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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Peter Macinsky v Getfin s.r.o. Financreal s.r.o. [2013] EUECJ C-482/12 (21 November 2013)
URL: http://www.bailii.org/eu/cases/EUECJ/2013/C48212_O.html
Cite as: [2013] EUECJ C-482/12
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OPINION OF ADVOCATE GENERAL
WAHL
delivered on 21 November 2013 (1)
Case C-482/12
Peter Macinský
Eva Macinská
v
Getfin s.r.o.
Financreal s.r.o.
(Request for a preliminary ruling from the Okresný súd Prešov (Slovakia))
(Admissibility – Directive 93/13/EEC – Consumer credit agreement – Unfair terms – Settlement of a secured claim by recourse to the public auction of immovable property – Possibility of foregoing judicial proceedings under national legislation – Principle of effectiveness – Limitation of the temporal effects of a judgment)
1. The Court of Justice is a court of law. Its purpose is to settle legal disputes between parties on the basis of substantive and procedural legal rules. It issues binding decisions and does not generally provide advisory opinions in hypothetical matters. (2) Against that backdrop, the case under consideration displays all the characteristics of a wholly abstract situation, as it is unclear why it is necessary for the Court to rule upon the question referred. Although hard cases certainly make for bad law, non-existent disputes arguably make for far worse law.
2. This is unfortunate, as the issue of substance which the Court has been asked to rule upon in the present matter is of no little importance. Indeed, once again, efforts to render the administration of justice more efficient are pitted against the right to effective judicial protection – namely that of consumers.
3. By its request for a preliminary ruling, the Okresný súd Prešov (Prešov District Court) (Slovakia) seeks guidance as to whether the Slovak rules allowing a creditor to obtain payment of a debt by means of an out-of-court procedure whereby its secured interest over the debtor’s assets is enforced (‘the procedure at issue’) are compatible with, inter alia, Directive 93/13/EEC on unfair terms in consumer contracts. (3)
I – Legal framework
A – EU law
4. Article 6(1) of Directive 93/13 provides:
‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
5. Article 7(1) of Directive 93/13 states:
‘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.’
B – National law
6. The Slovak Civil Code (Občianský zákonník) contains, inter alia, the following provisions regarding the enforcement of a security:
‘Paragraph 151j
1. Where a secured debt is not fully paid in due time, the secured creditor may commence enforcement of the security interest. For those purposes, the secured creditor may proceed by the means specified in the contract or by putting the security up for public auction pursuant to specific statutory provisions ... or … by selling the security in accordance with specific statutory provisions ... unless provision is made to the contrary under the present Code or specific legislation.
2. Where a secured debt is not fully paid in due time, the secured creditor may obtain or demand settlement through enforcement of the security even where the secured debt is time-barred.
…
Paragraph 151m
1. The secured creditor may sell the security by the means specified in the contract creating the security interest, or by public auction, at the earliest after a period of 30 days has expired from the date of the notice to the guarantor and to the debtor, where the debtor and the guarantor are not one and the same person, of the commencement of enforcement of the security, unless provision is made to the contrary under specific legislation ...
2. Following the notice of enforcement, the guarantor and the secured creditor may agree that the latter is authorised to sell the security by the means specified in the contract creating the security interest, or by public auction, even before the 30-day period under subparagraph 1 has expired.
3. Where a secured creditor has commenced enforcement by the means agreed upon in the contract creating the security interest, he may change the means of enforcement at any time during the enforcement of the security and may sell the security by public auction or apply for the claim to be settled through the sale of the security in accordance with specific statutory provisions. The secured creditor must inform the guarantor of the change in the means of enforcement.’
7. Law No 527/2002 on Voluntary Public Auctions (Zákon č. 527/2002 Z.z. o dobrovoľných dražbách) provides:
‘Paragraph 17 – Notice of Public Auction
1. The auctioneer shall announce the sale by publishing a notice of public auction …
3. If the item put up for auction is an apartment, a house [or] another building …, the auctioneer shall publish the notice of public auction at least 30 days before the auction begins. In addition, the auctioneer shall, without undue delay, forward the notice of public auction to the Ministry for publication in the [official] Trade Journal …
…
5. The auctioneer shall, within the time-limits specified in subparagraphs 2 to 4 above, forward the notice of the public auction to the following persons:
(a) the person initiating the public auction; the debtor of the secured creditor; and, if not the same as the debtor, to the owner of the property to be auctioned …
…
Paragraph 21 – Default on the part of the Auctioneer and Nullity of the Public Auction
…
2. In the event that any provision under this Code is infringed, a person claiming that the infringement has adversely affected his rights may ask a court to declare the public auction void. That right shall be extinguished three months following the public auction, unless the auction concerned a house or an apartment, owned by that person, in which he was officially resident at the time of the auction and the ground on which annulment is sought is the commission of a criminal offence …, in which case a request for annulment of the sale can be made after the expiry of that three-month period.
…
5. In the event that the buyer defaults or if the judge annuls the sale, the auction shall be declared without effect from the fall of the hammer.
…
Paragraph 29 – Surrender of the Property purchased at Auction
…
2. Where the property purchased at auction [is an apartment, a house or another building], the former owner is required, in accordance with the conditions set out in the notice of public auction and without undue delay, to surrender that property upon production, by the purchaser at auction, of a certified copy of a notarial deed and proof of identity …’
II – Facts, procedure and the question referred
8. Mr Peter Macinský and Mrs Eva Macinská are retired and live together in Prešov, Slovakia. On 29 April 2011, Mr and Mrs Macinský took out a loan of EUR 5 000 from Financreal s.r.o. for the purposes of repaying a number of existing loans. As security for the loan, a property interest was created over the apartment in which Mr and Mrs Macinský resided. Under the loan agreement, the loan was to be repaid through 84 monthly instalments of EUR 209.52 each. When Mr and Mrs Macinský allegedly failed on several occasions to pay the monthly instalments, Financreal decided to take action against them.
9. On 17 October 2011, Financreal ceded its claims against Mr and Mrs Macinský under the loan to Getfin s.r.o., a debt recovery business. By letter of 26 October 2011, Getfin requested repayment of the loan in full. According to Getfin, the debt now amounted to EUR 21 057.
10. By letter dated 12 November 2011, Mr and Mrs Macinský disputed the validity of the claim and asked Financreal to review the increase applied to the debt (more than 300% over six months), which they considered unreasonable.
11. On 21 November 2011, Getfin brought legal proceedings against Mr and Mrs Macinský before the Okresný súd Prešov. At the same time, it engaged Dražby a reality s.r.o. (‘Dražby’), a private undertaking, in order to enforce the claim by extra-judicial means.
