Opinion of Advocate General Tanchev delivered on 15 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:614
• Date: 15 July 2021
• Celex Number: 62019CC0600
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 15 July 2021(1)

Case C‑600/19

MA

v

Ibercaja Banco, S.A.,

joined parties:

PO

(Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Provincial Court, Zaragoza, Spain))

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Articles 6(1) and 7(1) – Principle of effectiveness – Mortgage enforcement proceedings – Power of the national court to examine the unfairness of contractual terms following an initial review which is not reasoned – Determination of the final point in time after which the unfairness of contractual terms can no longer be raised – Principle of res judicata – Time-barring)

I. Introduction

1. This request for a preliminary ruling submitted by the Audiencia Provincial de Zaragoza (Provincial Court, Zaragoza, Spain) concerns the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. (2) It is situated in the context of mortgage enforcement proceedings in which no objection was lodged by the consumer and the mortgaged property has already been transferred to a third party.

2. The main issue raised by the present case is essentially whether Articles 6(1) and 7(1) of Directive 93/13 preclude national legislation which, by virtue of the effect of res judicata and time-barring, does not allow the court at a subsequent stage of the proceedings to examine the unfairness of the contractual terms where those terms were the subject of an initial review carried out by the court of its own motion (ex officio), which is not explicitly reflected in the decision authorising the mortgage enforcement. The referring court also wishes to know what effect a subsequent review of unfairness of the contractual terms might have on the adjudication of the mortgaged property.

3. The present case is being heard by the Court in parallel with four other cases (C‑693/19, C‑725/19, C‑831/19 and C‑869/19) in which my Opinions are being delivered today. Those cases are based on Spanish, Italian 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 ex officio the unfairness of contractual terms in accordance with the Court’s case-law interpreting Directive 93/13 and the relationship with certain principles of national procedural law, including the principle of res judicata.

4. Consequently, the present case provides the Court with the opportunity to develop its case-law on Directive 93/13, and in particular to clarify issues regarding res judicata and time-barring in connection with the judicial review of unfair terms under that directive.

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 reads as follows:

‘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. Spanish law

7. Article 136 of the Ley de Enjuiciamiento Civil (‘the Code of Civil Procedure’) states:

‘Once the time limit for carrying out a procedural step has elapsed, the step in question shall become time-barred and the opportunity to carry it out shall be lost. The court clerk shall leave a record of the elapse of the time limit in an official document and shall order the measures to be adopted or shall serve notice to the court so the corresponding decision can be ordered.’

8. Article 222 of the Code of Civil Procedure states:

‘1. The authority of res judicata attaching to final judgments, either upholding or dismissing a claim, shall exclude, in accordance with the law, any further proceedings having the same subject matter as that in which the first judgment was given.

2. The authority of res judicata shall attach to claims made in the main application and to counterclaims and to the matters referred to in Article 408(1) and (2) of this law.

Facts subsequent to the expiry of the period for the lodging of pleadings in the proceedings in which such claims were made shall be regarded as new and different with respect to the basis on which such claims were made.

3. The authority of res judicata shall be binding on the parties to the proceedings in which it arises, their heirs and those deriving title from them, and on the persons who, not being parties to the proceedings, hold the rights which give them standing to bring proceedings in accordance with the provisions of Article 11 of this law.

…

4. A decision that has acquired the force of res judicata in a final judgment concluding proceedings shall be binding on a court before which subsequent proceedings are brought where the decision having the force of res judicata appears, in the subsequent proceedings, to be a logical antecedent to the subject matter of the subsequent proceedings and where the parties to the two sets of proceedings are the same or where the authority of res judicata applies to them pursuant to provisions of the law.’

9. Article 552 of the Code of Civil Procedure states:

‘1. If the court considers that the terms and conditions required by law are not met for the purpose of ordering enforcement, it shall issue an order refusing enforcement.

The court shall examine of its own motion the question of whether a term in one of the enforcement orders referred to in Article 557.1 may be regarded as unfair. Where it considers that a term may be regarded as unfair, it shall hear the parties within fifteen days. After hearing the parties, it shall give its decision within five working days, in accordance with Article 561.1(3).’

10. Article 557 of the Code of Civil Procedure states:

‘1. Where enforcement is ordered in respect of the enforceable orders referred to in Article 517.2(4), (5), (6) and (7), and for other enforceable orders mentioned in Article 517.2(9), the party against whom enforcement is sought may, within the periods and in the forms prescribed in the preceding article, object to enforcement only if he relies on one of the following grounds:

…

(7) The document contains unfair terms.’

11. Article 695 of the Code of Civil Procedure states:

‘1. In proceedings under this chapter, an objection to enforcement by the party against whom enforcement is sought may be admitted only if it is based on the following grounds:

…

(4) the unfairness of a contractual term constituting the basis for enforcement or which has enabled the amount due to be calculated.’

III. Facts, procedure and questions referred

12. According to the order for reference, on 6 May 2005, the financial institution Ibercaja Banco, S.A. (‘Ibercaja Banco’) concluded with PO and MA, acting as consumers, a loan contract in the amount of EUR 198 400, repayable before 31 May 2040, and which was secured by a mortgage on a single family home valued at EUR 299 290.

13. The interest for the loan was set at an annual nominal interest rate of 2.75% until 30 November 2005. From that date, clause 3bis of the contract provided that the interest was calculated at a variable interest rate and the minimum differential to be applied to the rate could not be less than 0.5% (‘the floor clause’). Pursuant to clause 6 of the contract, default interest was set at an annual nominal rate of 19%. In addition, clause 6bis of the contract stipulated that Ibercaja Banco could claim the full amount of the loan in case of default in payment of any amount due (‘the accelerated payment clause’).

14. On 30 December 2014, Ibercaja Banco filed an application for mortgage enforcement proceedings against PO and MA following their failure to pay five monthly instalments on the loan from 31 May 2014 to 31 October 2014. It claimed the amount of EUR 164 676.53, corresponding to the capital and interest due and unpaid as of 5 November 2014, plus the amount of EUR 49 402, calculated provisionally, without prejudice to a subsequent adjustment of default interest, at the annual nominal rate of 12% from the closing of the account on 5 November 2014 until full payment.

15. On 26 January 2015, an enforcement order was issued against PO and MA, requiring payment and granting them a period of 10 days to object to enforcement. On the same day, the court officer issued a decision, requesting the Land Registry to submit a certificate of ownership and other rights in rem over the property and a certificate of the existence of the mortgage in favour of Ibercaja Banco. No objection to enforcement was lodged by PO and MA.

16. Following notification of PO’s death by letter of 14 December 2015, SP and JK became parties to the proceedings as possible legal heirs by order of 9 June 2016.

17. Thereafter, following an auction at which there were no bids, Ibercaja Banco was awarded the mortgaged property for the amount of EUR 179 574, and transferred that property to the company Residencial Murillo, S.A., which provided a receipt of payment for that amount.

18. On 25 October 2016, Ibercaja Banco requested the liquidation of costs valued at EUR 2 888.19, along with the interest which was calculated at EUR 32 538.28 by applying a rate of 12% as provided in Ley 1/2013, de 14 de mayo, de medidas para reforzar la protección a los deudores hipotecarios, reestructuración de deuda y alquiler social (Law 1/2013, of 14 May 2013, on measures to strengthen the protection of mortgagors, restructuring of debt and social rent; ‘Law 1/2013’). (3) The parties against whom the enforcement was sought were notified...