The Court of Justice of the European Union ruled on Tuesday 17 May on the compatibility of national court proceedings for the examination of the allegedly unfair nature of a term in a contract concluded between a consumer and a professional with Directive 93/13 on unfair terms in consumer contracts (cases C-600 & 693 & 725 & 831 & 869/19).
The European judge recalls that the protection introduced by the Directive is based on the idea that the consumer is in an inferior position vis-à-vis the professional. Unfair terms are therefore not binding on consumers. However, while States are obliged to provide adequate and effective means to stop the use of unfair terms, EU law does not harmonise the applicable procedures which must guarantee the right to effective judicial protection.
Case C-869/19. Referred to by the Spanish Supreme Court, the Court ruled that EU law precludes national case law which limits the restitution of sums unduly paid to those paid after the court decision finding an unfair contractual term to be unfair.
Furthermore, it considers it contrary to EU law that a national court, on appeal against a judgment limiting in time the restitution of sums unduly paid by the consumer under a term declared unfair, cannot order the full restitution of those sums.
See the judgment: https://aeur.eu/f/1on
Case C-600/19. In this case, the Court is of the opinion, inter alia, that EU law precludes national legislation which, following a court decision authorising a bank to seize and then resell property belonging to consumers who had concluded a mortgage contract with it, does not allow the enforcement court to examine of its own motion the unfairness of contractual terms.
However, once the mortgage enforcement proceedings has been terminated and the property rights have been transferred to a third party, the judge can no longer examine the unfairness of contractual terms. This examination could lead to the annulment of the acts transferring ownership and call into question the legal certainty of the transfer of ownership already effected towards a third party.
However, the consumer can, in a separate subsequent procedure, claim that the terms of the mortgage contract are unfair and potentially obtain compensation for the financial damage caused by the application of these terms.
See the judgment: https://aeur.eu/f/1oo
Cases C-693/19 and C-831/19. The Court finds that a national provision, under which an enforcement court is not obliged to assess, even for the first time, the unfairness of a contractual term which served as a basis for an order for payment issued by a court at the request of a creditor and against which the debtor did not appeal, is contrary to EU law.
See the judgment: https://aeur.eu/f/1op
Case C-725/19. The Court considers that EU law does not permit national legislation which does not allow the court enforcing a claim, referred for an objection to enforcement, to assess the unfairness of the terms of a leasing contract concluded between a consumer and a professional, on the ground that there is a separate procedure for reviewing the unfairness of the terms of such a contract.
Although this separate procedure may result in a stay of proceedings, the consumer making use of it must pay a deposit, calculated on the basis of the value of the subject matter of the appeal.
See the judgment: https://aeur.eu/f/1oq (Original version in French by Mathieu Bion)