1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and of Article 7(1) 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 between Eventmedia Soluciones SL (‘Eventmedia’), the transferee of an air passenger’s claim, and Air Europa Líneas Aéreas SAU (‘Air Europa’) concerning compensation for damage occasioned by a delay in the carriage of that passenger’s baggage on a flight operated by Air Europa.
3 Under the heading ‘Delay’, Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38) (‘the Montreal Convention’), provides: ‘The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.’
4 The twenty-fourth recital of Directive 93/13 states that ‘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’.
5 In accordance with Article 1(1) of Directive 93/13, the purpose of that directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.
6 Article 2(b) of that directive sets out the following definition: ‘“consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’.
7 Article 3(1) of that same directive provides: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’
8 Article 6(1) of Directive 93/13 states: ‘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.’
9 Article 7(1) of that directive reads as follows: ‘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.’
10 An air passenger who suffered a delay in the transport of his baggage on a flight from Madrid (Spain) to Cancún (Mexico) assigned his claim for damages against Air Europa, an air carrier, to Eventmedia, a commercial company.
11 Subsequently, Eventmedia brought an action against Air Europa before the Juzgado de lo Mercantil no 1 de Palma de Mallorca (Commercial Court No 1, Palma de Mallorca, Spain), which is the referring court, seeking compensation of EUR 766 for the damage resulting from that delay, on the basis of Article 19 of the Montreal Convention.
12 Before that court, Air Europa disputes Eventmedia’s standing to bring proceedings. It asserts that the transfer of claims was not legally valid because it was in breach of the prohibition, laid down in Clause 15.1 of its general conditions of carriage (‘the clause at issue’), on the transfer of passenger rights. Under that clause, ‘the liability of Air Europa and of any carrier, in accordance with Article 1, shall be determined by the conditions of carriage of the carrier that issues the ticket, unless otherwise stipulated. The rights to which the passenger is entitled shall be strictly personal and the assignment of those rights shall not be permitted’.
13 The referring court specifies that the liability of the air carrier provided for in Article 19 of the Montreal Convention, for cases of delay in the carriage of baggage, is an action for damages of a contractual nature. Consequently, according to the referring court, the assignment of the claim for damages relating to such a delay falls within the prohibition on assignment laid down by the clause at issue.
14 Referring to the case-law of the Court of Justice, the referring court considers that it has sufficient factual and legal information to review the content of that clause and to declare it unfair, within the meaning of Directive 93/13, at the end of inter partes proceedings. The referring court is uncertain, however, whether it may examine of its own motion whether that clause is unfair. First, the proceedings pending before it were brought not by one of the parties to the contract of carriage on the basis of which the action is founded, but by the assignee of the air passenger’s claim for compensation, which does not have the status of a consumer. Secondly, since the consumer is not a party to those proceedings, account cannot be taken of the consumer’s intention to rely, after having been informed by that court, on the unfair and non-binding nature of the clause at issue.
15 In those circumstances the Juzgado de lo Mercantil n.o 1 de Palma de Mallorca (Commercial Court No 1, Palma de Mallorca) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must [Article 6(1) and Article 7(1)] of [Directive 93/13] be interpreted as meaning that a national court hearing an action seeking compensation for damage occasioned by delay in the carriage of baggage under Article 19 of the Montreal Convention is required to review of its own motion whether a clause in the contract of carriage that does not allow the passenger to transfer their rights is unfair, where the claim is brought by the transferee[,] who[,] unlike the transferor, is not a consumer or user? (2) If it is appropriate to carry out a review of the court’s own motion, may the obligation to inform the consumer and establish whether they claim that the clause is unfair or consent to it be disregarded in the light of the conclusive act of having transferred their claim in breach of any unfair term that does not permit the claim to be transferred?’
16 By its first question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that the national court is required to examine of its own motion whether a clause is unfair which, in the contract of carriage concluded between an air passenger and an air carrier, prohibits the assignment of rights enjoyed by that passenger in respect of that carrier, where that court has an action seeking compensation brought before it, against that carrier, by a commercial company which is the assignee of that passenger’s claim for damages.
