would not only neutralise the deterrent effect of Article 6 of the directive, but also have the reverse effect. The aims of Directive 93/13 would thus be frustrated.
89. In view of this finding, the effectiveness of Directive 93/13 must be considered to be affected. Consequently, the question must also be answered to the effect that Article 6(1) of the directive precludes a national provision like Article 83 of Royal Legislative Decree No 1/2007 which authorises the national court to replace an unfair contractual term by another term which is not to be regarded as such. (105) The national court must interpret and apply that national provision in accordance with the directive. When it applies domestic law, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. (106)
D – The third question
90. The referring court also wishes to ascertain whether it is possible to exclude judicial review of a court’s own motion and in limine litis
where certain aspects of the loan agreement are clearly stated, as is the case with the European order for payment procedure. The referring court means Article 7 of Regulation No 1896/2006 creating a European order for payment procedure, under which an application for a European order for payment must state certain information which is set out in detail in paragraph 2. In this regard, the referring court raises the hypothesis that the specification of certain substantive requirements could possibly compensate for the absence of a possibility of review in limine litis . (107) The reason for these statements seems to be that, according to the referring court, such information is not required in Spanish law.
91. It remains unclear, however, what is the actually purpose of the question. On the one hand, the question could, as the Spanish Government and the Commission suggest, (108) be regarded as hypothetical and, in accordance with the Court’s case-law, inadmissible in so far as it seeks an interpretation of Regulation No 1896/2006, especially since the main proceedings concern exclusively a national order for payment procedure which is subject only the rules of the Spanish law of civil procedure. It should be borne in mind in this connection that where the questions submitted by the national courts concern the interpretation of EU law, the Court of Justice is bound, in principle, to give a ruling, (109) unless it is obvious that the request is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of EU law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (110)
92. However, the superficially hypothetical character of the question disappears if it is understood, in the light of the further statements made by the referring court, as seeking clarification as to what criteria can be inferred from Regulation No 1896/2006 as regards the substantive requirements for an application for a national order for payment. It is clear from the order for reference that the referring court is considering a ‘ mutatis mutandis
application’ of Regulation No 1896/2006. However, a mutatis mutandis
application of Article 7 of Regulation No 1896/2006 would effectively harmonise the national law of civil procedure, which was not the intention of the EU legislature. As is evident from the 10th recital in the preamble to the regulation, ‘the procedure established by this regulation should serve as an additional and optional means
for the claimant, who remains free to resort to a procedure provided for by national law’. The concept of a European order for payment procedure developed by the EU legislature as an additional and optional procedure for the cross-border recovery of uncontested pecuniary claims shows that the national and the European procedures were intended to exist alongside one another. (111) . The relationship between the regulation and national law is further clarified by the second sentence, which expressly states that ‘this regulation neither replaces nor harmonises the existing mechanisms for the recovery of uncontested claims under national law’. Consequently, it is not possible to infer from Regulation No 1896/2006 any binding requirements (112) as to the substantive form of an application for a national order for payment.
93. This notwithstanding, the answer to the third question follows from my statements on the first and second questions. Accordingly, the Member States are not required by EU law to provide, in their national legal orders, for an assessment of the court’s own motion and in limine litis
of whether contractual terms are unfair in the context of order for payment procedures. However, they may order this in the interest of consumer protection by virtue of the enabling provision in Article 8 of Directive 93/13.
E – The fourth and fifth questions
94. There are also doubts whether it is necessary to answer the fourth question. In so far as it seeks an interpretation of Directive 2008/48, it must be borne in mind that that directive is not applicable ratione temporis
to the main proceedings. It was adopted on 23 April 2008 and entered into force on 11 June 2008, whilst the period for its transposition into national law expired on 12 May 2010. However, the contested loan agreement was concluded on 28 May 2007, i.e. before Directive 2008/48 entered into force.
95. Whilst Directive 2008/48 does provide for transitional measures, consideration must be given to Article 30 of the directive, under which the directive expressly does not apply to credit agreements existing on the date when the national implementing measures enter into force. The only exceptions to that provision are Articles 11, 12, 13 and 17, the second sentence of Article 18(1), and Article 18(2), which the Member States must ensure ‘are applied also to open-end credit agreements existing on the date when the national implementing measures enter into force’. However, these do not include Articles 5(1)(l) and (m) and 6(1)(i) and Article 10(2)(1), which impose on the creditor certain pre-contractual information requirements vis-à-vis the borrower and are the subject of the question. An attempt nevertheless to provide the national court with a useful answer, by having regard not to Directive 2008/48, but to the precursor Directive 87/102, which is applicable ratione temporis, also meets with insurmountable difficulties, as the latter directive does not contain any rules corresponding to the abovementioned provisions of Directive 2008/48. An interpretation of Directive 87/102 cannot therefore provide an answer to the questions asked by the referring court.
96. In view of the fact that the fourth question has no bearing on the main proceedings, there is no need to answer that question. The referring court should nevertheless note that Directive 2008/48 is not applicable ratione temporis .
