IO v Impuls Leasing România IFN SA.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2022:396
• Date: 17 May 2022
• Docket Number: C-725/19
• Celex Number: 62019CJ0725

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

17 May 2022 (*)

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Principle of equivalence – Principle of effectiveness – Enforcement proceedings in respect of a leasing contract constituting an enforceable instrument – Objection to enforcement – National legislation not allowing the court hearing that objection to determine whether the terms of an enforceable instrument are unfair – Power of the court hearing the enforcement proceedings to examine of its own motion whether a term is unfair – Existence of an action under ordinary law allowing the review of whether those terms were unfair – Requirement of a security in order to suspend the enforcement proceedings)

In Case C‑725/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Judecătoria Sectorului 2 Bucureşti (Court of First Instance, Sector 2, Bucharest, Romania), made by decision of 18 September 2019, received at the Court on 1 October 2019, in the proceedings

IO

v

Impuls Leasing România IFN SA,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Arabadjiev, K. Jürimäe, C. Lycourgos, E. Regan, S. Rodin (Rapporteur) and I. Jarukaitis, Presidents of Chambers, M. Ilešič, J.-C. Bonichot, M. Safjan, F. Biltgen, P.G. Xuereb, N. Piçarra, L.S. Rossi and A. Kumin, Judges,

Advocate General: E. Tanchev,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 27 April 2021,

after considering the observations submitted on behalf of:

– Impuls Leasing România IFN SA, by N.M. Ionescu, avocată,

– the Romanian Government, by E. Gane, acting as Agent,

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

after hearing the Opinion of the Advocate General at the sitting on 15 July 2021,

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 IO and Impuls Leasing România IFN SA (‘ILR’) concerning an objection to enforcement lodged by the applicant in the main proceedings against enforcement measures relating to a leasing contract.

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 Under Article 7(1) of Directive 93/13:

‘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 The Code of Civil Procedure was amended by Legea nr. 310/2018 pentru modificarea și completarea Legii nr. 134/2010 privind Codul de procedură civilă, precum și pentru modificarea și completarea altor acte normative (Law No 310/2018 amending and supplementing Law No 134/2010 on the Code of Civil Procedure, and other normative acts) (Monitorul Oficial al României, Part I, No 1074) of 18 December 2018, which came into force on 21 December 2018. As the application for enforcement at issue in the main proceedings was lodged on 26 March 2019, it is governed by the provisions of that code, as amended by that law (‘the Code of Civil Procedure, as amended’).

7 Article 24 of the Code of Civil Procedure, as amended, provides:

‘The provisions of the new procedural law shall apply only to proceedings and enforcement proceedings commenced after its entry into force.’

8 Article 632(1) of the Code of Civil Procedure, as amended, provides:

‘Enforcement may be effected only pursuant to an enforceable instrument.’

9 Under Article 638(1)(4) of the Code of Civil Procedure, as amended:

‘Debt instruments or other instruments which are enforceable under the law are also enforceable instruments and may be subject to enforcement.’

10 Article 638(2) of the Code of Civil Procedure, as amended, provides:

‘Suspension of enforcement of the instruments laid down in subparagraph 1, points 2 and 4, may also be applied for in an action on the merits seeking their annulment. The provisions of Article 719 shall apply mutatis mutandis.’

11 Article 713(2) of the Code of Civil Procedure, as amended, provides:

‘If enforcement is implemented under 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 objection to enforcement only if the law does not provide for any procedural remedy for the annulment of that instrument, including an action under ordinary law.’

12 Under Article 8 of the Ordonanța Guvernului nr. 51/1997 privind operațiunile de leasing și societățile de leasing (Government Order No 51/1997 on leasing transactions and leasing companies):

‘Leasing contracts and real and personal sureties, constituted in order to guarantee the obligations assumed by the leasing contract, constitute enforceable instruments.’

13 Article 15 of Government Order No 51/1997 provides:

‘Unless otherwise provided for in the contract, where the lessee/user fails to fulfil his or her obligation to pay the lease instalments in full for two consecutive months, calculated from the expiry date laid down in the leasing contract, the lessor/lender shall have the right to terminate the leasing contract, and the lessee/user is required to return the goods and to pay all the amounts due up to the date of repayment under the leasing contract.’

14 Article 10(d) of Government Order No 51/1997 provides:

‘The lessee/user undertakes to pay all sums due under the leasing contract – lease instalments, insurance, taxes, charges – in the amount and within the time limits stipulated in the contract.’

15 Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între profesioniști și consumatori (Law No 193/2000 on unfair terms in contracts concluded between sellers or suppliers and consumers) transposed Directive 93/13 into Romanian law.

16 Under Article 1 of Law No 193/2000:

‘ 1. Any contract concluded between a seller or supplier and a consumer for the sale of goods or the provision of services shall contain clear, unequivocal contractual terms which do not require specific knowledge in order to be understood.

2. Where there is doubt as to the interpretation of any terms of a contract, those terms must be interpreted in favour of the consumer.

3. Sellers or suppliers are prohibited from inserting unfair terms in consumer contracts.’

17 Article 2 of Law No 193/2000 provides:

‘1. “Consumer” means any natural person, or group of natural persons forming an association, who, on the basis of a contract falling within the scope of this Law, acts for purposes which are outside his or her trade, business, industry, craft or profession.

2. “Seller or supplier” means any authorised natural or legal person who, in the context of a contract falling within the scope of this Law, acts for the purposes of his or her trade, business, industry, craft or profession, as well as any person acting for those same purposes for or on behalf of that person.’

18 Article 4 of Law No 193/2000 provides:

‘1. A contractual term which has not been directly negotiated with the consumer is regarded as unfair if, considered in isolation or together with other provisions of the contract, it causes, to the detriment of the consumer and contrary to the requirements of good faith, a significant imbalance in the parties’ rights and obligations.

2. A contractual term shall be regarded as not having been directly negotiated with the consumer if it has been drafted without the consumer having had the opportunity to influence the nature of that term, as in the case of standard contracts or general terms and conditions of sale used by traders operating on the market for the goods or service concerned.

3. The fact that certain aspects of the contractual terms or only one of those terms has been directly negotiated with the consumer, shall not exclude the application of the provisions of this law to the remainder of the contract if it appears from the overall assessment of the contract that it was unilaterally prepared by the seller or supplier. If a seller or supplier claims that a standard term drafted in advance has been negotiated directly with the consumer, it is for the seller or supplier to provide evidence to that effect.

4. The annex, which is an integral part of this Law, contains, by way of example, a list of terms regarded as unfair.

5. Without prejudice to the provisions of this Law, the unfairness of a contractual term shall be assessed according to:

(a) the nature of the goods or services which form the subject matter of the contract at the time it is concluded;

(b) all the factors which have led to the conclusion of the contract;

(c) other contractual terms or other contracts on which it is based.

6. Assessment of the unfair nature of the terms relates neither to the...