12. On 1 December 2011, Dražby notified Mr and Mrs Macinský that it would enforce the security interest by extra-judicial means through the sale of their apartment by ‘voluntary public auction’, that is to say, it planned to proceed by the procedure at issue. At the same time, Mr and Mrs Macinský were informed that the debt now amounted to EUR 22 646.
13. On 11 January 2012, Mr and Mrs Macinský successfully applied to the Okresný súd Prešov for interim relief in the form of suspension of the out-of-court enforcement of the security interest. (4)
14. On 1 February 2012, Dražby abandoned its plan to put Mr and Mrs Macinský’s apartment up for ‘voluntary’ public auction.
15. In relation to the proceedings referred to above in point 11, by judgment of 21 March 2012 (included in the national case-file forwarded to the Court), the Okresný súd Prešov ordered Mr and Mrs Macinský to repay only the sum of EUR 4 290.48 to Getfin, as it considered the interest rate specified in the contract to be morally unacceptable and, accordingly, the contract to be null and void. The order for reference mentions that that judgment has not yet become final. However, by letter of 4 September 2013, in response to a question from the Court, Mr and Mrs Macinský stated that it had become final. This was confirmed at the hearing by the Slovak Government. (5)
16. In connection with the proceedings for interim relief referred to in point 13 above, the Okresný súd Prešov explains that a ‘voluntary public auction’, as provided for under the Law on Voluntary Public Auctions, is a mechanism for the extra-judicial enforcement of a security interest. No court or other independent tribunal carries out an assessment of the reasonableness of that course of action, and the term ‘voluntary’ is a legal term which applies even where the debtor does not consent to the public auction. Furthermore, the Okresný súd Prešov explains, a ‘voluntary public auction’ allows the creditor to determine the amount of the debt without a court decision. (6)
17. Entertaining doubts as to the compatibility of the procedure at issue with Directive 93/13, the Okresný súd Prešov decided on 27 August 2012 to stay the proceedings and to refer the following question to the Court:
‘Is [Directive 93/13] to be interpreted as precluding legislation of a Member State, such as Paragraph 151j(1) of the Občianský zákonník (Civil Code), read in conjunction with the other provisions of legislation at issue in the present case, which enables a creditor to enforce the fulfilment of unfair contract terms by enforcing a security interest through the sale of immovable property despite the objections of the consumer and a dispute regarding the matter and without an assessment of the contract terms by a court or other independent tribunal?’
18. Written observations have been submitted by Mr and Mrs Macinský, by the Slovak and German Governments, and by the Commission. At the hearing on 11 September 2013, oral argument was presented by the Slovak and German Governments, and by the Commission.
III – Analysis
19. The case under consideration gives rise to a number of different issues.
20. First, in light of the facts described above, the admissibility of this case is called into question, not least by the Slovak and German Governments.
21. Second, on the substance, the referring court asks whether the procedure at issue is compatible with Directive 93/13. The Slovak and German Governments argue for an affirmative answer, whereas Mr and Mrs Macinský and the Commission take the opposite view.
22. Third, a request has been made by the Slovak Government for the temporal effects of the judgment to be limited, should the procedure at issue be held to be incompatible with Directive 93/13.
23. In what follows, I will address the reasons which lead me to believe that the question referred is inadmissible.
24. As for the issue of substance, the Court has already had the opportunity to give rulings in relation to cases in which the circumstances are rather similar. (7) Those rulings provide a clear line of authority, even though this case would allow the Court to refine that case-law.
25. However, in case the Court decides for reasons of procedural economy – given the number of cases involving similar issues (8) – to answer the question referred, I will set out why, to my mind, subject to certain provisos, Directive 93/13 does not preclude a procedure such as that at issue. (9)
26. Lastly, I will briefly address the request made for limiting the temporal effects of the judgment.
A – Admissibility
27. Both in their written submissions and at the hearing, the Slovak and German Governments have contested the admissibility of the present request for a preliminary ruling.
28. In the view of the Slovak Government, the order for reference does not contain all the factual and legal information necessary for the Court to be able to give a useful answer to the question referred. Moreover, the Slovak Government claims that the dispute is purely hypothetical and that the referring court fails to demonstrate why an answer to the question is needed in order to resolve the dispute in the main proceedings. That government also argues that the order for reference does not explain the relevance of the other instruments of EU law mentioned by the referring court, that is to say, Directive 2005/29/EC (10) and Directive 2009/22/EC. (11) The German Government subscribes to the basic position adopted by the Slovak Government.
29. In their letter of 4 September 2013, Mr and Mrs Macinský state that the judgment of 21 March 2012 has become final, but that the procedure at issue can nevertheless be initiated in respect of the outstanding debt to Getfin in the amount of EUR 4 290.48. Accordingly, an answer from this Court would still be needed. At the hearing, the Commission also argued that the case was not hypothetical.
30. 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 judicial decision to be made to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that 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. The Court may refuse to rule on a question referred to it by a national court only where it is obvious that the answer sought is wholly unrelated 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.
31. In my view, and contrary to the arguments presented by the Slovak and German Governments, the Court disposes of sufficient factual and legal material to provide an answer.
32. However, in light of the answers received to questions put by the Court, I agree with those governments that the question referred ought not to be admissible, as the answer will not have any impact on the outcome of the case before the referring court.
33. Indeed, I would point out, first, that the order for reference states that Dražby has abandoned the pursuit of a public auction. Nevertheless, the Okresný súd Prešov justifies its request on the grounds that ‘[w]hen the effects of the interim measure have expired, the creditor will be able to resume the extra-judicial enforcement of the claim until the security interest is enforced by that or some other means’.
34. I must confess that I have not fully understood how it is that, under Slovak procedural law, the Okresný súd Prešov remains seised, given the fact that the auction will no longer go ahead and regardless of the risk that Dražby might resume the procedure at issue. It is possible that that risk might have existed at the time when the order for reference was made on 27 August 2012. However, as mentioned in point 15 above, according to the information received subsequently by the Court, the judgment of 21 March 2012 has become final. Indeed, the Slovak Government even stated during the hearing that Getfin had, in fact, contested the judgment of 21 March 2012, a challenge that was finally rejected on 13 May 2013. (12) I therefore do not see any possibility for Dražby to resume the same procedure.
35. Moreover, the judgment of 21 March 2012, which – contrary to what the Commission claimed at the hearing – concerned the same parties as those in the main proceedings, except for Financreal, considered the loan agreement between those parties to be null and void. That assessment would cover all clauses of that contract, including those relating to the procedure at issue.
