EOS KSI Slovensko s.r.o. v Ján Danko and Margita Danková.
Date: 2018-09-20
30


According to the referring court, in the case in the main proceedings, Slovak law was applied less favourably than in a situation without any elements of EU law, contrary to the case-law laid down in the judgment of 27 February 2014, Pohotovost’ (C‑470/12, EU:C:2014:101, paragraph 46). In a situation which is not covered by EU law, the dispute arises on the day on which the originating application is lodged before the national court, so that the intervener is authorised to intervene in the proceedings from its inception.
31


Finally, as regards the contract term at issue in the main proceedings concerning the APR, the referring court considers that it is not clear and is contrary to public policy, so that, in accordance with Slovak law, the loan at issue should be deemed not to give rise to interest or costs. In the opinion of that court, such a penalty is proportional and dissuasive with regard to the requirements laid down by the Court in the judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraphs 65 and 69).
34


In that regard, it should be observed that Article 7(1) of Directive 93/13 requires the Member States to ensure that adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers. In that regard, it is apparent from Article 7(2) thereof that the aforementioned means are to include the possibility for persons or organisations having a legitimate interest under national law in protecting consumers to take action in order to obtain a judicial decision as to whether contract terms drawn up for general use are unfair and, where appropriate, to have them prohibited (judgment of 27 February 2014, Pohtovost’, C‑470/12, EU:C:2014:101, paragraph 43 and the case-law cited).
35


However, it must be noted that neither Directive 93/13 nor the directives which followed it, adding to the legislative framework of the protection of consumers, contain any provision governing the role which may or must be accorded to consumer protection associations in individual disputes involving a consumer. Thus, Directive 93/13 does not govern whether such associations must be entitled to intervene in support of consumers in such individual disputes (judgment of 27 February 2014, Pohtovost’, C‑470/12, EU:C:2014:101, paragraph 45).
36


It follows that, in the absence of European Union legislation concerning the possibility for consumer protection associations to intervene in individual disputes involving consumers, 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 situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by European Union law (principle of effectiveness) (see, to that effect, judgment of 27 February 2014, Pohtovost’, C‑470/12, EU:C:2014:101, paragraph 46).
38


In that connection, it must be recalled that the principle of equivalence requires that a national rule be applied without distinction to procedures based on EU law and those based on national law (see, to that effect, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 30).
41


Second, as regards the principle of effectiveness, the Court has already held that the refusal to grant the association leave to intervene in proceedings involving a consumer does not affect its right to an effective judicial remedy to protect its rights as an association of that kind, including its rights to collective action as recognised by Article 7(2) of Directive 93/13. Incidentally, it must be added that, under the national legislation at issue in the main proceedings, an association may directly represent such a consumer in any proceedings, including enforcement proceedings, if mandated to do so by the latter (see, to that effect, judgment of 27 February 2014, Pohtovost’, C‑470/12, EU:C:2014:101, paragraphs 54 and 55).
45


In that connection, it must be recalled that the effective protection of the rights under 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 terms of the contract concerned are unfair (see, to that effect, judgment of 18 February 2016, FinanmadridEFC, C‑49/14, EU:C:2016:98, paragraphs 45 and 46).
46


Thus, in a case in which examination of its own motion by the court of the potentially unfair nature of terms in the contract concerned is provided for only 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 (see, by analogy, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 54, and of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 52).
49


In that connection, it must be noted that preserving the effectiveness of Directive 93/13 precludes a national law which allows an order for payment to be issued without allowing the consumer to benefit, at any time during the proceedings, from the guarantee of a check that there are no unfair terms in the contract concerned undertaken by a court (see, to that effect, judgment of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 45).
56


In that regard, it should be recalled that, according to the settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 28 and the case-law cited).
57


Furthermore, it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 29 and the case-law cited).
61


In that connection, the Court has had the opportunity to state that the requirement of transparency of contractual terms, also repeated in Article 5 thereof, cannot be reduced merely to their being formally and grammatically intelligible, but that, to the contrary, since the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, in particular as regards his level of knowledge, that requirement of plain and intelligible drafting of contractual terms and, therefore, the requirement of transparency laid down by the directive must be understood in a broad sense (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 44 and the case-law cited).
63


The Court has already held, as regards Directive 87/102, that, having regard to the objective of consumer protection pursued by that directive against unfair credit terms and of enabling him to have full knowledge of the terms of the future performance of the agreement entered into at the time of concluding such an agreement, Article 4 of that directive required that the borrower must have to hand all information which could have a bearing on the extent of his liability (judgment of 9 July 2015, Burcura, C‑348/14, not published, EU:C:2015:447, paragraph 57 and the case-law cited).