1 This request for a preliminary ruling concerns 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), and Articles 5, 8 and 9 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22;‘ Unfair Commercial Practices Directive’).
2 The request has been made in proceedings between GR REAL s. r. o., on the one hand, and PO and RT, on the other hand, concerning, first, the eviction of the latter from their family home following its purchase by that company at an extra-judicial auction and, secondly, a counter-claim by which PO and RT challenge the lawfulness of the transfer of the ownership of that immovable property.
3 The 24th 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 5 of Directive 2005/29 provides as follows: ‘1. Unfair commercial practices shall be prohibited. 2. A commercial practice shall be unfair if: … 4. In particular, commercial practices shall be unfair which:
7 Article 8 of that directive reads as follows: ‘A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.’
8 Under Article 9 of that directive: ‘In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account shall be taken of:
9 Paragraph 53 of Zákon č. 40/1964 Zb. Občiansky zákonník (Law No 40/1964 on the Civil Code), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), provided, in subparagraph 9 thereof: ‘In the case of consumer contracts to be paid in instalments, the trader may exercise the rights provided for in Paragraph 565 of the Civil Code no earlier than three months after the delay in payment of an instalment and on condition that he or she has given the consumer at least 15 days’ notice of the fact that he or she will exercise that right.’
10 Paragraph 151j(1) of the Civil Code stated: ‘Where a claim secured by charge is not fully settled in due time, the secured creditor can commence enforcement of the charge. In the enforcement of the charge, the secured creditor may obtain settlement of the claim by the means specified in the contract or by sale of the security at auction pursuant to a specific law, … or he or she may apply for settlement of the claim by the sale of the security pursuant to specific statutory provisions, … unless provided otherwise by the present code or a specific law.’
11 It is apparent from the order for reference that that provision contains an initial footnote, inserted after the words ‘pursuant to a specific law’, which refers to Zákon č. 527/2002 Z. z.o dobrovoľných dražbách a o doplnení zákona Slovenskej národnej rady č. 323/1992 Zb. o notároch a notárskej činnosti (Notársky poriadok) v znení neskorších predpisov (Law No 527/2002 on Voluntary Auctions and supplementing Law No 323/1992 of the Slovak National Council on Notaries and Notarial activity (the Notarial Code), as amended; ‘the Law on Voluntary Auctions’), and a further footnote, after the words ‘specific statutory provisions’, which referred to Zákon č. 99/1963 Zb., Občiansky súdny poriadok (Law No 99/1963 on the former Code of Civil Procedure), which was replaced, from 1 July 2016, by Zákon č. 160/2015 Z. z. Civilný sporový poriadok (Law No 160/2015 on the Code of Civil Procedure; ‘the Code of Civil Procedure’), and to Zákon č. 233/1995 Z. z., o súdnych exekútoroch a exekučnej činnosti (Exekučný poriadok) a o zmene a doplnení ďalších zákonov (Law No 233/1995 on Bailiffs and Enforcement Proceedings (Enforcement Proceedings Code), amending and supplementing other laws).
12 Paragraph 565 of the Civil Code is worded as follows: ‘In the event of repayment by means of instalments, the creditor may not demand repayment of the entire claim for failure to meet any instalment unless this was agreed between the parties or established in a judgment. The creditor may, however, exercise that right at the latest at the due date of the first following instalment.’
13 Under Paragraph 325(1) and 325(2)(d) of the Code of Civil Procedure: ‘1. The court may adopt an interim measure if it is necessary to rectify a certain situation immediately or if there are concerns that the enforcement of the judgment will be compromised. 2. The court may, by way of an interim measure, order a party to the proceedings, inter alia, to
14 Paragraph 6(1) of the Law on voluntary auctions provides as follows: ‘The auctioneer shall be the person who organises the auction and fulfils the conditions established by this Law and a specific law and who is authorised to exercise the relevant business activity. …’
15 Paragraph 19(1)(a) and (b) of that Law is worded as follows: ‘The auctioneer shall cancel the auction at the latest before the start of the auction
16 Paragraph 21(2) of that law provides as follows: ‘Where the validity of the charge agreement is challenged or the provisions of the present Law are infringed, the person who claims that his or her rights have been adversely affected as a result of that infringement may apply to the court for a declaration that the sale is null and void. The right to apply to a court shall lapse, however, if it is not exercised within three months following the acceptance of the winning bid, unless the grounds on which annulment is sought relate to the commission of a criminal act and the sale concerns a residential property in which the former owner, at the time of the acceptance of the winning bid, was officially resident in accordance with specific rules; … in that case, it shall be possible to apply for annulment of the sale even after expiry of that period. …’
17 On 7 April 2011, Slovenská sporiteľňa, a.s. (‘the bank’) concluded a loan contract with the defendants in the main proceedings for a sum of EUR 63 000. Those defendants agreed to repay that sum by monthly instalments of EUR 424.41, from 20 June 2011, the final payment being due on 20 January 2030. In the event of a payment default, a term contained in the general conditions applied by the bank provided for early recovery of the loan. That sum was guaranteed by a mortgage over immovable property, namely the defendant’s family home.
18 On account of a delay in payment of those monthly instalments by the defendants in the main proceedings, the bank, by letter of 3 November 2016, declared the loan immediately payable and requested those defendants to pay in its entirety the remainder of the sum due under that contract, namely EUR 56 888.08. It also lodged an application for enforcement of the mortgage at issue by means of a ‘voluntary’ auction, that is to say an extra-judicial sale by auction of that immovable property.