36. Regrettably, in spite of the spirit of cooperation which must prevail in the preliminary ruling procedure, the Okresný súd Prešov did not find it necessary at any point to provide the Court, of its own motion, with information regarding the legal effects of the judgment of 21 March 2012 and the outcome of that judgment. (13) That judgment, which was annexed to the order for reference, was handed down by the Okresný súd Prešov itself, albeit a different composition thereof.
37. Accordingly, it would seem that there is no longer any contract to provide a legal basis for the procedure at issue in respect of the alleged debt to Getfin of EUR 21 057, at least not after 13 May 2013. By the same token, there is no need to rule upon the question referred.
38. This view is not called into question by the judgment in Aziz.
39. In Aziz, the admissibility of the questions referred was also challenged. The first of the two questions referred in that case more closely resembles the question referred by the Okresný súd Prešov. More specifically, it was essentially argued that the answer, concerning the compatibility of the Spanish rules on judicial enforcement, sought by the Juzgado de lo Mercantil No 3 de Barcelona (Spain) – which was hearing the case on the merits – would have no bearing on the judicial enforcement procedure before the Juzgado de Primera Instancia No 5 de Martorell (Spain). This was because the enforcement procedure had already taken place at the time the order for reference was issued by the national court in that case. It was claimed that the deed was done, so to speak. The Court did not find that this made the question inadmissible.
40. However, the situation in the case under consideration is different. The enforcement (the public auction) has not gone ahead and in any event, the contract, which – according to the facts made available to the Court – was considered null and void, no longer provides a legal basis for the procedure at issue.
41. Admittedly, in Aziz, the Court appears to have adopted a somewhat generous approach to the relevance of the answer requested for the dispute pending before the national court, in that it seems to have given the national court the full benefit of the doubt in that case. (14) The Court merely stated that the question ‘must be understood in a broad sense’ and that ‘it is not obvious that the interpretation of [EU] law sought … bears no relation to the actual facts of the main action or its purpose’. (15)
42. Such an approach is not warranted, however, in the present case. Indeed, given that Dražby has abandoned the enforcement procedure and that the contract was deemed to be null and void, it does not seem possible that an answer to the question referred could be of relevance to the dispute pending before the national court (if such a dispute exists at all), or indeed to any other ancillary issues (such as that mentioned in point 55 below). This appears to be borne out by the fact that neither Getfin nor Financreal have shown any interest in the proceedings before the Court.
43. Nevertheless, it is necessary to touch upon certain points which were made at the hearing.
44. At the hearing, the Slovak Government stated that, according to information it had obtained from the referring court, the main proceedings do not have as their subject-matter the loan agreement between Mr and Mrs Macinský and Financreal (whose rights under the agreement were subsequently ceded to Getfin), but rather a security interest agreement, wholly separate from the loan agreement. In response to a question put to it in order to clarify the implications of that assertion, that government stated that, under Slovak law, security interest agreements generally become devoid of legal effect if the obligation for which they guarantee performance is annulled, unless the security interest agreement specifically provides for it to remain effective in such a situation.
45. I find that revelation to be rather startling.
46. From the outset, in the framework of Article 267 TFEU, the Court is ‘empowered to rule on the interpretation or validity of provisions of [EU] law only on the basis of the facts which the national court puts before it’. (16) Moreover, it is not in a position to rule on matters of fact and law raised and discussed for the first time at the hearing before the Court, and which are not referred to either in the order for reference or the observations of the interested parties. (17)
47. In this respect, the order for reference simply states, in the heading, that the proceedings before it concern ‘[i] the suspension of the enforcement of a security, [ii] the invalidity of a contractual penalty and of charges for providing and managing the credit, and [iii] financial compensation’. Moreover, the actual content of the order only refers to one contract, not two. In the absence of anything in the order for reference to support the theory that the contract under consideration in the main proceedings is separate from the contract annulled by judgment of 21 March 2012, such an argument cannot be pursued.
48. However, even if it were to be supposed for the sake of argument that there actually was a separate security interest agreement, this would have no bearing on the case under consideration here.
49. First, it could be claimed that such a separate security interest agreement could serve as a basis for enforcing the debt of EUR 4 290.48 which the judgment of 21 March 2012 ordered to be repaid to Getfin. That seems – at least somewhat – to be the view of Mr and Mrs Macinský, who state in their letter of 4 September 2013 that, although that judgment has become final, it does not shield them from being subjected to the procedure at issue again. (18)
50. On this point, I should stress that the claim which Getfin now has against Mr and Mrs Macinský is one of restitution. Indeed, in the judgment of 21 March 2012, the referring court considered that the interest rate specified in the contract was morally unacceptable and, consequently, that the contract was null and void. Accordingly, that court ordered, in the operative part of that judgment, the remainder of the original loan – that is to say, EUR 4 290.48 – to be repaid over 84 instalments. That debt now exists on the basis of a judicial decision and not a contract, even though it is a contractual agreement that gave rise to the proceedings before that court.
51. Such a claim, by its very nature, falls outwith the scope ratione materiae of Directive 93/13, as delimited in Article 1(1), which concerns consumer contracts. An interpretation of Directive 93/13 will therefore have no bearing on the main proceedings.
52. Second, it could also be claimed that the referring court in fact wishes the Court to rule upon the compatibility with Directive 93/13 of legislation which, as such, allows general security interest agreements to be concluded between consumers and traders stipulating that the procedure at issue is to be triggered whenever a consumer defaults on any of his obligations towards the trader.
53. Although interesting, there would be absolutely no basis for such a question in the circumstances described in the order for reference. I have no desire to give an opinion on a hypothetical issue.
54. For those reasons, I will not deal any further with the theory of ‘two separate agreements’ mentioned by the Slovak Government.
55. As for the claim for damages which apparently also forms part of the proceedings before the referring court, there is nothing to suggest that an answer to the question referred is necessary as regards whether Getfin and/or Financreal are liable to pay such damages for initiating the procedure at issue against Mr and Mrs Macinský. Indeed, although the order for reference states that Mr and Mrs Macinský seek that form of compensation, the referring court neither addresses that issue in the question referred, nor does it explain whether and how it has the power to grant damages in the context of proceedings governed by Paragraph 21(2) and (5) of the Law on Voluntary Auctions. More importantly, it follows from the judgment of 21 March 2012 that Mr and Mrs Macinský actually brought a counterclaim for damages against Getfin in the context of those proceedings, which was dismissed as unfounded in its operative part. (19) That judgment has, as mentioned, become final, and the decision on damages has therefore become res judicata and the issue is closed. (20)
56. As for the references to Directive 2005/29 and Directive 2009/22 made in the order for reference, those directives do not – as observed by the Slovak and German Governments – appear to be relevant to this case. Indeed, the referring court simply mentions those directives – and some of their provisions (21) – without explaining why they should apply. In particular, the referring court neither states how it considers the procedure at issue to constitute an unfair commercial practice, nor in what way the matter under consideration involves an application for an injunction brought by a qualified entity for the protection of the collective interests of consumers. (22) Tellingly, the wording of the question referred does not mention those directives either. Therefore, they cannot make the question referred admissible.
