Barclays Bank SA v Sara Sánchez García and Alejandro Chacón Barrera.
Date: 2014-04-30
30. It must also be recalled that, under Article 1(2) of that directive ‘[t]he contractual terms which reflect mandatory statutory or regulatory provisions and the provisions … shall not be subject to the provisions of this Directive.’
31. Furthermore, in accordance with the thirteenth recital in the preamble to that directive, Article 1(2) of Directive 93/13 ‘also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’.
32. In that connection, it is settled case-law that the system of protection introduced by the directive 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 (Case C‑415/11 Aziz  EU:C:2013:164, paragraph 44).
33. As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. As is apparent from the case-law, that 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 ( Aziz , EU:C:2013:164, paragraph 45).
34. In that context, the Court has already stated 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 ( Aziz  EU:C:2013:164, paragraph 46 and the case-law cited).
35. Furthermore, the Court has held, in paragraph 64 of Aziz  EU:C:2013:164, that that directive must be interpreted as precluding legislation of a Member State that does not permit the court hearing an application for a payment order to determine of its own motion, in limine litis or at any other time, even when it has available to it the matters of law and fact necessary to that end, whether a default interest clause in a contract concluded between a seller or supplier and a consumer is unfair, facing objection by the consumer (Case C‑618/10 Banco Español de Crédito  EU:C:2012:349, paragraph 57).
36. In addition, the Court held, in paragraph 64 of Aziz , that that directive must be interpreted as meaning that it precludes the legislation of a Member State which, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, does not permit the court before which declaratory proceedings have been brought, which does have jurisdiction to assess the unfairness of such a term, to grant interim relief, including, in particular, the staying of those enforcement proceedings, where the grant of such relief is necessary to guarantee the full effectiveness of its final decision.
37. In that regard, there being no harmonisation of the national mechanisms for enforcement, the rules for giving effect to the grounds of objection allowed in mortgage enforcement proceedings and the powers conferred on the court hearing the enforcement proceedings to analyse the lawfulness of the terms of contracts concluded with consumers are a matter for the national legal order of the Member States, in accordance with the principle of the procedural autonomy of the latter, on condition, however, that they are no less favourable than those governing similar domestic actions (principle of equivalence) and do not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness) (see, by analogy, Aziz , paragraph 50).
39. In the case in the main proceedings, the national court does not invoke any contractual term that could be classified as unfair. The four questions concern the compatibility of the national laws and regulation with Directive 93/13. None of the national provisions at issue in the main proceedings is contractual in nature. Furthermore, unlike the cases which gave rise to the judgments in Banco Español de Crédito  EU:C:2012:349 and Aziz EU:C:2013:164, none of those provisions relates to the extent of the powers of the national courts to determine whether a contractual term is unfair.
40. The national provisions which are the subject of the reference for a preliminary ruling are laws or regulations and are not set out in the contract at issue in the main proceedings. Such provisions do not fall within the scope of that directive which aims to prohibit unfair terms in contracts concluded with consumers.
41. Unlike the case which gave rise to the judgment in Case C‑92/11 RWE Vertrieb EU:C:2013:180, paragraph 25, in which, according to paragraphs 29 to 38 of that judgment, the parties agreed to extend the scope of rules laid down by the national legislature, the national statutory and regulatory provisions to which those questions relate are applicable without any modification of the area covered or of the extent of that coverage by means of a contractual term. Therefore, it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts (see, to that effect RWE Vertrieb  EU:C:2013:180, paragraph 28). The EU legislature has explicitly decided to presume the balance as is clear from the wording of the twentieth recital in the preamble and Article 1(2)of Directive 93/13.
42. Furthermore, the national statutory and regulatory provisions at issue in the main proceedings apply between the contracting parties where no other arrangement has been agreed. Therefore, in accordance with the thirteenth recital in the preamble to Directive 93/13, they are covered by Article 1(2) of that directive, according to which they are ‘not [to] be subject to the provisions of this Directive’. Therefore, that directive is not applicable in any event.