19 On 21 April 2017, the defendants in the main proceedings brought an action before the Okresný súd Prešov (District Court, Prešov, Slovak Republic), seeking that the bank be ordered to abstain from enforcing that charge by means of an extrajudicial auction and, by way of an interim measure, the suspension of enforcement of that charge until the main proceedings had been definitively concluded. In support of their action, those defendants submitted that the bank did not have the right to declare the loan immediately repayable since this had not been agreed on between the parties and that, despite their request for the loan to be restructured, the bank had proceeded to enforce that charge on the basis of the Law on Voluntary Auctions.
20 On 25 April 2017, the first round of the auction took place without any bids being made. During that first round, PO raised an objection to the sale, on the ground that court proceedings seeking to prevent that enforcement were ongoing.
21 By an order of 26 May 2017, the Okresný súd Prešov (District Court, Prešov) rejected the application by the defendants in the main proceedings for an interim measure, without addressing their objection that the bank had infringed their rights in implementing the acceleration clause. Those defendants brought an appeal against that order before the Krajský súd v Prešove (Regional Court, Prešov, Slovakia).
22 The second round of the auction took place on 18 July 2017, before the latter court had ruled on that appeal. On that occasion, PO again indicated that court proceedings were ongoing in order to have the enforcement of the mortgage at issue suspended. However, the immovable property concerned was acquired by the applicant in the main proceedings, which is a company operating in the sector of loans and the management and maintenance of immovable property, and which was subsequently registered in the land register as owner of that property.
23 By an order of 9 August 2017, the Krajský súd v Prešove (Regional Court, Prešov) set aside the order of 26 May 2017 of the Okresný súd Prešov (District Court, Prešov), by which the latter court had dismissed the application for an interim measure brought by the defendants in the main proceedings, and required that that application be reconsidered on the ground, inter alia, that that court should have examined the objections made by those defendants, objections that the Krajský súd v Prešove (Regional Cour, Prešov) considers to be well founded, relating to the absence of an agreement on the acceleration clause. That court also noted that the first-instance court had not examined whether the principle of proportionality had been complied with in the application to enforce the mortgage, in the sense that that court had not taken into account either the amount of the debt claimed in relation to the value of the immovable property concerned, namely the family home of those defendants, nor who those defendants were, nor the possibility for those defendants to settle that debt by other means.
24 On 19 December 2017, the action referred to in paragraph 19 above, seeking an order that the bank abstain from enforcing the mortgage at issue by means of an extra-judicial sale by auction, was withdrawn by the defendants on the ground that that sale had already taken place and the action had therefore become devoid of purpose.
25 By an order of 11 January 2018, the Okresný súd Prešov (District Court, Prešov), accordingly, declared the proceedings closed and ordered the defendants in the main proceedings to pay the costs in that action.
26 Those defendants refused to vacate the immovable property concerned. That property is the only dwelling available to them, which they occupy together with their children, including two minors who suffer from a serious psychological disorder. The appellant in the main proceedings therefore brought eviction proceedings before the Okresný súd Prešov (District Court, Prešov).
27 In an initial procedural phase, that court dismissed that action, by a judgment confirmed on appeal by the Krajský súd v Prešove (Regional Court, Prešov). By an order of 8 April 2021, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) set aside the decisions of both those courts and referred the case back to the Okresný súd Prešov (District Court, Prešov) in order that that latter court examine the right of ownership of the applicant in the main proceedings.
28 In a subsequent procedural phase, the Okresný súd Prešov (District Court, Prešov) upheld that action and ordered the defendants in the main proceedings to vacate the immovable property concerned. That court dismissed their counterclaim seeking to challenge the transfer of the ownership of that immovable property, on the ground that that property had been acquired at an extra-judicial auction and that it did not have jurisdiction to rule on the validity of that sale by auction.
29 Both the appellant in the main proceedings and the defendants in the main proceedings brought appeals against that decision before the Krajský súd v Prešove (Regional Court, Prešov) concerning the fact that the defendants had not been ordered to pay the costs and the dismissal of that counterclaim, respectively.
30 Before that court, which is the referring court, the defendants in the main proceedings claim a failure to observe their rights as consumers and their right to accommodation.
31 That court acknowledges that a failure to pay monthly instalments provided for by a loan contract constitutes a serious breach of the contractual obligation on the consumers under such a contract. However, it considers there to have been a failure to apply the protection afforded to consumers under EU law where the consequences of early recovery are vastly disproportionate to the breach of that obligation.
32 The referring court takes the view that the specific circumstances characterising the case before it distinguish that case from others which have given rise to judgments of the Court concerning consumer protection.
33 In the first place, that court raises doubts as to whether the acceleration clause which led to the extra-judicial auction at issue in the main proceedings complies with the principle of transparency, as set out by the Court, inter alia, in the judgment of 21 March 2013, RWE Vertrieb (C‑92/11, EU:C:2013:180). In that regard, it states that that clause was included in the bank’s general conditions but that the bank did not bring it to the knowledge of the defendants in the main proceedings even though, pursuant to Paragraph 53(9) of the Civil Code, an acceleration clause is applicable only if it is expressly agreed on between the parties.
34 In the second place, that court observes that the defendants in the main proceedings challenged the sale at an extrajudicial auction of their family home by means of an action seeking an order that the bank abstain from enforcing the mortgage at issue. In those proceedings, they also applied for an interim measure ordering the suspension of enforcement of that mortgage, which, according to the referring court, was the only procedural remedy enabling that enforcement to be suspended. It also observes that the order of the first-instance court refusing the interim measure applied for was set aside by the appeal court, inter alia on the ground of failure to examine the plea alleging that the acceleration clause was void in the light of Directive 93/13. However, that sale by auction was carried out before that order was set aside and, accordingly, before the first-instance court was able to conduct a fresh examination of that application for an interim measure.
