Monika Kušionová v SMART Capital, a.s.
Date: 2014-09-10
38. It should be noted in that respect that, according to the Court’s settled case‑law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. 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 Pohotovosť , C‑470/12, EU:C:2014:101, paragraph 27 and case-law cited).
42. In the second place, the fact that the enforcement of the charge has not yet been completed does not mean that those questions are hypothetical. First, the referring court points out that SMART Capital has actually taken steps against the consumer with a view to the sale of the property subject to the charge. Secondly, even though the enforcement of the charge has not been concluded, the questions referred do not so much seek to ascertain whether the sale has been completed as to determine whether the creditor may de jure  proceed with such a sale and whether judicial remedies are available to the debtor to contest the enforcement.
45. It should be pointed out that, although the first question refers only to Article 38 of the Charter, the present request for a preliminary ruling relates to, in essence, and cites, in particular, among the relevant elements of EU law, Article 47 of the Charter. In view of the fact that the first three questions asked by the referring court seek to determine the level of protection afforded consumers and the judicial remedies available to the latter, that article should be included amongst the European Union legal instruments which the referring court seeks to have interpreted by the Court.
47. It should be noted, first, that Article 38 of the Charter provides that European Union policies must ensure a high level of consumer protection. Article 47 of the Charter concerns the right to an effective judicial remedy. Those mandatory requirements are applicable to the implementation of Directive 93/13 (see, to that effect, the judgment in Pohotovosť , EU:C:2014:101, paragraph 52).
48. Secondly, in its case-law, the Court has already held 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 (judgments in Pohotovosť , EU:C:2014:101, paragraph 39 and case-law cited; Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282 paragraph 39 and the case-law cited; and Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 22).
50. However, it is settled case-law that, in the absence of harmonisation of national mechanisms for enforcement under EU law, it is for the national legal order of each Member State to establish such rules, in accordance with the principles of procedural autonomy, provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 50 and case-law cited, and Pohotovosť , EU:C:2014:101, paragraph 46).
52. As regards the principle of effectiveness, it should be noted that the Court has already 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 Asociación de Consumidores Independientes de Castilla y León , C‑413/12, EU:C:2013:800, paragraph 34 and case-law cited).
53. Moreover, 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 Directive 93/13 (see, to that effect, judgments in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 55 and case-law cited, and Aziz , EU:C:2013:164, paragraph 62).
56. Although Directive 93/13 requires that the national court hearing disputes between consumers and sellers or suppliers take positive action unconnected with the parties to the contract (the judgments in Asbeek Brusse and de Man Garabito , C‑488/11, EU:C:2013:341, paragraph 39 and case-law cited, and Pohotovosť , EU:C:2014:101, paragraph 40 and case-law cited), the need to comply with the principle of effectiveness cannot be stretched so far as to make up fully for the total inertia on the part of the consumer concerned (see, to that effect, the judgment in Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615, paragraph 47).
57. Subject to investigations to be carried out by the referring court, the combination of time-limits laid down by the national legislation at issue in the main proceedings, as referred to in paragraph 55 of the present judgment, is comparable neither with the 20-day time-limit at issue in the case giving rise to the judgment in Banco Español de Crédito , EU:C:2012:349, nor with facts of the case giving rise to the judgment in Aziz , EU:C:2013:164, paragraphs 57 to 59, in both of which cases the consumer’s action against such measures was unsuccessful.
59. In particular, according to the Court’s settled case-law relating to the principle of sincere cooperation, now enshrined in Article 4(3) TEU, while the choice of penalties applicable to infringements of EU law remains within their discretion, Member States must ensure in particular that they are effective, proportionate and dissuasive (see, to that effect, the judgment in LCL Le Crédit Lyonnais , C‑565/12, EU:C:2014:190, paragraph 44 and case-law cited).
63. The loss of a family home is not only such as to seriously undermine consumer rights (the judgment in Aziz , EU:C:2013:164, paragraph 61), but it also places the family of the consumer concerned in a particularly vulnerable position (see, to that effect, the Order of the President of the Court in Sánchez Morcillo and Abril García , EU:C:2014:1388, paragraph 11).
66. With regard in particular to the consequences of the eviction of the consumer and his family from the accommodation forming their principal family home, the Court has already emphasised the importance, for the national court, to provide for interim measures by which unlawful mortgage enforcement proceedings may be suspended or terminated where the grant of such measures proves necessary in order to ensure the effectiveness of the protection intended by Directive 93/13 (see, to that effect, the judgment in Aziz , EU:C:2013:164, paragraph 59).
67. In the present case, the fact that it is possible for the competent national court to adopt any interim measure, such as that described in paragraph 60 of the present judgment, would suggest that adequate and effective means exist to prevent the continued use of unfair terms, which is a matter for the referring court to determine.
71. First of all, it must be noted that the fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, regard being had to the subject-matter of the dispute (the judgment in Vicoplus and Others , C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 22 and the case-law cited).
73. Finally, it is settled case-law that the Court may, in the context of its jurisdiction under Article 267 TFEU to interpret EU law, interpret general criteria used by the EU legislature in order to define the concept of unfair terms (see, to that effect, the order in Pohotovosť , C‑76/10, EU:C:2010:685, paragraph 60 and case-law cited). However, it is for the national court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case. It follows that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (the judgments in Aziz , EU:C:2013:164, paragraph 66 and case-law cited; Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 45; and the order in Sebestyén , C‑342/13, EU:C:2014:1857, paragraph 25).
76. The Court has already had occasion to point out that Article 1(2) of Directive 93/13 establishes an exclusion from the scope of that directive which covers terms which reflect mandatory statutory or regulatory provisions (see, to that effect, the judgment in RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraph 25).
77. As with all derogations, it should be noted, having regard to the purpose of that directive, namely the protection of consumers against unfair terms included in contracts concluded with consumers by sellers or suppliers, that it is to be strictly construed.
78. In this case, it is apparent from the judgment in RWE Vertrieb , EU:C:2013:180, that that exclusion requires two conditions to be met. First, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory.
79. In that regard, it should be noted that, in order to establish whether a contractual term is excluded from the scope of Directive 93/13, it is for the national court to determine whether that term reflects provisions of national law that apply between the parties to the contract independently of their choice or those that apply by default, that is to say in the absence of other arrangements established by the parties (see, to that effect, judgment in RWE Vertrieb , EU:C:2013:180, paragraph 26).