Aleš Kuhar and Jožef Kuhar v Addiko Bank d.d.
Date: 2019-06-26
35


In that regard, it must be recalled that, according to the settled case-law of the Court, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving, inter alia, the interpretation of provisions of EU law which are necessary for the resolution of the case before them and they are free to exercise that discretion at whatever stage of the proceedings they consider appropriate (see, in particular, to that effect, judgments of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 26, and of 14 November 2018, Memoria and Dall’Antonia, C‑342/17, EU:C:2018:906, paragraph 33 and the case-law cited).
36


Similarly, the Court has repeatedly stated that questions submitted by national courts relating to EU law enjoy a presumption of relevance. The Court may thus refuse to rule on such questions 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 of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).
37


The Court has also held that it is not for the Court, in the context of the cooperation established by Article 267 TFEU, to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and legal proceedings (see, in particular, to that effect, judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 30 and the case-law cited).
44


It should also be recalled that, given the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers, Directive 93/13, as is apparent from Article 7(1) in conjunction with the 24th recital of the directive, 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 (see, to that effect, judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 40 and the case-law cited).
45


While the Court has already defined, in a number of respects and taking account of the requirements of Articles 6(1) and 7(1) of Directive 93/13, the way in which national courts must ensure that the rights which consumers derive from that directive are protected, the fact remains that, in principle, EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair and that those procedures accordingly fall within the domestic legal system of the Member States (judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 57).
46


That is why, 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 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 impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness) (judgment of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 40 and the case-law cited).
48


With regard, second, to the principle of effectiveness, it is settled case-law that the question as to 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 (see, to that effect, in particular, judgments of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 51, and of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraphs 43 and 44).
52


In that regard, it is sufficient to recall that, in accordance with the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, the functions of the Court and those of the referring court are clearly separate. Although it is for the Court to interpret the provisions of EU law, it falls exclusively to the referring court to interpret national legislation. The Court must base itself on the interpretation of national law as described to it by that court (judgment of 27 February 2019, Associação Peço a Palavra and Others, C‑563/17, EU:C:2019:144, paragraph 36 and the case-law cited).
54


It has already been established that effective protection of the rights conferred on the consumer by that directive can be guaranteed only provided that the national 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 the terms of the contract concerned are unfair (see, in particular, judgments of 18 February 2016, Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 46, and of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 44).
55


As the Slovenian Government argued, it is indeed possible, subject to verification to be carried out by the referring court, that, in view in particular of the Law on notaries, notaries are obliged to advise and inform consumers, in particular in connection with a mortgage contract concluded in the form of an authentic instrument, which ensures that a preventive check is carried out with respect to unfair terms in such a contract and therefore contributes to compliance with the requirements set out in Article 6(1) and Article 7(1) of Directive 93/13 (see, by analogy, judgment of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraphs 55, 57 and 58).
65


In that regard, it is important to recall that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 59 and the case-law cited).
66


As the Court has also held, that requirement to interpret national law in conformity with EU law entails, in particular, the obligation for national courts to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (see, in particular, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraphs 33 and 34, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 60).