CAJASUR Banco S.A. v JO and IM.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:569
• Date: 13 July 2023
• Docket Number: C-35/22
• Celex Number: 62022CJ0035
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

13 July 2023 (*)

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 6(1) – General conditions of a mortgage loan agreement declared null and void by national courts – Legal action – Admission prior to any dispute – National legislation requiring a consumer to take steps prior to bringing proceedings against the seller or supplier concerned in order to guarantee the award of the costs of legal proceedings – Principle of sound administration of justice – Right to effective judicial protection)

In Case C‑35/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Provincial de Málaga (Provincial Court, Málaga, Spain), made by decision of 14 December 2021, received at the Court on 17 January 2022, in the proceedings

CAJASUR Banco SA

v

JO,

IM,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L. Bay Larsen, Vice-President of the Court, acting as Judge of the Fourth Chamber, L.S. Rossi, S. Rodin (Rapporteur) and O. Spineanu-Matei, Judges,

Advocate General: A.M. Collins,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 11 January 2023,

after considering the observations submitted on behalf of:

– CAJASUR Banco SA, by V. Rodríguez de Vera Casado,

– the Spanish Government, by A. Pérez-Zurita Gutiérrez, J. Ruiz Sánchez and J. Rodríguez de la Rúa Puig, acting as Agents,

– the European Commission, by J. Baquero Cruz and N. Ruiz García, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 March 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 The request has been made in proceedings between CAJASUR Banco SA, on the one hand, and JO and IM, on the other, concerning the costs incurred in legal proceedings instituted by the latter, seeking a declaration of invalidity of a term in the general terms and conditions of a mortgage loan agreement on grounds of, inter alia, unfairness.

Legal context

European Union law

3 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.’

4 Article 7(1) of that directive 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.’

Spanish law

5 According to Article 1303 of the Código Civil (Civil Code):

‘When a contractual obligation has been declared void, the contracting parties must restore to one another those things that formed the subject matter of the contract, together with the profits derived therefrom, and the price together with interest, without prejudice to the following articles.’

6 Article 395 of Ley 1/2000, de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575), in the version applicable to the dispute in the main proceedings (‘the LEC’), which lays down the rules governing an order for costs in the event of admission, provides:

‘1. Where a claim is admitted prior to a statement of defence being lodged, neither party should be ordered to pay the costs of the proceedings unless the court finds, on a duly reasoned basis, that the defendant has acted in bad faith.

Bad faith shall in any event be deemed to exist if, prior to any legal action, the defendant has received a due and substantiated demand for payment, mediation proceedings have been initiated or a request for conciliation has been made to him or her.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

7 The parties to the main proceedings concluded a mortgage loan agreement. In 2018, JO and IM brought an action before the Juzgado de Primera Instancia No 18 bis de Málaga (Court of First Instance No 18a, Málaga, Spain), seeking a declaration of invalidity of a term in the general terms and conditions of that agreement relating to mortgage costs and the reimbursement of the amount paid under that term on grounds of unfairness. Following the filing of that action, CAJASUR Banco conceded that that term was unfair, but, taking the view that the amount claimed in that respect was excessive, agreed to repay only part of that amount.

8 By judgment of 2 March 2020, the Juzgado de Primera Instancia No 18 bis de Málaga (Court of First Instance No 18a, Málaga) declared that term automatically void on grounds of unfairness and, on that basis, ordered CAJASUR Banco (i) to repay to JO and IM part of the amount claimed and (ii) to pay the costs of the proceedings.

9 Cajasur Banco brought an action before the Audiencia Provincial de Málaga (Provincial Court, Málaga, Spain), which is the referring court, solely as regards that order for costs. It claims that, since it admitted the claim before any dispute, that order to pay the costs is contrary to Article 395 of the LEC, in so far as that article provides that such an order may be imposed only where bad faith on the part of the defendant is established. In that regard, it recalls that, under that article, bad faith is deemed to exist only if, prior to any legal action, the defendant has received a due and substantiated demand for payment, mediation proceedings have been initiated or a request for conciliation has been made to him or her.

10 As is apparent from the order for reference, that position is consistent with settled case-law of the Tribunal Supremo (Supreme Court, Spain) on the application of that article.

11 It is also apparent from the order for reference that JO and IM did not take any steps prior to bringing proceedings vis-à-vis CAJASUR Banco.

12 In those circumstances, the Audiencia Provincial de Málaga (Provincial Court, Málaga) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is it contrary to the right to effective judicial protection and Article 47 of the Charter of Fundamental Rights of the...