62023CO0025
ORDER OF THE COURT (Ninth Chamber)
5 October 2023 (
*1
)
(Reference for a preliminary ruling – Article 53(2), Article 94(b) and (c) and Article 99 of the Rules of Procedure of the Court of Justice – Consumer protection – Unfair terms in consumer contracts – Bills of exchange – Requirement to set out the regulatory context of the main proceedings – Requirement to state the reasons justifying the need for a reply from the Court – Manifest inadmissibility in part – No jurisdiction of the court of enforcement hearing an objection to assess, of its own motion or at the request of the consumer concerned, the unfairness of the terms of the contract concluded by that consumer with a seller or supplier and forming the basis of the issue of the bills of exchange the enforceability of which is in dispute)
In Case C‑25/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Qorti tal-Maġistrati (Malta) fil-qasam ċivili (Court of Magistrates (Malta) sitting as a civil court, Malta), made by decision of 14 December 2022, received at the Court on 16 January 2023, in the proceedings
AL
v
Princess Holdings Ltd,
THE COURT (Ninth Chamber),
composed of L.S. Rossi, President of the Chamber, S. Rodin (Rapporteur) and O. Spineanu-Matei, Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), of Articles 5 and 10 of Directive 2008/48/EC 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), and Articles 6 to 8 of Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/44/EC (OJ 2019 L 136, p. 28).
2
The request has been made in proceedings between AL and Princess Holdings Ltd concerning an action brought by AL to prevent bills of exchange that have arrived at maturity from becoming enforceable.
The legal framework
European Union law
Directive 93/13
3
Article 6(1) of Directive 93/13 states:
‘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.’
4
Article 7(1) of that 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.’
Directive 2008/48
5
Article 5 of Directive 2008/48 concerns ‘pre-contractual information’.
6
Article 10 of that directive concerns ‘information to be included in credit agreements’.
Directive 2019/771
7
Article 6 of Directive 2019/771 concerns the ‘subjective requirements for conformity’ of goods covered by contracts of sale.
8
Article 7 of that directive concerns the ‘objective requirements for conformity’ of those goods.
9
Article 8 of that directive relates to the ‘incorrect installation of [those] goods’.
10
Article 24(2) of that directive provides that its provisions shall not apply to contracts concluded before 1 January 2022.
Rules of Procedure of the Court of Justice
11
Article 94(b) and (c) of the Rules of Procedure of the Court of Justice provides as follows:
‘In addition to the text of the questions referred to the Court for a preliminary ruling, the request for a preliminary ruling shall contain:
…
(b)
the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law;
(c)
a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.’
Maltese law
The Code of Organisation and Civil Procedure
12
Article 253(e) of the Kodiċi ta’ Organizzazzjoni u Proċedura Ċivili (Code of Organisation and Civil Procedure), in the version applicable to the dispute in the main proceedings (‘the Code of Organisation and Civil Procedure’), provides, in essence, that a bill of exchange issued under the Kodiċi tal-Kummerċ (Commercial Code), in the version applicable to the dispute in the main proceedings (‘the Commercial Code’), which has expired, becomes an enforceable instrument where the creditor concerned presents a judicial letter rendering that bill of exchange enforceable and its debtor does not lodge an objection within 20 days of receipt of that letter. Such opposition may be based on the fact that the signature appearing on that bill of exchange is not that of the debtor or on other ‘serious and valid grounds’. If the competent court grants the objection, the holder of the bill of exchange must lodge a separate claim, in accordance with the Commercial Code.
The Commercial Code
13
Article 198 of the Commercial Code states, in essence, that oppositions filed against the holder of a bill of exchange may not delay the latter’s payment unless they can be ‘easily and promptly’ investigated. Where such objections require a ‘prolonged enquiry’ to be carried out, the corresponding examination is carried out in the context of a separate procedure and, pending the outcome of that investigation, the enforcement of the payment order, which may, where appropriate, be subject to the provision of a guarantee, cannot be suspended.
The dispute in the main proceedings and the questions referred for a preliminary ruling
14
In October 2019, AL entered into a hire-purchase agreement with No Deposit Cars Malta Ltd for a used car at a price of EUR 12000, payable in 60 monthly instalments of EUR 200 over a period of five years. To that end, AL signed 60 bills of exchange for an amount of EUR 200 each.
15
On 1 June 2021, Princess Holdings, a company which also belongs to the shareholder holding all the shares in No Deposit Cars Malta to which those bills of exchange were transferred, filed a judicial letter before the Qorti tal-Maġistrati (Malta) fil-qasam ċivili (Court of Magistrates (Malta) sitting as a civil court, Malta), seeking the compulsory enforcement of eight of those bills of exchange by the issue of a warrant of execution.
