Keywords

Summary



Keywords

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim

(Council Directive 93/13)

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation for the national court to determine of its own motion whether a clause in a contract that it is examining is unfair — Scope

(Council Directive 93/13)

3. EU law — Direct effect — National rules of procedure — Conditions applicable — Respect for the principles of equivalence and effectiveness

(Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 93/13)

4. EU law — Principles — Right to effective judicial protection — Scope — No right of access to several levels of jurisdiction

5. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings — Right to effective judicial protection — Scope — Right of access to several levels of jurisdiction

(Council Directive 93/13)

6. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings — No right to an appeal only for a debtor against a decision dismissing his objection to enforcement proceedings against his property — Unlawful — Contrary to the principles of effectiveness and equality of arms

(Charter of Fundamental Rights of the European Union, Art. 47; Council Directive 93/13, Art. 7(1))

7. EU law — Principles — Right to effective judicial protection — Scope — Principles of equality of arms and audi alterem partem — Included

Summary

1. See the text of the decision.

(see paras 22, 23)

2. See the text of the decision.

(see para. 24)

3. In the absence of harmonisation of national enforcement procedures, the detailed rules establishing the right of appeal against a decision ruling on the legality of a contractual clause, arising in the course of mortgage enforcement proceedings, are matters falling within the domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, provided that they comply with the principles of equivalence and effectiveness.

(see para. 31)

4. According to EU law, the principle of effective judicial protection does not afford a right of access to a second level of jurisdiction but only to a court or tribunal.

(see para. 36)

5. According to EU law, the principle of effective judicial protection does not afford a right of access to a second level of jurisdiction but only to a court or tribunal. Consequently, the fact that the only remedy available to the consumer, as a debtor against whom mortgage enforcement proceedings are brought, is to bring an action before a single jurisdictional level in order to protect the rights derived from Directive 93/13 is not, in itself, contrary to EU law.

(see para. 36)

6. Article 7(1) of Directive 93/13 on unfair terms in consumer contracts, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding a system of enforcement that provides that mortgage enforcement proceedings may not be stayed by the court of first instance, which, in its final decision, may at most award compensation in respect of the damage suffered by the consumer, inasmuch as the latter, the debtor against whom mortgage enforcement proceedings are brought, may not appeal against a decision dismissing his objection to that enforcement, whereas the seller or supplier, the creditor seeking enforcement, may bring an appeal against a decision terminating the proceedings or ordering an unfair term to be disapplied.

In the first place, if the consumer’s objection to the enforcement of the mortgage against his property is dismissed, such a system exposes consumers and, possibly, their family, to the risk of losing their dwelling in an enforced sale, while the enforcing court may have, at most, delivered a rapid assessment of the validity of the contractual clauses upon which the seller or supplier bases his application. The protection that the consumer, as a mortgage debtor against whom enforcement proceedings are brought, might obtain by way of a separate judicial scrutiny undertaken in the context of substantive proceedings brought in parallel with the enforcement proceedings, cannot offset that risk because, even if the scrutiny revealed the existence of an unfair clause, the consumer would not be granted a remedy reflecting the damage he had suffered by restoring him to the situation he was in before the enforcement proceedings against the mortgaged property, but, at best, an award of compensation. The purely compensatory nature of the remedy that might be awarded to the consumer would confer on him only incomplete and insufficient protection. It would not constitute either adequate or effective means, within the meaning of Article 7(1) of Directive 93/13, of preventing the continued use of the clause that was found to be unfair.

In the second place, such a procedure for objecting to enforcement places the consumer, as a debtor against whom mortgage enforcement proceedings are brought, in a weaker position compared with the seller or supplier, as a creditor bringing mortgage enforcement proceedings, as regards the judicial protection of the rights that he is entitled to rely on by virtue of Directive 93/13 against the use of unfair clauses, which jeopardises the attainment of the objectives pursued by that directive, the imbalance between the procedural rights available to the parties simply accentuating the imbalance existing between them as parties to the agreement.

(see paras 43, 45, 46, 50, 51, operative part)

7. The principle of equality of arms, together with, among others, the principle audi alteram partem , is no more than a corollary of the very concept of a fair hearing that implies an obligation to offer each party a reasonable opportunity of presenting its case in conditions that do not place it in a clearly less advantageous position compared with its opponent.

(see para. 49)