Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira.
Date: 2009-10-06
29. For the purpose of replying to the question referred, it is appropriate to note, first, that the system of protection introduced by Directive 93/13 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. This 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 (Joined Cases C‑240/98 to C‑244/98 Océano Grupo Editorial and Salvat Editores  [2000] ECR I‑4941, paragraph 25, and Case C‑168/05 Mostaza Claro  [2006] ECR I‑10421, paragraph 25).
30. As regards that weaker position, Article 6(1) of that directive provides that unfair terms are not binding on the consumer. As is apparent from 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 ( Mostaza Claro , paragraph 36, and Case C‑243/08 Pannon GSM  [2009] ECR I‑0000, paragraph 25).
31. In order to guarantee the protection intended by Directive 93/13, the Court has also stated on a number of occasions that the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract ( Océano Grupo Editorial and Salvat Editores , paragraph 27, and Mostaza Claro , paragraph 26).
32. It is in the light of those principles that the Court has therefore held that the national court is required to assess of its own motion whether a contractual term is unfair ( Mostaza Claro , paragraph 38).
35. It is necessary at the outset to draw attention to the importance, both for the Community legal order and for the national legal systems, of the principle of res judicata.
36. Indeed, the Court has already had occasion to observe that, in order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided to exercise those rights can no longer be called into question (Case C‑224/01 Köbler  [2003] ECR I‑10239, paragraph 38; Case C‑234/04 Kapferer  [2006] ECR I‑2585, paragraph 20; and Case C‑2/08 Fallimento Olimpiclub  [2009] ECR I‑0000, paragraph 22).
37. Consequently, according to the case-law of the Court, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision of Community law, regardless of its nature, on the part of the decision at issue (see, inter alia, Case C‑126/97 Eco Swiss  [1999] ECR I‑3055, paragraphs 47 and 48; Kapferer , paragraph 21; and Fallimento Olimpiclub , paragraph 23).
38. In the absence of Community legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law (principle of effectiveness) (see, inter alia, Kapferer , paragraph 22, and Fallimento Olimpiclub , paragraph 24).
39. As regards, first, the principle of effectiveness, the Court has already held that every case in which the question arises as to whether a national procedural provision makes the application of Community 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. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure (Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 14, and Fallimento Olimpiclub , paragraph 27).
41. According to established case-law, it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty (see, to this effect, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral  [1976] ECR 1989, paragraph 5; Case C‑261/95 Palmisani  [1997] ECR I‑4025, paragraph 28; and Case C‑2/06 Kempter  [2008] ECR I‑411, paragraph 58). Such time-limits are not liable to make it virtually impossible or excessively difficult to exercise rights conferred by Community law (see, to that effect, Case C‑255/00 Grundig Italiana  [2002] ECR I‑8003, paragraph 34).
43. In the present case, it should be noted first that, as the Court has already held, a period of 60 days is not objectionable per se (see, to that effect, Peterbroeck , paragraph 16).
44. A peremptory time-limit of that kind is reasonable in that it enables both an assessment to be made as to whether there are grounds for challenging an arbitration award and, if appropriate, the action for annulment of the award to be prepared. It should be pointed out that in the present case it has not been alleged that the national procedural rules governing the bringing of an action for annulment of an arbitration award, in particular the ruling imposing a two-month time-limit for that purpose, were unreasonable.
45. Moreover, it should be pointed out that Article 41(4) of Law 60/2003 provides that the time-limit starts to run from the date of notification of the arbitration award. Therefore, in the action in the main proceedings, it was not possible for the consumer to have found herself in a situation in which the limitation period had started to run, or had expired, without even being aware of the effects of the unfair arbitration clause upon her.
46. In such circumstances, such a time-limit is consistent with the principle of effectiveness, since it is not in itself likely to make it virtually impossible or excessively difficult to exercise any rights which the consumer derives from Directive 93/13 (see, to that effect, Case C‑327/00 Santex  [2003] ECR I‑1877, paragraph 55).
47. In any event, the need to comply with the principle of effectiveness cannot be stretched so far as to mean that, in circumstances such as those in the main proceedings, a national court is required not only to compensate for a procedural omission on the part of a consumer who is unaware of his rights, as in the case which gave rise to the judgment in Mostaza Claro , but also to make up fully for the total inertia on the part of the consumer concerned who, like the defendant in the main proceedings, neither participated in the arbitration proceedings nor brought an action for annulment of the arbitration award, which therefore became final.
49. Next, in accordance with the principle of equivalence, the conditions imposed by domestic law under which the courts and tribunals may apply a rule of Community law of their own motion must not be less favourable than those governing the application by those bodies of their own motion of rules of domestic law of the same ranking (see, to that effect, inter alia, Joined Cases C‑430/93 and C‑431/93 van Schijndel and van Veen  [1995] ECR I‑4705, paragraphs 13 and 17 and the case-law cited).
50. In order to determine whether that principle is complied with in the case before the national court, it is for that court, which alone has direct knowledge of the detailed procedural rules governing actions in the field of domestic law, to consider both the purpose and the essential characteristics of domestic actions which are claimed to be similar (see, inter alia, Case C‑78/98 Preston and Others  [2000] ECR I‑3201, paragraphs 49 and 56). However, with a view to the appraisal to be carried out by the national court, the Court may provide guidance for the interpretation of Community law (see Preston and Others , paragraph 50).
51. As pointed out at paragraph 30 above, Article 6(1) of Directive 93/13 is a mandatory provision. It should also be noted that, according to the Court’s case-law, that directive as a whole constitutes, in accordance with Article 3(1)(t) EC, a measure which is essential to the accomplishment of the tasks entrusted to the European Community and, in particular, to raising the standard of living and the quality of life throughout the Community ( Mostaza Claro , paragraph 37).
52. Accordingly, 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.
53. It follows from this that, inasmuch as the national court or tribunal seised of an action for enforcement of a final arbitration award is required, in accordance with domestic rules of procedure, to assess of its own motion whether an arbitration clause is in conflict with domestic rules of public policy, it is also obliged to assess of its own motion whether that clause is unfair in the light of Article 6 of that directive, where it has available to it the legal and factual elements necessary for that task (see, to that effect, Pannon GSM , paragraph 32).
54. The national court or tribunal is also under such an obligation where, under the domestic legal system, it has a discretion whether to consider of its own motion whether such a clause is in conflict with national rules of public policy (see, to that effect, van Schijndel and van Veen , paragraphs 13, 14 and 22, and Kempter , paragraph 45).
57. Lastly, as regards the consequences of a finding by the court responsible for enforcement that the arbitration clause in a contract concluded by a seller or supplier with a consumer is unfair, it should be recalled that Article 6(1) of Directive 93/13 requires the Member States to lay down that unfair terms are not to be binding on the consumer, ‘as provided for under their national law’.
58. Accordingly, as the Hungarian Government suggested in its written observations, it is for the referring court to give due effect, in accordance with national law, to any finding in relation to the arbitration award that an arbitration clause is unfair, so long as the clause is not capable of binding the consumer.
59. In the light of the foregoing considerations, the answer to the question referred is that Directive 93/13 must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.
Costs