1 This request for a preliminary ruling concerns the interpretation of Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between, on the one hand, CR and TP, two consumers who are the promisee purchasers of a property, and, on the other, Soledil Srl, admitted to a collective insolvency procedure known as ‘concordato preventivo’, the promissor vendor, concerning a request for termination of the reciprocal promise to sell (‘preliminary contract for sale’) concerning that property and the validity of the penalty clause included in that preliminary contract for sale.
3 The 24th recital of Directive 93/13 states: ‘[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 Article 7(1) of that directive provides: ‘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 33 of the decreto legislativo n. 206, recante codice del consumo a norma dell’articolo 7 della legge 29 luglio 2003, n. 229 (Legislative Decree No 206 on the Consumer Code under Article 7 of Law No 229 of 29 July 2003), of 6 September 2005 (Ordinary Supplement to GURI No 235 of 8 October 2005), which transposed Directive 93/13 into Italian law, provides in paragraphs 1 and 2 thereof: ‘1. In a contract concluded between a consumer and a seller or supplier, terms shall be regarded as unfair where, even if they were agreed in good faith, they cause a significant imbalance in the rights and obligations under the contract to the detriment of the consumer. 2. Until proven otherwise, terms shall be presumed to be unfair if they have the object or effect of: … …’
7 Article 36(1) and (3) of that code provides: ‘1. Terms held to be unfair pursuant to Articles 33 and 34 shall be void, whereas the remainder of the contract shall remain valid. … 3. Nullity operates only for the benefit of the consumer and may be raised by the court of its own motion.’
8 Under Article 1384 of the Codice civile (Civil Code), the court may reduce the penalty in a fair manner where the principal obligation has been performed in part or where the sum of the penalty is manifestly excessive, taking into account the creditor’s interest in the performance of the contract.
9 Article 384 of the Codice di procedura civile (Code of Civil Procedure), entitled ‘Statement of the legal principle and decision on the merits’, provides, in the second paragraph thereof: ‘Where it upholds the appeal, the [Corte suprema di cassazione (Supreme Court of Cassation, Italy)] shall quash the decision and remit the case back to another court, which must comply with the principle of law and, in any case, with the point of law decided by the former, or shall rule on the substance of the case itself where new findings of fact are unnecessary.’
10 Under Article 394 of that code, entitled ‘Remitted proceedings’: ‘… In the remitted proceedings, the closing statement may be deferred, but the parties may not put forward claims other than those which they put forward in the proceedings in which the quashed judgment was handed down, unless the need for new claims arises from the judgment of the [Corte suprema di cassazione (Supreme Court of Cassation)].’
11 In 1988, CR and TP, as promisee purchasers, and Soledil, as promissor vendor, concluded a preliminary contract for the sale of a property, under which the former paid the latter an advance payment equal to the sum of approximately EUR 72 870. Article 7 of that preliminary contract for sale provided, as a penalty clause, that, in the event of the non-performance of the promisee purchasers’ obligation to conclude the final contract, the promissor vendor could retain, as a penalty, the sums paid as an advance payment.
12 The final contract relating to that sale was never concluded and the dispute concerning the preliminary contract for sale was brought before an arbitral tribunal, which, by an arbitration award dated 29 July 2002, declared the termination of that preliminary contract for non-performance by the promisee purchasers. The latter were ordered to return the property in question and, in parallel, the promissor vendor was ordered to repay all of the sums received as advance payment.
13 By a judgment handed down in 2009, the Corte d’appello di Ancona (Court of Appeal, Ancona, Italy) declared the arbitration award void on procedural grounds and ruled on the substance of the dispute. In particular, that court ordered the promisee purchasers to return the property in question and ordered the promissor vendor to return the sums received as advance payment. In addition, pursuant to Article 1384 of the Civil Code, it reduced the penalty provided for in Article 7 of the preliminary contract for sale, as referred to in paragraph 11 above, to only the interest due on the sums paid as advance payment.
14 By a judgment handed down in 2015, the Corte suprema di cassazione (Supreme Court of Cassation) quashed the judgment of the Corte d’appello di Ancona (Court of Appeal, Ancona) for failure to state reasons for the decision to reduce that penalty.