57. Consequently, I do not see how a ruling from this Court is necessary in order to enable the referring court to resolve the dispute pending before it, rather than merely constituting an abstract appraisal of the compatibility of the procedure at issue with Directive 93/13. However well-intentioned the referring court may be in wishing to protect the interests of consumers, without ‘live’ proceedings, it is not possible to provide such an assessment. Furthermore, there is no need to recommend revisiting the settled case-law of the Court regarding hypothetical questions. (23)
58. On the basis of the foregoing, I find the question referred to be inadmissible.
59. Still, it is up to national courts to determine both the need for and the usefulness of an answer from the Court in the matter before them, as well as the proper timing. If, for some reason, the Court does not want to interfere with the assessment made by the referring court and, in the spirit of cooperation which must prevail in the context of proceedings under Article 267 TFEU, chooses to answer the question referred, I will offer the following considerations.
B – Compatibility of the procedure at issue with Directive 93/13
1. General observations on the consumer’s duty to act
60. As the global financial crisis from which Europe and the rest of the world is slowly recovering shows, a well-functioning and healthy credit system is one of the cornerstones of an open market economy. This may lead legislatures to devise particular security and enforcement schemes which are more or less favourable to the business sector in order to support the credit system. The case under consideration raises the question as to whether the procedure at issue goes too far in favouring traders over consumers.
61. In essence the referring court seeks to ascertain whether it is contrary to Directive 93/13 for a Member State to have procedural rules which allow for a claim based on an unfair term in a consumer contract to be enforced by out-of-court means and therefore – potentially – without any judicial oversight.
62. Accordingly, the Court must address an issue which it did not rule upon in Banco Español de Crédito or Aziz, but which Advocate General Kokott broached in her Opinion, (24) namely: is it compatible with Directive 93/13 for a Member State to require consumers to take action to suspend or halt the enforcement of a contract which allegedly contains an unfair term? In other words, is it compatible with Directive 93/13 that the consumer has to ‘make the first move’?
63. These issues must be assessed in light of the case-law of the Court on the responsibilities and the role of the national courts under Directive 93/13. Indeed, according to that line of authority, 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. (25)
64. For the reasons which follow, I am satisfied that the procedure at issue does provide to a sufficient degree for the effective protection of the rights of consumers as required under Directive 93/13.
65. I will begin by looking at the wording of Directive 93/13. I will then move on to address the relevant case-law (that is to say, the line of authority devolving from Banco Español de Crédito and Aziz), before explaining why, in my view, the question set out in point 62 above should be answered in the affirmative.
66. The Directive lays down certain positive rules in respect of unfair terms in consumer contracts, in particular the definition of such terms as set out in Article 3(1). As a corollary, Article 6(1) requires Member States to provide for rules under which such terms ‘shall … not be binding on the consumer’. Furthermore, Article 7(1) requires Member States to ensure that ‘adequate and effective means exist to prevent the continued use of unfair terms’.
67. As Directive 93/13 is silent on this specific point, it cannot be said to regulate the enforcement of claims, including claims against consumers. In principle, therefore, such rules come within the procedural autonomy of the Member States, subject however to the twin principles of equivalence and effectiveness. (26) I might add that there is nothing in the order for reference or in the national case-file forwarded to the Court to suggest that the Slovak procedural rules applicable to consumers under Directive 93/13 differ from the rules governing comparable situations on the basis of national law. (27) Therefore, it is only the effet utile of Directive 93/13 that appears to be at stake.
68. The issue of the compatibility of a procedure such as that at issue with the principle of effectiveness makes it necessary to delve deeper into the relevant case-law, namely Banco Español de Crédito and Aziz. (28) Indeed, like the case under consideration, both those judgments concerned the definition of the duties of the national court under Directive 93/13 in the context of a special procedure, (29) rather than the issue as to whether the national court can, or indeed must, act of its own motion. I read those two judgments as basically saying that recourse by traders to a special procedure provided for under national law in order to deprive consumers of the benefit of the protection intended by Directive 93/13 is contrary to the principle of effectiveness in so far as it makes it in practice impossible or excessively difficult to apply the protection which Directive 93/13 seeks to confer on those consumers. (30) As regards the procedure at issue, I do not think it deprives consumers of the benefit of that protection.
69. It is my conviction that, in the case of enforcement procedures against consumers in the form of public auctions, certain guarantees must exist in national procedural law in order to protect the weaker party – in this case, the consumer. (31) Naturally, this is particularly relevant in the case of out-of-court procedures. In the absence of such guarantees, the Member States would not fulfil their obligation under Article 7(1) of Directive 93/13 to lay down rules preventing unfair terms from binding consumers and to ensure that adequate and effective means exist to prevent the continued use of such terms.
70. Yet the question remains: when does it become impossible or, as is more usual, excessively difficult to apply the protection which Directive 93/13 seeks to confer on consumers? The answer to that question is not self-evident and requires a case-by-case approach. In that connection, it is necessary to examine the role of the national rules in the procedure, the various stages of the procedure and its special features, viewed as a whole, before various national bodies. (32) This may involve overall consideration of the remedies available to consumers and the possibility for national courts to intervene.
71. In that connection, it is useful to consider once again the lessons learned in Aziz and Banco Español de Credito.
72. Indeed, as alluded to in point 39 above, Aziz, too, concerned several proceedings: enforcement proceedings and proceedings on substance. The enforcement proceedings were nearly complete at the time when the declaratory proceedings on the fairness of the terms of the loan agreement were initiated. Moreover, the consumer had already been evicted from his house. Under Spanish law, he was forced to lodge separate declaratory proceedings on the fairness of the terms, as the enforcement court was prevented from addressing that issue. Moreover, the only remedy generally available under Spanish law in such situations would have been subsequent economic compensation. The Court found such a scenario to be incompatible with Directive 93/13. (33)
73. In my view, Aziz is an example of circumstances in which the application of effective consumer protection becomes impossible. (34) Indeed, the court subsequently hearing the case on the merits was unable to set aside the enforcement order – at least it was too late to do so. That court could only provide economic compensation, which was deemed to be insufficient.
74. Banco Español de Crédito, on the other hand, seems to be an example of circumstances in which it is not outright impossible for consumers to protect their rights effectively, but excessively difficult for them to do so.
