Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Tizzano
• ECLI: ECLI:EU:C:2009:615
• Date: 06 October 2009
• Docket Number: C-40/08
• Procedure Type: Reference for a preliminary ruling

Case C-40/08

Asturcom Telecomunicaciones SL

v

Cristina Rodríguez Nogueira

(Reference for a preliminary ruling from the Juzgado de Primera Instancia nº 4 de Bilbao)

(Directive 93/13/EEC – Consumer contracts – Unfair arbitration clause – Measure void – Arbitration award which has become final – Enforcement – Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void – Principles of equivalence and effectiveness)

Summary of the Judgment

Approximation of laws – Unfair clauses in consumer contracts – Directive 93/13

(Council Directive 93/13, Art. 6(1))

Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.

For the purpose of that assessment, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6 of the directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy.

(see paras 52, 59, operative part)

JUDGMENT OF THE COURT (First Chamber)

6 October 2009 (*)

(Directive 93/13/EEC – Consumer contracts – Unfair arbitration clause – Measure void – Arbitration award which has become final – Enforcement – Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void – Principles of equivalence and effectiveness)

In Case C‑40/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Juzgado de Primera Instancia No 4 de Bilbao (Spain), made by decision of 29 January 2008, received at the Court on 5 February 2008, in the proceedings

Asturcom Telecomunicaciones SL

v

Cristina Rodríguez Nogueira,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, M. Ilešič, A. Tizzano (Rapporteur), E. Levits and J.-J. Kasel, Judges,

Advocate General: V. Trstenjak,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Asturcom Telecomunicaciones SL, by P. Calderón Plaza and P. García Ibaceta, abogados,

– the Spanish Government, by J. López-Medel Bascones, acting as Agent,

– the Hungarian Government, by K. Veres, R. Somssich and M.Z. Fehér, acting as Agents,

– the Commission of the European Communities, by W. Wils and R. Vidal Puig, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 May 2009,

gives the following

Judgment

1 This reference 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 reference was made in proceedings for enforcement of an arbitration award which had become final between Asturcom Telecomunicaciones SL (‘Asturcom’) and Mrs Rodríguez Nogueira concerning the payment of sums due under a subscription contract for a mobile telephone concluded by that company with Mrs Rodríguez Nogueira.

Legal context

Community legislation

3 Article 6(1) of Directive 93/13 provides as follows:

‘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 Directive 93/13 is worded 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.’

5 The Annex to that directive contains an indicative list of terms which may be regarded as unfair. These include, as referred to at paragraph 1(q) of the Annex, terms which have the object or effect of ‘excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract’.

National legislation

6 Under Spanish law, consumers were initially protected against unfair terms by Ley General 26/1984 para la Defensa de los Consumidores y Usuarios (General Law 26/1984 for the protection of consumers and users) of 19 July 1984 BOE No 176 of 24 July 1984) (‘Law 26/1984’).

7 Law 26/1984 was amended by Ley 7/1998 sobre Condiciones Generales de la Contratación (Law 7/1998 on general contractual conditions) of 13 April 1998 (BOE No 89 of 14 April 1998) (‘Law 7/1998’), which transposed Directive 93/13 into national law.

8 In particular, Law 7/1998 added to Law 26/1984 an Article 10a, the first paragraph of which provides that ‘[a]ll those terms not individually negotiated which, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, shall be regarded as unfair terms. In any event, the terms listed in the first additional provision to this Law shall be regarded as unfair. …’.

9 Article 8 of Law 7/1998 provides as follows:

‘1. General conditions which infringe the provisions of this Law or any other rule ordering or prohibiting certain conduct, to the detriment of a party to the contract, shall automatically be void, save in so far as they make separate provision for cases of breach.

2. In particular, general terms which are unfair, where the contract has been concluded with a consumer as defined in any event in Article 10a and the first additional provision of Law 26/1984 … shall be void.’

10 At the time of the facts in the main proceedings, arbitration proceedings were governed by Ley 60/2003 de Arbitraje (Law 60/2003 on Arbitration) of 23 December 2003 (BOE No 309 of 26 December 2003) (‘Law 60/2003’).

11 Article 8(4) and (5) of Law 60/2003 was worded as follows:

‘4. The court of first instance of the place in which the award was made shall have jurisdiction to hear an action for enforcement of the award in accordance with Article 545(2) of the Code of Civil Procedure …

5. An action for annulment of the arbitration award shall be brought before the Audiencia Provincial [Provincial Court] of the place in which the award was made.’

12 Article 22(1) and (2) of Law 60/2003 provided as follows:

‘1. Arbitrators shall have jurisdiction to rule on matters falling within their own competence, including pleas relating to the existence or validity of arbitration agreements or any plea which, if upheld, would preclude an examination of the substance of the dispute. For that purpose, an...