CELEX: 62019CJ0725
Language: en
Date: 2022-05-17
Title: Judgment of the Court (Grand Chamber) of 17 May 2022.#IO v Impuls Leasing România IFN SA.#Request for a preliminary ruling from the Judecătoria Sector 2 Bucureşti.#Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Principle of equivalence – Principle of effectiveness – Enforcement proceedings in respect of a leasing contract constituting an enforceable instrument – Objection to enforcement – National legislation not allowing the court hearing that objection to determine whether the terms of an enforceable instrument are unfair – Power of the court hearing the enforcement proceedings to examine of its own motion whether a term is unfair – Existence of an action under ordinary law allowing the review of whether those terms were unfair – Requirement of a security in order to suspend the enforcement proceedings.#Case C-725/19.

Provisional text
JUDGMENT OF THE COURT (Grand Chamber)
17 May 2022 (*)
(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Principle of equivalence – Principle of effectiveness – Enforcement proceedings in respect of a leasing contract constituting an enforceable instrument – Objection to enforcement – National legislation not allowing the court hearing that objection to determine whether the terms of an enforceable instrument are unfair – Power of the court hearing the enforcement proceedings to examine of its own motion whether a term is unfair – Existence of an action under ordinary law allowing the review of whether those terms were unfair – Requirement of a security in order to suspend the enforcement proceedings)
In Case C‑725/19,
REQUEST for a preliminary ruling under Article 267 TFEU from the Judecătoria Sectorului 2 Bucureşti (Court of First Instance, Sector 2, Bucharest, Romania), made by decision of 18 September 2019, received at the Court on 1 October 2019, in the proceedings

IO

v

Impuls Leasing România IFN SA,

THE COURT (Grand Chamber),
composed of K. Lenaerts, President, A. Arabadjiev, K. Jürimäe, C. Lycourgos, E. Regan, S. Rodin (Rapporteur) and I. Jarukaitis, Presidents of Chambers, M. Ilešič, J.-C. Bonichot, M. Safjan, F. Biltgen, P.G. Xuereb, N. Piçarra, L.S. Rossi and A. Kumin, Judges,
Advocate General: E. Tanchev,
Registrar: R. Şereş, Administrator,
having regard to the written procedure and further to the hearing on 27 April 2021,
after considering the observations submitted on behalf of:
–        Impuls Leasing România IFN SA, by N.M. Ionescu, avocată,
–        the Romanian Government, by E. Gane, acting as Agent,
–        the European Commission, by N. Ruiz García, C. Gheorghiu and M. Carpus Carcea, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 July 2021,
gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2        The request has been made in proceedings between IO and Impuls Leasing România IFN SA (‘ILR’) concerning an objection to enforcement lodged by the applicant in the main proceedings against enforcement measures relating to a leasing contract.
 Legal context

 European Union law

3        The 24th recital of Directive 93/13 states that ‘the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.

4        Article 6(1) of that 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.’

5        Under Article 7(1) of Directive 93/13:
‘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.’
 Romanian law

6        The Code of Civil Procedure was amended by Legea nr. 310/2018 pentru modificarea și completarea Legii nr. 134/2010 privind Codul de procedură civilă, precum și pentru modificarea și completarea altor acte normative (Law No 310/2018 amending and supplementing Law No 134/2010 on the Code of Civil Procedure, and other normative acts) (Monitorul Oficial al României, Part I, No 1074) of 18 December 2018, which came into force on 21 December 2018.  As the application for enforcement at issue in the main proceedings was lodged on 26 March 2019, it is governed by the provisions of that code, as amended by that law (‘the Code of Civil Procedure, as amended’).

7        Article 24 of the Code of Civil Procedure, as amended, provides:
‘The provisions of the new procedural law shall apply only to proceedings and enforcement proceedings commenced after its entry into force.’

8        Article 632(1) of the Code of Civil Procedure, as amended, provides:
‘Enforcement may be effected only pursuant to an enforceable instrument.’

9        Under Article 638(1)(4) of the Code of Civil Procedure, as amended:
‘Debt instruments or other instruments which are enforceable under the law are also enforceable instruments and may be subject to enforcement.’

10      Article 638(2) of the Code of Civil Procedure, as amended, provides:
‘Suspension of enforcement of the instruments laid down in subparagraph 1, points 2 and 4, may also be applied for in an action on the merits seeking their annulment. The provisions of Article 719 shall apply mutatis mutandis.’