75. Banco Español de Crédito concerned rules on an ex parte ‘order for payment’ procedure. Accordingly, those proceedings were not ‘enforcement proceedings’ as such, but rather simplified proceedings dealing with substantive issues. Relevant Spanish law stated, inter alia, that the debtor must object within 20 days of the date on which he was notified of the order for payment. If an objection was lodged, the summary proceedings were stopped, and the proceedings became adversarial. (35) For several reasons, (36) the Court observed that consumers were not generally liable to object to the procedure and therefore held the Spanish law in question to be incompatible with Directive 93/13.
76. Turning back to the question of when it becomes excessively difficult for consumers to exercise their rights effectively, this would also seem to depend on the importance of the interest restricting consumer protection. Case-law seems to indicate that certain legitimate interests have a better claim to outweigh the protection of consumers than others. (37)
77. However, it should be made perfectly clear that, as the German Government stated at the hearing, the principle of effectiveness requires only that national procedural rules must not make it excessively difficult for consumers to exercise their rights. In particular, it does not require the exercise of those rights to be ‘easy’ or subject to a particularly favourable treatment. (38) To adopt such a view would render the concept of procedural autonomy devoid of practical effect and, moreover, it would be at odds with the fact that Directive 93/13 only provides for minimum harmonisation. (39)
78. In light of the foregoing, I do not find it, on balance, excessive in itself to require consumers to initiate legal proceedings against the trader to suspend or halt an enforcement procedure such as that at issue.
79. This appears to be confirmed by case-law. In Banco Español de Crédito, the Court did not appear to reject outright the view that it is legitimate, in principle, that creditors have easy access to justice and that procedures operate rapidly. (40) Moreover, in Asturcom Telecomunicaciones, it held that a national court is neither required to compensate for a procedural omission on the part of a consumer who is unaware of his rights, nor to make up for total inertia on the part of that consumer. (41) Therefore, I concur with Advocate General Kokott that, generally speaking, it does not, in itself, appear to be an excessive impediment to the effective legal protection of consumers that the consumer must first initiate proceedings establishing certain conditions so that the court hearing the case can assess the terms of the agreement. (42) Indeed, it would not be wholly accurate to characterise the duty incumbent on the consumer as a duty to act of his own initiative without any prior motivation in this respect; rather, it is a duty to react to the intended course of action by the trader. I would stress that, in Aziz, the Court did not specifically object to the fact that the consumer had to bring declaratory proceedings before the Juzgado de lo Mercantil No 3 de Barcelona; rather, it was the fact that those proceedings were completely futile which led the Court ultimately to rule as it did.
80. Moreover, I fear that a requirement of compulsory ex ante judicial review, which seems to be supported by the Commission, would effectively serve no purpose. (43) Indeed, the assessment of whether a term is unfair requires an individual appraisal of all the relevant circumstances. (44) Although, in Banco Español de Crédito, the court hearing the matter at first instance was able to take a position without any input from the consumer, this will not generally be the case. On the contrary, save where such a court has before it all the legal and factual elements necessary, it will neither be able – nor obliged – to act independently of the consumer.
81. Lastly, the fact that the property in question might be the family home of the consumer does not, in itself, alter my view. In the absence of harmonised rules, Member States should not be prevented, simply by dint of the fact that the property at issue is the consumer’s home, from requiring the consumer to bring proceedings against an out-of-court enforcement procedure.
82. That said, I should stress, however, that where the property concerned by the procedure at issue is the consumer’s home, there must be specific guarantees. Failure to provide such guarantees may prove problematic from a fundamental rights perspective. (45) Indeed, the loss of a family home is one of the most extreme forms of interference with the rights of the consumer. (46) As respect for the home is a right guaranteed under Article 7 of the Charter of Fundamental Rights of the European Union, in the light of which Directive 93/13 must be interpreted, (47) any person at risk of an interference of this magnitude should be able to have the proportionality of such a measure reviewed by an independent judicial body. (48)
83. In sum, I find it to be compatible with Directive 93/13 for a Member State to require a consumer to take action in order to suspend or halt an enforcement of a contract which allegedly contains an unfair term. Having clarified this point of principle, I will now turn to the specific characteristics of the procedure at issue.
2. Assessment of the procedure at issue
84. As for the procedure at issue, it follows from Paragraph 151m(1) of the Slovak Civil Code that – save where specific rules exist on the subject – a public auction can take place at the earliest 30 days after notification of the enforcement to the debtor (or the guarantor, as the case may be). Similarly, under Paragraph 17(3) of the Law on Voluntary Auctions, a public auction can take place at the earliest 30 days after notification of the forthcoming auction in the Trade Journal. Paragraph 17(5) of that law also provides that the auctioneer must notify the person proposing the public auction, together with the debtor and the owner of the immovable property (if not the same person as the debtor), of the forthcoming public auction before the same deadline. At the hearing, the Slovak Government confirmed that these time-limits may run concurrently, meaning at least a 30-day period following notification to all relevant parties and bodies.
85. After the public auction has taken place, pursuant to Paragraph 21(2) of the Law on Voluntary Auctions, the sale of the property can generally be contested up to three months afterwards.
86. During that period, the debtor can still enjoy use of the property put up for public auction. However, pursuant to Paragraph 29 of the Law on Voluntary Auctions, where the property put up for public auction is immovable property, the debtor (or guarantor, as the case may be) is obliged to surrender the property after the sale without undue delay, following the registration of the sale by public auction in a notarial deed.
87. The Commission claims that this is tantamount actually to dispossessing the consumer of that property. I have a certain measure of sympathy for that view. (49) Nevertheless, I am satisfied by the arguments submitted at the hearing by the Slovak Government, according to which Paragraph 29 of the Law on Voluntary Auctions does not prevent a debtor from requesting a court to suspend the procedure at issue and the surrender of the property, even after the sale has taken place. (50) If that interpretation of national law is correct – which it is for the referring court to verify – I do not find that Paragraph 29 of that law, in itself, exacerbates the situation, provided that the court seised will take the action described in point 97 below.
88. Moreover, where the debtor has in fact surrendered his property, there is a possibility of recovering that property if the sale by public auction is annulled under Paragraph 21(5) of the Law on Voluntary Auctions and the challenge has been recorded in the land registry. (51) Under Paragraph 21(3) of that law, the party challenging the sale by public auction is required to inform the competent authority of such a challenge.
89. Therefore, as I interpret national law, it may be concluded that a consumer has at least 30 days after all the relevant notifications have been made to challenge a public auction ex ante, (52) and ex post up to three months after the sale has taken place (or even longer where the sale is linked to criminal activity).
