ERSTE Bank Hungary Zrt v Attila Sugár.
Date: 2015-10-01
39. In order to determine whether such legislation is compatible with the requirements of Directive 93/13, it should be recalled that, the system of protection established by that 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, which 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 (see, inter alia, judgment in Kušionová, C‑34/13, EU:C:2014:2189, paragraph 48 and the case-law cited).
40. 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. 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 judgment in Sánchez Morcillo and Abril Garcia , C‑169/14, EU:C:2014:2099, paragraph 23 and the case-law cited).
41. In that context, the Court has stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task (see, inter alia, judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 46; Barclays Bank , C‑280/13, EU:C:2014:279, paragraph 34; and Sánchez Morcillo and Abril Garcia , C‑169/14, EU:C:2014:2099, paragraph 24).
42. The Court has also held that Articles 6(1) and 7(1) of Directive 93/13 must be interpreted as meaning that the national court which has found of its own motion that a contractual term is unfair is not obliged, in order to be able to draw the consequences arising from that finding, to wait for the consumer, who has been informed of his rights, to submit a statement to that effect, provided always that the principle of audi alteram partem has been complied with (see, to that effect, judgment in Banif Plus Bank , C‑472/11, EU:C:2013:88 paragraph 36).
43. Furthermore, the Court has held that the directive precludes legislation of a Member State 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 in that regard, whether a term concerning interest on a late payment contained in a contract concluded between a seller or supplier or consumer is unfair where that consumer has not lodged an objection (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 57).
44. In its case-law, the Court has also held that the legislation of a Member State does not comply with Directive 93/13 where, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, did not permit the court before which declaratory proceedings had been brought, which had jurisdiction to assess the unfairness of such a term, to grant interim relief, including, in particular, the staying of those enforcement proceedings, (see, to that effect, judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 64, and Barclays Bank , C‑280/13, EU:C:2014:279, paragraph 36).
45. Finally, the Court has ruled as being contrary to Directive 93/13, national legislation which does not allow the court responsible for the enforcement, in mortgage enforcement proceedings, either to assess of its own motion or at the consumer’s request, the unfairness of a term contained in the contract which gives rise to the debt claimed and which constitutes the basis of the right to enforcement, or to grant interim relief capable of staying or terminating the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of the final decision of the court hearing the declaratory proceedings before which the consumer argues that that term is unfair (see order in Banco Popular Espaňol and Banco de Valencia , C‑537/12 and C‑116/13, EU:C;2013:759, paragraph 60, and judgment in Sánchez Morcillo and Abril Garcia , C‑169/14, EU:C:2014:2099, paragraph 28).
46. As regards the simplified notarial enforcement procedure at issue in the main proceedings, the European Commission has argued that the possibility for a notary to initiate the enforcement of a contract, without examining in the procedure for affixing the enforcement clause or that for its cancellation, the unfairness of the various clauses, may infringe Directive 93/13, as interpreted by the case-law cited in the preceding paragraphs and, in particular, by the judgments in Banco Espaňol de Crédito (C‑618/10, EU:C:2012:349) and Banif Plus Bank  (C‑472/11, EU:C:2013:88), the latter also being mentioned by the referring court in its second question. The Commission submits that since the notarial procedure has effects similar to those of court proceedings, the notary should therefore also be able to determine of his own motion the unfairness of the contractual terms where he has available to him all the elements of law and fact necessary for that purpose.
47. However, as the Advocate General stated, in particular in paragraphs 65 to 67 and 72 of his Opinion, it must be held that that case-law falls within the specific framework of the exercise of the judicial function and that, having regard to the fundamental differences between it and the notarial function, cannot be transposed to the latter.
49. It follows that, in the absence of harmonisation of national mechanisms for enforcement under EU law, and the role assigned to notaries within it, 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 law (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; Pohotovosť , C‑470/12, EU:C:2014:101, paragraph 46; and Kušinová , C‑34/13, EU:C:2014:2189, paragraph 50).
51. As far as concerns the principle of effectiveness, 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. 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, in particular, judgment in Pohotovosť , C‑470/12, EU:C:2014:101, paragraph 51 and the case-law cited).
55. As regards the legislation at issue in the main proceedings, it should be pointed out that, in accordance with Paragraph 1 of the Law on notaries, the latter are required, in particular, to brief the parties in procedures falling within their remit, to assist them in the exercise of their rights and fulfilment of their obligations in order to prevent any litigation.
57. It follows from that, in the Hungarian procedural system, particularly at the stage of drafting an authentic instrument concerning a contract concluded between a seller or supplier and a consumer, the notary appears to be authorised to play a preventive role with respect to unfair terms in that contract and that he is, also, explicitly called on to ensure by his advice equal treatment in all the proceedings falling within his competence, including that of enforcement.
58. It follows from the foregoing that the general provisions of the Law on notaries appear, in principle, subject to verifications to be made by the referring court, to be such as to contribute to compliance with the requirements laid down in Articles 6(1) and 7(1) of Directive 93/13.
59. It should be noted, as the Advocate General stated in paragraph 84 of his Opinion, that adequate and effective means to stop the use of unfair terms in consumer contracts must include provisions enabling the latter to be guaranteed effective judicial protection by making it possible for them to bring legal proceedings against the disputed contract including in the enforcement phase and under reasonable procedural condit ions so that the exercise of their rights is not subject to conditions, in particular time-limits or costs which make it excessively difficult or impossible to exercise the rights guaranteed by Directive 93/13. It is in the context of those judicial procedures, that the case-law of the Court, cited in paragraphs 41 to 45 of the present judgment, must be applied in full.
62. 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 (judgments in Asbeek Brusse and de Man Garabito , C‑488/11, EU:C:2013:341, paragraph 39 and the case-law cited, and Pohotovosť , C-470/12, EU:C:2014:101, paragraph 40 and the 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, judgment in Kušionová, C‑34/13, EU:C:2014:2189, paragraph 56).
64. However, it is for the referring court, which alone has direct knowledge of the procedural rules of actions in its own national legal system and which alone has jurisdiction to interpret national law, to determine whether, in the circumstances of the dispute in the main proceedings, those rules guarantee effective legal protection for the consumer.
65. Having regard to all of the foregoing considerations, the answer to the questions referred is that Articles 6(1) and 7(1) of Directive 93/13 must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which allows a notary who drew up, in due form, an authentic instrument concerning a contract concluded between a seller or supplier and a consumer, to affix the enforcement clause to that instrument or to refuse to cancel it when no review of the unfairness of the contractual terms has been performed at any stage.
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