Jorge Sales Sinués and Youssouf Drame Ba v Caixabank SA and Catalunya Caixa SA (Catalunya Banc S.A.).
Date: 2016-04-14
22


As regards, first, the individual action brought by a consumer, the system of protection established 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 (see judgment in Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 27 and the case-law cited).
23


In order to guarantee that protection, the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract (judgment in Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 31).
24


In that context, the national court is required to assess of its own motion the unfairness of a contractual term by taking account, as required by Article 4(1) of Directive 93/13, of the nature of the goods or services that form the subject matter of the contract and by reference, on the date on which the contract was concluded, to all the circumstances attending its conclusion, as well as all the other clauses of that contract or of a contract on which it is dependent (see, to that effect, judgment in Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 32).
25


However, if the national court were to find that a clause is unfair, the right to effective consumer protection also includes the option not to assert one’s rights, with the effect that the national court must take into account, where appropriate, the intention expressed by the consumer when, conscious of the non-binding nature of an unfair term, that consumer states nevertheless that he is opposed to that term being disregarded, thus giving his free and informed consent to the term in question (see judgment in Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 35).
26


As regards, on the other hand, actions brought by persons or organisations having a legitimate interest in protecting consumers as referred to in Article 7(2) of Directive 93/13, it must be noted that such persons or organisations are not in an inferior position vis-à-vis the seller or supplier (judgment in Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 49).
27


Without denying the importance of the essential role that they must be able to play in order to achieve a high level of consumer protection within the European Union, it must nevertheless be noted that an action for an injunction pitting such an association against a seller or supplier is not characterised by the same imbalance that is present in an individual action brought by a consumer against a seller or supplier (see judgment in Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 50).
28


Such a differentiated approach is, moreover, supported by Article 4(1) of Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests (OJ 1998 L 166, p. 51) and by Article 4(1) of Directive 2009/22/EC 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) which succeeded it, under which it is the courts of the Member State in which the defendant is established or has its address that have jurisdiction to hear actions for an injunction brought by consumer-protection associations from other Member States in the event of an intra-EU infringement of European Union consumer-protection legislation (judgment in Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 51).
29


It should be added that the deterrent nature and dissuasive purpose of actions for an injunction, together with their independence of any particular dispute, mean that such actions may be brought even though the terms which it is sought to have prohibited have not been used in specific contracts (judgment in Invitel, C‑472/10, EU:C:2012:242, paragraph 37).
31


Although that directive does not seek to harmonise the penalties applicable in the event of a term being found to be unfair in the context of those actions, Article 7(1) of Directive 93/13 nevertheless requires the Member States to ensure that adequate and effective means exist to bring an end to the use of unfair terms in contracts concluded with consumers (judgment in Invitel, C‑472/10, EU:C:2012:242, paragraph 35).
32


In that context, it should nevertheless be noted that, in the absence of harmonisation of procedural means governing the relationship between collective and individual actions as provided for under Directive 93/13, it is for the internal legal order of each Member State, under the principle of procedural autonomy, to establish such rules, on condition, however, that they are not less favourable than those governing similar situations subject to domestic law (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law on consumer protection associations (principle of effectiveness) (see, by way of analogy, judgment in Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 30 and the case-law cited).
34


As regards, second, the principle of effectiveness, the Court has previously held that every case in which the question arises as to 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 conduct and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration the principles which form the basis of the national legal system, such as the principle of legal certainty and the authority of judicial decisions (see, to that effect, judgment in BBVA, C‑8/14, EU:C:2015:731, paragraph 26 and the case-law cited).