90. Potentially, a consumer therefore has a minimum of four months overall in which to contest a sale by public auction.
91. That is not comparable to the 20-day limit for objecting in Banco Español de Crédito, which made it excessively difficult for consumers to exercise their rights to protection under Directive 93/13 effectively.
92. Moreover, I do not find that the procedure at issue confines the rights of consumers to mere subsequent economic compensation, which would admittedly be insufficient according to Aziz.
93. Indeed, it is true that the main proceedings constitute, in some ways, a ‘reverse Aziz’. (53) However, unlike the Spanish rules applicable to enforcement proceedings at issue in Aziz, (54) it appears on the basis of the foregoing that, under Slovak law, an objection to the procedure at issue – even the possibility of staying that procedure on the basis that it is incompatible with Directive 93/13 – does exist. That is attested, furthermore, by the circumstances of the main proceedings.
94. Those circumstances show that the procedure at issue does not render the effective exercise of the rights of the consumer excessively difficult. Indeed, as the referring court had before it the necessary legal and factual material enabling it to express doubts as to the fairness, inter alia, of some of the penalty clauses inserted in the contested contract against the requirements of Directive 93/13, it issued an interim measure suspending the public auction and referred the matter to this Court. It did so notwithstanding the argument raised by the Commission that it is not altogether clear from the wording of Paragraph 21(2) of the Law on Voluntary Auctions whether such a court actually has jurisdiction to annul the public auction process on grounds of the unfairness of certain contractual terms. (55) The referring court therefore rightly applied, to the extent possible, its internal procedural rules in such a way as to achieve the result required under Articles 6(1) and 7(1) of Directive 93/13, read together. (56)
95. It can, of course, be claimed that the fact that Mr and Mrs Macinský successfully lodged proceedings in due time to contest the sale at public auction merely bears witness to their particular resourcefulness, and cannot be taken as evidence that consumer protection is effectively ensured, particularly as regards more vulnerable consumers. (57)
96. However, it is undeniable that Paragraph 21 of the Law on Voluntary Auctions does provide consumers with a legal remedy against a public auction. Admittedly, this remedy requires the consumer to act. Nevertheless, as I stated in points 78 and 79 above, I do not find this, in itself, to restrict excessively the effective protection of consumers. In the absence of harmonisation in this area, it is for the Member States to set the level of protection in enforcement proceedings which they deem sufficient for consumers, so long as the consumers are not deprived of the protection intended by Directive 93/13. Nevertheless, in the case of particularly vulnerable persons, it is understood that the Member States remain responsible for the compatibility of such rules with fundamental rights. (58)
97. Moreover, it should be made patently clear that, once a consumer has challenged a sale by public auction before the Slovak courts under Paragraph 21 of the Law on Voluntary Auctions, that challenge triggers the application of the case-law of the Court on the role and responsibilities of the national courts under Directive 93/13, as referred to in point 63 above. This means that, where a national court has available to it the legal and factual material necessary for that task, it is required to assess of its own motion whether a term in a consumer contract forming the basis of an enforcement procedure such as that at issue is unfair. If that is the case, it is for that court to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that term. That may entail – where necessary – the ordering of interim measures suspending the sale or the effects thereof pending a final decision on the fairness of that term; if, for instance, such a decision were to fall within the competence of a different jurisdiction. (59)
98. As the facts of this case show that to be possible under Slovak law, I would recommend, in the event that the Court chooses to answer the question referred, that – provided the national court has jurisdiction to take the action referred to in the preceding point, which it is for the referring court to verify – the Court declare that Directive 93/13 does not preclude a procedure such as that at issue.
C – The request for limiting the temporal effects of the judgment
99. The Slovak Government has requested that the temporal effects of the judgment be limited, should the Court hold the procedure at issue to be in breach of Directive 93/13. The following observations are therefore only relevant to the extent that the Court disagrees with me both on the point of admissibility and on the merits of the case.
100. At the outset, I would call attention to the fact that an interpretation given by the Court of a rule of EU law is intended to clarify and define the meaning and scope of that rule as it ought to have been understood and applied from its entry into force. Accordingly, the rule – as interpreted by the Court – is to be applied to all legal relationships, including those which arose and were established before the judgment in which the ruling on interpretation was given. As a matter of principle, the Court can therefore limit the temporal effects of its judgments only in exceptional circumstances. (60)
101. The Court limits the temporal effects of a judgment only where two (cumulative) conditions are met. First, a ‘risk of serious economic repercussions’ must be established. Those repercussions must stem, in particular, from a large number of legal relationships entered into in good faith on the basis of rules considered at the time to be validly in force. Second, the unlawful practices must have been based on objective, significant uncertainty concerning the interpretation and scope of the EU law provisions in question. In that connection, the Court has attached particular importance to the conduct of other Member States and the Commission, which may have contributed to the unlawful conduct in question. (61)
102. In its request, the Slovak Government has produced a table specifying the number of times the procedure at issue has taken place between 2003 and 2012. That number increased from 217 in 2003 to 3 916 in 2012. That government states that between 1 May 2004 and 31 December 2012, a total of 17 309 public sales took place. On that basis, the Slovak Government claims that a large number of transactions have been concluded in good faith and in reliance of the procedure at issue being compatible with Directive 93/13.
103. However, in response to a question put during the hearing, the Slovak Government stated that those figures were aggregate figures. It was unable, therefore, to indicate how many of those public sales arose from consumer contracts, that is to say, in situations involving a consumer and a trader, rather than in other contractual situations. It could not even make an informed guess.
104. As the Slovak Government is unable even to provide an objective estimate of the number of legal relationships involving a consumer and allegedly established in good faith, the Court cannot be reassured of the need to restrict the temporal effects of the judgment in accordance with the principle of legal certainty. The request must therefore be refused.
105. Accordingly, it is not necessary to address the issue of whether legal relationships purportedly established in good faith should be accorded more weight than the right of consumers to seek redress for infringements of Directive 93/13, in reliance on the judgment of the Court. By the same token, there is no need to explore whether the principles set out in Banco Español de Crédito and Aziz (in which no limitation of the temporal effects of those judgments was sought) might have removed any uncertainty as to the compatibility of the procedure at issue with Directive 93/13.
106. That said, a refusal to limit the temporal effects of the judgment does not preclude the application of the Slovak rules on the time-barring of actions, to the extent that they are consistent with the principles of equivalence and effectiveness. Suffice it to say in that respect that, according to the table produced by the Slovak Government, some of the public auctions took place more than 10 years ago.
107. On that basis, should the Court hold the question referred to be admissible and the procedure at issue to be incompatible with Directive 93/13, I would advise against limiting the temporal effects of the judgment.
IV – Conclusion
108. In light of the foregoing, I propose that the Court declare the question referred by the Okresný súd Prešov (Slovakia) inadmissible.
1 – Original language: English.
2 – See, inter alia, Case C-346/93 Kleinwort Benson [1995] ECR I-615, paragraph 24; see also Opinion 1/91 [1991] ECR I-6079, point 61.
3 – Council Directive of 5 April 1993 (OJ 1993 L 95, p. 29).
4 – The referring court does not state, in the order for reference, when the interim measure is set to expire (if at all).
5 – Moreover, the Slovak Government stated that, when preparing for the hearing, it had – exceptionally – been in informal contact with the referring court and had learned that the judgment of 21 March 2012 had been challenged by Getfin, but that that challenge was dismissed on 13 May 2013.
6 – It strikes me, therefore, that the only ‘voluntary’ element in such a procedure lies in the fact that the original agreement, containing a clause allowing the creditor to have recourse to an enforcement procedure of that kind, was (obviously) entered into with the debtor’s consent.
7 – See, in particular, Case C-618/10 Banco Español de Crédito [2012] ECR I-0000, and Case C-415/11 Aziz [2013] ECR I-0000. See also Joined Cases C-537/12 and C-116/13 Banco Popular Españoland Banco de Valencia [2013] ECR I-0000; essentially confirming, by way of order, the outcome in Aziz.
8 – See Case C-34/13 Kušionová, currently pending before the Court, in which the Krajský súd v Prešove (Prešov Regional Court) (Slovakia) has requested the Court to give a preliminary ruling on a series of questions which essentially concern the same issues as those raised in the present proceedings. See also Case C-280/13 Barclays Bank, currently pending before the Court.
9 – It being understood that in proceedings under Article 267 TFEU, the Court cannot rule upon the compatibility of a provision of domestic law with EU law. It may, however, provide the national court with an interpretation of EU law so as to enable that court to determine this for itself.
10 – Directive 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 (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).
11 – Directive of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30).
12 – This last piece of information was, however, not verifiable, as neither Getfin nor Mr and Mrs Macinský participated in the hearing before the Court.
13 – I would point out, in this respect, that as stated in point 30 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2012 C 338, p. 1), in such proceedings, it is incumbent on the referring court to properly inform the Court of any procedural step that may affect the referral, in the interests of the proper conduct of the preliminary ruling proceedings before the Court and in order to maintain their effectiveness.
14 – This is evidenced in points 35 to 37 of the Opinion of Advocate General Kokott in Aziz, who agreed that the first question referred in that case appeared, on the face of it, to be hypothetical, although an answer might have an impact on the possibility of compensation following completion of the enforcement procedure.
15 – See Aziz, paragraphs 38 and 39.
16 – See, inter alia, Case C-235/95 Dumon and Froment [1998] ECR I-4531, paragraph 25 and case-law cited.
17 – See, to that effect, Case C-236/02 Slob [2004] ECR I-1861, paragraph 29, and Case C-226/07 Flughafen Köln/Bonn [2008] ECR I-5999, paragraph 37.
18 – They argue that the judgment of 21 March 2012 neither voids the loan agreement nor the secured interest and that Getfin is allegedly not bound by the recalibration of the debt made in the operative part of that judgment. However, as for this last claim, they also state in that very same letter that under Article 151(2) of the Slovak Code of Civil Procedure, the operative part of a judgment is binding on the parties.
19 – According to the grounds stated in the judgment of 21 March 2012, the contract was declared void on the basis of the ordinary rules on the invalidity of contracts laid down in the Slovak Civil Code and not the special rules on consumer protection which, according to that judgment, must be invoked if damages are to be obtained under Paragraph 5(3) of Law No 250/2007 on the Protection of Consumers.
20 – It should be recalled that Financreal ceded its right to repayment to Getfin under the loan agreement, which was later declared void. The referring court does not mention the possibility that Financreal – or Getfin – could be held liable to pay damages to the consumers for reasons other than the fairness of the terms of the agreement.
21 – Article 11(1) and (2) of Directive 2005/29, and Articles 1(1) and 2 of Directive 2009/22.
22 – See, to that effect, Banco Español de Crédito, paragraphs 59 and 60, as well as paragraphs 85 to 87.
23 – For recent applications of that case-law, see Case C-82/13 Società cooperativa Madonna dei miracoli [2013] ECR I-0000, paragraphs 12 and 14; Case C-180/12 Stoilov i Ko [2013] ECR I-0000, paragraph 47; and Case C-313/12 Romeo [2013] ECR I-0000, paragraphs 39 and 40.
24 – See the Opinion of Advocate General Kokott in Aziz, points 55 and 56.
25 – See, inter alia, Aziz, paragraph 46 and case-law cited.
26 – I refer to Banco Español de Crédito, paragraph 46, and Aziz, paragraph 50; see also, to that effect, C-397/11 Jőrös [2013] ECR I-0000, paragraph 50. Since the entry into force of the Treaty of Lisbon, aspects of the principle of effectiveness are now also enshrined in Article 19(1) TEU.
27 – Paragraph 21(2) of the Law on Voluntary Auctions allows a longer period for the lodging of proceedings for the annulment of a sale by public auction in certain cases where the sale is a result of a criminal offence. However, that obviously does not exclude the public auction of a consumer’s property under an unfair contractual term which might have been concluded in the context of such an offence.
28 – See also, concerning the duties of the national courts under Directive 93/13, Case C-40/08 Asturcom Telecomunicaciones [2009] ECR I-9579, in respect of the enforcement of an arbitral award; and Jőrös, in relation, inter alia, to the fact that national law only designated certain courts as competent to hear cases involving alleged unfair terms (see the second question referred in that case).
29– See Banco Español de Crédito, paragraph 45, and Aziz, paragraph 49. While the Court distinguished, prima facie, in paragraph 49 of Aziz, that case from Banco Español de Crédito, the reason for this seems to me to lie merely in the somewhat different procedural setup of both cases (see points 72 and 75 below).
30 – See, to that effect, Banco Español de Crédito, paragraphs 55 and 56, and Aziz, paragraphs 62 and 63.
31 – See Banco Español de Crédito, paragraph 39, and Aziz, paragraph 44.
32 – See Banco Español de Crédito, paragraph 49, and Aziz, paragraph 53.
33 – See Aziz, paragraphs 59 and 60.
34 – Conversely, the recent order in Banco Popular Españoland Banco de Valencia would also seem to constitute an instance of impossibility (see points 54 and 55).
