Mohamed Aziz v Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa).
Date: 2013-03-14
34. In that regard, it should be stated at the outset 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. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case C-618/10 Banco Español de Crédito  [2012] ECR I-0000, paragraph 76 and case-law cited).
35. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union 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 ( Banco Español de Crédito , paragraph 77 and case‑law cited).
39. In those circumstances, and taking into account the fact that it is for the Court to provide the referring court with an answer which will be of use to it and enable it to determine the case before it (see Case C‑88/99 Roquette Frères  [2000] ECR I‑10465, paragraph 18, and Case C-384/08 Attanasio Group  [2010] ECR I-2055, paragraph 19), it must be concluded that it is not obvious that the interpretation of European Union law sought in the first question bears no relation to the actual facts of the main action or its purpose.
41. As stated by the Advocate General in points 62 and 63 of her Opinion, although the application for annulment sought by Mr Aziz in the main proceedings relates only to the validity of clause 15 of the loan agreement, suffice it to note that, first, in accordance with Article 4(1) of the directive, an overall analysis of the other contractual terms referred to in that question can affect the assessment of the term at issue in those proceedings and, second, the national court is bound, in accordance with the case-law of the Court, to examine of its own motion all the contractual terms falling with the scope of the directive to ascertain whether they are unfair, even in the absence of an express application to that effect, where it has available to it the legal and factual elements necessary for that task (see, to that effect, Case C-243/08 Pannon GSM [2009] ECR I-4713, paragraphs 31 and 32, and Banco Español de Crédito , paragraph 43).
44. In replying to that question, it should be noted first 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 ( Banco Español de Crédito , paragraph 39).
45. 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 (see Banco Español de Crédito , paragraph 40 and case-law cited).
46. 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 the directive 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 ( Pannon GSM , paragraphs 31 and 32, and Banco Español de Crédito , paragraphs 42 and 43).
47. Thus, in ruling on a request for a preliminary ruling submitted by a national court before which inter partes  proceedings, initiated following an objection lodged by a consumer against an order for payment, had been brought, the Court held that that national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer falls within the scope of the directive and, if it does, assess of its own motion whether such a term is unfair (Case C-137/08 VB Pénzügyi Lízing [2010] ECR I-10847, paragraph 56).
48. The Court has also held that the directive precludes legislation of a Member State which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis  or at any other stage during the proceedings, even though it already has the legal and factual elements necessary in that regard, whether a term concerning interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, where that consumer has not lodged an objection ( Banco Español de Crédito , paragraph 57).
50. In that regard, in the absence of harmonisation of the national mechanisms for enforcement, the rules implementing the grounds of objection allowed in mortgage enforcement proceedings and the powers conferred on the court hearing the declaratory proceedings, which enjoys jurisdiction to analyse the lawfulness of the contractual clauses on the basis of which the right to seek enforcement was established, are a matter for the national legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, 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 European Union law (principle of effectiveness) (see, to that effect, Case C-168/05 Mostaza Claro  [2006] ECR I-10421, paragraph 24, and Case C-40/08 Asturcom Telecomunicaciones [2009] ECR I-9579, paragraph 38).
52. It is apparent from the case-file that the Spanish rules of procedure not only do not allow the court hearing declaratory proceedings linked to mortgage enforcement proceedings to adopt interim measures guaranteeing the full effectiveness of its final decision where it assesses whether a term contained in a contract concluded between a seller or supplier and a consumer is unfair in the light of Article 6 of the directive but also where it assesses whether such a term conflicts with national rules of public policy, which is, nevertheless, for the national court to ascertain (see, to that effect, Banco Español de Crédito , paragraph 48).
53. As regards the principle of effectiveness, it is the Court’s settled case‑law that every case in which the question arises as to whether a national procedural provision makes the application of European Union 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, before the various national bodies (see Banco Español de Crédito , paragraph 49).
55. Under Article 698 of the Code of Civil Procedure, any other application made by the debtor, including claims concerning nullity of title, maturity, certainty, extinguishment or the amount of the debt, is to be settled by an appropriate judgment, without having the effect of staying or terminating the judicial enforcement proceedings provided for in the chapter concerned.
56. In addition, according to Article 131 of the Law on mortgages, preliminary registrations of an application for annulment of a mortgage or the other entries in the register not based on one of the cases which may lead to staying of enforcement are to be cancelled pursuant to the order on annulment referred to in Article 133 of that law, provided that such entries postdate the marginal note regarding issue of the security certificate.
57. It follows from the above that, under Spanish rules of procedure, the final vesting of mortgaged property in a third party is always irreversible, even if the unfairness of the term challenged by the consumer before the court hearing the declaratory proceedings results in the annulment of the mortgage enforcement proceedings, except where that consumer made a preliminary registration of the application for annulment of the mortgage before that marginal note.