35 In the third place, the referring court draws attention to the significance attached, in the Slovak case-law, to the protection of a third party acquiring property in good faith. However, that court notes that good faith need not be acknowledged where the third party acts in ‘troubling’ circumstances. That court considers to be ‘very troubling’ the fact that, at the time of the acquisition of immovable property in an extra-judicial auction, the company which made the successful bid was informed of pending court proceedings concerning the validity of the clause on which that sale was based.
36 An issue arises concerning the interpretation of Directive 93/13 in order to ascertain whether such a company enjoys absolute protection, or if that protection could be limited having regard, inter alia, to the proactive conduct of the consumers concerned and the doubts as to that company’s good faith. That issue is all the more important when the enforcement of a charge concerns the consumer’s dwelling, the right to accommodation constituting a fundamental right, guaranteed in Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
37 In the fourth place, the referring court asserts that there are significant differences between the situation at issue in the case in the main proceedings and that which gave rise to the judgment of 7 December 2017, Banco Santander (C‑598/15, EU:C:2017:945). First, in that case, the immovable property concerned had been sold at auction and the real rights relating to it had been transferred without the consumer having exercised the remedies available to her. By contrast, in the present case, the defendants in the main proceedings were pro-active and exercised the only remedy available ex ante to prevent the extrajudicial sale at auction of their family home from being performed. Although they subsequently discontinued those proceedings, that was not until after that enforcement had culminated in the transfer of the ownership of that home to the appellant in the main proceedings in an extra-judicial auction. Secondly, in contrast to the procedural context in which the case which gave rise to that judgment took place, the defendants in the main proceedings here challenged the eviction by a counterclaim seeking to contest the lawfulness of that transfer of ownership, the appellant in the main proceedings having standing, under Slovak law, to defend itself against that counterclaim.
38 Lastly, in the fifth place, the referring court points out that consumers such as the defendants in the main proceedings can assert their rights in an subsequent action for annulment of a sale at auction only with great difficulty, given that Paragraph 21(2) of the Law on Voluntary Auctions provides for only three grounds for annulment, namely, the infringement of that Law, invalidity of the contract establishing the charge and the commission of a criminal offence, excluding consumer protection against unlawful terms in a loan contract.
39 In those circumstances, the Krajský súd v Prešove (Regional Court, Prešov) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
40 Having regard to the information brought to the knowledge of the Court of Justice by the Slovak Government and concerning case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), according to which protection against unfair terms in consumer contracts is one of the grounds on which an extra-judicial auction may be annulled, as provided for in Paragraph 21(2) of the Law on Voluntary Auctions, on 9 April 2024 the Court of Justice requested clarification from the referring court under Article 101 of the Rules of Procedure of the Court of Justice.
41 By a letter lodged at the Registry of the Court on 13 May 2024, the referring court stated that, at the date of the auction at issue at the main proceedings there was no consistent case-law of the Slovak courts to the effect that a voluntary sale by auction could be annulled for infringement of Directive 93/13 and that, to date, there is no judicial decision which has annulled a sale by auction on such a ground.
42 According to that court, the case-law relied on by the Slovak Government, namely two orders delivered in 2022, that is five years after the auction at issue in the main proceedings, is restricted to isolated cases, even in the judicial practice of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), so that the defendants in the main proceedings cannot be criticised for failing to lodge an application for annulment of that auction in order to assert their rights under Directive 93/13, and for choosing to challenge by means of a counterclaim the right of ownership of the applicant in the main proceedings.
43 Without formally raising a plea of inadmissibility in respect of the first and second questions, the appellant in the main proceedings submits, in essence, that it is not concerned in the present case by Directive 93/13, the interpretation of which is sought in those questions, since it was not a party to the judicial proceedings brought against the bank by the defendants in the main proceedings, and considers that the Court should not answer those questions.
44 Furthermore, the Slovak Government expresses doubts as to the admissibility of the second question in so far as it concerns whether Directive 93/13 precludes national legislation which excludes from the grounds of invalidity of an extrajudicial auction of immovable property the existence of unfair terms in the contract on which the enforcement of a mortgage on that property is based. That government points out that the defendants in the main proceedings did not submit an application for annulment of the sale by auction at issue in the main proceedings, with the result that it is not clear why an answer from the Court of Justice is necessary in order for that court to rule on the case in the main proceedings.
45 In that regard, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court 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 29 July 2024, LivaNova, C‑713/22, EU:C:2024:642, paragraph 53 and the case-law cited).
46 It should be noted, first, that the dispute in the main proceedings concerns eviction proceedings brought by the appellant against the defendants and a counterclaim by which the defendants challenge the lawfulness of the transfer of ownership to that appellant of the property constituting their family home. That transfer took place following a sale by extrajudicial auction which was organised to enforce a mortgage charge provided for in the loan contract concluded by those defendants with the bank, and on the basis of national legislation which the referring court doubts satisfied the requirement of effective protection of consumers against unfair terms resulting from Directive 93/13. As is apparent from the order for reference, the appellant in the main proceedings has standing under Slovak law to defend itself against such a counterclaim. Consequently, the fact that that appellant was not a party to the judicial proceedings brought by the defendants in the main proceedings against the bank in no way precludes the interpretation of that directive sought by that court from being necessary to enable it to give judgment in the case in the main proceedings, within the meaning of the case-law cited in the preceding paragraph of the present judgment.