17 As regards the situation in which an air passenger’s claims are assigned to a collection agency, the Court has already held that the fact that the dispute in the main proceedings is between only sellers or suppliers does not preclude the application of Directive 93/13, in so far as the scope of that directive is not dependent on the identity of the parties to that dispute, but on the capacity of the parties to the contract (see, to that effect, judgment of 18 November 2020, DelayFix, C‑519/19, EU:C:2020:933, paragraphs 53 and 54).
18 Under Article 1(1) and Article 3(1) of Directive 93/13, that directive applies to the terms incorporated in contracts concluded between a seller or supplier and a consumer which have not been individually negotiated (judgment of 18 November 2020, DelayFix, C‑519/19, EU:C:2020:933, paragraph 55 and the case-law cited).
19 In the present case, the contract of carriage, on which the claim relied on by Eventmedia is based and which contains the clause at issue, was concluded between a seller or supplier, namely Air Europa, and an air passenger. Furthermore, there is nothing to indicate that the latter purchased his air ticket in the course of his professional activity, with the result that, subject to verification by the referring court, that passenger appears to have concluded that contract with the status of as a consumer, within the meaning of Article 2(b) of Directive 93/13.
20 In the light of the case-law cited in paragraph 17 of the present judgment, the dispute in the main proceedings therefore falls within the scope of Directive 93/13.
21 The grounds set out in paragraph 63 of the judgment of 1 October 2015, ERSTE Bank Hungary (C‑32/14, EU:C:2015:637), and in paragraph 29 of the judgment of 11 March 2020, Lintner (C‑511/17, EU:C:2020:188), referred to, in essence, in the request for a preliminary ruling, are not such as to call that conclusion into question.
22 It is true that the Court has held, in those paragraphs, that it is necessary, in order for the consumer protection intended by Directive 93/13 to be granted, that judicial proceedings have been brought by one of the parties to the contract. However, that statement must be placed in the context of the cases which gave rise to those judgments, which were in fact between the consumer and the seller or supplier which concluded a contract.
23 More specifically, in the case which gave rise to the judgment of 1 October 2015, ERSTE Bank Hungary (C‑32/14, EU:C:2015:637), the Court was asked, in essence, whether the system of protection put in place by Directive 93/13 had to be interpreted as precluding national legislation which enables a notary who has drafted, 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 without being able to review whether the terms of that contract are unfair. In considering that question, the Court has drawn a distinction, in principle, between such a notarial procedure and court proceedings, pointing out that it is only during the latter procedure that the system of protection intended by Directive 93/13 requires the national court to examine of its own motion whether a contractual term falling within the scope of that directive is unfair (see, to that effect, judgment of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraphs 33, 41 to 47 and 59). It is still necessary, however, for an action to be brought before the national court. It is to that guiding principle of court proceedings, according to which bringing proceedings is a matter for the parties alone, that the reasoning set out in paragraph 63 of that judgment refers.
24 As regards paragraph 29 of the judgment of 11 March 2020, Lintner (C‑511/17, EU:C:2020:188), it forms part of a line of reasoning devoted to the limitations of the subject matter of the dispute and to the principle that the subject matter of an action is delimited by the parties. Thus, it is apparent from a reading of paragraphs 26 to 34 of that judgment as a whole that the Court intended not to limit the scope of Directive 93/13 to disputes between consumers and sellers or suppliers, but rather to emphasise the fact that the consumer protection intended by Directive 93/13 presupposes that court proceedings have been brought and that the positive action by the national court cannot exceed the limits of the dispute brought before it.
25 It follows that the Court did not intend, by the two judgments referred to in paragraphs 23 and 24 of the present judgment, to limit the scope of Directive 93/13 solely to disputes between consumers and sellers or suppliers who have concluded a contract.
26 In the light of those preliminary observations, it is necessary to determine whether, where the dispute is not between that consumer and that seller or supplier, but between that consumer and another seller or supplier, namely a commercial company which is the assignee of the consumer’s rights, the national court must examine of its own motion whether the clauses of that contract are unfair.
27 It should be recalled that, according to the Court’s settled case-law, 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 (judgments of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 25, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 51).
