TU and SU v BRD Groupe Societé Générale SA and Next Capital Solutions Limited.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:380
• Date: 04 May 2023
• Docket Number: C-200/21
• Celex Number: 62021CJ0200
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

4 May 2023 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Enforcement proceedings in respect of a loan agreement constituting an enforceable instrument – Objection to the enforcement – Review of unfair terms – Principle of effectiveness – National legislation not permitting the court hearing the enforcement proceedings to review the possible unfairness of a clause beyond the time limit imposed on a consumer for lodging an objection – Existence of an action under ordinary law that cannot become time-barred enabling the court hearing the substance of the case to carry out such a review and to order suspension of the enforcement – Conditions which do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law – Requirement for the consumer to pay a security in order to suspend the enforcement proceedings)

In Case C‑200/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania), made by decision of 25 February 2021, received at the Court on 31 March 2021, in the proceedings

TU,

SU

v

BRD Groupe Société Générale SA,

Next Capital Solutions Ltd,

THE COURT (Ninth Chamber),

composed of L.S. Rossi, President of the Chamber, S. Rodin (Rapporteur) and O. Spineanu-Matei, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– BRD Groupe Société Générale SA, by M. Avram, avocată,

– the Spanish Government, by M.J. Ruiz Sánchez, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, and by G. Greco, avvocato dello Stato,

– the European Commission, by M. Carpus Carcea and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation 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 TU and SU, on the one hand, and BRD Groupe Société Générale SA (‘BRD’) and Next Capital Solutions Ltd (‘NCS’), on the other, concerning an objection to the enforcement of the repayment obligation relating to a loan agreement concluded between TU and SU, on the one hand, and BRD, on the other, the latter’s claim subsequently being assigned to NCS.

Legal context

European Union law

3 The 24th recital of Directive 93/13 states that ‘the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.

4 Article 6(1) of that directive 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 that directive provides:

‘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.’

Romanian law

6 Article 638(1)(4) of the Legea nr. 134/2010 privind Codul de procedură civilă (Law No 134/2010 on the Code of Civil Procedure), in the version applicable to the dispute in the main proceedings (‘the Code of Civil Procedure’), provides:

‘The following are also enforceable instruments and may be subject to enforcement:

…

4. Debt instruments or other instruments which are enforceable under the law.’

7 Under Article 638(2) of the Code of Civil Procedure:

‘Suspension of enforcement of instruments stipulated in paragraph 1(2) and (4) may also be sought in connection with an action for their annulment. The provisions of Article 719 shall apply by analogy.’

8 Article 713(2) of the Code of Civil Procedure provides:

‘Where the enforcement is effected on the basis of an enforceable instrument other than a judicial decision, the debtor may also rely, in an objection to the enforcement, on factual or legal grounds concerning the substance of the right underlying the enforceable instrument only if the law does not provide … for a specific procedural remedy for its annulment …’

9 Article 715(1)(3) of the Code of Civil Procedure provides:

‘1. Unless otherwise provided by law, an objection to enforcement may be lodged within 15 days, which shall run from the date on which:

…

3. the debtor contesting the enforcement itself has received the decision authorising the enforcement or the order, or from the date on which he or she became aware of the first enforcement act, where he or she has not received either the decision authorising the enforcement or the order, or where the enforcement is carried out without an order.

…’

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

10 In October 2007, TU and SU concluded a loan agreement with BRD (‘the loan agreement at issue’). In June 2009, BRD assigned the claim arising from that loan agreement to IFN Next Capital Finance SA, which, in August of that year, assigned that claim to NCS.

11 On 23 February 2015, NCS instructed a bailiff to enforce payment of the debt owed by TU, on the basis of the loan agreement at issue, which was enforceable under Romanian law. In that context, the bailiff issued a payment order to TU, requiring him to pay the outstanding amounts owed under the loan agreement at issue and the costs of enforcement. On the same day, the bailiff ordered the seizure of financial assets in accounts held by TU with a number of banking establishments. Those various enforcement measures were notified to him on 2 March 2015.

12 By measure of 6 March 2015, the bailiff carried out a seizure of part of TU’s salary directly from his employer. That measure was also notified to TU on 13 March 2015.

13 On 17 March 2015, TU challenged the bailiff in respect of the amounts sought from TU, and then, on 5 August 2015, requested the grant of a six-month repayment plan. Subsequently, on 25 May 2016, the bailiff again ordered part of TU’s salary to be seized.

14 On 6 December 2018, the bailiff issued a new order for payment of the sums still owed to NCS, plus enforcement costs, failing which TU’s share of ownership in a building situated in Bucharest (Romania) would be seized.

15 On 28 December 2018, TU lodged an objection to that enforcement before the Judecătoria sectorului 1 București (Court of First Instance, Sector 1, Bucharest, Romania), claiming that the right to seek enforcement was time-barred. By final judgment, delivered on 18 April 2019, that court held that the objection to the enforcement was out of time.

16 On 17 February 2020, TU and SU brought, before that court, a new objection to the enforcement, arguing that two clauses of the loan agreement at issue, relating to the charging of a fee for the opening of a loan file...