Finanmadrid EFC SA v Jesús Vicente Albán Zambrano and Others.
Date: 2016-02-18
27


In that regard, it is necessary to state at the outset that, in accordance with the settled case-law of the Court, 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 EU law, the Court of Justice is in principle bound to give a ruling (judgment in Aziz, C‑415/11, EU:C:2013:164, paragraph 34 and the case-law cited).
28


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 EU 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 (judgment in Aziz, C‑415/11, EU:C:2013:164, paragraph 35 and the case-law cited).
32


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, to that effect, judgments in Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18, and Attanasio Group, C‑384/08, EU:C:2010:133, paragraph 19), it must be concluded that it is not obvious that the interpretation of EU law sought in the first, third and fourth questions bears no relation to the actual facts of the main action or its purpose.
35


In order to provide the referring court with a useful answer enabling it to rule in the dispute before it, it must be recalled, first of all, that the court has already ruled, in the judgment in Banco Español de Crédito (C‑618/10, EU:C:2012:349), on the nature of the responsibilities of the national court, by virtue of the provisions of Directive 93/13, in order for payment proceedings, where the consumer has not opposed the order issued against him.
36


In that judgment, the Court has held, inter alia, that Directive 93/13 must be interpreted as precluding legislation of a Member State that does not permit the court hearing an application for an order for payment 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 term 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 (judgment in Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 1 of the operative part).
40


In that regard, it must be noted that, in the absence of harmonisation of the national enforcement mechanisms, the details of their implementation are governed by the internal legal order of the Member States by virtue of the principle of procedural autonomy of those States. Nevertheless, the Court has pointed out that the means of implementation must meet the dual condition 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) (judgment in Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, paragraph 31 and the case-law cited).
42


It is apparent, notably from the provisions of Articles 551, 552 and 816(2) of the LEC, that, in the Spanish procedural system, the court hearing the enforcement of an order for payment may neither assess of its own motion the unfair nature, in the light of Article 6 of Directive 93/13, of a term in a contract concluded between a seller or supplier and a consumer, nor determine of its own motion whether such a term runs counter to the national rules of public policy, which it is, nevertheless, for the national court to ascertain (see, to that effect, judgment in Aziz, C‑415/11, EU:C:2013:164, paragraph 52).
43


Secondly, with regard to the principle of effectiveness, it should be noted that the Court has consistently held that every case in which the question arises as to whether a national procedural 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 (judgment in Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 49 and the case-law cited).
44


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 (judgments in Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 34, and Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 51 and the case-law cited).
45


In the present case, it must be noted that the progress and particular features of the Spanish order for payment proceedings are such that, in the absence of facts requiring the intervention of the court, referred to in paragraph 24 of the present judgment, those proceedings are closed without it being possible for there to be a check as to whether there are unfair terms in a contract concluded between a supplier or seller and a consumer. If, accordingly, the court hearing the enforcement of the order for payment does not have the power to assess of its own motion whether such terms are present, the consumer could be faced with an enforcement order without having the benefit, at any time during the proceedings, of a guarantee that such an assessment will be made.
46


In that context, it must be stated that such a procedural arrangement is liable to undermine the effectiveness of the protection intended by Directive 93/13. Such effective protection of the rights under that directive can be guaranteed only provided that the national procedural system allows the court, during the order for payment proceedings or the enforcement proceedings concerning an order for payment, to check of its own motion whether terms of the contract concerned are unfair.
48


It must be noted that, although 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, those rules must still comply with the principles of equivalence and effectiveness (see, to that effect, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 38 and the case-law cited).
52


In this regard, however, it must be noted, firstly, that there is a significant risk that the consumers concerned will not lodge the objection required, be it 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 (see, to that effect, judgment in Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 54).
55


Having regard to all the foregoing considerations, the answer to the first and second questions referred is that Directive 93/13 precludes national legislation, such as that at issue in the main proceedings, which does not permit the court ruling on the enforcement of an order for payment to assess of its own motion whether a term in a contract concluded between a seller or supplier and a consumer is unfair, when the authority hearing the application for an order for payment does not have the power to make such an assessment.