Banco Español de Crédito, SA v Joaquín Calderón Camino.
Date: 2012-06-14
1. This reference for a preliminary ruling concerns the interpretation of:
– Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29);
– Article 2 of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30);
– the provisions of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1);
– Articles 5(1)(l) and (m), 6, 7 and 10(2)(l) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66); and
– Article 11(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
39. For the purpose of replying to that question, 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; Case C-168/05 Mostaza Claro  [2006] ECR I-10421, paragraph 25; and Case C-40/08 Asturcom Telecomunicaciones  [2009] ECR I-9579, paragraph 29).
40. As regards that weaker position, Article 6(1) of Directive 93/13 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 Mostaza Claro , paragraph 36; Asturcom Telecomunicaciones , paragraph 30; Case C-137/08 VB Pénzügyi Lízing  [2010] ECR I-10847, paragraph 47; and C-453/10 Pereničová and Perenič  [2012] ECR, paragraph 28).
41. In order to guarantee the protection intended by Directive 93/13, the Court has already stated on several 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 (see Océano Grupo Editorial and Salvat Editores , paragraph 27; Mostaza Claro , paragraph 26; Asturcom Telecomunicaciones , paragraph 31; and VB Pénzügyi Lízing , paragraph 48).
42. 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 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 (see, to that effect, Mostaza Claro , paragraph 38; Case C-243/08 Pannon GSM  [2009] ECR I-4713, paragraph 31; Asturcom Telecomunicaciones , paragraph 32; and VB Pénzügyi Lízing , paragraph 49).
43. Consequently, the role attributed to the national court by European Union law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task (see Pannon GSM , paragraph 32).
44. In this connection, in ruling on an order for reference 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 Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair ( VB Pénzügyi Lízing , paragraph 56).
46. In this regard, in the absence of harmonisation of the national mechanisms for recovery of uncontested claims, the rules implementing national order for payment procedures are a matter for the national legal order, 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, Mostaza Claro , paragraph 24, and Asturcom Telecomunicaciones , paragraph 38).
48. It is apparent from the case-file that the Spanish procedural system does not allow the national 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, either 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 Directive 93/13 where that consumer has not lodged an objection, or whether such a term conflicts with national rules of public policy. It is nevertheless for the national court to ascertain such matters.
49. 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 Asturcom Telecomunicaciones , paragraph 39 and the case-law cited).
53. In that context, it must be stated that such a procedural arrangement, which completely prevents the court before which an application for 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 all the legal and factual elements necessary for that task available to it, whether terms contained in a contract concluded between a seller or supplier and a consumer are unfair where that consumer has not lodged an objection, is liable to undermine the effectiveness of the protection intended by Directive 93/13 (see, to that effect, Case C-473/00 Cofidis  [2002] ECR I-10875, paragraph 35).
54. In the light of the order for payment procedure described in paragraphs 50 to 52 of this judgment, its progress and its special features, viewed as a whole, there is a significant risk that the consumers 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 they are unaware of or do not appreciate the extent of their rights, or indeed because of the limited content of the application for the order for payment submitted by the sellers or suppliers, and thus the incomplete nature of the information available to them.
55. Thus, it is sufficient for sellers or suppliers to initiate an order for payment procedure instead of an ordinary civil procedure in order to deprive consumers of the benefit of the protection intended by Directive 93/13. This is 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 ( Pannon GSM , paragraph 34).
57. In the light of those considerations, the answer to the first question is that Directive 93/13 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, 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 for that task available to it, whether a term concerning interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection.
The second question
58. In order to provide an interpretation of European Union law which will be of use to the referring court (see, to that effect, Case C-213/07 Michaniki  [2008] ECR I-9999, paragraphs 50 and 51), it is necessary to construe the second question as asking, essentially, whether Articles 2 of Directive 2009/22 and 6(1) of Directive 93/13 preclude legislation of a Member State, such as that laid down in Article 83 of Legislative Decree 1/2007, which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term.