16
On 28 June 2021, AL lodged an appeal to prevent those eight bills of exchange from being made enforceable, arguing inter alia that, although it had returned the car concerned to No Deposit Cars Malta, the latter had retained those bills of exchange.
17
In those circumstances, the Qorti tal-Maġistrati (Malta) fil-qasam ċivili (Court of Magistrates (Malta) sitting as a civil court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is the fact that, in the context of proceedings intended to render a bill of exchange enforceable …, a [national] court is precluded from examining the contract that preceded the drawing of the bill of exchange contrary to the provisions of [Directive 93/13], in particular [Article 6(1) and Article 7(1)] thereof?
(2)
Is the fact that, in the context of proceedings intended to render a bill of exchange enforceable …, a [national] court is precluded from examining the contract that preceded the drawing of the bill of exchange contrary to the provisions of Directive [2008/48], in particular Articles 5 and 10 thereof?
(3)
Is the fact that, in the context of proceedings intended to render a bill of exchange enforceable …, a [national] court is precluded from analysing the underlying obligations that preceded the drawing of the bill of exchange contrary to Directive [2019/771], in particular to the consumer’s right to receive, from the seller, goods that meet the requirements set out in [Articles 6 to 8] of that Directive and to his or her right to seek redress if those requirements are not met?’
Admissibility
18
Under Article 53(2) of the Rules of Procedure, where a reference for a preliminary ruling is manifestly inadmissible, the Court, after hearing the Advocate General, may at any time decide to give judgment by reasoned order without continuing the proceedings.
19
That provision must be applied in the present case as regards the second and third questions.
20
By its second and third questions, the referring court asks, in essence, whether Articles 5 and 10 of Directive 2008/48 and Articles 6 to 8 of Directive 2019/771 must be interpreted as precluding a provision of national law, and its interpretation by the national courts, providing for a procedure for the enforcement of a bill of exchange under which the national court does not have jurisdiction to examine the unfairness of the terms of the contract which led to the issue of that bill of exchange, the enforceability of which is in dispute.
21
According to the Court’s settled case-law, the procedure laid down in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the elements of interpretation of EU law which they need in order to resolve the dispute which they are called upon to decide (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44 and the case-law cited).
22
Since the order for reference serves as the basis for those proceedings, the national court is required to explain, in the order for reference itself, the factual and regulatory context of the dispute in the main proceedings and to provide the necessary explanations as to the reasons for the choice of the provisions of EU law whose interpretation it seeks and as to the link which it establishes between those provisions and the national legislation applicable to the dispute before it (see, to that effect, in particular, judgment of 4 June 2020, C.F. (Tax inspection), C‑430/19, EU:C:2020:429, paragraph 23 and the case-law cited).
23
In that regard, it should also be noted that the information contained in orders for reference must enable, first, the Court to provide useful answers to the questions referred by the national court and, second, the governments of the Member States and other interested parties to exercise the right conferred on them by Article 23 of the Statute of the Court of Justice of the European Union to submit observations. It is for the Court to ensure that that right is safeguarded, having regard to the fact that, under that provision, only orders for reference are notified to the persons concerned (see, to that effect, judgment of 2 September 2021, Irish Ferries, C‑570/19, EU:C:2021:664, paragraph 134 and the case-law cited).
24
Those cumulative requirements in regard to the content of a request for a preliminary ruling appear expressly in Article 94 of the Rules of Procedure, of which the referring court is supposed, in the context of the cooperation instituted by Article 267 TFEU, to be aware and which it is bound to observe scrupulously (order of 3 July 2014, Talasca, C‑19/14, EU:C:2014:2049, paragraph 21, and judgment of 9 September 2021, Toplofikatsia Sofia and Others, C‑208/20 and C‑256/20, EU:C:2021:719, paragraph 20 and the case-law cited). They are also referred to in paragraphs 13, 15 and 16 of the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1).
25
In the present case, the order for reference does not satisfy clearly the requirements laid down in Article 94(b) and (c) of the Rules of Procedure in relation to the second and third questions.
26
First, the order for reference does not contain a sufficiently precise description of the national legal framework in which the dispute before the national court arises. Although Articles 166 A and 166 B of the Code of Organisation and Civil Procedure appear to be key elements for an understanding of the dispute in the main proceedings, the referring court does not set them out in the reference for a preliminary ruling and does not explain the link which exists between those articles and Directives 2008/48 and 2019/771. Consequently, it does not enable the Court to provide a useful answer to those questions.