97. As far as the fifth question is concerned, it would seem necessary, first, to point out the error which the referring court has clearly made in formulating that question. Since the cited provisions have no connection with the regulatory content reproduced, as the Commission rightly states, (113) it must be assumed that the national court is referring to Article 6(2) and Article 7 of Directive 87/102. The right to information and the principle of the prohibition on unjustified enrichment are laid down in Directive 87/102 and not in Directive 2008/48, which is cited by the referring court.
98. If this presumption is correct, it must then be examined whether the question can also be considered to be relevant to the decision in the light of the specific problems raised in the main proceedings.
99. There is nothing in the order for reference to suggest that in the main proceedings a problem would arise in connection with the duty imposed on the creditor by Article 6(2) of Directive 87/102 to inform the consumer ‘during the period of the agreement ... of any change in the annual rate of interest or in the relevant charges at the time it occurs’. That aside, under Article 6(1) of Directive 87/102 this duty concerns only agreements between a credit institution or financial institution and a consumer for the granting of credit in the form of an advance on a current account. Because, according to the available factual information, the contested loan agreement does not appear to come under this category of credit agreement, there is also no need for an interpretation of Article 6(2) of Directive 87/102 in order to give a ruling in the main proceedings.
100. Nor does it appear necessary to interpret Article 7 of Directive 87/102 in order to give a ruling in the main proceedings. That provision of the directive stipulates that ‘in the case of credit granted for the acquisition of goods, Member States shall lay down the conditions under which goods may be repossessed, in particular if the consumer has not given his consent’. It also provides that the Member States must ‘further ensure that where the creditor recovers possession of the goods the account between the parties shall be made up so as to ensure that the repossession does not entail any unjustified enrichment’. There is, however, nothing in the order for reference to indicate that in the main proceedings a problem would arise in connection with the return of goods to the creditor. The referring court is possibly raising a conceivable scenario where, because the consumer has failed to fulfil his contractual obligations, the seller or supplier could demand repayment of the loan, in which case the question would arise whether he was also entitled to interest on late payments, which is regarded as unfair. Payment of such interest could otherwise be regarded as unjustified enrichment. However, there is no evidence in the order for reference to suggest that the reference seeks to clarify this question.
101. In the light of the foregoing, I conclude that there is no need to answer the fourth and fifth questions.
F – The sixth question
102. By its sixth question, the referring court is essentially seeking to ascertain whether Article 11(1) of Directive 2005/29 is to be interpreted as permitting a national court to assess, of its own motion, the unfair character of a commercial practice which consists in including in a contract a term concerning interest on late payments.
103. This provision of the directive, which the referring court mentions in its question, lays down a general aim which the Member States must achieve through legislative measures. They must ‘ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers’. Such means include legal provisions under which it is possible to take legal action against such unfair commercial practices and/or to bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. It can therefore be stated that in order to combat unfair commercial practices Directive 2005/29 permits the establishment of both a judicial and an administrative procedure at national level.
104. For the purposes of the preliminary ruling proceedings, however, only the first variant is of relevance, since the points of law raised relate to the national order for payment procedure before a national court. It must be stated in this connection that Article 11(2) of Directive 2005/29 confers extensive powers on the courts of the Member States, which are outlined. Those powers include adopting court prohibitions of unfair commercial practices, granting interim relief and ordering measures to eliminate the consequences of these kinds of commercial practices.
105. In accordance with the clear wording of that provision of the directive, however, those powers must be granted by the Member States in the course of the transposition of the directive, having regard to certain minimum requirements under EU law. (114) The Member States also enjoy a broad margin of discretion in connection with transposition. (115) Directive 2005/29 carries out a complete harmonisation of the material rules concerning unfair commercial practices of undertakings vis-à-vis consumers, (116) but not of the procedural instruments for combating these kinds of commercial practices. As regards the question of the direct applicability of Directive 2005/29, to which the national court alludes by referring to the evident failure to transpose Directive 2005/29 in Spain, my view follows from the statements made above to the effect that neither is this expressly provided for, nor does such a possibility appear to have been intended in accordance with the regulatory purpose of Directive 2005/29. An argument against the indiscriminate direct applicability of the provisions of Directive 2005/29 for the national courts might be that it is clear from Article 11(1) that the procedures which must be established by the Member States will first ensure the implementation of the directive. The establishment of adequate means to combat unfair commercial practices thus appears to be an essential condition for the implementation of the aims of the directive at national level. (117)
106. Notwithstanding this interpretation, it must be stated with regard to the relevance of the question to the decision that there is nothing in the order for reference to indicate that the court of first instance had also regarded the inclusion of the contractual term concerning interest on late payments, which it considered to be unfair, as an unfair commercial practice within the meaning of Directive 2005/29. The referring court, which first raised the question of the applicability of Directive 2005/29 in the main proceedings, merely mentions a ‘ possible
unfair commercial practice’, (118) without any evidence in support of such an assumption. It can merely be presumed, having regard to the overall context, that in the view of the referring court the unfairness of the commercial practice resides in the fixing of an excessively high rate of interest on late payments. However, it is not possible to establish precisely, from the scant statements made in the order for reference, whether the referring court has actually subsumed the situation under the provisions of the directive. It follows that the request for an interpretation of Directive 2005/29 has no connection with the main proceedings. Against this background, the question must be regarded as purely hypothetical, as is argued by the parties. Accordingly, the sixth question must also be declared inadmissible.