61. That being so, in order to answer the question posed concerning the consequences to be drawn from the finding that a contractual term is unfair, it is necessary to refer both to the wording of Article 6(1) of Directive 93/13 and to the objectives and overall scheme of that provision (see, to that effect, Case C-482/07 AHP Manufacturing  [2009] ECR I-7295, paragraph 27, and Case C-125/10 Merck Sharp & Dohme Corp.  [2011] ECR I-12987, paragraph 29).
63. In that context, the Court has already had the opportunity to interpret that provision as meaning that it is a matter for national courts, when they find that contract terms are unfair, to draw all the consequences that follow under national law, in order that the consumer will not be bound by those terms (see Asturcom Telecomunicaciones , paragraph 58; order in Case C-76/10 Pohotovosť  [2010] ECR I-11557, paragraph 62; and Pereničová and Perenič , paragraph 30). As has been pointed out in paragraph 40 of this judgment, 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.
65. It thus follows from the wording of Article 6(1) that the national courts are required only to exclude the application of an unfair contractual term in order that it does not produce binding effects with regard to the consumer, without being authorised to revise its content. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible.
66. That interpretation is, moreover, borne out by the objective and overall scheme of Directive 93/13.
67. According to the Court’s settled case-law, that directive as a whole constitutes a measure which is essential to the accomplishment of the tasks entrusted to the European Union and, in particular, to raising the standard of living and the quality of life throughout the European Union (see Mostaza Claro , paragraph 37; Pannon GSM , paragraph 26; and Asturcom Telecomunicaciones , paragraph 51).
68. Thus, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, who are in a weak position vis-à-vis sellers or suppliers, Directive 93/13 requires Member States, as is apparent from Article 7(1) thereof, read in conjunction with the twenty-fourth recital in the preamble thereto, to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’.
69. In that context, it is clear, as the Advocate General observed in points 86 to 88 of her Opinion, that, if it were open to the national court to revise the content of unfair terms included in such contracts, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms (see, to that effect, the order in Pohotovost’ , paragraph 41 and the case-law cited), in so far as those sellers or suppliers would remain tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers.
70. Accordingly, such a power, were it granted to the national court, would not be such as to ensure, by itself, such efficient protection of the consumer as that resulting from non-application of the unfair terms. Moreover, neither could that power be based on Article 8 of Directive 93/13, which leaves Member States the option to adopt or retain, in the area covered by that directive, more stringent provisions compatible with European Union law, inasmuch as they ensure a higher level of consumer protection (see Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid  [2010] ECR I-4785, paragraphs 28 and 29, and Pereničová and Perenič, paragraph 34).
73. In the light of the foregoing, the answer to the second question is that Article 6(1) of Directive 93/13 must be interpreted as precluding legislation of a Member State, such as Article 83 of Legislative Decree 1/2007, which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term.
The third to sixth questions
76. In that regard, it is necessary to state 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-145/03 Keller  [2005] ECR I-2529, paragraph 33; Case C-119/05 Lucchini  [2007] ECR I-6199, paragraph 43; and Case C-11/07 Eckelkamp and Others  [2008] ECR I-6845, paragraphs 27 and 32).
77. 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 (see, inter alia, Joined Cases C-94/04 and C-202/04 Cipolla and Others  [2006] ECR I-11421, paragraph 25, and Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-4629, paragraph 36).
83. However, even if it is accepted that that is the real scope of the fifth question (see, to that effect, Case C-107/98 Teckal  [1999] ECR I-8121, paragraphs 34 and 39), it is necessary to state that, as the Advocate General also observed in points 99 and 100 of her Opinion, there is nothing in the order for reference to suggest that the dispute in the main proceedings relates to an issue concerning either the obligation to give prior notice to the consumer with regard to any change in the annual rate of interest or the restitution of goods to the creditor which gives rise to unjustified enrichment of the latter.