58. In that regard, taking into account the progress and the special features of the mortgage enforcement proceedings at issue in the main proceedings, such an eventuality must however be regarded as remote because there is a s ignificant risk that the consumer in question will not make that preliminary registration within the period prescribed for that purpose, either because of the rapidity of the enforcement proceedings in question or because he is unaware of or does not appreciate the extent of his rights (see, to that effect, Banco Español de Crédito , paragraph 54).
59. It must therefore be held that such procedural rules impair the protection sought by the directive, in so far as they render it impossible for the court hearing the declaratory proceedings – before which the consumer has brought proceedings claiming that the  contractual term on which the right to seek enforcement is based is unfair – to grant interim relief capable of staying or terminating the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of its final decision (see, to that effect, Case C-432/05 Unibet  2007 ECR I-2271, paragraph 77).
60. As also observed by the Advocate General in point 50 of her Opinion, without that possibility, where, as in the main proceedings, enforcement in respect of the mortgaged immovable property took place before the judgment of the court in the declaratory proceedings declaring unfair the contractual term on which the mortgage is based and annulling the enforcement proceedings, that judgment would enable that consumer to obtain only subsequent protection of a purely compensatory nature, which would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of that term, contrary to Article 7(1) of Directive 93/13.
61. That applies all the more strongly where, as in the main proceedings, the mortgaged property is the family home of the consumer whose rights have been infringed, since that means of consumer protection is limited to payment of damages and interest and does not make it possible to prevent the definitive and irreversible loss of that dwelling.
62. As also observed by the referring court, it would thus be sufficient for sellers or suppliers, if the conditions are satisfied, to initiate such mortgage enforcement proceedings so as to deprive consumers, in essence, of the protection intended by the directive, that being also contrary to the Court’s case-law, according to which the specific characteristics of court proceedings, which take place under national law between sellers or suppliers and consumers, cannot constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of that directive (see, to that effect, Banco Español de Crédito , paragraph 55).
64. In the light of those considerations, the answer to the first question is that the directive must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, 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.
The second question
66. In that regard, according to settled case-law, the relevant jurisdiction of the Court extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of the directive and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of the directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case. It is thus clear that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (see Case C-472/10 Invitel  [2012] ECR I-0000, paragraph 22 and case-law cited).
67. That being so, it should be noted that, in referring to concepts of good faith and significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, Article 3(1) of the directive merely defines in a general way the factors that render unfair a contractual term that has not been individually negotiated (see Case C‑237/02 Freiburger Kommunalbauten  [2004] ECR I‑3403, paragraph 19, and Pannon GSM , paragraph 37).
68. As stated by the Advocate General in point 71 of her Opinion, in order to ascertain whether a term causes a ‘significant imbalance’ in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, it must in particular be considered what rules of national law would apply in the absence of an agreement by the parties in that regard. Such a comparative analysis will enable the national court to evaluate whether and, as the case may be, to what extent, the contract places the consumer in a legal situation less favourable than that provided for by the national law in force. To that end, an assessment should also be carried out of the legal situation of that consumer having regard to the means at his disposal, under national legislation, to prevent continued use of unfair terms.
69. With regard to the question of the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the Advocate General in point 74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
70. In that regard, it should be recalled that the annex, to which Article 3(3) of the directive refers, contains only an indicative and non-exhaustive list of terms which may be regarded as unfair (see Invitel , paragraph 25 and case-law cited).
71. Furthermore, pursuant to Article 4(1) of the directive, the unfairness of a contractual term is to be assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of it ( Pannon GSM , paragraph 39, and VB Pénzügyi Lízing , paragraph 42). It follows that, in that respect, the consequences of the term under the law applicable to the contract must also be taken into account, requiring consideration to be given to the national legal system ( Freiburger Kommunalbauten , précité, paragraph 21, and the order in Case C‑76/10 Pohotovosť [2010] ECR I-11557, paragraph 59).
73. In particular, with regard, first, to the term concerning acceleration, in long-term contracts, on account of events of default occurring within a limited specific period, it is for the referring court to assess in particular, as stated by the Advocate General in points 77 and 78 of her Opinion, whether the right of the seller or supplier to call in the totality of the loan is conditional upon the non-compliance by the consumer with an obligation which is of essential importance in the context of the contractual relationship in question, whether that right is provided for in cases in which such non-compliance is sufficiently serious in the light of the term and amount of the loan, whether that right derogates from the relevant applicable rules and whether national law provides for adequate and effective means enabling the consumer subject to such a term to remedy the effects of the loan being called in.
75. With regard, finally, to the term concerning the unilateral determination by the lender of the amount of the unpaid debt, linked to the possibility of initiating mortgage enforcement proceedings, it must be held that, taking into account paragraph 1(q) of the annex to the directive and the criteria contained in Articles 3(1) and 4(1) thereof, the referring court must in particular assess whether and, if appropriate, to what extent, the term in question derogates from the rules applicable in the absence of agreement between the parties, so as to make it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence.