Opinion of Advocate General Tanchev delivered on 15 July 2021.

JurisdictionEuropean Union
Celex Number62019CC0693
ECLIECLI:EU:C:2021:615
Date15 July 2021
CourtCourt of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 15 July 2021(1)

Joined Cases C693/19 and C831/19

SPV Project 1503 Srl,

Dobank SpA

v

YB (C693/19)

and

Banco di Desio e della Brianza SpA,

Banca di Credito Cooperativo di Carugate e Inzago Sc,

Intesa Sanpaolo SpA,

Banca Popolare di Sondrio ScpA,

Cerved Credit Management SpA

v

YX,

ZW (C831/19)

(Request for a preliminary ruling from the Tribunale di Milano (District Court, Milan, Italy))

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Articles 6(1) and 7(1) – Principle of effectiveness – Article 47 of the Charter of Fundamental Rights of the European Union – Order for payment procedure – Enforcement proceedings – Order for payment having the force of res judicata – Power of the national court responsible for enforcement to examine the unfairness of contractual terms – Principle of res judicata – Time-barring)






I. Introduction

1. These two requests for a preliminary ruling submitted by the Tribunale di Milano (District Court, Milan, Italy) concern the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). They are situated in the context of proceedings for the enforcement of orders for payment which were not contested and thus became final.

2. The main issue raised by the present cases is essentially whether Articles 6(1) and 7(1) of Directive 93/13 and Article 47 of the Charter preclude national legislation which does not allow the court responsible for enforcement to examine the potential unfairness of the terms of the contract serving as the basis for the order for payment because of the force of res judicata acquired by that order.

3. The present cases are being heard by the Court in parallel with three other cases (C‑600/19, C‑725/19 and C‑869/19) in which my Opinions are being delivered today. Those cases are based on Spanish and Romanian requests for preliminary rulings and also touch on similar and potentially sensitive issues relating to the extent of the national court’s obligation to examine of its own motion (ex officio) the unfairness of contractual terms in accordance with the Court’s case-law interpreting Directive 93/13 and the relationship with certain national procedural principles, including the principle of res judicata.

4. Consequently, the present cases provide the Court with the opportunity to develop its case-law on Directive 93/13, and in particular to clarify issues regarding the principle of res judicata in connection with the judicial review of unfair terms under that directive. The present cases also raise questions concerning the relationship between the principle of effectiveness and Article 47 of the Charter in this context.

II. Legal framework

A. Union law

5. 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.’

6. 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. Italian law

7. Decreto legislativo n. 206 recante Codice del consumo (Legislative Decree No 206 on the Consumer Code), of 6 September 2005 (Ordinary Supplement to GURI No 235 of 8 October 2005) (‘the Consumer Code’), transposed Directive 93/13 into Italian law.

8. Article 633 of the Codice di procedura civile (‘the Code of Civil Procedure’) states:

‘At the request of the creditor of a sum of money or a quantity of fungible goods, or of the recipient of a delivery of a specific good, the competent judge shall issue an order for payment or delivery:

(1) If the right claimed is supported by written evidence;

…’

9. Article 641 of the Code of Civil Procedure states:

‘If the conditions provided for in Article 633 are fulfilled, the judge shall order the defendant, by reasoned order to be adopted within 30 days of the filing of the application, to pay the sum or to hand over the goods or the quantity of goods claimed, or in the case of the latter the sum provided for in Article 639, within a period of 40 days, with the explicit notice that that party may within the same period lodge an objection in accordance with the provisions of the following articles, and that in the absence of such an objection, enforcement shall be carried out.

…’

10. Article 647 of the Code of Civil Procedure states:

‘If no objection has been lodged within the prescribed time limit, or if the defendant has not taken legal action, the judge that issued the order, at the request, even verbal, of the applicant, shall declare it enforceable. In the first case, the judge must order a new service when it results or appears likely that the defendant did not have knowledge of the order.

Where the order has been declared enforceable in accordance with this article, the objection may no longer be lodged or pursued, subject to the provisions of Article 650, and any security deposited shall be released.’

11. Article 650 of the Code of Civil Procedure states:

‘The defendant may lodge an objection even after the expiry of the time limit set in the order if he proves that he did not know about it in time due to irregularities in the notification, or due to a fortuitous event or force majeure.

The objection shall no longer be admitted once the period of 10 days from the first act of enforcement has elapsed.’

12. Article 2909 of the Codice civile (‘the Civil Code’) provides:

‘Findings made in judgments which have acquired the force of res judicata shall be binding in all respects on the parties, their lawful successors and assignees.’

III. Facts, main proceedings and questions referred

A. Case C693/19, SPV Project 1503 and Others

13. According to the order for reference, YB, as a consumer, entered into three loan contracts for an amount totalling EUR 18 200 with Findomestic Banca SpA. That company later assigned its claim to Activa Factor SpA, which, in turn, assigned that claim to SPV Project 1503 Srl (‘SPV’). Under the terms of those contracts, in the event of late payment, a penalty and default interest were to apply.

14. By decision of 10 July 2012, the competent court issued an order for payment against YB, corresponding to the amount of EUR 16 290.52 in respect of sums due under the loan contracts plus interest for late payment pursuant to those terms. YB did not object to the order for payment, which therefore become final.

15. Thereafter, SPV served YB with an attachment order, dated 21 September 2016, for claims that YB held against third parties in the amount of EUR 31 332, comprising EUR 16 290.52 in capital and EUR 13 539.27 in interest as referred to in the order for payment, with the remainder consisting of expenses and fees.

16. SPV and another creditor then initiated enforcement proceedings against YB before the referring court.

17. In the course of those proceedings, the referring court considered that the term relating to the calculation of the default interest rate, which was more than 14% per year, could be unfair. It ordered SPV to produce the loan contracts on the basis of which the order for payment was issued and invited YB to indicate the intention to invoke the unfairness of the terms regarding default interest which, if established, could potentially reduce SPV’s claim. In response, YB invoked the unfairness of the term relating to the calculation of default interest. The referring court noted the possibility of examining ex officio the unfairness of that term and fixed a hearing to allow the parties to take a position on the matter. In that regard, SPV argued, inter alia, that the force of res judicata acquired by the order for payment could not be overridden.

18. The referring court explains that, according to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), the principle of res judicata covers not only the actual delivery of the decision, but also the reasons which form, albeit implicitly, its logical and legal basis. This approach applies to an order for payment requiring the payment of a sum of money, which, if not contested, becomes final in relation to the claim in respect of which the action is brought, as well as the instrument issued in respect of that claim, thus precluding any further examination of the reasons adduced to justify that application. Thus, the principle, which is derived from national case-law and referred to as the implicit force of res judicata, is based on the reasoning that if the court has ruled on a particular matter, it has dealt with all the other matters considered preliminary to the matter actually decided and has found that they do not preclude its ruling.

19. The referring court points out that, as in this case, once an order for payment is obtained, the creditor may, by giving notice of the attachment, initiate enforcement proceedings, referred to as compulsory expropriation proceedings under national law, and that, in the case of expropriation from third parties, the creditor undertakes compulsory expropriation on the basis of the order for payment as an enforceable instrument in respect of the claims that the debtor has against third parties. In the enforcement proceedings, the court may exercise powers of its own motion aimed at verifying the existence of the enforceable instrument and the correct quantification of the claim, but this does not extend to the intrinsic content of that instrument.

20. The...

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