VII – Conclusion
107. In the light of the foregoing, I propose that the Court answer the questions asked by the Audiencia Provincial de Barcelona as follows:
(1) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts is to be interpreted to the effect that it does not require a national court, in the context of a national order for payment procedure, to give a ruling of its own motion and in limine litis
on whether a term concerning interest on late payments in a consumer credit agreement is not binding, provided the assessment of whether that term is unfair can be transferred, in accordance with the national procedural rules, to an inter partes procedure to be initiated through an appeal brought by the debtor, in which the national court is given the opportunity to obtain the legal and factual elements necessary to conduct such an assessment.
(2) Article 6(1) of Directive 93/13 precludes a national provision which authorises the national court to modify a consumer agreement so as to replace an unfair contractual term by another term which is not to be regarded as unfair.
(3) The provisions of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure are not applicable to a national order for payment procedure.
(1) .
(2)  –	Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
(3)  –	Directive of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30).
(4)  –	Regulation of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1).
(5)  –	Directive of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).
(6)  –	Directive of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).
(7)  –	Directive of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64). Under Article 28(1), the Member States must transpose the directive into their national law by 13 December 2013.
(8)  –	Article 32 of Directive 2011/83, which is inserted in Directive 93/13 as Article 8a, imposes on the Member States the obligation to inform the Commission of the adoption of specific national provisions in certain areas, namely in relation to the extension of the scope of the substantive assessment under Article 4(2) of Directive 93/13 and the introduction of national lists of contractual terms which shall be considered as unfair.
(9)  –	COM(2011) 635 final.
(10)  –	In recent years the Commission has stepped up its efforts to create an instrument of European contract law. The Commission Communication ‘A more coherent European contract law — An action plan’, which was presented in 2003, proposed the formulation of a ‘common frame of reference’ as an opt-in instrument containing common rules and common terminology for European contract law. Subsequently, the Study Group on a European Civil Code, an international network of researchers, drew up an academic draft of a common frame of reference (CFR), drawing on the ‘Principles of European Contract Law’ (PECL) produced by the ‘Lando Commission’. On the basis of this preparatory work, in April 2010 the European Commission set up a group of experts on a common frame of reference for European contract law, which submitted a feasibility study on 3 May 2011. See, with regard to the efforts to create a European Code of Consumer Rights, Lando, O., ‘On a European Contract Law for Consumers and Businesses — Future Perspectives’, Towards a European Contract Law
(ed. Reiner Schulze/Jules Stuyck), Munich 2011, p. 203 et seq., and Mazeaud, D., ‘Unfairness and Non-negotiated Term’, loc. cit., Hesselink, M., ‘The Consumer Rights Directive and the CFR: two worlds apart?’, European Review of Contract Law, Vol. 5 (2009), No 3, p. 290; Zimmermann, R., ‘The present state of European private law’, The American Journal of Comparative Law, Vol. 57 (2009), No 2, p. 479.
(11)  –	BOE No 176, 24 July 1984.
(12)  –	BOE No 89, 14 April 1998.
(13)  –	BOE No 287, 30 November 2007.
(14)  –	See Gruber, U., Europäisches Zivilprozess- und Kollisionsrecht — Kommentar
(ed. Thomas Rauscher), Munich 2010, p. 274, paragraph 1.
(15)  –	All the Member States try to tackle the issue of mass recovery of uncontested claims through their courts from their national perspectives within the framework of their procedural systems and traditions. The solutions that have been devised differ widely, both in their technical nature and in their success. In some Member States, judgments by default, special summary proceedings within the structure of ordinary civil procedure or even provisional measures that are quasi-definitive, as in practice main proceedings hardly ever ensue, are the principal procedural instruments to cope with uncontested claims. In several Member States, however, a payment order procedure has proven to be a particularly valuable tool to ensure the rapid and cost-effective collection of claims that are not the subject of a legal controversy. Originally, 11 Member States (Austria, Belgium, Finland, France, Germany, Greece, Italy, Luxembourg, Portugal, Spain, Sweden) knew such a procedure as an integral part of their civil procedural legislation, the French injonction de payer
and the German Mahnverfahren
being the most famous examples. In 1999 a similar procedure was also introduced in Spain ( proceso monitorio ) (cf. Commission Green Paper of 12 December 2002 on a European order for payment procedure and on measures to simplify and speed up small claims litigation, COM(2002) 746 final). This development testifies to the growing appreciation of this type of procedure throughout the European Union.
(16)  –	See Hess, B., Europäisches Zivilprozessrecht, Heidelberg 2010, p. 556, § 10, paragraph 40.
