1 This request for a preliminary ruling concerns the interpretation of Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
2 The request has been made in proceedings brought by Investcapital Ltd, the assignee of a claim relating to a contract for the opening of a current bank account in the name of M.H.S., a consumer, seeking the issue of an order for payment of a pecuniary debt arising from that contract.
3 The twenty-fourth recital of Directive 93/13 states: ‘Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.
4 Article 6(1) of that directive provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
5 Under Article 7(1) of that directive: ‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’
6 Article 815(3) of Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575), in the version applicable to the main proceedings (‘the LEC’), provides, as follows: ‘If the documents attached to the application show that the amount claimed is incorrect, the court officer shall refer the matter to the court, which may, where appropriate, issue an order requesting that the applicant accept or reject a proposal for an order for payment in respect of a lower amount than that initially requested, as specified. Similarly, if the claim is based on a contract between a company or professional and a consumer or user, the court officer shall inform the court before issuing the order for payment. If the court considers that any of the terms on which the claim is based or which determines the amount due could be classified as unfair, it may issue an order proposing an order for payment for the amount that results from excluding the amount derived from applying the term in question from the amount claimed. In both cases, the applicant must either accept or reject the proposal within 10 days. If the deadline passes without any response, the proposal shall be deemed to have been accepted. Under no circumstances should acceptance by the applicant be understood as a partial waiver of his or her claim. Any unpaid portion of the claim may be enforced only in the corresponding declaratory proceedings. If the proposal is accepted, the defendant shall be required to pay that amount. Otherwise, the applicant shall be deemed to have withdrawn from the proceedings and will be able to assert his or her claim only in the corresponding declaratory proceedings. In such cases, the party to the proceedings may bring an action against the order directly.’
7 Under the first subparagraph of Article 818(1) of the LEC: ‘If the debtor lodges an objection in due time, the dispute shall be settled definitively at the end of the appropriate proceedings and the judgment shall be final.’
8 Article 83 of the consolidated version of the General Law on consumer and user protection, approved by Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (Royal Legislative Decree 1/2007 approving the consolidated version of the General Law on consumer and user protection and other supplementary laws) of 16 November 2007 (BOE No 287 of 30 November 2007, p. 49181), in the version applicable to the main proceedings, provides: ‘Unfair terms shall be automatically void and deemed not to have formed part of the contract. To that end, after hearing the parties, the court shall declare any unfair terms included in the contract to be void. However, the contract shall remain binding on the parties if it can continue in existence without those terms. Any conditions which are included in contracts in a non-transparent manner, to the detriment of consumers, are automatically void.’
9 On 16 April 2024, Investcapital applied for an order for payment against M.H.S. before the Juzgado de Primera Instancia e Instrucción no 3 de Arucas (Court of First Instance and Preliminary Investigations No 3, Arucas, Spain), which is the referring court, claiming payment of the sum of EUR 1 234.01, including EUR 229.17 in respect of the principal amount, EUR 38.73 by way of ordinary interest, EUR 39.68 by way of default interest and EUR 921.15 in respect of fees or commission, corresponding to a claim assigned by the bank B.S.A. That claim relates to a contract concluded by M.H.S. on 16 March 2018 with the bank B.S.A. for the purpose of opening a bank account.
10 Since the contract in question was concluded between a seller or supplier and a consumer, the court officer notified it to the referring court, in accordance with Article 815(3) of the LEC, so that it could examine whether the terms on which the application for an order for payment is based are unfair.
11 In examining whether those terms are unfair, the referring court asks whether Article 815(3) of the LEC is compatible with EU law, and in particular with Directive 93/13, read in the light of the Court’s case-law.
12 That court notes that, where a contractual term is found to be unfair pursuant to Article 815(3) of the LEC, the court hearing the application for an order for payment must confine itself to proposing a reduction in the amount claimed by excluding any amount arising from the application of such a term. That provision specifies that the applicant’s acceptance of the order for payment set out in the proposal does not constitute a waiver of the sum rejected by the court, since the applicant can still claim payment of that sum in declaratory proceedings.
13 Consequently, the referring court notes that Article 815 of the LEC does not allow a declaration to be made regarding the invalidity of the terms considered to be unfair, even though, according to Article 83 of the General Law on consumer and user protection, such terms are automatically void and deemed not to have formed part of the contract. It considers that the consumer thus remains bound by contractual terms which, following examination by the court hearing the application for an order for payment, have nevertheless been classed as unfair.