47 Secondly, as noted in paragraph 42 of the present judgment, the referring court stated, in its reply to the request for clarification sent to it by the Court, that the defendants in the main proceedings cannot be criticised, as Slovak law currently stands, for not having brought an application for annulment of the sale by auction at issue in the main proceedings, claiming the presence of an unfair term in the loan contract concluded with the bank. The third part of the second question, which, in that answer, the referring court expressly maintained, seeks specifically to determine whether the fact that it was impossible for those defendants to bring such an application is contrary to Directive 93/13. Accordingly, that question is closely linked to the subject matter of the dispute in the main proceedings, which concerns, inter alia, the validity of that sale.
48 It follows from the foregoing that the first and second questions are admissible.
49 In the first place, it must be recalled 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 (see, in particular, judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 35 and the case-law cited).
50 In that context, and in order to ensure the high level of consumer protection set out in Article 38 of the Charter, a 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 that 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 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 58, and of 9 November 2023, Všeobecná úverová banka, C‑598/21, EU:C:2023:845, paragraph 74 and the case-law cited).
51 Since Article 6(1) of that directive provides that unfair terms are not to be binding on the consumer, national courts are also required to exclude the application of those terms so that they do not produce binding effects with regard to a consumer, unless the consumer objects (see, to that effect, judgments of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 52, and of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement), C‑287/22, EU:C:2023:491, paragraph 37).
52 Article 7(1) of Directive 93/13, read in conjunction with the twenty-fourth recital thereof, 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 (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).
53 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 (judgments of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 61 and the case-law cited; of 17 May 2022, Impuls Leasing România, C‑725/19, EU:C:2022:396, paragraph 46 and the case-law cited; and of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 29 and the case-law cited).
54 It must also be recalled that, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6(1) thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy (see 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). Article 7(1) of that Directive is also directly linked to that public interest (see, to that effect, judgment of 21 December 2016, Gutiérrez Naranjo and Others C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 56).
55 As regards enforcement proceedings in particular, the Court has set out on several occasions, taking account of the requirements of Article 6(1) and Article 7(1) of Directive 93/13, the manner in which the national court must ensure the protection of the rights granted to consumers under that directive in those proceedings.
56 Thus, in the absence of harmonisation of those proceedings, the details of their implementation are governed by the internal legal order of the Member States by virtue of the principle of procedural autonomy of those States. Nonetheless, those rules must meet the dual requirement that they should be no less favourable than those governing similar domestic actions (principle of equivalence) and should not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness) (see, inter alia, to that effect, judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 46 and the case-law cited).
57 As regards the principle of effectiveness, being the only one referred to by the referring court, the Court has held that every case in which the question arises as to whether a national procedural rule makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that rule in the procedure, its conduct and its special features viewed as a whole, along with, where relevant, the principles underlying 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).
58 In addition, the Court has held that the need to comply with the principle of effectiveness nevertheless cannot be stretched so far as to make up fully for the complete inaction on the part of the consumer concerned (judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 28 and the case-law cited).
59 The Court has also emphasised the importance of providing, in national law, for the possibility of requesting a court to assess the unfairness of a contractual term before the conclusion of enforcement proceedings based on the contract containing such a term. It has thus held that, in a situation where such proceedings culminated before the decision of the court having jurisdiction to rule on the substance of the case declaring the contractual term on which the enforcement was based to be unfair and, consequently, annulling those proceedings, that judgment would enable that consumer to obtain only subsequent protection of a purely compensatory nature, which 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 (see, to that effect, judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 60, and of 17 May 2022, Impuls Leasing România, C‑725/19, EU:C:2022:396, paragraph 55 and the case-law cited).
60 In order to ensure the effectiveness of the protection intended by Directive 93/13, the Court has emphasised in that regard the importance, for the court seised, of having the power to adopt interim measures which make it possible to suspend, or prevent, unlawful enforcement proceedings, all the more so in the case of mortgage enforcement proceedings which could lead to the removal of the consumer and his or her family from the dwelling constituting their family home, the right to accommodation being a fundamental right guaranteed under Article 7 of the Charter that the national court must take into consideration when implementing that directive (see, to that effect, judgment of 9 November 2023, Všeobecná úverová banka, C‑598/21, EU:C:2023:845, paragraph 85 and the case-law cited).
61 In the second place, it must be borne in mind that according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The fact that a national court has formally worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute. With a view to providing the court which has referred a question to it for a preliminary ruling with a useful answer, the Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its question (judgments of 20 March 1986, Tissier, 35/85, EU:C:1986:143, paragraph 9, and of 6 March 2025, ONB and Others, C‑575/23, EU:C:2025:141, paragraph 57).
62 By its first question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Articles 7 and 47 of the Charter, must be interpreted as meaning that their scope covers judicial proceedings in which, first, the company which was the successful bidder in an auction of immovable property constituting the family home of a consumer, sold in the context of extrajudicial enforcement of a mortgage granted over that property by that consumer for the benefit of a creditor acting in the course of trade, applies for the eviction of that consumer and, secondly, the consumer challenges, by means of a counterclaim, the lawfulness of the transfer of ownership of that property to the company making the successful bid, that transfer taking place despite court proceedings which were still pending at the time that transfer was made and which sought suspension of that enforcement on the ground that there were unfair terms in the contract on which that enforcement was based, the company making the successful bid having been previously informed of those pending proceedings by that consumer.