28 Having regard to such a weaker position, Article 6(1) of that directive provides that unfair terms are not binding on consumers. That is a mandatory provision which aims to replace the formal balance which the latter establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgments of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 36, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 52).
29 In that context, the Court has held on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 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 (judgment of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 53 and the case-law cited).
30 In addition, Directive 93/13, as is apparent from Article 7(1) in conjunction with the twenty-fourth recital of that 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 (judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 68, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 54).
31 While the Court has already defined, on several occasions and taking into account the requirements of Article 6(1) and Article 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. 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, judgments of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraphs 45 and 46, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 55).
32 In those circumstances, it is necessary to determine whether those provisions, read in conjunction with the principles of equivalence and effectiveness, require the national court, hearing an action brought by a commercial company which is the assignee of a consumer’s claim for damages against the seller or supplier which is the other party to the contract with that consumer, to review whether a clause in the contract concluded between that consumer and that seller or supplier is unfair.
33 First, as regards the principle of equivalence, it is for the national court to determine, in the light of the detailed procedural rules applicable in national law, whether that principle is observed, having regard to the subject matter, cause of action and essential elements of the actions concerned (judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 23 and the case-law cited).
34 In that regard, the Court has ruled that Article 6(1) of Directive 93/13 must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy (judgments of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 52, and of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 24).
35 It follows that, in accordance with the principle of equivalence, where, under domestic law, the national court has discretion or the obligation to assess of its own motion whether a contractual term is contrary to national rules of public policy, it must also have discretion or the obligation to assess of its own motion whether such a term is contrary to Article 6 of Directive 93/13, where it has the legal and factual information necessary to that effect (see, to that effect, judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 25 and the case-law cited).
36 In the present case, the request for a preliminary ruling does not contain any information as to whether the court hearing an action seeking compensation for damages based on Article 19 of the Montreal Convention may, or even must, under Spanish law, examine of its own motion whether a clause, such as the clause at issue, is contrary to national rules of public policy. In accordance with the case-law recalled in paragraph 33 of the present judgment, it is for the referring court to verify that aspect in order to determine whether it may, or even must, under the principle of equivalence, examine of its own motion whether the clause at issue is unfair.
37 Secondly, as regards the principle of effectiveness, the Court has held that every case in which the question arises 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 proceedings (judgments of 14 December 1995, Peterbroeck, C‑312/93, EU:C:1995:437, paragraph 14, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 60).
38 In respect of an action for compensation brought by a commercial company which is the assignee of a consumer’s claim against the seller or supplier who is the other party to the contract with the consumer, it must be stated that an action between two sellers or suppliers is not characterised by the same imbalance that is present in an action between the consumer and its seller or supplier, which is the other party to the contract (see, by analogy, judgment of 5 December 2013, Asociación de Consumidores Independientes de Castilla y León, C‑413/12, EU:C:2013:800, paragraph 50).
39 It follows that, unlike the situation referred to in the case-law cited in paragraph 29 of the present judgment, it is not necessary, in order to ensure the effectiveness of the system of consumer protection intended by Directive 93/13, for the national court, hearing a dispute between two sellers or suppliers, such as a company which is the assignee of the rights of a consumer and the seller or supplier which is the other party to the contract with that consumer, to examine of its own motion whether a clause in the contract concluded by that consumer is unfair.
40 In addition, the principle of effectiveness referred to in paragraph 31 of the present judgment require the national court to carry out such an examination of its own motion, provided that, in accordance with national procedural rules, the commercial company which is the assignee of the consumer’s claim has or has had a genuine opportunity to rely, before the national court, on the possible unfairness of a clause in the contract signed by that consumer.
