1 These requests for a preliminary ruling concern the interpretation of Article 6(1) and 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 requests have been made in proceedings between, in Case C‑810/21, Caixabank SA, formerly Bankia SA, on the one hand, and WE and XA, on the other, in Case C‑811/21, Banco Bilbao Vizcaya Argentaria SA, on the one hand, and TB and UK, on the other, in Case C‑812/21, Banco Santander SA, on the one hand, and OG, on the other, and, in Case C‑813/21, OK and PI, on the one hand, and Banco Sabadell SA, on the other, concerning the consequences of the annulment of an unfair term contained in mortgage loan agreements concluded between those parties.
3 Article 2(a) of Directive 93/13 states: ‘For the purposes of this Directive: … (b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’.
4 Article 6(1) of that directive is worded as follows: ‘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 121-20 of Ley 29/2002, primera Ley del Código Civil de Cataluña (Law 29/2002, First Law of the Civil Code of Catalonia) of 30 December 2002 (BOE No 32 of 6 February 2003; ‘the Catalan Civil Code’) provides: ‘Claims of any nature become time-barred after 10 years, unless someone has previously acquired rights by usucaption or this Code or specific legislation provides otherwise.’
7 Article 121-23 of that code provides: ‘The limitation period begins to run once the claim has arisen and becomes enforceable, and once the holder of the claim is, or could reasonably be, aware of the circumstances giving rise to the claim and the person against whom it may be brought.’
8 Under Article 121-11 of that code: ‘The following shall constitute grounds for interrupting the limitation period: (a) the bringing of the action before the courts, even if it is dismissed on the basis of a procedural defect; (b) the initiation of arbitration proceedings relating to the claim; (c) the pursuit of the claim out of court; (d) recognition of the right or waiver of the limitation by the person against whom the claim may be brought during the limitation period.’
9 Article 1303 of the Código Civil (Civil Code) provides: ‘Where an obligation has been declared void, the contracting parties must restore to one another those things that formed the subject matter of the contract, together with the profits derived therefrom, and the price plus interest, subject to the provisions of the following articles.’
10 On 4 February 2004, WE and XA concluded a mortgage loan agreement (‘the loan agreement in Case C‑810/21’) with Bankia which, in 2021, merged with Caixabank.
11 The last invoice relating to the charges arising from that agreement, which concerned the notarial, registration and administration charges for that agreement, was paid by WE and XA on 4 May 2004.
12 On 16 January 2018, WE and XA brought an action for annulment of a term contained in the loan agreement in Case C‑810/21, according to which it fell to the borrower to pay all the charges arising from the conclusion of that agreement.
13 Bankia challenged that action, arguing that the action for restitution was time-barred because the ten-year limitation period for bringing an action under Article 121-20 of the Catalan Civil Code had expired.
14 By decision of 23 September 2020, the Juzgado de Primera Instancia no 50 de Barcelona (Court of First Instance No 50, Barcelona, Spain) rejected the plea of limitation raised by Bankia and ordered that bank to pay the sum of EUR 468.48 paid in respect of notarial, registration and administration charges for the loan agreement in Case C‑810/21. Bankia brought an appeal against that decision before the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain), the referring court.
15 On 20 January 2004, TB and UK concluded a mortgage loan agreement (‘the loan agreement in Case C‑811/21’) with Banco Bilbao Vizcaya Argentaria.
16 The last invoice relating to the charges arising from that agreement, which concerned the notarial, registration and administration charges for that agreement, was paid by TB and UK on 15 March 2004.
17 On 16 January 2018, TB and UK brought an action for annulment of a term contained in the loan agreement in Case C‑811/21, according to which it fell to the borrower to pay all the charges arising from the conclusion of that agreement.
18 Banco Bilbao Vizcaya Argentaria challenged that action, arguing that the action for restitution was time-barred because the ten-year limitation period for bringing an action under Article 121-20 of the Catalan Civil Code had expired.
19 By decision of 25 September 2020, the Juzgado de Primera Instancia no 50 de Barcelona (Court of First Instance No 50, Barcelona) rejected the plea of limitation raised by Banco Bilbao Vizcaya Argentaria and ordered that bank to pay the sum of EUR 499.61 paid in respect of notarial, registration and administration charges for the loan agreement in Case C‑811/21. Banco Bilbao Vizcaya Argentaria brought an appeal against that decision before the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), the referring court.
20 On 17 December 2004, OG concluded a mortgage loan agreement (‘the loan agreement in Case C‑812/21’) with Banco Santander.
21 The last invoice relating to the charges arising from that agreement, which concerned the notarial, registration and administration charges for that agreement, was paid by OG on 18 March 2005.
22 On 12 September 2017, OG brought an action for annulment of a term contained in the loan agreement in Case C‑812/21, according to which it fell to the borrower to pay all the charges arising from the conclusion of that agreement.
23 Banco Santander challenged that action, arguing that the action for restitution was time-barred because the ten-year limitation period for bringing an action under Article 121-20 of the Catalan Civil Code had expired.
24 By decision of 25 September 2020, the Juzgado de Primera Instancia no 50 de Barcelona (Court of First Instance No 50, Barcelona) rejected the plea of limitation raised by Banco Santander and ordered that bank to pay the sum of EUR 589.60 paid in respect of notarial, registration and administration charges for the loan agreement in Case C‑812/21. Banco Santander brought an appeal against that decision before the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), the referring court.
25 On 14 July 2006, OK and PI concluded a mortgage loan agreement (‘the loan agreement in Case C‑813/21’) with Banco Sabadell.
26 The last invoice relating to the charges arising from that agreement, which concerned the notarial, registration and administration charges for that agreement, was paid by OK and PI on 4 October 2006.
27 After lodging, on 15 November 2017, an out-of-court claim against Banco Sabadell, which that bank did not accept, OK and PI, on 15 December 2017, brought an action for annulment of a term contained in the loan agreement in Case C‑813/21, according to which it fell to the borrower to pay all the charges arising from the conclusion of that agreement.
28 Banco Sabadell challenged that action, arguing that the action for restitution was time-barred because the ten-year limitation period for bringing an action under Article 121-20 of the Catalan Civil Code had expired.
29 By decision of 11 January 2021, the Juzgado de Primera Instancia no 50 de Barcelona (Court of First Instance No 50, Barcelona) upheld the objection, raised by Banco Sabadell, that the action for restitution was time-barred. OK and PI brought an appeal against that decision before the Audiencia Provincial de Barcelona (Provincial Court, Barcelona), the referring court.
30 The referring court in Joined Cases C‑810/21 to C‑813/21 refers to the case-law of the Court of Justice, according to which the bringing of an action for restitution may be subject to a limitation period, provided that the starting point and duration of that period do not make it practically impossible or excessively difficult for the consumer to exercise his or her right to seek such restitution.
31 The referring court considers that, in order to ascertain whether a limitation period is consistent with the principle of effectiveness, two factors must be taken into account, namely, first, the duration of the limitation period and, second, the starting point of that period.
32 In that regard, the referring court notes that the Autonomous Community of Catalonia has its own legislation which departs, in certain respects, from the Spanish legislation and that the Catalan Civil Code sets a limitation period of 10 years, which is twice as long as the limitation period laid down by the Spanish Civil Code for personal actions.
33 In that regard, it considers that, in the present case, the ten-year limitation period at issue in the main proceedings does not infringe the principle of effectiveness, since that period is sufficient to enable the consumer to prepare and bring an effective action. However, that court has doubts as to the correct interpretation of national law with regard to the determination of the starting point of that period, which, according to the case-law of the Court of Justice, must enable the consumer to be aware of the existence of an unfair term and to bring an action for a declaration that that term is invalid.
34 The referring court observes that, unlike the contractual terms which the Court of Justice has already had occasion to examine in cases before it, a term such as those at issue in the main proceedings, which imposes all the charges for concluding the mortgage loan agreement on the borrower, exhausts its effects with the payment by the consumer of the last invoice relating to those charges. That court considers that the case-law of the Court of Justice, according to which a period of three years from the date of unjust enrichment is liable to make it excessively difficult to exercise the rights conferred by Directive 93/13, cannot apply in the present case. It considers, in that regard, that that case-law is based on the fact that the limitation period may begin to run even before all payments have been made.
35 In addition, the referring court asks whether the consumer’s knowledge of the unfairness of a contractual term must relate solely to the factual elements of that unfairness or whether it must also cover the legal assessment of those facts. That court considers that, although that knowledge must relate only to those factual elements, the date of payment of the last invoice could constitute the point from which the limitation period starts to run, bearing in mind that, in the present case, the clause at issue in the main proceedings exhausted its effects with that payment.
36 However, although compliance with the principle of effectiveness requires the consumer to be in a position to make a legal assessment of those facts, it would still be necessary to determine, for that purpose, the information which must be made available to the average consumer. In that regard, after setting out the case-law of the Tribunal Supremo (Supreme Court, Spain), the referring court asks whether well established national case-law could enable the Spanish consumer to be aware, from a legal point of view, of the unfair nature of a contractual term.
37 Finally, the referring court asks whether knowledge of the unfair nature of a term must be acquired before the limitation period begins to run, in accordance with national rules, or before it expires. In that regard, the referring court states, first, that, unlike the five-year limitation period laid down by the Spanish Civil Code, the limitation period is extended to 10 years within the territorial scope of the Catalan Civil Code and, second, that the bringing of an action is favoured in the national legal system, in so far as a mere out-of-court claim constitutes a ground for interruption of the limitation period and causes the entire period to start running afresh.
38 In those circumstances, the Audiencia Provincial de Barcelona (Provincial Court, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) (a) In relation to the pursuit of an action to enforce the restitutory effects of a declaration of nullity of a term under which the borrower is required to pay the charges for formalising the contract, is it compatible with Article 6(1) and Article 7(1) of Directive 93/13 to make the bringing of the action subject to a 10-year limitation period which starts to run from when the term exhausts its effects upon settlement of the final payment, the point at which the consumer becomes aware of the facts which establish the unfairness [of that clause], or is it necessary for the consumer to be in possession of additional information concerning the legal assessment of the facts? (b) If knowledge of the legal assessment of the facts is necessary, must the start of the limitation period be made subject to the existence of settled case-law concerning the nullity of the term or may the national court take other, different circumstances into consideration? (2) Given that the action for restitution is subject to a long limitation period of 10 years, at what point must the consumer be in a position to be aware of the unfairness of the term and of the rights granted to him or her under Directive 93/13 - before the limitation period starts to run or before that period expires?’
39 As a preliminary point, it should be noted that the first question referred for a preliminary ruling consists of two parts and that the second part of that question must be answered only in the event that the first part of that question is answered in the negative.
40 Furthermore, it is necessary to examine the second question referred for a preliminary ruling in conjunction with the first part of the first question.
41 By the first part of the first question and the second question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a judicial interpretation of national law according to which, following the annulment of an unfair contractual term making the consumer bear the charges for concluding a mortgage loan agreement, an action for restitution of those charges is subject to a limitation period of 10 years which starts to run from the moment that term exhausts its effects when the last payment of those charges is made, without it being relevant in that regard that that consumer is aware of the legal assessment of the constituent elements of the unfair nature of that term, and, if so, whether those provisions must be interpreted as meaning that that knowledge must be acquired before the limitation period begins to run or before it expires.
42 It should be recalled that, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish, in accordance with the principle of procedural autonomy, procedural rules for actions intended to safeguard the rights that individuals derive from EU law, provided, however, that those rules are no less favourable than the rules governing similar domestic actions (the principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness) (judgment of 22 April 2021, Profi Credit Slovakia, C‑485/19, EU:C:2021:313, paragraph 52 and the case-law cited).
43 As regards the application of a limitation period to a claim brought by a consumer for repayment of sums paid but not due, based on the unfair nature of a contractual term, for the purposes of Directive 93/13, it should be noted that the Court has previously held that Article 6(1) and Article 7(1) of that directive do not preclude national legislation which, while providing that an action for a declaration of nullity of an unfair term in a contract concluded between a seller or supplier and a consumer is not subject to a time limit, subjects the action to enforce the restitutory effects of that finding to a limitation period, provided that the principles of equivalence and effectiveness are observed (judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 39 and the case-law cited).
44 It must therefore be held that the imposition of a limitation period on claims for restitution brought by consumers with a view to enforcing rights which they derive from Directive 93/13 is not, in itself, contrary to the principle of effectiveness, provided that its application does not make it in practice impossible or excessively difficult to exercise the rights conferred by that directive (judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 40 and the case-law cited).
45 As regards, in particular, the principle of effectiveness, it should be noted that each case in which the question arises as to whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed in the light of the place of that provision in the proceedings as a whole, the way in which they are conducted and their particular features, before the various national authorities. In that context, it is appropriate to take into consideration, where appropriate, 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 (judgment of 8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign currency), C‑80/21 à C‑82/21, EU:C:2022:646, paragraph 87 and the case-law cited).
46 As regards the analysis of the characteristics of the limitation period at issue in the main proceedings, the Court has stated that that analysis must cover the duration of the limitation period and the detailed rules for its application, including the mechanism adopted to start the period running (judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 30 and the case-law cited).
47 In that respect, in order to be regarded as being compatible with the principle of effectiveness, a limitation period must be sufficient in practical terms to enable a consumer to prepare and bring an effective action in order to enforce the rights that he or she derives from Directive 93/13, in the form, inter alia, of a claim for restitution based on the unfairness of a contractual term (see, to that effect, judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 31 and the case-law cited).
48 Thus, as regards the starting point of a limitation period, such a period may be compatible with the principle of effectiveness only if the consumer has had the opportunity to become aware of his or her rights before that period begins to run or expires (judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 46 and the case-law cited).
49 In the present case, it is apparent from the file submitted to the Court that the judicial interpretation of the national rules of procedure applicable in the main proceedings, regardless of the fact that those rules provide that the limitation period for an action brought by the consumer for restitution of undue payments of charges relating to mortgage loan agreements, of 10 years’ duration, cannot begin to run until the consumer is aware of the facts constituting the unfair nature of the contractual term in performance of which those payments were made, does not require the consumer to be aware not only of those facts, but also of the legal assessment of those facts, which entails that that consumer is also aware of the rights which he or she derives from Directive 93/13.
50 However, in order for the detailed rules for the application of a limitation period to comply with the principle of effectiveness, it is not sufficient for those rules to provide that the consumer must be aware of the facts constituting the unfair nature of a contractual term, without having regard, first, to that consumer’s knowledge of the rights he or she derives from Directive 93/13 and, second, to the fact that that consumer has sufficient time to be able effectively to prepare and bring an action in order to assert those rights.
51 It follows that a limitation period such as the limitation period for the action for restitution of the mortgage charges at issue in the main proceedings is not consistent with the principle of effectiveness where the detailed rules for its application do not take those two factors into consideration.
52 As regards the question whether the consumer must be aware of the unfair nature of a contractual term and of his or her rights under Directive 93/13 before the limitation period for an action for restitution begins to run or before the expiry of that period, it should be noted that the condition, referred to in paragraph 48 above, that a limitation period may be compatible with the principle of effectiveness only if the consumer had the opportunity to become aware of those rights before that period began to run or has expired, emerged from the Court’s case-law for the purposes of examining, on a case-by-case basis, the compatibility of a specific limitation period, together with the detailed rules for its application laid down by the national law concerned, with the principle of effectiveness.
53 As is apparent from paragraphs 45 to 47 above, when the Court of Justice interprets EU law in order to provide the referring court with useful guidance to enable it to assess the compatibility of a national procedural rule with the principle of effectiveness, it takes into account all the relevant elements of the national legal order submitted to it by the referring court, and not merely a rule relating to one aspect of the limitation period at issue, considered in isolation.
54 Thus, it is possible that a national rule under which a limitation period cannot begin to run until a consumer is aware of the unfair nature of a contractual term and of the rights which he or she derives from Directive 93/13, which appears a priori to be consistent with the principle of effectiveness, may nevertheless infringe that principle if the length of that period is not sufficient in practical terms to enable the consumer to prepare and bring an effective action to assert his or her rights under that directive.
55 In the light of all the foregoing, the answer to the first part of the first question and the second question 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 precluding a judicial interpretation of national law according to which, following the annulment of an unfair contractual term making the consumer bear the charges for concluding a mortgage loan agreement, an action for restitution of those charges is subject to a limitation period of 10 years which starts to run from the moment that term exhausts its effects when the last payment of those charges is made, without it being considered relevant in that regard that that consumer is aware of the legal assessment of those facts. The compatibility of the detailed rules for the application of a limitation period with those provisions must be assessed in the light of those rules as a whole.
56 By the second part of the first question, the referring court asks, in essence, whether Directive 93/13 must be interpreted as precluding a judicial interpretation of national law according to which, in order to determine the starting point of the limitation period for the consumer’s action for restitution of sums unduly paid under an unfair contractual term, the existence of well established national case-law relating to the invalidity of similar terms may be regarded as establishing that the condition relating to the consumer concerned being aware of the unfair nature of that term and of the legal consequences thereof is satisfied.
57 In that regard, in the first place, it should be recalled that the system of protection introduced by Directive 93/13 is based on the premiss that the consumer is in a position of weakness vis-à-vis the seller or supplier as regards both his or her bargaining power and level of knowledge, a situation that leads to that consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 39 and the case-law cited).
58 In the second place, the seller or supplier’s privileged position as regards the level of information available to it continues to prevail after the contract has been concluded. Thus, where the unfair nature of certain standard terms has been established by settled national case-law, banking institutions may be expected to be informed of this and to act accordingly (see, to that effect, judgment of 13 July 2023, CAJASUR Banco, C‑35/22, EU:C:2023:569, paragraph 32).
59 However, it cannot be presumed that a consumer’s level of information, which is lower than that of the seller or supplier, includes knowledge of national case-law on consumer law, even if that case-law is well established.
60 In that regard, it should be recalled that it is apparent from the wording of Article 2(b) of Directive 93/13 that the protection afforded by that directive depends on the purposes for which a natural person is acting, that is to say, those which are outside his or her trade, business or profession. Although sellers or suppliers may be required to keep themselves informed of legal matters relating to the terms which they take the initiative to insert in contracts which they conclude with consumers in the course of ordinary commercial activity, in particular in the light of national case-law relating to such terms, a similar attitude cannot be expected of consumers, given the occasional, or even exceptional, nature of the conclusion of a contract containing such a term.
61 In the light of the foregoing, the answer to the second part of the first question is that Directive 93/13 must be interpreted as precluding a judicial interpretation of national law according to which, in order to determine the starting point of the limitation period for the consumer’s action for restitution of sums unduly paid under an unfair contractual term, the existence of well established national case-law relating to the invalidity of similar terms may be regarded as establishing that the condition relating to the consumer concerned being aware of the unfair nature of that term and of the legal consequences thereof is satisfied.
62 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.