(17)  –	See, for example, with regard to the rules on jurisdiction in Germany Prütting, H./Gehrlein, M., ZPO — Kommentar, 2nd edition, Cologne 2010, p. 1455, § 689, paragraph 2; Zeiss, W./Schreiber, K., Zivilprozessrecht, 10th edition, p. 305, in Austria Rechberger, W./Simotta, D.-A., Grundriss des österreichischen Zivilprozessrechts, Vienna 2003, p. 302, paragraph 515/3, and in Spain Alonso Crespo, E., ‘Algunos medios preventivos o alternativos del proceso civil atribuidos al secretario judicial’, Estudios jurídicos, 2004, p. 6687 and Rodríguez Tirado, A.M., Las funciones procesales del Secretario judicial, Barcelona 2001, who deal with, respectively, the status of the German and Austrian Rechtspfleger
and of the Spanish secretario judicial
within the system for the administration of justice.
(18)  –	See, for example, with regard to the rules on jurisdiction in France Guinchard, S., Droit et pratique de la procédure civile, Paris 2004, p. 629, and in Italy De Stefano, A., Procedura Civile, Milan 2010, p. 662, paragraph 5144.
(19)  –	As Sujecki, B., ‘Das Europäische Mahnverfahren’, Neue Juristische Wochenschrift, 2007, p. 1625, explains using the example of the wording of Article 8 of Regulation (EC) No 1896/2006, which requires interpretation, a limited scope of review to the effect that no conclusiveness test is necessary, but manifestly unfounded claims are to be rejected is intended to permit an assessment by a judicial officer at a level lower than the judiciary. Such a scope of review will also allow a fully automated assessment of applications for orders for payment, as a result of which the order for payment procedure has the desired effect of rationalising processes and easing the burden on the courts.
(20)  –	See, with regard to the rules in France, Guinchard, S., loc. cit. (footnote 18), p. 631, in Germany Zeiss, W./Schreiber, K., loc. cit. (footnote 17), p. 306, paragraph 779, in Austria Rechberger, W./Simotta, D.-A., loc. cit. (footnote 17), p. 304, paragraph 515/7, and in Italy De Stefano, A., loc. cit. (footnote 18), p. 671, paragraph 5210.
(21)  –	See Gruber, U., loc. cit. (footnote 14), p. 275, paragraph 3, who states that the procedure under Regulation No 1896/2006 is based on the same basic idea as the national order for payment procedure. The creditor is intended to obtain an enforceable instrument in a simple, quick and low-cost procedure. Only where the debtor makes a challenge is the procedure transferred to regular civil proceedings.
(22)  –	See Alonso Crespo, E., loc. cit. (footnote 17), p. 6687, and Rechberger, W._/Simotta, D.-A., loc. cit. (footnote 17), p. 301, paragraph 515/2, who point out the benefits of obtaining an enforceable instrument at low cost using the order for payment procedure.
(23)  –	See Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores
[2000] ECR I-4941, paragraph 25, and Case C-168/05 Mostaza Claro
[2006] ECR I-10421, paragraph 25.
(24)  –	See Mostaza Claro, cited above in footnote 23, paragraph 36, and Case C-243/08 Pannon GSM
[2009] ECR I-4713, paragraph 25. For a criticism of this case-law, see Hesselink, M., ‘Unfair Terms in Contracts Between Businesses’, Towards a European Contract Law
(ed. Reiner Schulze/Jules Stuyck), Munich 2011, p. 132 et seq.
(25)  –	See Océano Grupo Editorial and Salvat Editores, cited above in footnote 23, paragraph 27; Mostaza Claro, cited above in footnote 23, paragraph 26; and Case C-40/08 Asturcom Telecomunicaciones
[2009] ECR I-9579, paragraph 31.
(26)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 32. See, with regard to the substantive judicial review of general business terms in the light of the requirement of good faith, Basedow, J., ‘Der Europäische Gerichtshof und das Privatrecht’, Archiv für die civilistische Praxis, Vol. 210 (2010), p. 172 et seq.
(27)  –	Case C-473/00 Cofidis
[2002] ECR I-10875, paragraph 32, and Mostaza Claro, cited above in footnote 23, paragraph 27.
(28)  –	Cofidis, cited above in footnote 27, paragraph 33, and Mostaza Claro, cited above in footnote 23, paragraph 28.
(29)  –	Pannon GSM, cited above in footnote 24.
(30)  –	Ibid., paragraph 35.
(31)  –	Case C-137/08 [2010] ECR I-10847.
(32)  –	Ibid., paragraph 56.
(33)  –	Ibid., paragraph 14 et seq.
(34)  –	Ibid., paragraph 18.
(35)  –	Ibid., paragraph 52.
(36)  –	Ibid., paragraph 53.
(37)  –	Ibid., paragraph 54.
(38)  –	Ibid., paragraph 55.
(39)  –	See my Opinion in Pénzügyi, judgment cited above in footnote 31, point 113.
(40)  –	See paragraph 65 of the Commission’s observations.