14 In those circumstances, the Juzgado de Primera Instancia e Instrucción No 3 de Arucas (Court of First Instance and Preliminary Investigations No 3, Arucas) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Articles 6 and 7 of Directive [93/13] be interpreted as meaning that a mechanism of judicial scrutiny which is limited to excluding any items based on unfair terms from the claim made by the business owner or professional, who may claim those same items in other proceedings, may constitute an “adequate and effective means” of preventing the consumer or user from remaining bound by such unfair terms? (2) Must Articles 6 and 7 of Directive [93/13] be interpreted as precluding a national rule, such as that contained in Article 815(3) of the [LEC], which limits the consequences of the check for unfairness in the expedited order for payment procedure to excluding any items based on unfair terms from the claim made by a business owner or professional, without drawing from that examination all of the consequences which, under national law, arise from such a finding of unfairness, such as a declaration of invalidity? (3) Must Articles 6 and 7 of Directive [93/13] be interpreted as precluding a national rule, such as that contained in Article 815(3) of the [LEC], which does not provide for the participation of the consumer or user in the check for unfairness carried out by the court?’
15 The Spanish Government expresses doubts as to the admissibility of the first and second questions on account of their hypothetical nature, in so far as they concern proceedings other than those relating to an order for payment, that is to say, any declaratory proceedings which, under national law, allow the examination of claims other than those brought in the context of the order for payment procedure.
16 It should be recalled that 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 in the main proceedings, the relevance of the questions that it submits to the Court. Where the questions referred concern the interpretation or the validity of a rule of EU law, the Court is in principle required to give a ruling. It follows that a question referred for a preliminary ruling concerning EU law enjoys a presumption of relevance. The Court may refuse to rule on such a question 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 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts), C‑208/21, EU:C:2023:64, paragraphs 42 and 43 and the case-law cited).
17 However, that is not the case here.
18 The order for reference sets out in sufficient detail the legal and factual context of the case in the main proceedings, which concerns an application for an order for payment relating to a pecuniary claim arising from a contract for the opening of a current bank account. The information provided by the referring court makes it possible to determine both the scope of the questions referred and their connection with the subject matter of those proceedings. In particular, by its first and second questions, the referring court asks whether national legislation under which the court before which an application for an order for payment has been brought may propose an order for payment in respect of an amount reduced by that corresponding to the application of a contractual term which it has regarded as unfair, without being able to annul that term, is compatible with Articles 6 and 7 of Directive 93/13 since the creditor may subsequently make a claim for that part of the rejected claim in court proceedings for a declaratory judgment.
19 In those circumstances, it is quite obvious that the interpretation of Directive 93/13 that is sought in the first and second questions bears no relation to the actual facts of the main proceedings or its purpose or that the problem raised is hypothetical.
20 Consequently, those questions must be regarded as admissible.
21 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation which provides, first, that a court hearing an application by a seller or supplier for an order for payment against a consumer may make a proposal for a reduction in the amount of the claim, which excludes any amounts arising from the application of a contractual term which it considered to be unfair, without being able to find, on that basis, that it is void and, second, that that seller or supplier, after accepting that proposal, has the possibility of bringing other legal proceedings in order to recover, from that consumer, the amount of the claim rejected by that court.
22 It should be noted at the outset 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 or her bargaining power and his or her level of knowledge (judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 35 and the case-law cited).
23 Article 6(1) of that directive requires Member States to ensure that unfair contractual terms are not binding on the consumer, without the consumer having to bring an action and obtain a judgment confirming the unfairness of those terms (see, to that effect, judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement), C‑287/22, EU:C:2023:491, paragraph 37).
24 That provision must be regarded as one of equal standing to national rules that have the character of rules of public policy within the domestic legal order. In addition, this is a mandatory provision that is intended to replace the formal balance established by the contract between the rights and obligations of the parties with an effective balance that re-establishes equality between them (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 54 and 55).
25 It follows, in the first place, that it is for the national court, subject to the conditions laid down by domestic law, to assess ex officio whether a contractual term coming within the scope of that directive is unfair and to exclude its application so that it does not produce binding effects with regard to the consumer concerned, unless that consumer objects (judgment of 30 June 2022, Profi Credit Bulgaria (Offsetting ex officio in the event of an unfair term), C‑170/21, EU:C:2022:518, paragraph 31 and the case-law cited).
26 In the second place, according to settled case-law, Article 6(1) of Directive 93/13 does not require, in addition to the contractual term declared unfair, the national court to set aside those terms which have not been classed as such. The objective pursued by that provision, and in particular its second part, consists not in cancelling all contracts containing unfair terms but in restoring the balance between the parties by not applying those contractual terms held to be unfair, whilst maintaining, in principle, the validity of the other terms of the contract concerned. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms. Thus, that contract may be continued as long as, in accordance with the rules of domestic law, such continuity of that contract is legally possible without the unfair terms (judgment of 30 June 2022, Profi Credit Bulgaria (Offsetting ex officio in the event of an unfair term), C‑170/21, EU:C:2022:518, paragraphs 34 and 35 and the case-law cited).