11      Article 713(2) of the Code of Civil Procedure, as amended, provides:
‘If enforcement is implemented under an enforceable instrument other than a court decision, points of fact or law relating to the substance of the right referred to in the enforceable instrument may be raised in support of the objection to enforcement only if the law does not provide for any procedural remedy for the annulment of that instrument, including an action under ordinary law.’

12      Under Article 8 of the Ordonanța Guvernului nr. 51/1997 privind operațiunile de leasing și societățile de leasing (Government Order No 51/1997 on leasing transactions and leasing companies):
‘Leasing contracts and real and personal sureties, constituted in order to guarantee the obligations assumed by the leasing contract, constitute enforceable instruments.’

13      Article 15 of Government Order No 51/1997 provides:
‘Unless otherwise provided for in the contract, where the lessee/user fails to fulfil his or her obligation to pay the lease instalments in full for two consecutive months, calculated from the expiry date laid down in the leasing contract, the lessor/lender shall have the right to terminate the leasing contract, and the lessee/user is required to return the goods and to pay all the amounts due up to the date of repayment under the leasing contract.’

14      Article 10(d) of Government Order No 51/1997 provides:
‘The lessee/user undertakes to pay all sums due under the leasing contract – lease instalments, insurance, taxes, charges – in the amount and within the time limits stipulated in the contract.’

15      Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între profesioniști și consumatori (Law No 193/2000 on unfair terms in contracts concluded between sellers or suppliers and consumers) transposed Directive 93/13 into Romanian law.

16      Under Article 1 of Law  No 193/2000:
‘ 1.      Any contract concluded between a seller or supplier and a consumer for the sale of goods or the provision of services shall contain clear, unequivocal contractual terms which do not require specific knowledge in order to be understood.
2.      Where there is doubt as to the interpretation of any terms of a contract, those terms must be interpreted in favour of the consumer.
3.      Sellers or suppliers are prohibited from inserting unfair terms in consumer contracts.’

17      Article 2 of Law No 193/2000 provides:
‘1.      “Consumer” means any natural person, or group of natural persons forming an association, who, on the basis of a contract falling within the scope of this Law, acts for purposes which are outside his or her trade, business, industry, craft or profession.
2.      “Seller or supplier” means any authorised natural or legal person who, in the context of a contract falling within the scope of this Law, acts  for the purposes of his or her trade, business, industry, craft or profession, as well as any person acting for those same purposes for or on behalf of that person.’

18      Article 4 of Law No 193/2000 provides:
‘1.      A contractual term which has not been directly negotiated with the consumer is regarded as unfair if, considered in isolation or together with other provisions of the contract, it causes, to the detriment of the consumer and contrary to the requirements of good faith, a significant imbalance in the parties’ rights and obligations.
2.      A contractual term shall be regarded as not having been directly negotiated with the consumer if it has been drafted without the consumer having had the opportunity to influence the nature of that term, as in the case of standard contracts or general terms and conditions of sale used by traders operating on the market for the goods or service concerned.
3.      The fact that certain aspects of the contractual terms or only one of those terms has been directly negotiated with the consumer, shall not exclude the application of the provisions of this law to the remainder of the contract if it appears from the overall assessment of the contract that it was unilaterally prepared by the seller or supplier. If a seller or supplier claims that a standard term drafted in advance has been negotiated directly with the consumer, it is for the seller or supplier to provide evidence to that effect.
4.      The annex, which is an integral part of this Law, contains, by way of example, a list of terms regarded as unfair.
5.      Without prejudice to the provisions of this Law, the unfairness of a contractual term shall be assessed according to:
(a)      the nature of the goods or services which form the subject matter of the contract at the time it is concluded;
(b)      all the factors which have led to the conclusion of the contract;
(c)      other contractual terms or other contracts on which it is based.
6.      Assessment of the unfair nature of the terms relates neither to the definition of the main subject matter of the contract nor to the ability to satisfy the price and payment requirements, on the one hand, nor to the goods and services offered in exchange, on the other, in so far as those terms are in plain intelligible language.’

19      Under Article 6 of Law No 193/2000:
‘Unfair terms included in the contract that have been verified either personally or by legally authorised bodies shall not have effect in respect of the consumer and the contract shall continue to produce effects, with the consumer’s consent, only if that remains possible after the unfair terms have been removed.’