(41)  –	See point 4 of the present Opinion.
(42)  –	See Chapter 8 (Articles 79 to 86 — ‘unfair contract terms’) of the proposal for a regulation.
(43)  –	See Part VI, Chapter 16, Section 2 (Articles 166 to 171 — ‘Interest on late payments: general provisions’) of the proposal for a regulation.
(44)  –	Article 167(3) of the proposal for a regulation provides: ‘A term of the contract which fixes a rate of interest higher than that provided in Article 166, or accrual earlier than the time specified in paragraph 2 of this Article is not binding to the extent that this would be unfair according to Article 83’.
(45)  –	Article 83(2) of the proposal for a regulation defines the criteria (transparency of the term, the nature of what is to be provided under the contract, the circumstances prevailing during the conclusion of the contract, the other contract terms, and the terms of any other contract on which the contract depends) on the basis of which the unfairness of a contractual term is to be assessed. This provision is modelled on Article 4 of Directive 93/13.
(46)  –	According to the 17th recital in the preamble to Directive 93/13, for the purposes of the 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.
(47)  –	See Pannon GSM, cited above in footnote 24, paragraph 38, and Case C-237/02 Freiburger Kommunalbauten
[2004] ECR I-3403, paragraph 20.
(48)  –	See Case C-478/99 Commission
v Sweden
[2002] ECR I-4147, paragraph 20, and Freiburger Kommunalbauten, cited in footnote 47, paragraph 20.
(49)  –	See point 23 et seq. of the present Opinion.
(50)  –	See also De Stefano, A., loc. cit. (footnote 18), p. 655, paragraph 5100, with regard to the order for payment procedure (specifically the Italian procedimento di ingiunzione ), which manages without inter partes
proceedings and a thorough assessment of the pecuniary claim made, and allows the creditor to obtain an enforceable instrument quickly and at low cost with a view to applying for enforcement.
(51)  –	See paragraph 22 of the observations submitted by the German Government.
(52)  –	See, for example, with regard to the order for payment procedure in France, Guinchard, S., loc. cit. (footnote 18), p. 629, and in Germany Zeiss, W./Schreiber, K., loc. cit. (footnote 17), p. 305. In the legal orders of those Member States, the national court may refuse the application for an order for payment if it is clear from the documents submitted that the debt manifestly cannot exist.
(53)  –	See Case 32/62 Alvis
[1963] ECR 49; Case 136/79 National Panasonic
[1980] ECR 2033, paragraph 21; and Case C-48/96 P Windpark Groothusen
[1998] ECR I-2873, paragraph 47.
(54)  –	See point 41 of the present Opinion.
(55)  –	See paragraph 65 of the Commission’s observations.
(56)  –	See point 24 of the present Opinion.
(57)  –	See inter alia Case 33/76 Rewe
[1976] ECR 1989, paragraph 5; Case 45/76 Comet
[1976] ECR 2043, paragraph 13; Case C-453/99 Courage and Crehan
[2001] ECR I-6297, paragraph 29; Case C-13/01 Safalero
[2003] ECR I-8679, paragraph 49; Case C-432/05 Unibet
[2007] ECR I-2271, paragraph 39; and Case C-246/09 Bulicke
[2010] ECR I-7003, paragraph 25.
(58)  –	See Lupoi, M.A., ‘The Harmonization of Civil Procedural Law within the EU’ (ed. Justin Orlando Frosini/Michele Angelo Lupoi/Michele Marchesiello), A European Space of Justice, Ravenna 2006, p. 209, in whose opinion the European Union is the integration system in which the law of civil procedure has been most harmonised. However, the author concedes that thus far harmonisation has been limited to the adoption of individual uniform instruments, with the result that it is for the Member States alone to adopt their national civil procedure systems in order to make the uniform mechanisms work. The harmonising effects thus ultimately prove to be only ‘indirect’. In the view of the author, the future of harmonisation in matters of civil procedure is a matter for speculation. See also Wagner, G., in Kommentar zur Zivilprozessordnung
(ed. Stein/Jonas), 22nd edition, Vol. 10, Tübingen 2011, p. 46, paragraph 88, who considers the core of the law of civil procedure — the procedural rules governing internal disputes — to be unaffected thus far, despite the dynamic growth of European legislation in this field. In the view of the author, the unification of European law of civil procedure is, realistically, still a long way off.
(59)  –	Under Article 81(2)(f) TFEU, the European Union has the power to adopt rules on civil procedure in so far as the internal market is affected. Comprehensive rules are contained in Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p. 1), Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 2007 L 324, p. 79), Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ 2003 L 26, p. 41), and Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ 2001 L 174, p. 25). See Rörig, U., ‘Einfluss des Rechts der Europäischen Gemeinschaft auf das nationale Zivilprozessrecht’, Europäische Zeitschrift für Wirtschaftsrecht, 2004, p. 18 et seq. Furthermore, many instruments have been created at EU level to facilitate the settlement of cross-border disputes and cross-border enforcement, such as Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ 2007 L 199, p. 1), Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1), and Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15).