27 Furthermore, in view of the nature and significance of the public interest constituted by the protection of consumers, Article 7(1) of Directive 93/13, read in conjunction with the twenty-fourth recital thereof, 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 (see, to that effect, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 68, and of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 38 and the case-law cited).
28 While the Court has already defined, on several occasions, 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 and as follows from the wording of Article 6(1) of Directive 93/13, 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, by virtue of the principle of procedural autonomy of those States; nevertheless, those procedures must be no less favourable than those governing similar domestic actions (principle of equivalence) and not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 29 February 2024, Investcapital, C‑724/22, EU:C:2024:182, paragraph 30 and the case-law cited).
29 As regards, first, the principle of equivalence, it must be observed that the Court does not have before it any evidence which might raise doubts as to the compliance of the national legislation at issue in the main proceedings with that principle.
30 Second, as regards the principle of effectiveness, the Court has 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, and, 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. However, the specific characteristics of court proceedings cannot constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13 (judgment of 17 May 2022, Impuls Leasing România, C‑725/19, EU:C:2022:396, paragraph 45 and the case-law cited).
31 In addition, the Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, reaffirmed in Article 7(1) of that directive and also guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (judgment of 24 June 2025, GR REAL, C‑351/23, EU:C:2025:474, paragraph 53 and the case-law cited).
32 In that connection, it must be recalled that the effective protection of the rights under Directive 93/13 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 (judgment of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraph 45 and the case-law cited).
33 In the present case, it is apparent from the order for reference that, under Spanish procedural law, the order for payment procedure constitutes an ex parte procedure which is limited to the recovery of pecuniary claims and intended to ensure the fast and efficient recovery of claims which are due, payable and liquid.
34 Accordingly, an application for an order for payment in respect of a claim based on a contract concluded between a seller or supplier and a consumer, is, under Article 815(3) of the LEC, to be notified by the court officer to the court so that it can review of its own motion whether any of the contractual terms on which the application is based, or which determine the amount payable, are unfair. If the court considers that any of the terms concerned could be classified as unfair, it may issue an order proposing a reduction in the amount of the claim, which excludes the amounts resulting from the application of that term.
35 According to the information available to the Court, the unfair contractual terms which form the basis of the application for an order for payment, or determine the amount due in respect of the claim being sought, will have no effect in the context of the order for payment procedure, since they will be set aside by the court even before the consumer is required to pay his or her debt, if applicable. It is for the seller or supplier, if necessary, to bring subsequent declaratory proceedings in order to obtain full recovery of his or her claim.
36 Subject to the verifications which it is for the referring court to carry out, it should be noted, in that regard, that, as the Spanish Government pointed out in its written observations, in the context of the latter proceedings, the court hearing the case may review of its own motion whether the terms of a contract concluded between a seller or supplier and a consumer are unfair and, where appropriate, declare the unfair contractual terms void.
37 In addition, in so far as it is relevant, it should be noted that the European Commission stated, in its written observations before the Court, that, in accordance with Article 818 of the LEC, where a consumer lodges an objection to the order for payment in due time, the order for payment procedure is closed by the court officer and replaced by proceedings in which both the consumer and the seller or supplier have the right to be heard and the court hearing the case may, of its own motion or at the request of the consumer, review the unfairness of the contractual terms which may lead not only to the exclusion of the amount based on a term regarded as unfair, but also to a declaration that that term is void. It is, however, for the referring court to verify the precise content of that national provision.
38 It thus appears, first, that Article 815(3) of the LEC provides that the court is to review of its own motion the unfairness of contractual terms, the effects of which are limited to the precise subject matter of the application for an order for payment, in accordance with the nature and purpose of that procedure, thus leading to a possible reduction in the amount of the claim sought, without declaring the terms considered to be unfair to be void. Second, the proceedings brought following an objection to the order for payment brought by the consumer pursuant to Article 818 of the LEC, and any declaratory proceedings instituted by the applicant seller or supplier under Article 815(3) of the LEC, may lead to a review of the unfairness of the term at issue, in the context of an exchange of arguments between the parties and, where appropriate, a declaration by the court hearing the case that that term, or even that contract, is void.
