BBVA SA v Pedro Peñalva López and Others.
Date: 2015-10-29
17. In order to answer that question, it should be noted first that the system of protection introduced 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 bargaining power and his level of knowledge (judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 44, and Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 22).
18. As regards such a weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not to be binding on the consumer. It 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 (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 40, and the case-law cited).
19. Furthermore, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, who are in such a weak position, Article 7(1) of Directive 93/13 requires 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 (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 68; Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 78; and Unicaja Banco and Caixabank , C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 30).
20. Thus, the Court has emphasised that national enforcement proceedings, such as mortgage enforcement proceedings, are subject to the requirements arising out of its settled case-law which seeks to ensure the effective protection of consumers (judgment in Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 25).
21. In order to take account of that case-law and more specifically in response to the judgment in Aziz  (C‑415/11, EU:C:2013:164), Law 1/2013 amended, inter alia, the articles in the Civil Procedure Code relating to the enforcement procedure of mortgaged assets. Thus, for proceedings opened after the entry into force of Law 1/2013, the defendant’s objection to enforcement, based on the unfairness of a contractual term, brought within the normal 10-day period from the date of service of the document ordering enforcement, henceforth allows the suspension of the mortgage enforcement proceedings until the objection to enforcement has been adjudicated upon.
23. It must be determined whether, and, if appropriate, to what extent, Directive 93/13, as interpreted by the case-law of the Court, expounded, in particular since its judgment in Aziz  (C‑415/11, EU:C:2013:164) precludes the transitional mechanism for limitation periods adopted by the Spanish legislature and established by Law 1/2013.
24. In that connection, it is true, that in the absence of harmonisation of the national mechanisms for enforcement, the rules fixing the period within which to bring proceedings objecting to enforcement allowed in mortgage enforcement proceedings are a matter for the national legal order of each Member State. However, the Court has emphasised that those mechanisms must satisfy the two conditions: 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) (judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 50, and Barclays Bank , C‑280/13, EU:C:2014:279, paragraph 37)
26. As regards, second, application of the principle of effectiveness, the Court has held that every case in which the question arises as to whether a national procedural measure makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that measure in the procedure, its conduct 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 in Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 34 and the case-law cited).
27. Those aspects, raised by the case-law cited, must be taken into account in the analysis of the characteristics of the period at issue in the main proceedings. Thus, as the Advocate general observed, in point 45 of his Opinion, that analysis must cover two aspects, namely the duration of the time-limit laid down by the legislature and the mechanism adopted to start that period running.
28. First, as far as concerns the duration of the period, it should be noted that, according to settled case-law, laying down reasonable time-limits within which to bring proceedings in the interests of legal certainty is compatible with EU law. Such time-limits do not make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (judgment in Asturcom Telecommunicaciones , C‑40/08, EU:C:2009:615, paragraph 41 and the case-law cited).
29. The Court has also held that the time-limit laid down must be sufficient in practical terms to enable the applicant to prepare and bring an effective action (see, to that effect, judgment in Samba Diouf , C‑69/10, EU:C:2011:524, paragraph 66).
39. Therefore, it should be found that the contested transitional provision, in so far as it provides that the time-limit begins to run in the present case without the consumers concerned being personally informed of the possibility to raise a new ground of objection in enforcement proceedings which were already in progress before the entry into force of that law, is not such as to guarantee full enjoyment of that period and, therefore, the effective exercise of the new right recognised by the legislative amendment concerned.
40. Taking into account the progress and the special features and complexity of the proceedings and the applicable legislation, there is a significant risk that the time-limit will expire without the consumers in question being able effective and usefully to exercise their rights through legal action because they are unaware of or do not appreciate the exact extent of their rights (see, to that effect, judgment in Aziz , C‑415/11, EU:C:2013:164, paragraph 58 and the case-law cited).