(60)  –	See Joined Cases C-430/93 and C-431/93 van Schijndel and van Veen
[1995] ECR I-4705, paragraph 17; Joined Cases C-279/96 to C-281/96 Ansaldo Energia and Others
[1998] ECR I-5025, paragraphs 16 and 27; Case C-326/96 Levez
[1998] ECR I-7835, paragraph 18; Case C-78/98 Preston and Others
[2000] ECR I-3201, paragraph 31; Case C-472/99 Clean Car Autoservice
[2001] ECR I-9687, paragraph 28; Case C-129/00 Commission
v Italy
[2003] ECR I-14637, paragraph 25; Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor
[2006] ECR I-8559, paragraph 57; Mostaza Claro, cited above in footnote 23, paragraph 24; Joined Cases C-222/05 to C-225/05 van der Weerd and Others
[2007] ECR I-4233, paragraph 28; Case C-2/08 Fallimento Olimpiclub
[2009] ECR I-7501, paragraph 24; Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 38; and Case C-177/10 Rosado Santana
[2011] ECR I-7907, paragraph 89.
(61)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 28.
(62)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 37.
(63)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 38.
(64)  –	See Wagner, G., loc. cit. (footnote 58), p. 39, paragraph 68, who points out that in so far as European law of civil procedure governs a subject, it also has primacy over national law. Where that is not the case, the Member States enjoy procedural autonomy. However, the Member States must respect the principles of equivalence and effectiveness.
(65)  –	See Case C-118/08 Transportes Urbanos y Servicios Generales
[2010] ECR I-635, paragraph 33; Case C-231/96 Edis
[1998] ECR I-4951, paragraph 36; Levez, cited above in footnote 60, paragraph 41; Preston and Others, cited above in footnote 60, paragraph 55; and i-21 Germany and Arcor, cited above in footnote 60, paragraph 62.
(66)  –	See Rosado Santana, cited in footnote 60, paragraph 90; Bulicke, cited above in footnote 57, paragraph 28; Levez, cited above in footnote 60, paragraph 43; Preston and Others, cited above in footnote 60, paragraph 56; and Case C-63/08 Pontin
[2009] ECR I-10467, paragraph 45.
(67)  –	See Rosado Santana, cited in footnote 60, paragraph 90, and Bulicke, cited above in footnote 57, paragraph 29.
(68)  –	See Rosado Santana, cited in footnote 60, paragraph 91.
(69)  –	See Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 50, and Levez, cited above in footnote 60, paragraph 40.
(70)  –	See Rosado Santana, cited in footnote 60, paragraph 91, and Case C-261/95 Palmisani
[1997] ECR I-4025, paragraph 33.
(71)  –	See Girerd, P., ‘Les principes d’équivalence et d’effectivité — encadrement ou désencadrement de l’autonomie procédurale des États membres?’, Revue trimestrielle de droit européen, 2002, p. 75 et seq.
(72)  –	See point 24 of the present Opinion.
(73)  –	Pannon GSM, cited above in footnote 24, paragraph 35.
(74)  –	Case C-227/08 [2009] ECR I-11939.
(75)  –	OJ 1985 L 372, p. 31.
(76)  –	Martín Martín, cited above in footnote 74, paragraph 18.
(77)  –	Ibid., paragraph 19.
(78)  –	Ibid., paragraph 20.
(79)  –	See points 55 and 56 of my Opinion of 7 May 2009 in Martín Martín
(judgment cited above in footnote 74).
(80)  –	Martín Martín, cited above in footnote 74, paragraph 27.
(81)  –	See point 70 of the present Opinion.
(82)  –	Martín Martín, cited above in footnote 74, paragraph 35.
(83)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 28.
(84)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraph 33.
(85)  –	See point 82 of my Opinion of 14 May 2009 in Asturcom Telecomunicaciones
(judgment cited above in footnote 25).
(86)  –	Asturcom Telecomunicaciones, cited above in footnote 25, paragraphs 53 to 55 and 59. The Court was able to infer from information provided by the Spanish Government that under Spanish law the court or tribunal responsible for enforcement of an arbitration award which has become final had jurisdiction to assess of its own motion whether an arbitration clause in a contract concluded between a consumer and a seller or supplier is null and void on the ground that such a clause is contrary to national rules of public policy. A number of recent judgments of the Audiencia Provincial de Madrid (Provincial Court, Madrid) (Spain) and the Audiencia Nacional (National High Court) (Spain) had also acknowledged that jurisdiction. However, the Court gave the referring court the task of assessing whether that was also the situation in the case before it.