63 It is apparent from the Court’s case-law that, in order to determine whether Directive 93/13 may usefully be relied on in proceedings before a national court, it is necessary to examine the subject matter of those proceedings and the specific features of the dispute of which they form part (see, to that effect, judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraphs 39, 42 and 49).
64 It is also apparent from that case-law that the provisions of the directive cannot be relied on where there is no corroborating evidence of an unfair term in a loan agreement secured by a mortgage which has been the subject of extrajudicial enforcement (see, to that effect, judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 48).
65 As regards, in the first place, the subject matter of the proceedings, the Court has held that Article 6(1) and Article 7(1) of Directive 93/13 cannot usefully be relied on, in principle, in a dispute which does not concern the mortgage enforcement proceedings provided for by the loan contract concluded between a consumer and a seller or supplier, but the protection of real rights derived from title lawfully acquired by that seller or supplier following a sale by auction (see, to that effect, judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraphs 42 and 47).
66 In such circumstances, to allow the debtor who has granted a mortgage over that property to set up defences founded on the mortgage loan agreement against the transferee of that property, an agreement to which that transferee may nevertheless be a third party, would be liable to affect legal certainty in pre-existing proprietary relationships (see, to that effect, judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 45).
67 The Court has also held that, in a situation in which the mortgage enforcement proceedings have ended and the ownership rights in that immovable property have been transferred to a third party, a court, acting of its own motion or at the request of the consumer, can no longer carry out an examination of the unfairness of contractual terms which would lead to the annulment of the acts transferring ownership and, consequently, cannot call into question the legal certainty of that transfer of ownership whose lawfulness was not challenged (see, to that effect, judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 57).
68 In the present case, it is apparent from the order for reference that the dispute in the main proceedings nevertheless concerns two actions with legal subject matters which can be distinguished from those at issue in the cases which gave rise to the judgments referred to in paragraphs 65 to 67 of the present judgment. First, the referring court is hearing an action for eviction of the defendants in the main proceedings from their family home, brought by the appellant in the main proceedings in the exercise of the prerogatives conferred on it by the right of ownership which it acquired following the extrajudicial auction of that dwelling.
69 Secondly, that dispute concerns a counter-claim by which the defendants in the main proceedings dispute the lawfulness of the transfer of ownership of that dwelling to the appellant in the main proceedings, on the ground that the Law on Voluntary Auctions does not meet the requirement of effective judicial protection, reaffirmed in Article 7(1) of Directive 93/13, and also enshrined in Article 47 of the Charter. Those defendants submit that that law allowed the enforcement of the mortgage at issue to continue despite an application for an interim measure, pending before a court, seeking suspension of that enforcement. As stated in paragraphs 37 and 46 of the present judgment, the referring court is of the view that the appellant in the main proceedings has standing under Slovak law to defend itself in such an action.
70 Consequently, unlike the dispute which was at issue in the case which gave rise to the judgment of 7 December 2017, Banco Santander (C‑598/15, EU:C:2017:945), the dispute in the main proceedings concerns not only the protection of real property rights acquired following a sale of immovable property by auction, but also the conditions under which the proceedings for enforcement of the mortgage granted over that property may have led to the transfer of those rights to the company making the successful bid.
71 In their counter-claim, the defendants in the main proceedings do not rely, against the transferee of immovable property, which is a third party to the mortgage loan contract in relation to that property, on grounds for the annulment of that contract or some of its terms, but dispute the very lawfulness of the transfer of ownership of that property to that transferee.
72 As regards, in the second place, the specific features of the dispute of which the mortgage enforcement proceedings part, it is apparent from the case-law that the Court has already taken into account the fact that the consumer concerned had the opportunity, during mortgage enforcement proceedings, to oppose those proceedings or to request their suspension on the ground that an unfair term vitiated the loan contract to which that mortgage related, and whether the consumer had made use of such legal remedies (see, to that effect, judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 49).
73 In that regard, the Court concluded that Article 6(1) and Article 7(1) of Directive 93/13 did not apply to a dispute concerning the protection of real rights lawfully acquired by the successful bidder in an auction of immovable property, where those rights were transferred without the consumer having availed himself of the legal remedies provided for in that context (see, to that effect, judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 50).
74 By contrast, in a situation such as that in the main proceedings, the attitude of the consumers with regard to the extrajudicial enforcement proceedings cannot be regarded as completely passive. On the contrary, first, the defendants in the main proceedings brought an action seeking to prevent the continuation of those proceedings, while attaching to that action an application for an interim measure seeking suspension of those proceedings. According to the referring court, that legal remedy would have been the only means of opposing the performance of an extrajudicial sale by auction.
75 Subject to the assessment which it is for that court to carry out, the fact that, after the sale by auction at issue, the defendants in the main proceedings withdrew that action cannot call into question the finding that those defendants did not remain passive. As is apparent from the order for reference, that action sought an order that the bank abstain from enforcing the mortgage concerned by means of an extrajudicial auction and also included an application to suspend those enforcement proceedings. Those defendants could therefore reasonably consider that the action had become devoid of purpose after that sale by auction, since a court could no longer, at that point, deliver a judgment in order to prevent or suspend the enforcement of that mortgage.