27
Second, the order for reference does not set out the link which exists between the provisions of EU law whose interpretation is sought in the context of those questions and the national legislation applicable to the dispute in the main proceedings. It is not at all clear from the reference for a preliminary ruling how the interpretation of Articles 5 and 10 of Directive 2008/48 and Articles 6 to 8 of Directive 2019/771 is necessary in order to decide the dispute in the main proceedings. Nor does the national court explain the link which it purports to establish between those provisions of EU law and the national provisions at issue in the main proceedings. Consequently, the Court cannot assess the extent to which an answer to those questions is necessary to enable that court to give its decision.
28
Finally, as regards the third question, it should be noted that it is apparent from Article 24(2) of Directive 2019/771 that that directive applies only to contracts concluded on or after 1 January 2022. Since the contract which is the subject matter of the dispute in the main proceedings was concluded before that date, that directive does not therefore apply in the present case.
29
Having regard to all the foregoing considerations, the request for a preliminary ruling is, pursuant to Article 53(2) of the Rules of Procedure, manifestly inadmissible in so far as it concerns the second and third questions.
The first question
30
Under Article 99 of its Rules of Procedure, the Court may, in particular where an answer to a question referred for a preliminary ruling can be clearly deduced from the case-law, decide at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to give judgment by way of reasoned order.
31
That provision must be applied in the present case as regards the first question.
32
By that question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 preclude a provision of national law, as interpreted by the national courts, which provides that, in proceedings for the enforcement of bills of exchange, the court ruling on an objection does not have jurisdiction to assess, of its own motion or at the request of the consumer concerned, the potentially unfair nature of the terms of the contract concluded by that consumer with a seller or supplier and constituting the basis for the issue of the bills of exchange the enforceability of which is in dispute, where such an examination has not been carried out and the enforcement court cannot suspend the enforcement until the end of the proceedings on the merits.
33
While the Court has thus defined, on several occasions and taking account of the requirements of Article 6(1) and Article 7(1) of Directive 93/13, the way in which the national court must ensure that the rights which consumers derive from that directive are protected, the fact remains that, in principle, EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair and that those procedures accordingly fall within the domestic legal system of the Member States, provided, however, that they are no less favourable than those governing similar domestic actions (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments of 4 May 2023, BRD Groupe Societé Générale and Next Capital Solutions, C‑200/21, EU:C:2023:380, paragraph 28, and of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraphs 45 and 46 and the case-law cited).
34
In addition, the Court stated that the obligation on the Member States to ensure the effectiveness of the rights which individuals derive from EU law implies, in particular, as regards the rights deriving from Directive 93/13, a requirement for effective judicial protection, reaffirmed in Article 7(1), of that directive and also enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (see, to that effect, judgments of 4 May 2023, BRD Groupe Societé Générale and Next Capital Solutions, C‑200/21, EU:C:2023:380, paragraph 29, and of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 29 and the case-law cited).
35
In that connection, it must be recalled that the effective protection of the rights under Directive 93/13 can be guaranteed only provided that the national procedural system allows the court, during the order for payment proceedings or the enforcement proceedings concerning an order for payment, to check of its own motion whether terms of the contract concerned are unfair (judgment of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraph 45).
36
Thus, in a case in which examination of its own motion by the court of the potentially unfair nature of terms in the contract concerned is provided for only at the enforcement stage of the order for payment, a national law must be regarded as undermining the effectiveness of the protection intended by Directive 93/13 if it does not provide for such an assessment when the order is granted or, in the case where such an assessment is provided for only when an objection is lodged against the order granted, if there is a significant risk that the consumer concerned will not lodge the objection required, either because of the particularly short period provided for that purpose, or because they might be dissuaded from defending themselves in view of the costs which legal proceedings would entail in relation to the amount of the disputed debt, or because the national legislation does not lay down the obligation that all the information must be communicated to them which is necessary to enable them to determine the extent of their rights (judgment of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraph 46).
37
With regard to promissory notes, the Court ruled that Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation which permits issue of an order for payment founded on a valid promissory note which secures a claim arising from a consumer credit agreement, where the court dealing with an application for an order for payment does not have the power to examine whether the terms of that agreement are unfair, if the detailed rules for exercising the right to object to lodge an objection against such an order do not enable observance of the rights which the consumer concerned derives from that directive to be ensured (judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 71).