39 In the light of all the foregoing considerations, the answer to the first and second questions is that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as not precluding national legislation which provides, first, that a court hearing an application by a seller or supplier for an order for payment against a consumer may make a proposal for a reduction in the amount of the claim, which excludes any amounts arising from the application of a contractual term which it considered to be unfair, without being able to find, on that basis, that it is void and, second, that that seller or supplier, after accepting that proposal, has the possibility of bringing other legal proceedings in order to recover, from that consumer, the amount of the claim rejected by that court, provided that the consumer can obtain, in other legal proceedings, a declaration that the contractual term considered to be unfair is void.
40 By its third question, the referring court seeks, in essence, to ascertain whether Article 6(1) and Article 7(1) of Directive 93/13 preclude national legislation which does not provide for the consumer to participate in the review, by the court hearing an application for an order for payment brought by a seller or supplier against that consumer, of the possible unfairness of the contractual terms on which that application is based or which determine the amount of the claim being sought.
41 In that regard, it must be borne in mind that the Court has held that, as a general rule, the principle of audi alteram partem does not merely confer on each party to proceedings the right to be apprised of the documents produced and observations made to the court by the other party and to discuss them, but it also implies a right for the parties to be apprised of pleas in law raised by the court of its own motion, on which it intends to base its decision, and to discuss them. The Court has pointed out that, in order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 30 and the case-law cited).
42 It follows that, where the national court, after establishing, on the basis of the matters of fact and law at its disposal, or which were communicated to it following the measures of inquiry which it undertook of its own motion, that a term comes within the scope of the directive, finds, following an assessment made of its own motion, that that term is unfair, it is, as a general rule, required to inform the parties to the dispute of that fact and to give them the opportunity to challenge the views of the other party, in accordance with the formal requirements laid down in that regard by the national rules of procedure (judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraphs 31 and 36).
43 In addition, the Court has held that Article 6(1) of Directive 93/13 must be interpreted as meaning that the national court, on receiving an application for an order for payment and where the debtor-consumer does not take part in the proceedings until the order for payment is issued, is obliged to disapply ex officio an unfair term in the contract concluded between that consumer and the seller or supplier concerned, on which a part of the claim being sought is based. In that case, that court has the option of rejecting that application in part, provided that that agreement can continue in existence without any further amendment, revision or supplementation, which it is for the court to verify (see, to that effect, judgment of 30 June 2022, Profi Credit Bulgaria (Offsetting ex officio in the event of an unfair term), C‑170/21, EU:C:2022:518, paragraph 38).
44 In the present case, having regard to the national procedural rules governing the conduct of the order for payment procedure, set out in paragraphs 34 to 38 above, the fact that Article 815(3) of the LEC does not provide for the consumer’s participation in the review of the unfairness of a contractual term on which an application for an order for payment may be based, but confers on the court hearing the case the power to propose an order for payment in respect of an amount of the claim being sought minus the amount corresponding to the application of a term considered to be unfair, does not affect the rights of consumers to a defence and, in particular, the principle of audi alteram partem.
45 In that regard, first, subject to the verifications which it is for the referring court to carry out, it appears that the order made by the court hearing the case following the acceptance of that proposal by the applicant seller or supplier informs each of the parties and gives them the opportunity to challenge the views of the other party and be heard on the matters of fact and of law which were decisive for the outcome of that order, without producing the binding effects of res judicata or other preclusive effects. Second, Article 815(3) of the LEC forms part of a summary order for payment procedure, which is designed to be a fast-track procedure aimed at ensuring the rapid recovery of claims which are due, payable and liquid. The consumer’s participation in the review of the unfairness of contractual terms remains ensured, since Spanish procedural law appears to provide, in subsequent inter partes proceedings, the possibility for the consumer to assert his or her rights and pleas in defence in full.
46 It is apparent from the documents before the Court that, first, that order may be reviewed in the context of ordinary proceedings on the merits which fully respect the principle of audi alteram partem between the parties, since the consumer has the possibility of opposing that order in accordance with the detailed rules laid down in Article 818 of the LEC. Second, since, under Article 815(3) of the LEC, acceptance by the applicant seller or supplier cannot in any event be treated as a partial waiver of his or her claim, that seller or supplier may assert the unpaid part of the claim in the context of declaratory proceedings, in which the consumer participates in full compliance with the principle of audi alteram partem.
47 Consequently, the answer to the third question is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding national legislation which does not provide for the consumer to participate in the review, by the court hearing an application for an order for payment brought by a seller or supplier against that consumer, of the possible unfairness of the contractual terms on which that application is based or which determine the amount of the claim being sought, provided that, first, the order for payment procedure does not have the force of res judicata and, second, the principle of audi alteram partem is guaranteed in any subsequent proceedings between the consumer and that seller or supplier in relation to the same claims made by the latter.
48 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.