41 In the light of all the foregoing, the answer to the first question is that: - Article 6(1) and Article 7(1) of Directive 93/13, read in conjunction with the principle of effectiveness, must be interpreted as meaning that the national court is not required to examine of its own motion the possible unfairness of a clause which, in the contract of carriage concluded between an air passenger and an air carrier, prohibits the assignment of rights enjoyed by that passenger with regard to that carrier, where that court has an action for compensation brought before it, against that carrier, by a commercial company which is the assignee of that passenger’s claim for damages, provided that that company has or has had a genuine opportunity to rely, before that court, on the possible unfairness of the clause in question; - the principle of equivalence must be interpreted as meaning that if, under rules of national law, that same court has discretion or the obligation to assess of its own motion whether such a clause is contrary to national rules of public policy, it must also have discretion or the obligation to assess of its own motion whether such a clause is contrary to Article 6 of Directive 93/13, where it has the legal and factual information necessary to that effect.
42 By its second question, the referring court asks, in essence, whether the principle of audi alterem partem must be interpreted as meaning that, where the national court finds of its own motion that a clause in a contract of carriage concluded between an air passenger and an air carrier in an action for compensation brought, against that carrier, by a commercial company which is the assignee of that passenger’s claim for damages against that carrier, is unfair, that court is required to inform that passenger of that fact and to ask him or her whether he or she intends to rely on the unfair nature of that clause or whether that passenger agrees to the application of that clause.
43 As a preliminary point, it should be noted that the answer to the present question is relevant in the event that the referring court comes, following the assessment of the principle of equivalence in the light of paragraphs 33 to 36 of the present judgment or of the principle of effectiveness in the light of paragraphs 37 and 40 of the present judgment, to the conclusion that it may, or even must, examine of its own motion whether the clause at issue is unfair.
44 In that context, it should be borne in mind that, in accordance with the case-law of the Court, as a general rule, the principle of audi alteram partem confers, in particular, on each party the right 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 (see, to that effect, judgments of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraphs 55 and 56, and of 21 February 2013, Banif Plus BankC‑472/11, EU:C:2013:88, paragraph 30).
45 Thus, 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 Directive 93/13, 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 invite each of them to set out their views on that matter, with 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, paragraph 31).
46 It follows from the foregoing that, where it finds of its own motion that a clause in a contract concluded between a consumer and a seller or supplier is unfair, in a dispute between that seller or supplier and the commercial company which is the assignee of the rights of that consumer, the national court must inform the two parties to the dispute before it of that finding that the clause is unfair, namely the commercial company which is the assignee of the consumer’s rights and the seller or supplier which is the other party to the contract with that consumer. The national court must give them the opportunity to put forward their respective arguments in the context of setting out their view on the matter with the opportunity to challenge the views of the other party.
47 That opportunity afforded to the commercial company which is the assignee of the consumer’s rights to set out its views on that point and challenge those of the other party also fulfils the obligation on the national court to take into account, where appropriate, the intention expressed by the commercial company when, conscious of the non-binding nature of an unfair term, it states nevertheless that it is opposed to the term being disregarded, thus giving its free and informed consent to the term in question (see, by analogy, judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 35).
48 Where, as in the dispute in the main proceedings, the commercial company which is the assignee of the consumer’s rights brings an action before the national court despite a clause, like the clause at issue, in the contract concluded between that consumer and a seller or supplier and prohibiting the consumer from assigning his or her rights, it is reasonable to presume that that commercial company is not opposed to the court setting aside that clause after finding that it is unfair.
49 In contrast, given that the consumer, who has assigned his claim for damages against the seller or supplier, is not a party to the dispute between the latter and the assignee of that claim, the national court is not required to inform that consumer of that examination of its own motion or to obtain the consumer’s observations in that regard.
50 In the light of all of the foregoing, the answer to the second question is that the principle of audi alterem partem must be interpreted as meaning that, where the national court finds of its own motion that a clause in a contract of carriage concluded between an air passenger and an air carrier in an action for compensation brought, against that carrier, by a commercial company which is the assignee of that passenger’s claim for damages against that carrier, is unfair, that court is not required to inform that passenger of that fact or to ask him or her whether he or she intends to rely on the unfair nature of that clause or whether that passenger agrees to the application of that clause. In contrast, that court must inform the parties to the dispute pending before it of that finding that the clause is unfair, in order to give them the opportunity to put forward their respective arguments in the context of an inter partes procedure, and satisfy itself of the fact that the commercial company which is the assignee seeks that that clause be declared inapplicable.
51 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.