20      Paragraph 1(i) of the Annex to Law No 193/2000 provides:
‘Contractual terms which require a consumer who fails to perform his or her contractual obligations to pay compensation in a disproportionately high amount in relation to the damage suffered by the seller or supplier shall be regarded as unfair terms.’
 The dispute in the main proceedings and the question referred for a preliminary ruling

21      On 20 August 2008, IO concluded a leasing contract with ILR for a period of 48 months in respect of a motor vehicle with a value of EUR 7 810.94, excluding value added tax (VAT). It is apparent from the terms of that contract that the value financed was EUR 6 248.75, the interest rate was fixed at 8.25%, the tax on the granting of credit, fixed at 4%, was equivalent to EUR 312.44 and the management fee was EUR 5 per month. That contract provided that, in the event of non-compliance with the contractual obligations, the lessor could either request the enforcement of the lessee’s obligations under the contract, together with payment of damages, or take, cumulatively or alternatively, any measure it deemed necessary or terminate the contract, without prior notice or further formality, without any judicial intervention or arbitration, together with payment of damages.

22      On 7 December 2009, since IO was no longer in a position to pay the agreed lease instalments, the leasing contract at issue was terminated. On 19 March 2010, the motor vehicle concerned, pursuant to the enforceable instrument constituted by that contract, was returned to ILR, then sold on 29 June 2010 for an amount of EUR 5 294.12, including VAT.

23      Following termination, ILR commenced enforcement proceedings on 15 October 2010 in respect of the amount of Romanian lei 12 592.32 (RON) (approximately EUR 2 547), with a view to obtaining recovery of the debts held under the enforceable instrument, namely unpaid invoices relating to lease instalments, court fees, penalties, differences in exchange rates, insurance and recovery costs.

24      On 28 March 2013, ILR applied for enforcement against IO in the amount of  RON 70 601.12 (approximately EUR 14 280). By civil judgment of 13 November 2015, delivered by the Judecătoria Sectorului 1 București (Court of First Instance, Sector 1, Bucharest, Romania), the attachment was validated in respect of a third party.

25      On 16 November 2016, the enforcement order was brought to an end by act  of the court enforcement officer on the ground that IO’s assets did not include any assets that could be attached.

26      On 26 March 2019, ILR filed a further application for enforcement against IO, seeking the liquidation of a debt in the amount of RON 137 502.84 (approximately EUR 27 900), representing the amount of the tax invoices drawn up and unpaid, late payment penalties, the remaining capital financed and not repaid, debts arising from non-performance of contractual obligations and recovery expenses.

27      By order of 12 April 2019, the Judecătoria Sectorului 2 București (Court of First Instance, Sector 2, Bucharest, Romania) approved the enforcement, up to the amount of the sum claimed, plus the costs of enforcement, determined subsequently, by act of the court enforcement officer, in the sum of RON 8 719.29 (approximately EUR 1 764).

28      On 24 May 2019, IO lodged an objection to enforcement. In support of her objection, she argued that the three-year limitation period, during which ILR could apply for and obtain enforcement under the enforceable instrument in the form of the leasing contract, had started to run in 2010, when she stopped paying the lease instalments, and had expired at the date on which ILR lodged the second application for enforcement. She also points out that, for an initial funding of EUR 6 248.75, of which she paid a large part during the period from 2008 to 2010, ILR initiated a second enforcement procedure in 2019 in the amount of approximately EUR 30 000.

29      ILR objects that it has a claim against IO that is certain, of a fixed amount and due, consisting in the remaining capital financed on the date of termination of the leasing contract, interest, late payment penalties, the amount of the insurance premiums paid to the insurer, the recovery commission and the amount of unpaid invoices, a claim from which the amount of the sale price of the vehicle which was the subject of the leasing contract was deducted.

30      The referring court states that the leasing contract on the basis of which the enforcement proceedings were commenced against IO contains certain terms which could be regarded as unfair pursuant to Law No 193/2000, which transposed Directive 93/13 into Romanian law. The referring court states that, under Article 713(2) of the Code of Civil Procedure, before it was amended by Law No 310/2018, it was permissible for a national court to examine the unfairness of contractual terms of leasing contracts in the context of an objection to enforcement if there was no specific procedural remedy for their annulment. On the other hand, under Article 713(2) of that code, as amended, and applicable to the dispute in the main proceedings, that court could now examine the unfairness of such contractual terms only if there is no procedural means of annulling those contracts, including an action under ordinary law. Law No 193/2000 now offers consumers the possibility to bring an action under ordinary law in which a national court can review the possible unfairness of contractual terms.