15 The case was then remitted before the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy).
16 By a judgment delivered in 2018, that court declared that the subject matter of the remitted proceedings was limited to the application of the penalty clause provided for in Article 7 of the preliminary contract for sale, the potential reduction of the penalty applicable and the determination of whether the promissor vendor had possibly suffered greater damages due to the unlicensed occupation of the property in question. That court held, in particular, that a penalty of approximately EUR 72 870 was excessive and therefore reduced the sum due in that regard by the promisee purchasers to EUR 61 600.
17 The promisee purchasers lodged an appeal before the Corte suprema di cassazione (Supreme Court of Cassation), which is the referring court, claiming, in particular, that that penalty clause is invalid on the ground that it imposes on them a penalty that is manifestly excessive and is, therefore, an unfair term for the purposes of the national consumer protection legislation. In those circumstances, in their view, the Corte d’appello di Bologna (Court of Appeal, Bologna) should have, of its own motion, declared invalid Article 7 of the preliminary contract for sale.
18 The referring court notes, first, that, under the national legislation, the principle of res judicata precludes an issue relating to the nullity of an allegedly unfair term, which has not been raised in the initial review of that term’s legality and proves to be necessarily incompatible with the nature of the judgment delivered on the substance of the case by the Corte suprema di cassazione (Supreme Court of Cassation), from being examined in the second review of its legality.
19 Secondly, that court noted that it has already held, in accordance with the case-law of the Court of Justice on the principle of effectiveness as regards rights conferred on consumers by Directive 93/13, that res judicata does not apply in summary proceedings for an order for payment, where the ground relied on has not been contested and does not include a statement of reasons as to why the contractual terms in question are not unfair.
20 In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Are Article 6(1) and Article 7(1) of [Directive 93/13] and Article 47 of [the Charter] to be interpreted:
21 By its question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation under which the application of the principle of res judicata does not allow a national court, to which the case has been remitted following an appeal on a point of law (‘cassation’), to examine of its own motion the nullity of an allegedly unfair contractual term where (i) the plea of the unfairness of that term was not relied on by the consumer at earlier stages of the judicial proceedings and (ii) the nullity of such a term was not raised by the national courts of their own motion in the proceedings which gave rise to the judgment of the court of last instance.
22 According to settled case-law of the Court, 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, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 51 and the case-law cited).
23 As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on consumers. 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 of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 52 and the case-law cited).
24 In that context, 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 (judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 46, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 53).
25 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 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 44, and of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 54).
26 In the absence of EU legislation, the detailed rules governing procedures for safeguarding the rights which individuals derive from EU law fall within the domestic legal system of the Member States, by virtue of the principle of procedural autonomy of those States. However, those rules must be no less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 22 and the case-law cited).
27 As regards the principle of equivalence, the Court does not have before it any information which might raise doubts as to the compliance of the legislation at issue with that principle.
28 As regards the principle of effectiveness, it follows from the Court’s case-law 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, 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 of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 28 and the case-law cited).
29 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, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 29 and the case-law cited).
30 In this respect, the Court has ruled that, without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed (judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 30 and the case-law cited).
31 It follows that the conditions laid down in the national laws, to which Article 6(1) of Directive 93/13 refers, may not adversely affect the substance of the right that consumers acquire under that provision not to be bound by a term deemed to be unfair (judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 31 and the case-law cited).
32 That being the case, attention should be drawn to the importance, both for the EU legal order and for the national legal systems, of the principle of res judicata. The Court has already had occasion to state that, in order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question (judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), C‑582/21, EU:C:2024:282, paragraph 37 and the case-law cited).
33 The Court has also held that, in the case where, in a previous examination of a contract in dispute which led to the adoption of a decision which has become res judicata, the national court limited itself to examining of its own motion, with regard to Directive 93/13, one or certain terms of that contract, that directive requires a national court to assess, at the request of the parties or of its own motion where it is in possession of the legal and factual elements necessary for that purpose, the potential unfairness of other terms of that contract. In the absence of such a review, consumer protection would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of that term, contrary to Article 7(1) of Directive 93/13 (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 52 and the case-law cited).