(87)  –	This is also pointed out by Tinzo, V., ‘Il potere del giudice di rilevazione della nullità di protezione’, Diritto del commercio internazionale, 2011, p. 584. In the understanding of the author, before the national court determines that the unfair term in question is not binding, it must ask the consumer whether he nevertheless wishes to retain it. The only crucial factor is therefore ultimately the will of the consumer. In the author’s view, the approach developed by the Court stems from a doctrine which seeks to reconcile the aim of consumer protection pursued by Directive 93/13 with the principle of continued contractual relations. See also Milanesi, S., ‘Le pronunce Pannon ed Eva Martín Martín sulla rilevabilità d’ufficio delle nullità di protezione’, Giurisprudenza commerciale, 2010, Vol. II, p. 805, who also welcomes the Court’s approach, as it is consistent with the principle of protective nullity (‘ nullità di protezione ’). In the author’s view, this approach also ensures a balance of power in inter partes proceedings.
(88)  –	See with regard to the model of the consumer in the Court’s case-law, Case C-373/90 X
[1992] ECR I-131, paragraphs 15 and 16; Case C-210/96 Gut Springenheide and Tusky
[1998] ECR I-4657, paragraph 31; Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee
[1999] ECR I-2779, paragraph 29; Case C-220/98 Estée Lauder
[2000] ECR I-117, paragraph 27; Case C-30/99 Commission
v Ireland [2001] ECR I-4619, paragraph 32; Case C-99/01 Linhart and Biffl [2002] ECR I-9375, paragraph 31; Case C-44/01 Pippig Augenoptik
[2003] ECR I-3095, paragraph 55; Case C-363/99 Koninklijke KPN Nederland
[2004] ECR I-1619, paragraph 77; Case C-218/01 Henkel
[2004] ECR I-1725, paragraph 50; Case C-421/04 Matratzen Concord
[2006] ECR I-2303, paragraph 24; and Case C-356/04 Lidl Belgium
[2006] ECR I-8501, paragraph 78.
(89)  –	See Heinig, J., ‘Die AGB-Kontrolle von Gerichtsstandsklauseln — zum Urteil Pannon des EuGH’, Europäische Zeitschrift zum Wirtschaftsrecht, 24/2009, p. 885. Josipovič, T., ‘Verbraucherschutz in der Republik Kroatien’, Konsumentenschutz in Zentral- und Osteuropa
(ed. Rudolf Welser), Vienna 2010, p. 72, also highlights the distinctiveness of this approach in the Court’s case-law. In the author’s opinion, however, this case-law has not yet been implemented in Croatia, as an acceding State, since national law only provides for an unfair term to be declared void. It is not therefore possible to retain it in force if the consumer so wishes.
(90)  –	See paragraph 68 of the Commission’s observations.
(91)  –	See point 35 et seq. of the present Opinion.
(92)  –	See point 37 et seq. of the present Opinion.
(93)  –	See point 48 et seq. of the present Opinion.
(94)  –	See point 69 et seq. of the present Opinion.
(95)  –	See Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid
[2010] ECR I-4785, paragraphs 28 and 29.
(96)  –	See my Opinion of 29 October 2009 in Caja de Ahorros y Monte de Piedad de Madrid
(judgment cited above in footnote 95, point 86).
(97)  –	When exercising the authority granted in Article 8 of the directive, the Member States must observe the general limits to EU law, meaning primary law, including the fundamental freedoms, and other secondary legislation (cf. Kapnopoulou, E., Das Recht der missbräuchlichen Klausel in der Europäischen Union, Tübingen 1997, p. 163).
(98)  –	See Neisser, H./Verschraegen, B., Die Europäische Union — Anspruch und Wirklichkeit, Vienna 2001, p. 297, paragraph 14.103; Koenig, C./Pechstein, M./Sander, C., EU-/EC-Prozessrecht, 2nd edition, Tübingen 2002, p. 401, paragraph 767; Leanerts, K./Arts, D./Maselis, I., Procedural Law of the European Union, 2nd edition, London 2006, p. 174 et seq.
(99)  –	See Case 24/64 Dingemans
[1964] ECR 647; Case 33/65 Dekker
[1965] ECR 901; Case 80/71 Merluzzi
[1972] ECR 175; Case C-292/92 Hünermund and Others
[1993] ECR I-6787, paragraph 8; Case C-237/04 Enirisorse
[2006] ECR I-2843, paragraph 24; Case C-380/05 Centro Europa 7
[2008] ECR I-349, paragraphs 49 and 50; Case C-213/07 Michaniki
[2008] ECR I-9999, paragraph 51.
(100)  –	See Case C-107/98 Teckal
[1999] ECR I-8121, paragraph 34; Case C-425/98 Marca Mode
[2000] ECR I-4861, paragraph 21; and Joined Cases C-223/99 and C-260/99 Agorà and Excelsior
[2001] ECR I-3605, paragraph 24.
(101)  –	See Kapnopoulou, E., loc. cit. (footnote 97), p. 151, who also points out that Article 6(1) of Directive 93/13 does not, in principle, provide for any ‘replacement’ of non-binding terms. Instead, the contract must be treated in future as if the unfair burdens on the consumer were not present.
(102)  –	See point 30 of the present Opinion.