31      The referring court observes, however, that, in accordance with the principle of effectiveness, national enforcement mechanisms must not make it impossible in practice or excessively difficult to exercise the rights conferred on consumers by EU law. Effective protection of those rights can be guaranteed only on condition that the national procedural system allows for a review of the court’s own motion of the potentially unfair nature of contractual terms in the enforcement proceedings themselves. The referring court is, therefore, uncertain  as to whether Article 713(2) of the Code of Civil Procedure, as amended, is consistent with Directive 93/13, as consumers are now obliged to bring an action under ordinary law, without being able to exercise the rights conferred on them by that directive where they object to enforcement.

32      In those circumstances the Judecătoria Sectorului 2 București (Court of First Instance, Sector 2, Bucharest) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Taking into account the principle of effectiveness, is [Directive 93/13] to be interpreted as precluding national legislation, such as the Romanian legislation in force concerning the conditions under which an objection to enforcement is admissible, namely Article 713(2) of the Code of Civil Procedure [as amended], … pursuant to which, in the context of an objection to enforcement, the examination, at the request of the consumer or by the court acting of its own motion, of whether the terms of a leasing contract that constitutes the enforceable instrument are unfair is precluded because it is possible to bring an action under ordinary law in which a contract concluded between a “consumer” and a “seller or supplier” may be examined in order to determine whether it contains unfair terms within the meaning of that directive?’
 The jurisdiction of the Court

33      ILR claims that the Court lacks jurisdiction to hear and determine the present request for a preliminary ruling, on the ground that that request concerns the interpretation of national law.

34      In that regard, it is necessary to state that, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 76 and the case-law cited). In such proceedings, the jurisdiction of the Court is thus confined to considering provisions of EU law alone (judgment of 11 July 2018, Somoza Hermo and Ilunión Seguridad, C‑60/17, EU:C:2018:559, paragraph 44).

35      That is the case here.

36      It is sufficient to note that the referring court asks the Court about the interpretation of Directive 93/13 in order to be able to resolve a dispute relating to a contract concluded between a seller or supplier and a consumer.

37      It follows that the Court has jurisdiction to rule on the present request for a preliminary ruling.
 Consideration of the question referred

38      By its question, the referring court asks whether Directive 93/13 must be interpreted as precluding national legislation which does not allow the court hearing enforcement proceedings, before which an objection to enforcement of a leasing contract concluded between a consumer and a seller or supplier,  which constitutes an enforceable instrument,  has been brought, to assess, of its own motion or at the request of the consumer, whether the terms of that contract are unfair, on the ground that there is an  action under ordinary law in which the unfairness of the terms of such a contract may be reviewed by the court hearing that action.

39      According to settled case-law of the Court, 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 or her bargaining power and his or her level of knowledge (see, in particular, judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 40 and the case-law cited).

40      As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on consumers. It is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see, in particular, judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 53 and 55, and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 41).

41      In that context, the Court has held on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task (judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 46 and the case-law cited; of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 58; and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 43).

42      In addition, Directive 93/13, as is apparent from Article 7(1) in conjunction with the 24th recital of that directive, obliges the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 44 and the case-law cited).

43      While the Court has already 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 national courts 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; nevertheless, those procedures must be no less favourable than those governing similar domestic actions (principle of equivalence) and not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, in particular, judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraphs 45 and 46 and the case-law cited).

44      As regards the principle of equivalence, it should be noted that there is no evidence before the Court which calls into question whether the national legislation at issue in the main proceedings complies with that principle.

45      As regards the principle of effectiveness, the Court has held that every case in which the question arises whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, and, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 22 April 2021, Profi Credit Slovakia, C‑485/19, EU:C:2021:313, paragraph 53). Moreover, the specific characteristics of court proceedings cannot constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13 (judgment of 21 April 2016, Radlinger & Radlingerová, C‑377/14, EU:C:2016:283, paragraph 50 and the case-law cited).

46      In addition, the Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, reaffirmed in Article 7(1) of that directive and also guaranteed 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, judgment 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).

47      In this respect, the Court has ruled that, without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed (judgment of 4 June 2020, Kancelaria Medius, C‑495/19, EU:C:2020:431, paragraph 35 and the case-law cited).

48      It follows that the conditions laid down in the national laws, to which Article 6(1) of Directive 93/13 refers, may not adversely affect the substance of the right that consumers acquire under that provision not to be bound by a term deemed to be unfair (judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 71, and of 26 January 2017, Banco Primus, C 421/14, EU:C:2017:60, paragraph 51).

