SC Raiffeisen Bank SA and BRD Groupe Societé Générale SA v JB and KC.
Date: 2020-07-09
46


In that regard, it should be recalled that in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. 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 EU law, the Court is in principle bound to give a ruling (judgment of 26 May 2011, Stichting Natuur en Milieu and Others, C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 47).
51


In view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6 of the directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy (judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 89).
52


Also, given the nature and significance of the public interest constituted by the protection of consumers, 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 (judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 78, and of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 56).
53


To do this, it is for the national courts to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (see, to that effect, judgment of 7 November 2019, Profi Credit Polska, C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 47).
54


It follows, according to the Court’s case-law, that Article 6(1) of Directive 93/13 must be interpreted as meaning that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he would have been in if that term had not existed. It follows that the obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 61 and 62).
55


It is true that, according to the Court’s case-law, the protection conferred on consumers by Directive 93/13 precludes a national provision which prohibits a national court, on expiry of a limitation period, from finding that a term of the contract is unfair (judgment of 21 November 2002, Cofidis, C‑473/00, EU:C:2002:705, paragraph 38).
56


However, the Court has previously held that consumer protection is not absolute (judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 68) and that, in the interests of legal certainty it is compatible with EU law to lay down reasonable time limits for bringing proceedings (judgments of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 41, and of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 69).
57


In that regard, it follows from the settled case-law of the Court that, in the absence of rules under EU law, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render practically impossible or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, inter alia, judgment of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 24 and the case-law cited).
60


As regards, in the first place, the principle of effectiveness, it is settled case-law that the question whether a national 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 progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 48 and the case-law cited).
61


Those aspects must be taken into account in the analysis of the characteristics of the period at issue in the main proceedings. As the Advocate General noted in point 70 of his Opinion, that analysis must cover, inter alia, the duration of that time limit and the mechanism adopted to start that period running (see also, by analogy, judgment of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraph 27).
62


In that regard, it is apparent from the Court’s case-law that reasonable time limits for bringing proceedings, laid down in the interests of legal certainty, are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order, if such time limits are sufficient in practical terms to enable a consumer to prepare and bring an effective action (judgment of 29 October 2015, BBVA, C‑8/14, EU:C:2015:731, paragraphs 28 and 29).
65


However, since, according to the interpretation of national law favoured by the referring court, the limitation period starts to run on the date on which the agreement was performed in full, it is necessary to take into account the fact that it is possible that the consumers are not aware of the unfair nature of a term in the agreement concluded with a seller or supplier or do not appreciate the extent of their rights deriving from Directive 93/13 (see, to that effect, judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 69) either at the time or after the contract has been performed in full.
66


In addition, it must be borne in mind that the system of protection implemented 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 or her bargaining power and his or her level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (judgment of 19 December 2019, Bondora, C‑453/18 and C‑494/18, EU:C:2019:1118, paragraph 40 and the case-law cited).
69


In this regard, it should be noted that, as the 10th recital of Directive 93/13 states, the uniform rules of law in the matter of unfair terms laid down by that directive should apply to ‘all contracts’ concluded between ‘sellers or suppliers’ and ‘consumers’, as defined in Article 2(b) and (c) of that directive (judgment of 21 March 2019, Pouvin and Dijoux, C‑590/17, EU:C:2019:232, paragraph 19).
70


According to Article 2(b) of Directive 93/13, a ‘consumer’ is any natural person who, in contracts covered by the directive, is acting for purposes which are outside his trade, business or profession (judgment of 21 March 2019, Pouvin and Dijoux, C‑590/17, EU:C:2019:232, paragraph 22).
76


As regards the principle of equivalence, it is apparent from the Court’s case-law that compliance with that principle requires the national rule in question to apply without distinction to action based on an infringement of EU law and those based on an infringement of national law having a similar purpose and cause of action (judgment of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 47).
77


In that regard, it is solely for the national court, which has direct knowledge of the detailed procedural rules applicable, to ascertain whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (judgment of 12 February 2015, Baczó and Vizsnyiczai, C‑567/13, EU:C:2015:88, paragraph 44 and the case-law cited).
81


While it is true that limitation periods seek to ensure legal certainty (see, to that effect, judgment of 30 April 2020, Nelson Antunes da Cunha, C‑627/18, EU:C:2020:321, paragraph 60), it is nevertheless true that, in so far as the Romanian legislature considered that the principle of legal certainty does not preclude the limitation period for the actions referred to in paragraph 79 of the present judgment from being applied, it cannot be held that that principle precludes the application, in accordance with the principle of equivalence, of the same period to actions based on the system of protection provided for by Directive 93/13.