(103)  –	Consideration must be given in this connection to the statements made by Advocate General Tizzano in point 80 of his Opinion of 22 September 2005 in Case C-302/04 Ynos
[2006] ECR I-371. As he rightly stated, ‘the aim of the Directive is to rebalance the contractual position of the consumer
by preventing him “from being bound by an unfair term” rather than to safeguard the contractual freedom of the parties, and particularly that of the seller or supplier, who might indeed have every interest in escaping the obligations of a contract which, when the balance has been adjusted, would be less advantageous to him’. From this perspective, a modification of the contract would ultimately serve only the interests of the seller or supplier, which is not, in the view of the Advocate General, the aim of Directive 93/13.
(104)  –	See paragraph 55 of the Commission’s observations.
(105)  –	See Pfeiffer, T., in: Das Recht der Europäischen Union — Kommentar
(ed. E. Grabitz/M. Hilf), Vol. IV, A5, Article 6, paragraph 7, p. 2, who considers ‘partial retention’, i.e. maintenance of the unfair term with the still lawful content, to be incompatible, as a rule, with Directive 93/13.
(106)  –	See Joined Cases C-397/01 to C-403/01 Pfeiffer
[2004] ECR I-8835, paragraph 113.
(107)  –	See point 4.2 of the order for reference.
(108)  –	See paragraph 72 of the Commission’s observations and paragraph 41 of the observations submitted by the Spanish Government.
(109)  –	See inter alia Case C-379/98 PreussenElektra
[2001] ECR I-2099, paragraph 38; Case C-18/01 Korhonen and Others
[2003] ECR I-5321, paragraph 19; Case C-380/01 Schneider
[2004] ECR I-1389, paragraph 21; Case C-295/05 Asemfo
[2007] ECR I-2999, paragraph 30; and Joined Cases C-261/07 and C-299/07 VTB-VAB
[2009] ECR I-2949, paragraph 32.
(110)  –	See inter alia Case 244/80 Foglia
v Novello
[1981] ECR 3045, paragraph 18; Joined Cases C-422/93 to C-424/93 Zabala Erasun and Others
[1995] ECR I-1567, paragraph 29; Case C-415/93 Bosman
[1995] ECR I-4921, paragraph 61; Case C-314/96 Djabali
[1998] ECR I-1149, paragraph 19; PreussenElektra, cited above in footnote 109, paragraph 39; Schneider, cited above in footnote 109, paragraph 22; Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon
[2008] ECR I-1683, paragraph 29; and VTB-VAB, cited above in footnote 109, paragraph 33.
(111)  –	According to Article 1(2) of Regulation No 1896/2006, the regulation does not ‘prevent a claimant from pursuing a claim within the meaning of Article 4 by making use of another procedure available under the law of a Member State or under Community law’. Gruber, U., loc. cit. (footnote 14), p. 279, paragraph 21, concludes that the regulation does not replace the existing national declaration and order for payment procedures. The creditor may therefore, as an alternative to the procedure under the regulation, have recourse to the existing national order for payment procedures, as before. If the national order for payment procedure results in an instrument, the creditor may have that instrument certified as a European enforceable instrument pursuant to Regulation No 805/2004 and seek enforcement in the other Member States, without the need for a prior declaration of enforceability there.
(112)  –	It is certainly not possible to infer binding requirements from Regulation No 1896/2006. However, it cannot be ignored that, according to the will of the EU legislature, the European order for payment procedure was intended to serve as a model by virtue of its efficiency (cf. Hess, B., loc. cit. [footnote 16], p. 139, § 4, paragraph 23).
(113)  –	See paragraph 77 of the Commission’s observations.
(114)  –	See Stuyck, J., ‘Enforcement of consumer rights and legal redress for consumers in the EU: An institutional model’, New frontiers of consumer protection
(ed. Fabrizio Cafaggi/Hans-W. Micklitz), Oxford 2009, p. 72 et seq., who points out the Member States’ freedom to organise the enforcement possibilities at national level, but also draws attention to the fact that Directive 2005/29 lays down certain minimum standards under EU law with which the Member States must comply.
(115)  –	See Stolze, C., Harmonisierung des Lauterkeitsrechts in der EU — Unter besonderer Berücksichtigung der Sanktionssysteme, Hamburg 2010, p. 158, in whose view the flexible wording of Directive 2005/29 allows the Member States a broad margin of formative freedom in transposing the rules on enforcement under Article 11 et seq.
(116)  –	See Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag
[2010] ECR I-10909, paragraph 27.
(117)  –	See Abbamonte, G., ‘The Unfair Commercial Practices Directive and its General Prohibition’, The Regulation of Unfair Commercial Practices under EC Directive 2005/29, Oxford 2007, p. 30, who points out that Directive 2005/29 fully harmonises the substantive law of the Member States related to unfair commercial practices, but does not harmonise the enforcement mechanisms that are in place to combat these unfair practices. Member States must organise their own enforcement system, designate the persons and bodies having the right to bring legal actions under the directive, and determine the sanctions for infringement of the provisions of the directive. The author states that effective enforcement is critical to achieving the full potential of the directive.
(118)  –	See heading 7 (‘La posible
práctica desleal de la entidad bancaria’) in the order for reference.