49      Thus, the Court has already observed that effective protection of the rights conferred on the consumer by 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 the terms of the contract concerned are unfair (see, in particular, judgments of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 46, and of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 44).

50      In that regard, the Court has held that, in a case in which no examination of its own motion by the court of the potentially unfair nature of terms in the contract concerned is provided for 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  and the case-law cited).

51      The Court has also ruled that Directive 93/13 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 (order of 14 November 2013, Banco Popular Espaňol and Banco de Valencia, C‑537/12 and C‑116/13, EU:C:2013:759, paragraph 60, and judgment of 17 July 2014, Sánchez Morcillo and Abril Garcia, C‑169/14, EU:C:2014:2099, paragraph 28).

52      In the case in the main proceedings, it is apparent from the documents before the Court that the referring court, by order of 12 April 2019, approved the enforcement of the contract at issue. Furthermore, it appears that the possible unfairness of the terms of that contract has not been the subject of any prior judicial review.

53      It is apparent from the order for reference that Article 713(2) of the Code of Civil Procedure, as amended, no longer permits the court hearing the enforcement proceedings to review, in the context of an objection to enforcement, either of its own motion or at the request of the consumer, whether the terms of a leasing contract forming an enforceable instrument  are unfair, on the ground that that review may be carried out by the court having jurisdiction to rule on the substance of the case in an action under ordinary law, which is not subject any time limit, that court having power to suspend the enforcement proceedings under Law No 193/2000.

54      In that regard, it should be noted that, in paragraph 61 of the judgment of 26 June 2019, Addiko Bank (C‑407/18, EU:C:2019:537), 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.

55      Indeed, the Court has held 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, contrary to what is provided for in 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, not published, EU:C:2019:950, paragraph 32 and the case-law cited).

56      It is true that, unlike the factual and procedural circumstances of Banco Popular Español and Banco de Valencia and Sánchez Morcillo and Abril García, which gave rise, respectively, to the order of 14 November 2013 (C‑537/12 and C‑116/13, EU:C:2013:759) and to the judgment of 17 July 2014 (C‑169/14, EU:C:2014:2099), in which national law did not allow the court to adopt interim measures pending the examination of the contractual terms on the substance, in the present case the court having jurisdiction to rule on the substance of the case before which an action has been brought which is separate from that relating to the enforcement proceedings has a discretion to suspend those proceedings.

57      However, it is apparent from the observations of the Commission, which have not been challenged by the Romanian Government, that, in that separate action before the court having jurisdiction to rule on the substance of the case, the consumer seeking suspension of the enforcement proceedings is required to pay a security calculated on the basis of the value of the subject matter of the action.

58      In that regard, it is clear from the case-law cited in paragraph 50 of the present judgment that the costs which legal proceedings would entail in relation to the amount of the disputed debt must not be such as to dissuade the consumer from bringing court proceedings for the purpose of assessing the potential unfairness of the contractual terms (see, to that effect, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 54; of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraphs 52 and 54; and of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraph 46).

59      However, it is likely that a debtor in default does not have the financial resources necessary to provide the guarantee required (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 60). That is all the more so where, as the Advocate General observed in point 58 of his Opinion, the value of the subject matter of the actions brought greatly exceeds the total value of the contract, as appears to be the case here.

60      It follows from all those considerations that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation which does not allow the court hearing the enforcement proceedings in respect of a debt, before which an objection to enforcement has been lodged, to assess, of its own motion, or at the request of the consumer, whether the terms of a contract concluded between a consumer and a seller or supplier which constitutes an enforceable instrument are unfair, where the court having jurisdiction to rule on the substance of the case, which may be seised of a separate action under the ordinary law with a view to an assessment as to whether the terms of that contract are unfair, may only suspend the enforcement proceedings until a decision has been given on the substance if a security  is paid at a level that is likely to dissuade the consumer from bringing and maintaining such an action.
 Costs

61      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Grand Chamber) hereby rules:

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 national legislation which does not allow the court hearing the enforcement proceedings in respect of a debt, before which an objection to enforcement has been lodged, to assess, of its own motion, or at the request of the consumer, whether the terms of a contract concluded between a consumer and a seller or supplier which constitutes an enforceable instrument are unfair, where the court having jurisdiction to rule on the substance of the case, which may be seised of a separate action under the ordinary law with a view to an assessment as to whether the terms of that contract are unfair, may only suspend the enforcement proceedings until a decision has been given on the substance if a security is paid at a level that is likely to dissuade the consumer from bringing and maintaining such an action.

[Signatures]

*      Language of the case: Romanian.