Case C‑32/14

ERSTE Bank Hungary Zrt.

v

Attila Sugár

(Request for a preliminary ruling from the Fővárosi Törvényszék)

‛Reference for a preliminary ruling — Directive 93/13/EEC — Unfair terms in consumer contracts concluded between a seller or supplier and a consumer — Mortgage loan agreement — Article 7(1) — Stopping the use of unfair terms — Adequate and effective means — Acknowledgement of the debt — Notarised instrument — Affixation of the enforcement clause by a notary — Enforceable order — Notary’s obligations — Examination by the national court of its own motion of unfair terms — Judicial review — Principles of equivalence and effectiveness’

Summary — Judgment of the Court (Third Chamber) 1 October 2015

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Means to prevent the use of unfair terms — National legislation allowing a notary to affix the enforcement clause to an authentic instrument concerning a contract or to refuse to cancel it when no review of the unfairness of the contractual terms has been performed — Lawfulness — Conditions — Respect for the principles of equivalence and effectiveness — Verification a matter for the national court

(Council Directive 93/13, Arts 6(1) and 7(1))

Articles 6(1) and 7(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as not precluding national legislation which allows a notary who drew up, in due form, an authentic instrument concerning a contract concluded between a seller or supplier and a consumer, to affix the enforcement clause to that instrument or to refuse to cancel it when no review of the unfairness of the contractual terms has been performed at any stage.

Directive 93/13 does not contain any provision concerning the role which may or must be devolved to notaries concerning the review of unfair contract terms. Thus, that directive does not regulate the issue of whether, in circumstances in which national legislation attributes notaries with the power to affix the enforcement clause to an authentic instrument concerning a contract, and subsequently to cancel it when it has expired, the authority should be extended to notaries to exercise powers which fall directly within the scope of the judicial function. It follows that, in the absence of harmonisation of national mechanisms for enforcement under EU law, and the role assigned to notaries within it, it is for the national legal order of each Member State to establish such rules, in accordance with the principles of procedural autonomy, provided, however, that those rules are not less favourable than those governing similar domestic law (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).

Although Directive 93/13 requires that the national court hearing disputes between consumers and sellers or suppliers take positive action unconnected with the parties to the contract, the need to comply with the principle of effectiveness cannot be stretched so far as to make up fully for the total inertia on the part of the consumer concerned. Therefore, the fact that the consumer may rely on the protection of legislative provisions on unfair terms only if he brings court proceedings cannot be regarded in itself as contrary to the principle of effectiveness.

It is for the referring court, which alone has direct knowledge of the procedural rules of actions in its own national legal system and which alone has jurisdiction to interpret national law, to determine whether those rules guarantee effective legal protection for the consumer.

(see paras 48, 49, 62-65, operative part)