Opinion of Advocate General Tanchev delivered on 15 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:616
• Date: 15 July 2021
• Celex Number: 62019CC0725
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 15 July 2021(1)

Case C‑725/19

IO

v

Impuls Leasing România IFN SA

(Request for a preliminary ruling from the Judecătoria Sectorului 2 Bucureşti (Court of First Instance, Sector 2, Bucharest, Romania))

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Articles 6(1) and 7(1) – Principle of effectiveness – Enforcement proceedings – National legislation precluding the court seised of an objection to enforcement from examining the unfairness of the contractual terms – Existence of a separate action)

I. Introduction

1. This request for a preliminary ruling submitted by the Judecătoria Sectorului 2 Bucureşti (Court of First Instance, Sector 2, Bucharest, Romania) 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 enforcement proceedings carried out on the basis of a leasing contract having the status of an enforceable instrument.

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 does not allow a national court hearing proceedings in which the consumer contests the enforcement to examine, either of its own motion (ex officio) or at the consumer’s request, whether the terms of the contract are unfair because there is the possibility under national law for the consumer to bring a separate action in which the contract may be examined to determine whether it contains unfair terms.

3. The present case is being heard by the Court in parallel with four other cases (C‑600/19, C‑693/19, C‑831/19 and C‑869/19) in which my Opinions are being delivered today. Those cases are based on Spanish and Italian 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 the national procedural systems.

4. Consequently, the present case provides the Court with the opportunity to develop its case-law on the judicial review of unfair terms under Directive 93/13 with respect to accelerated procedures in which creditors seek recovery of consumer debts in the Member States.

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. Romanian law

7. Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între profesionişti şi consumatori (Law No 193/2000 on unfair terms in contracts concluded between sellers or suppliers and consumers), of 6 November 2000 (Monitorul Oficial al României, Part I, No 560 of 10 November 2000), as amended (‘Law No 193/2000’), transposed Directive 93/13 into Romanian law.

8. Article 713(2) of the Codul de procedură civilă (‘the Code of Civil Procedure’), in the version currently in force following its amendment by Law No 310/2018, (3) provides:

‘If enforcement is carried out by virtue of an enforceable instrument other than a court decision, points of fact or law relating to the substance of the right referred to in the enforceable instrument may be raised in support of the opposition only if the law does not provide for any procedural remedy for the annulment of that instrument, including an action in common law.’

9. Article 713(2) of the Code of Civil Procedure, prior to its amendment by Law No 310/2018, had provided:

‘If enforcement is carried out by virtue of an enforceable instrument other than a court decision, points of fact or law relating to the substance of the right referred to in the enforceable instrument may be raised in support of the opposition only if the law does not provide for any specific procedural remedy for the annulment of that instrument.’

III. Facts, procedure and question referred

10. According to the order for reference, on 20 August 2008, Impuls Leasing România IFN SA (‘Impuls Leasing’), as the finance provider, and IO, acting in the capacity of consumer and as the user, entered into a leasing contract regarding the use of a motor vehicle for a period of 48 months.

11. Thereafter, IO became unable to meet the payment obligations under the contract. On 19 March 2010, IO returned the motor vehicle to Impuls Leasing. On 29 June 2010, Impuls Leasing sold that vehicle to a third party for EUR 5 294.12.

12. On 15 October 2010, Impuls Leasing lodged with a court enforcement officer an application for enforcement against IO on the basis of the contract. After the sum of 5 168.28 Romanian lei (RON) (approximately EUR 1 200) had been recovered, on 16 November 2016, this enforcement procedure was apparently closed on the ground that IO had no further attachable assets.

13. On 26 March 2019, Impuls Leasing lodged with a different court enforcement officer a further application for enforcement against IO on the basis of the contract, seeking the liquidation of the remaining claims allegedly due to it in the amount of RON 137 502.84 (approximately EUR 29 000).

14. By order of 12 April 2019, the Judecătoria Sectorului 2 București (Court of First Instance, Sector 2, Bucharest) approved the application for enforcement in that amount, plus the costs of the enforcement.

15. By order of 8 May 2019, the court enforcement officer fixed the costs of the enforcement. On the same day, that officer executed the enforcement measures, which were communicated to IO.

16. On 24 May 2019, IO lodged with the Judecătoria Sectorului 2 București (Court of First Instance, Sector 2, Bucharest) an objection to enforcement, seeking the annulment of enforcement measures adopted in those proceedings and the restoration of the situation as it had been prior to the enforcement of the contract.

17. The referring court indicates that the contract on the basis of which the enforcement proceedings were commenced against IO contains certain terms which could be regarded as unfair pursuant to Law No 193/2000, which transposed Directive 93/13 into Romanian law. In that regard, the referring court notes that clause 10.9.1 of the contract entitles the finance provider, in the event of delay in the payment of any sum of money owed by the user, to apply late payment penalties at the rate of 0.35% of the outstanding amount for each day of delay, pursuant to which Impuls Leasing claims RON 116 723.72 (approximately EUR 25 000), whereas the total value of the contract was EUR 9 232.07. In addition, the referring court points out that clause 13 of the contract governs the extent of the damages which may be claimed by the finance provider in the event of the user’s failure to meet the contractual obligations and that, on the basis of that clause, Impuls Leasing seeks compensation, inter alia, for a capital shortfall of RON 25 155.43 (approximately EUR 5 300) and unpaid invoices amounting to RON 13 453.96 (approximately EUR 2 800).

18. The referring court explains that, under Article 713(2) of the Code of Civil Procedure before it was amended by Law No 310/2018, it was permissible for a national court to examine the unfairness of contractual terms in the context of an objection to enforcement, since as far as leasing contracts were concerned, there was no specific procedural remedy for their annulment within the meaning of that provision. In contrast, according to the current version of Article 713(2) of the Code of Civil Procedure as amended by that law, which is applicable to the main proceedings, this is the case only if there is no procedural remedy for the annulment of such contracts, including a common law action. According to the referring court, since a consumer can bring a common law action of that type pursuant to Law No 193/2000 in which such contracts may be examined to determine whether they contain unfair terms, this means that a national court can no longer examine the unfairness of contractual terms in the context of an objection to enforcement.

19. The referring court observes that, having regard to the Court’s case-law, national enforcement mechanisms must, in accordance with the principle of effectiveness, not make it impossible or excessively difficult to exercise the rights which Union law confers on consumers and that those rights can be protected effectively only if the national procedural system also permits an ex officio examination of the potentially unfair nature of the terms of the contract in the context of enforcement proceedings. The referring court therefore has doubts whether Article 713(2) of the Code of Civil Procedure, as amended by Law No 310/2018, is consistent with Directive 93/13, given that consumers are obliged to bring a common law action without being able to exercise the rights conferred on them by that directive through an objection to enforcement.

20. It was in those circumstances that the Judecătoria Sectorului 2 Bucureşti (Court of First Instance, Sector 2, Bucharest) decided to stay the main proceedings and to refer the following question to the Court for a preliminary ruling:

‘Taking into account the principle of effectiveness, is Directive 93/13/EEC to be interpreted as precluding national legislation, such as the Romanian legislation in force concerning the conditions...