76 On the other hand, as the appellant in the main proceedings and the Slovak Government submit, it is true that the defendants in the main proceedings did not submit an application for annulment of that sale under Paragraph 21(2) of the Law on Voluntary Auctions. In that regard, it should be noted, first, that, according to the explanations provided by the referring court, that provision allows an application to annul a sale by voluntary auction solely on three grounds, which do not include the unlawfulness of the terms of a credit contract concluded by a consumer. Secondly, the Slovak Government referred to two orders of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) made in 2022, which allegedly show that protection against unfair terms in consumer contracts falls within the grounds for annulment of an extrajudicial auction, laid down in that provision. Nevertheless, in the light of the referring court’s response to the request for clarification sent to it in that regard, set out in paragraphs 41 and 42 of the present judgment, an average consumer, defined as being reasonably well informed and reasonably observant and circumspect (judgment of 4 July 2024, Caixabank and Others (Review of transparency in collective actions), C‑450/22, EU:C:2024:577, paragraph 48 and the case-law cited), could not be expected to anticipate the interpretation of Paragraph 21(2) of the Law on Voluntary Auctions reached by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) five years after the sale at issue in the main proceedings was carried out. It is, however, for the referring court to carry out the necessary verifications in that respect.
77 Secondly, the referring court states that the defendants in the main proceedings informed the applicant in the main proceedings and the auctioneer, at the second round of the auction of the immovable property at issue, of the existence of a pending application for an interim measure to suspend the enforcement of the mortgage concerned. While it is true that, in its written observations, that appellant denies having been informed of the existence of that application, it must be borne in mind that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (judgment of 19 December 2024, Rustrans, C‑392/23, EU:C:2024:1052, paragraph 38 and the case-law cited), with the result that the Court is bound by that assessment.
78 Similarly, it is for the referring court alone to establish, at the time of ruling on the substance of the dispute in the main proceedings, whether it may be inferred from the circumstances in which the auction at issue in the main proceedings was carried out, which it describes as ‘troubling’ - in particular from the fact that the company which made the successful bid, which operates in the sector of credit, management and maintenance of immovable property, was informed of the existence of proceedings pending before a court seeking a declaration that the acceleration clause on which that sale was based was unfair - that that company acted in bad faith at the time of that sale and, if that were the case, to draw the inferences which national law attaches to bad faith as regards the lawfulness of that sale.
79 Lastly, in the third place it should be noted, in accordance with the case-law cited in paragraph 64 of the present judgment, that, in the view of the referring court, there was corroborating evidence, on the date of the sale by auction at issue in the main proceedings, as to the possible presence of a potentially unfair term in the contract on which the enforcement of the mortgage concerned was based. As is apparent from paragraph 33 of the present judgment, that court expresses doubts as to whether the acceleration clause which led to that enforcement complies with the requirement of transparency.
80 It follows from the foregoing that, unlike the case which gave rise to the judgment of 7 December 2017, Banco Santander (C‑598/15, EU:C:2017:945), the defendants in the main proceedings did not remain passive in the extrajudicial enforcement proceedings but, on the contrary, they made use of the legal remedies provided for by Slovak legislation in order to oppose that enforcement, while informing the persons concerned by that enforcement of their actions. However, those proceedings continued and culminated in the sale by auction of their family home, in the absence of any judicial review of the basis of the debt of which the bank sought payment, even though there was corroborating evidence as to the potential unfairness of the acceleration clause on which that enforcement was based.
81 In the context of a dispute characterised by all those facts, the full effectiveness of the protection granted to consumers by Directive 93/13 and the requirement of effective judicial protection laid down in Article 47 of the Charter require that the consumers concerned be able to rely, in the context of a counterclaim such as that at issue in the main proceedings, on Article 6(1) and Article 7(1) of that directive in order to challenge the lawfulness of the transfer, to the company making the successful bid, of the ownership of that immovable property.
82 It follows from the foregoing that, in such circumstances, the protection of the legal certainty of the transfer of ownership already carried out in respect of a third party, to which the Court referred in the context of the cases giving rise to the judgments of 7 December 2017, Banco Santander (C‑598/15, EU:C:2017:945), and of 17 May 2022, Ibercaja Banco (C‑600/19, EU:C:2022:394), cannot be regarded as absolute.
83 The answer to the first question is therefore that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Articles 7 and 47 of the Charter, must be interpreted as meaning that their scope covers judicial proceedings in which, first, the company which was the successful bidder in an auction of immovable property constituting the family home of a consumer, sold in the context of extrajudicial enforcement of a mortgage granted over that property by that consumer for the benefit of a creditor acting in the course of trade, applies for the eviction of that consumer and, secondly, the consumer challenges, by means of a counterclaim, the lawfulness of the transfer of ownership of that property to that company making the successful bid, that transfer taking place despite court proceedings which were still pending at the time that transfer was made and which sought suspension of the enforcement of that mortgage on the ground that there were unfair terms in the contract on which that enforcement was based, the company making the successful bid having been previously informed of those pending proceedings by that consumer. That applies in so far as, at the time of the sale concerned, there was corroborating evidence that the terms were potentially unfair and that the consumer had availed him or herself of the legal remedies that an average consumer could reasonably be expected to avail him or herself of with a view to obtaining judicial review of those terms.
84 By its 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 Articles 7 and 47 of the Charter, must be interpreted as precluding national legislation which allows extrajudicial enforcement of a mortgage, granted by a consumer for the benefit of a creditor acting in the course of trade, on immovable property constituting that consumer’s family home to continue despite the existence of a pending application for an interim measure seeking suspension of that enforcement, and which does not moreover provide for any possibility of applying for the annulment of that enforcement on the ground that there are unfair terms in the contract on which that enforcement was based.
85 In that regard, as recalled in paragraph 57 above, every case in which the question arises as to whether a national procedural rule makes the application of EU law impossible or excessively difficult must be analysed by reference to, inter alia, the role of that rule in the procedure, its conduct and its special features viewed as a whole.
86 As is apparent from the order for reference, the Law on Voluntary Auctions, the compatibility of which with Directive 93/13 is called into question by the referring court, allows a creditor acting in the course of trade to enforce a charge on the basis of a loan contract without the prior intervention of a court to verify the basis of the debt concerned, including in the case of a mortgage on a consumer’s family home.
87 While Directive 93/13 does not in itself preclude extrajudicial enforcement proceedings conducted by actors other than courts, in the course of which consumers cannot rely on the existence of unfair terms in the contract on which the enforcement proceedings concerned were based (see, by analogy, as regards the role which may be devolved to notaries in relation to the review of unfair contract terms, judgment of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraphs 47, 48 and 65), the fact remains that the Member States must make available to consumers adequate and effective legal remedies capable of ensuring that they are not bound by such terms.
88 However, it should also be recalled that, as regards the Law on Voluntary Auctions, the Court has held that Directive 93/13 precludes national legislation under which a seller or supplier may, when implementing an acceleration clause contained in a consumer credit contract, recover the sums due under that clause by selling, without any legal process, the consumer’s family home (see, to that effect, judgment of 9 November 2023, (judgment of 9 November 2023, Všeobecná úverová banka, C‑598/21, EU:C:2023:845, paragraphs 84 and 90).
89 In the present case, it is apparent from the order for reference that, in order to oppose an extrajudicial sale by auction and to rely on the existence of a potentially unfair term in the contract which gave rise to that sale, a consumer must bring legal proceedings in the context of which he or she may also apply, by way of an interim measure, for that sale to be suspended until the decision on the main action. However, it is apparent from the second sentence of Paragraph 19(1)(b) of the Law on Voluntary Auctions that the auctioneer is required to refrain from selling only if an interim measure to that effect has been ordered by a court.
90 As evidenced by the situation at issue in the main proceedings, that provision allows enforcement to be pursued even though an application for an interim measure seeking its suspension is pending before a court, thus leading to the transfer of the right of ownership of immovable property, including where that property is the consumer’s family home, before that court has ruled on that application and even if there is corroborating evidence as to the possible presence of a potentially unfair term in the contract on which that enforcement was based.
91 Consequently, although Article 325 of the Code of Civil Procedure allows the court to order an interim measure, such as the suspension of an extrajudicial auction, it must be held that that remedy does not appear to offer the consumer an effective opportunity to obtain, before that auction is carried out, judicial review of potentially unfair terms of the contract on which the enforcement concerned is based, or at least a prima facie review in the context of an application for an interim measure, even though the grant of such a measure is necessary to ensure the effectiveness of the decision on the substance of the action.
92 In that regard, as is apparent from the case-law cited in paragraph 59 of the present judgment, Article 7(1) of Directive 93/13 requires that the consumer is not deprived of the effective possibility of obtaining the suspension of enforcement proceedings brought pursuant to an enforceable instrument based on a contractual term the validity of which is challenged before the courts on the ground that it is unfair, since, in the absence of that suspension, a decision on the substance of the action finding that that term is unfair would afford that consumer only subsequent protection of a purely compensatory nature, which would be incomplete and insufficient and therefore would not be an adequate or effective means of preventing the continued use of that term.
93 That requirement is all the more justified, as is apparent from the case-law cited in paragraph 60 of the present judgment, where, as in the case in the main proceedings, the enforcement proceedings concern the home of the consumer and his or her family, the protection of which falls within the scope of the fundamental right to respect for private and family life, guaranteed in Article 7 of the Charter.
94 As regards the possibility for consumers to remedy the consequences of an extrajudicial auction subsequently, Paragraph 21(2) of the Law on Voluntary Auctions provides for the right to apply for annulment of a sale by auction within three months of the date of the acceptance of the winning bid, in the event of a challenge to the validity of the contract creating the charge concerned or of infringement of the provisions of that Law.
95 The referring court stated that that provision does not allow consumers to apply for the annulment of an extrajudicial sale by auction on the ground that there are unfair terms in the contract on which the enforcement concerned is based and that, in the present case, at the date on which the sale by auction at issue in the main proceedings was carried out, no judgment had been delivered in Slovakia declaring a sale by auction to be void on such a ground. As stated in paragraph 41 of the present judgment, that court has informed the Court that, to date, there is no sufficiently established case-law to that effect.
96 By contrast, in its written observations, the Slovak Government argued that the referring court’s interpretation of Paragraph 21(2) of the Law on Voluntary Auctions is incorrect. In that regard, that government referred to case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), illustrated by two orders made by that supreme court in 2022, in which that supreme court interpreted that provision as meaning that the existence of unfair terms in the contract on which an extrajudicial enforcement is based constitutes a ground for annulling the sale made in the context of that enforcement. In the view of that supreme court, such an interpretation is necessary since a sale by auction is not necessarily preceded by a judicial review of the debt claimed.
97 In its reply to the questions put to it in accordance with Article 62 of the Rules of Procedure, the Slovak Government added that that case-law was confirmed by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) in a new judgment delivered on 27 November 2023, in which that supreme court held that, in proceedings for annulment of an extrajudicial auction, the courts are required to examine of their own motion whether the contract establishing the charge concluded with a consumer contains unfair terms, in order to ensure adequate legal protection for consumers.
98 In that regard, it should be noted that, in the context of proceedings brought under Article 267 TFEU, it is not for the Court to rule on the interpretation of national provisions, as such an interpretation falls within the exclusive jurisdiction of the national courts (judgment of 28 February 2019, Gradbeništvo Korana, C‑579/17, EU:C:2019:162, paragraph 59 and the case-law cited).
99 Even if Paragraph 21(2) of the Law on Voluntary Auctions is now interpreted by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) in the manner set out in paragraphs 96 and 97 of the present judgment, which it is for the referring court to determine, that would be, as the Advocate General stated in point 79 of her Opinion, without prejudice to the question whether, having regard to the date at which the auction at issue in the main proceedings took place, the defendants in the main proceedings could have reasonably envisaged obtaining the annulment of that sale by means of an action brought on the basis of that provision within three months of the auction of that immovable property. Subject to the verifications to be carried out by that court, the interpretation of that provision by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) appears to have been warranted precisely by the need to remedy the absence, in that provision, of any reference to the possibility of seeking the annulment of a sale by auction on the ground of the existence of unfair terms in the contract which gave rise to that sale.
100 It follows from the foregoing that, subject to the verifications which it is for the referring court to carry out, the legal remedies available to the defendants in the main proceedings on the date of the sale by auction at issue in the main proceedings did not meet the requirement of effective judicial protection, since they did not offer either an effective possibility to suspend performance of that sale by auction, in the context of enforcement proceedings, to enable the judicial review of a potentially unfair term in the contract giving rise to that enforcement, even though an application for suspension was pending before a court, nor the possibility to apply for the annulment of that sale by auction on account of the presence of that term, despite the existence of consistent evidence as to the potential unfairness of that term.
101 The aspects highlighted by the referring court in the context of the present request for a preliminary ruling, recalled in particular in paragraph 95 of the present judgment, thus show that, at least on the date on which the sale by auction at issue in the main proceedings was carried out, the provisions of the Law on Voluntary Auctions made it excessively difficult, if not impossible, in practice to safeguard those rights.
102 In order to provide a useful answer to the referring court as regards the possibility of interpreting Paragraph 21(2) of the Law on Voluntary Auctions consistently with the provisions of Directive 93/13, it should be noted that, in the light of the recent case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), referred to in paragraphs 96 and 97 of the present judgment, as presented by the Slovak Government, such an interpretation does not appear to be precluded.
103 If the referring court concludes that it is open to it to interpret Paragraph 21(2) of the Law on Voluntary Auctions in accordance with the provisions of Directive 93/13, as regards the grounds for annulment provided for therein, it must be observed that Paragraph 21(2) also provides that an application for annulment must be filed within three months of the date of the acceptance of the winning bid. In that regard, as is apparent from paragraphs 76 and 99 of the present judgment and subject to verification by the referring court, the defendants in the main proceedings could not reasonably be expected to bring an application for annulment of the sale by auction concerned on the basis of that provision. The importance of the public interest underlying the protection which that directive confers on consumers and the need to ensure the effectiveness of the rights which individuals derive from that directive, which implies, inter alia, a requirement for effective judicial protection, warrant, in the absence of effective remedies enabling them to assert their rights under that directive before the date of the acceptance of the winning bid, the defendants in the main proceedings not being time-barred, in the dispute in the main proceedings, from challenging the enforcement having given rise to that acceptance (see, by analogy, judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraphs 49 and 50).
104 Furthermore, since it follows from all of the foregoing that the referring court might find that the sale by auction at issue in the main proceedings is void and, consequently, restore the legal relationship between the defendants in the main proceedings and the bank before that sale was carried out, that court should examine, in the light of the applicable national law, the possibility of allowing that bank to participate in the proceedings, in accordance with any appropriate procedural rules, in particular, either by it voluntarily requesting leave to intervene or, as the case may be, by compulsorily being made a third party to the proceedings.
105 Having regard to those grounds, the answer to the second question is that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Articles 7 and 47 of the Charter, must be interpreted as precluding national legislation which allows extrajudicial enforcement of a mortgage, granted by a consumer for the benefit of a creditor acting in the course of trade, on immovable property constituting that consumer’s family home to continue despite the existence of a pending application for an interim measure seeking suspension of that enforcement, and corroborating evidence as to the possible presence of a potentially unfair term in the contract on which that enforcement was based, and which does not moreover provide for any possibility of obtaining by judicial means the annulment of that enforcement on the ground that there are unfair terms in that contract.
106 By its third question, the referring court asks, in essence, whether Directive 2005/29 must be interpreted as meaning that the enforcement of a charge on the basis of an unlawful contractual term providing for the early recovery of a debt arising from a consumer credit contract constitutes an unfair commercial practice, within the meaning of Article 5 of that directive, namely, in particular, an aggressive commercial practice, within the meaning of Articles 8 and 9 of that directive, which can give rise to liability on the part of both the creditor acting in the course of trade and the auction company which enforces that charge.
107 The applicant in the main proceedings, the Slovak Government and the European Commission contend that that question is inadmissible.
108 In that regard, it should be noted that the referring court does not state why an answer to that question is necessary to enable it to give a judgment in the dispute before it, for the purposes of the case-law cited in paragraph 45 of the present judgment.
109 Furthermore, as the Commission submits in its written observations, a commercial practice is intended, by its very nature, to induce the consumer to take a transactional decision that he or she would not have taken otherwise. The order for reference does not clearly indicate the type of commercial decision taken by the defendants in the main proceedings which the bank, or the auctioneer, has altered.
110 An answer to the third question falls outside the scope of the Court’s judicial function under Article 267 TFEU and that question is therefore inadmissible.
111 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. 1. Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Articles 7 and 47 of the Charter of Fundamental Rights of the European Union, 2. Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Articles 7 and 47 of the Charter of Fundamental Rights,