35 – See Banco Español de Crédito, paragraphs 25 and 26. Advocate General Trstenjak mentioned in her Opinion, moreover, that if an appeal was lodged against the order for payment, the proceedings would also become adversarial, see points 51 and 68.
36 – The Court referred to the brevity of the period allowed; the potentially prohibitive costs; the consumers’ lack of awareness of their rights; and the laconic content of the application for the order for payment (see paragraph 54).
37 – In Asturcom Telecomunicaciones, the effective protection of consumers was weighed against the principle of res judicata. The Court found in favour of the latter, emphasising the importance of that principle (see paragraphs 35 to 37). In Banco Español de Crédito, however, it was found that the promotion of easy access to justice for creditors and swift procedures could not, in those circumstances, outweigh the application of effective consumer protection. Interestingly, the Court seems, in the former case, to have lowered the level of effective consumer protection, and in the latter, to have raised it. Most recently, in Jőrös, the Court held that the right for Member States to set up their own legal system may, in principle, outweigh the right of a national court to set aside an unfair term of its own motion if the competence to do so lies with another jurisdiction. However, the internal procedural rules of that national court must, as far as possible, be interpreted in such a way as to achieve the result prescribed by Article 6(1) of Directive 93/13 (see Jőrös, paragraphs 50 to 52).
38 – Indeed, according to the Court, Article 6(1) of Directive 93/13 is intended only to re-establish equality between the consumer and the trader; see, inter alia, Aziz, paragraph 45.
39 – See Article 8 of Directive 93/13 and the 12th recital in the preamble thereto.
40 – See Banco Español de Crédito, paragraph 51.
41 – See Asturcom Telecomunicaciones, paragraph 47.
42 – See the Opinion of Advocate General Kokott in Aziz, point 55. Such a view was also expressed by Advocate General Trstenjak in her Opinion in Banco Español de Crédito, point 74; although the Court admittedly did not share that view.
43 – I should, furthermore, point out that an obligatory ex ante judicial review may come at extra cost for the trader (such as court fees for launching the proceedings), even where the contract at issue does not contain unfair terms.
44 – See Article 4(1) of Directive 93/13, as well as Article 3(3), which refers to a list of non-exhaustive and indicative terms which may be considered as unfair, annexed to Directive 93/13; see furthermore, to that effect, Aziz, paragraphs 66 and 68 to 71.
45 – See, to that effect, the judgments of the European Court of Human Rights in Rouskv. Sweden, no. 27183/04, ECHR 25 July 2013, which concerned the public sale of the debtor’s home and his eviction therefrom at the request of a public authority in respect of a claim for payment of a tax debt amounting to SEK 6 721 (approximately EUR 800) (see, in particular, the findings of that Court at §§ 91, and 137 to 139); and Zehentner v. Austria, no. 20082/02, ECHR 2009, concerning the judicial sale of a private property to secure the recovery of a debt of approximately EUR 2 150 in a matter between two private parties, where the debtor was legally incapacitated and therefore unable to defend herself adequately against the claim (see, in particular, §§ 54, 59, 61, 75 and 76).
46 – See, to that effect, Aziz, paragraph 61.
47 – See my Opinion in Case C-363/12 Z, currently pending before the Court, point 73, and the authorities cited in its footnote 38. See also, inter alia, Lenaerts, K., ‘Exploring the Limits of the EU Charter of Fundamental Rights’, European Constitutional Law Review, (8)2012, p. 376. For the interplay between the procedural autonomy of Member States, the principles of equivalence and effectiveness, and the Charter, see Case C-93/12 Agrokonsulting [2013] ECR I-0000, paragraphs 59 to 61.
48 – See Rousk v. Sweden, § 137.
49 – See also, in this regard, Zehentner v. Austria, § 54.
50 – According to the observations of the Slovak Government in Kušionová, Paragraphs 74(1) and 76(1)(f) of the Slovak Code of Civil Procedure do indeed grant courts general powers to issue interim measures in proceedings before them.
51 – I refer, for further detail, to Paragraphs 39(3) and 43(2) of Law No 162/1995 on the Land Registry and the Registration of Rights of Property and Other Rights in Respect of Immovable Goods. It follows from those provisions that, if informed of a challenge, the Land Registry Services will record that information until the challenge has been dealt with. See, in a different context, Aziz, paragraphs 56 to 58.
52 – I should add that there is nothing to prevent a consumer from seeking a court declaration that a contractual term is unfair even before the publication of the notice of sale.
53 – In contrast to Aziz, in the case under consideration, the question of the compatibility of the procedure at issue with Directive 93/13 arose in the context of the enforcement of the claim against the consumers and not the proceedings on the substance. Moreover, the main proceedings, which relate to the enforcement, were lodged by the consumers, whereas the proceedings on the merits were brought by the trader.
54 – See Aziz, paragraphs 54 and 55.
55 – Referring to Paragraph 7(2) of the Law on Voluntary Auctions, the Slovak Government confirmed at the hearing that Slovak courts enjoy such jurisdiction.
56 – See, to that effect, Jőrös, paragraph 52.
57 – In this respect, case-law does not make it clear how well-informed and active a consumer must be. Banco Español de Crédito and Aziz seem to favour a more vulnerable type of consumer, whereas Asturcom Telecomunicaciones rather seems to require the consumer to be more of a bonus pater familias litigant. The lack of clarity is exacerbated by the fact that, in Asturcom Telecomunicaciones, Advocate General Trstenjak urged the Court to oblige a national court to halt the enforcement of an arbitral award issued on the basis of a contract containing an unfair term (see point 76 of her Opinion in Asturcom Telecomunicaciones) – which the Court did not do – after which she argued in Banco Español de Crédito, in specific reference to this outcome (but equally in vain), that the Court should adopt a model of the consumer who is ‘reasonably well informed and reasonably observant and circumspect’ (see points 72 and 73 of her Opinion in Banco Español de Crédito).
58 – In both judgments of the European Court of Human Rights referred to above, the debtor was arguably in a more vulnerable position than usual. In Rousk v. Sweden, the creditor was the State, and in Zehentner v. Austria, the debtor was legally incapacitated.
59 – See, to that effect, Jőrös, paragraphs 50 to 52.
60 – See Joined Cases C-338/11 to C-347/11 FIM Santander Top 25 Euro Fi [2012] ECR I-0000, paragraph 59 and case-law cited. In addition, the Court has consistently held that such a restriction may be allowed only in the actual judgment ruling on the interpretation sought. See, for example, Case C-292/04 Meilicke and Others [2007] ECR I-1835, paragraph 36 and case-law cited.
61 – See, inter alia, FIM Santander Top 25 Euro Fi, paragraph 60 and case-law cited.
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