38
More recently, the Court held that Directive 93/13 must be interpreted as precluding a rule of national law under which a consumer who has concluded a loan agreement with a credit institution and against whom that seller or supplier has initiated enforcement proceedings is time-barred, beyond a period of 15 days from service of the first documents in those proceedings, from relying on the existence of unfair terms in order to object to those proceedings, even if that consumer has, under national law, an action for a finding of unfair terms which is not subject to any time limit, but the outcome of which has no bearing on the outcome of the enforcement proceedings, which may be binding on the consumer before the outcome of the action for a finding of unfair terms (judgment of 4 May 2023, BRD Groupe Societé Générale and Next Capital Solutions, C‑200/21, EU:C:2023:380, paragraph 31).
39
The Court also ruled that that directive must be interpreted as precluding national legislation which does not allow the court responsible for the enforcement, in mortgage enforcement proceedings, either to assess of its own motion or at the consumer’s request, the unfairness of a term contained in the contract which gives rise to the debt claimed and which constitutes the basis of the right to enforcement, or to grant interim relief, including, in particular, staying the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of the final decision of the court hearing the declaratory proceedings before which the consumer argues that that term is unfair (judgment of 17 May 2022, Impuls Leasing România, C‑725/19, EU:C:2022:396, paragraph 51 and the case-law cited).
40
In the present case, it is true that the debtor concerned has the right to lodge objections against the beneficiary of a bill of exchange, but, under the Code of Organisation and Civil Procedure, he may lodge such objections only on the ground that the signature appearing on that bill of exchange is not his own or on ‘serious and valid grounds’, in accordance with the relevant national legislation. In other cases, the debtor is obliged to contest the bill of exchange on its merits, in separate proceedings, under the Commercial Code. However, in so far as such a challenge cannot result in the suspension of enforcement of that bill of exchange, the debtor cannot, in principle, challenge it before it has been made enforceable by a national court. The national legislation at issue in the main proceedings does not appear to provide, in that specific case, for the possibility for the enforcement court to adopt an interim measure such as the suspension of the enforcement procedure until the end of the proceedings on the merits.
41
It is apparent from the request for a preliminary ruling that the Code of Organisation and Civil Procedure does not allow the enforcement court, ruling on an objection, to review, either of its own motion or at the request of the consumer concerned, the unfairness of the terms of the contract forming the basis of the enforcement order in question, since that review may be carried out by the court ruling on the substance in the context of the examination of an appeal under the ordinary law, and that court does not, for its part, have the power to order a stay of the enforcement proceedings.
42
In that regard, the Court took the view that the fact that, under national law, a review as to whether the terms contained in a mortgage contract concluded between a seller or supplier and a consumer are unfair may be carried out not by the court before which an application for enforcement of such a contract has been brought, but only, later and where applicable, by the court ruling on the substance before which the consumer has brought an action for a declaration of invalidity in respect of such unfair terms, is manifestly insufficient to ensure the full effectiveness of the consumer protection intended by Directive 93/13 (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 61).
43
The Court considered that, in a situation where the enforcement proceedings culminated before the decision of the court having jurisdiction to rule on the substance of the case declaring the contractual term on which that enforcement was based to be unfair and, consequently, the invalidity of those proceedings, that decision would enable that consumer to be guaranteed only ex post protection by way of compensation, which would be incomplete and insufficient and would not constitute an adequate or effective means of preventing the continued use of that term, in breach of Article 7(1) of Directive 93/13 (order of 6 November 2019, BNP Paribas Personal Finance SA Paris Sucursala Bucureşti and Secapital, C‑75/19, EU:C:2019:950, paragraph 32 and the case-law cited).
44
Having regard to all the foregoing considerations, the answer to the first question is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding a provision of national law, as interpreted by the national courts, which provides that, in proceedings for the enforcement of bills of exchange, the court hearing an objection does not have jurisdiction to assess, of its own motion or at the request of the consumer concerned, the potentially unfair nature of the terms of the contract concluded by that consumer with a seller or supplier and constituting the basis for the issue of the bills of exchange whose enforceability is in dispute.
Costs
45
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
1.
The reference for a preliminary ruling made by the Qorti tal-Maġistrati (Malta) fil-qasam ċivili (Court of Magistrates (Malta) sitting as a civil court, Malta) on 14 December 2022 is manifestly inadmissible in so far as it concerns the second and third questions.
2.
Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as precluding a provision of national law, as interpreted by the national courts, which provides that, in proceedings for the enforcement of bills of exchange, the court hearing an objection does not have jurisdiction to assess, of its own motion or at the request of the consumer concerned, the potentially unfair nature of the terms of the contract concluded by that consumer with a seller or supplier and constituting the basis for the issue of the bills of exchange whose enforceability is in dispute.
[Signatures]
(
*1
)	Language of the case: Maltese.