Profi Credit Polska S.A. w Bielsku Białej v Mariusz Wawrzosek.
Date: 2018-09-13
34


First of all, it should be pointed out that, whilst Article 17(1) of Directive 2008/48 refers to the assignment of the creditor’s rights to a third party, it is not in dispute, in the circumstances at issue in the main proceedings, that the beneficiary of the promissory note and the creditor are the same legal entity.
35


In addition, whilst Directive 87/102, which was repealed by Directive 2008/48, covered promissory notes in Article 10, Directive 2008/48 — as the Advocate General has observed in point 34 et seq. of her Opinion — no longer refers to those instruments.
36


As Directive 2008/48 did not effect harmonisation in the field of promissory notes as security for consumer credit, Article 22(1) thereof is not applicable either in circumstances such as those at issue in the main proceedings.
37


Therefore, the questions asked by the referring court will be answered solely in the light of the provisions of Directive 93/13.
40


Given the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers, Directive 93/13, as is apparent from Article 7(1) thereof, read in conjunction with its 24th recital, 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 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 56 and the case-law cited).
41


To this end, the national court has the task of purely and simply excluding the application of an unfair contractual term in order that it does not produce any binding effect with regard to the consumer, without being authorised to revise its content (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 57 and the case-law cited).
42


Against that background, it should, in the first place, be pointed out that, whilst, in accordance with settled case-law, a national court is bound to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair and by so doing to compensate for the imbalance existing between the consumer and the seller or supplier, that is so only if the national court has available to it the legal and factual elements necessary for that task (see, to that effect, judgments of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 52 and the case-law cited, and of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 58).
44


Indeed, effective protection of the rights conferred on the consumer by Directive 93/13 can be guaranteed only if 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 (see, to that effect, judgment of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 46, and order of 21 June 2016, Aktiv Kapital Portfolio, C‑122/14, not published, EU:C:2016:486, paragraph 30).
47


It follows that, in circumstances such as those at issue in the main proceedings, a national court is not in a position to examine whether a contractual term is unfair as long as it does not have available to it all the factual and legal elements for that purpose.
55


Indeed, every case in which the question arises as to whether a national procedural provision affects the right to an effective remedy must be analysed by reference to the role of that provision in the procedure as a whole before the various national bodies, the procedure’s conduct and its special features (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 50 and the case-law cited).
57


Whilst the Court has already defined, in a number of respects and taking account of the requirements of Articles 6(1) and 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, on condition, however, that they are not less favourable than those governing similar situations subject to domestic law (principle of equivalence) and that they provide for a right to an effective remedy, as required by Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgments of 14 September 2017, The Trustees of the BT Pension Scheme, C‑628/15, EU:C:2017:687, paragraphs 58 and 59 and the case-law cited, and of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 35 and the case-law cited).
59


So far as concerns the right to an effective remedy, the obligation resulting from Article 7(1) of Directive 93/13 to lay down detailed procedural rules that ensure observance of the rights which individuals derive from Directive 93/13 combating the use of unfair terms implies a requirement that there be a right to an effective remedy, a requirement also enshrined in Article 47 of the Charter of Fundamental Rights. The right to an effective remedy must apply both as regards the designation of courts having jurisdiction to hear and determine actions based on EU law and as regards the detailed procedural rules relating to such actions (see, to that effect, judgment of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 49 and the case-law cited).
61


As the Advocate General has noted in point 77 of her Opinion, in order to determine whether a procedure, such as that at issue in the main proceedings, infringes a right to an effective remedy, the referring court must, as is apparent from the Court’s case-law, determine whether the detailed rules of the opposition procedure which national law lays down give rise to a significant risk that the consumers concerned will not lodge the objection required (see, to that effect, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 54; of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 58; and of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 52).
62


Indeed, 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 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 46 and the case-law cited).
63


The adequate and effective means that are to guarantee consumers a right to an effective remedy must include the possibility of bringing an action or lodging an objection under reasonable procedural conditions, so that the exercise of their rights is not subject to conditions, in particular time limits or costs, which reduce exercise of the rights guaranteed by Directive 93/13 (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 46 and the case-law cited).
69


There is a significant risk that the consumers concerned will not lodge the objection required, be it because of the particularly short period prescribed 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 they are unaware of or do not appreciate the extent of their rights, or indeed because of the limited content of the application for the order for payment lodged by the seller or supplier, and thus the incomplete nature of the information available to them (see, to that effect, judgment of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 52 and the case-law cited, and order of 21 June 2016, Aktiv Kapital Portfolio, C‑122/14, not published, EU:C:2016:486, paragraph 37).