34 By contrast, that protection would be ensured if, in the course of the first set of judicial proceedings, (i) the competent court had conducted a review of whether the terms of the agreement concerned were unfair, (ii) that review, accompanied by at least a summary statement of reasons, had not revealed the existence of any unfair terms, and (iii) the consumer had been duly informed that, if no appeal was brought within the time limit prescribed by national law, that consumer would be time barred from subsequently pleading the possible unfair nature of those terms (judgment of 7 November 2024, ERB New Europe Funding II, C‑178/23, EU:C:2024:943, paragraph 39 and the case-law cited).
35 It follows from the foregoing that a court’s review of whether terms in a contract concluded between a consumer and a seller or supplier are unfair is consistent with the principle of effectiveness in the light of Directive 93/13 if, first, the consumer has been informed of the existence of that review and of the consequences of his or her inaction as regards the time-barring of the right to assert the possible unfairness of the contractual terms, and, secondly, the decision taken following that review contains a sufficient statement of reasons making it possible to identify the terms which were examined on that occasion and the reasons, even if set out in summary form, for the finding of the court that those terms are not unfair. A judicial decision which meets those requirements may have the effect of preventing a further review of whether the contractual terms are unfair in subsequent proceedings (judgment of 29 February 2024, Investcapital, C‑724/22, EU:C:2024:182, paragraph 45).
36 In the present case, it is apparent from the documents before the Court that, in accordance with the applicable national legislation, the principle of res judicata precludes a plea in law which may be raised of a court’s own motion, such as the alleged unfairness of a contractual term, from being examined in remitted proceedings where that plea was not raised in the proceedings which gave rise to the judgment of the court of last instance, and reliance on that plea proves, therefore, to be necessarily incompatible with the nature of the operative part of that judgment.
37 It is also apparent that the judicial decisions relating to the dispute in the main proceedings, as referred to in paragraphs 13, 14 and 16 above, contain no analysis, either by the courts adjudicating on the substance or the Corte suprema di cassazione (Supreme Court of Cassation), of whether the penalty clause at issue in the main proceedings is unfair.
38 However, according to the referring court, a judicial decision which implicitly acknowledges the validity of that penalty clause has effectively been adopted, since the decision, taken by the national courts, to reduce the sum of the penalty implies, logically, that that clause is valid and has legal effect. Accordingly, under the applicable national legislation, an examination by a court’s own motion of whether the penalty clause concerned is unfair is deemed to have, implicitly, taken place and become res judicata, even without any statement of reasons to that effect. However, that makes the review required by the case-law cited in paragraphs 30 and 33 to 35 above impossible, despite the fact that a set of legal proceedings concerning that penalty clause is still ongoing.
39 It follows that that national legislation, which deprives consumers of the procedural means enabling them to assert their rights under Directive 93/13, makes the protection of those rights impossible or excessively difficult, thereby undermining the principle of effectiveness.
40 Furthermore, the referring court observes that the promisee purchasers displayed complete inaction and raised the unfairness of the penalty clause concerned only in the context of the second appeal to the Supreme Court of Cassation.
41 In that regard, admittedly, the need to comply with the principle of effectiveness cannot be stretched so far as to make up fully for the complete inaction on the part of the consumer concerned (judgment of 24 June 2025, GR REAL, C‑351/23, EU:C:2025:474, paragraph 58 and the case-law cited). In the present case, however, it is clear from the order for reference that the promisee purchasers took part in all the various stages of the judicial proceedings and did raise the unfairness of the penalty clause concerned, albeit not until the second appeal to the Supreme Court of Cassation. Accordingly, their behaviour cannot be classified as total inaction.
42 In the light of all the foregoing considerations, the answer to the question raised is that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness and Article 47 of the Charter, must be interpreted as precluding national legislation under which the application of the principle of res judicata does not allow a national court, to which a case has been remitted following cassation, to examine of its own motion the nullity of an allegedly unfair contractual term where (i) the plea of the unfairness of that term was not relied on by the consumer at earlier stages of the judicial proceedings and (ii) the nullity of such a term was not raised by the national courts of their own motion in the proceedings which gave rise to the judgment of the court of last instance.
43 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.