Monika Kušionová v SMART Capital, a.s.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2014:2189
• Date: 10 September 2014
• Docket Number: C‑34/13
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Third Chamber)

10 September 2014 ( *1 )

‛Request for a preliminary ruling — Directive 93/13/EEC — Unfair terms — Consumer credit agreement — Article 1(2) — Term reflecting a mandatory statutory provision — Scope of the directive — Articles 3(1), 4, 6(1) and 7(1) — Security for credit in the form of a charge on immovable property — Whether it is possible to enforce the charge by means of a sale by auction — Judicial review’

In Case C‑34/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Krajský súd v Prešove (Slovakia), made by decision of 20 December 2012, received at the Court on 23 January 2013, in the proceedings

Monika Kušionová

v

SMART Capital a.s.,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, C.G. Fernlund, A. Ó Caoimh, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: N. Wahl,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 5 June 2014,

after considering the observations submitted on behalf of:

— the Slovak Government, by B. Ricziová, acting as Agent,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

— the European Commission, by A. Tokár and M. van Beek, 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), and Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22), in the light of Article 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the judgment in Simmenthal (106/77, EU:C:1978:49).

2 The request has been made in proceedings between Mrs Kušionová and SMART Capital a.s. (‘SMART Capital’) concerning the methods of enforcement of a charge provided by way of guarantee for a mortgage loan agreement and the lawfulness of terms included in that agreement.

Legal context

EU law

3 Article 7 of the Charter states that ‘[e]veryone has the right to respect for his or her private and family life, home and communications’.

4 Article 38 of the Charter provides that Union policies are to ensure a high level of consumer protection.

5 The first paragraph of Article 47 of the Charter states: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

6 The 12th to 14th and the 24th recital in the preamble to Directive 93/13 are worded as follows: ‘Whereas, however, as they now stand, national laws allow only partial harmonisation to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the [EC] Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive; Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions …; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established; Whereas Member States must however ensure that unfair terms are not included … … Whereas 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.’

7 Article 1 of Directive 93/13 provides: ‘(1) The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer. (2) The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive.’

8 Under Article 4(1) of that directive: ‘Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.’

9 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 …’.

10 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.’

Slovak law

11 Paragraph 151j(1) of the Civil Code states: ‘Where a debt secured by a charge is not fully settled in due time, the secured creditor may commence enforcement of the charge. In enforcing the charge, the secured creditor may obtain settlement of the debt by the means specified in the contract or by sale of the security at auction pursuant to a specific law, … or he may seek settlement of the debt by the sale of the security pursuant to specific statutory provisions, … unless otherwise provided for by this law or a specific law.’

12 The referring court states that there is a footnote to that paragraph, inserted after the words ‘pursuant to a specific law’, which refers to Law No 527/2002 on voluntary auctions supplementing Law No 323/1992 of the Slovak National Council on notaries and notarial activity (the Notarial Code), as amended (‘the Law on Voluntary Sale by Auction’), and a further footnote, after the words ‘specific statutory provisions’, which refers to the Code of Civil Procedure and to the Rules on Enforcement.

13 Paragraph 151m of the Civil Code provides: ‘(1) The secured creditor may sell the security by the means specified in the charge agreement or at auction at the earliest 30 days from the date of the notice to the guarantor and debtor of the commencement of enforcement of the charge, where the debtor and the guarantor are not one and the same person, unless otherwise provided for by a specific law. ... (2) The guarantor and the secured creditor may, after notice of the commencement of enforcement of the charge, agree that the secured creditor is authorised to sell the security by the means agreed upon in the charge agreement or at auction even before the expiry of the period prescribed in subparagraph (1). (3) A secured creditor who has commenced enforcement of a charge with the aim of obtaining settlement of the debt by the means agreed upon in the charge agreement may change the means of enforcing the charge at any time during the enforcement and sell the security at auction or require that the debt be settled by the sale of the security pursuant to specific statutory provisions. The secured creditor is required to inform the guarantor of the change in the means of enforcement.’

14 Under Article 74(1) of the Code of Civil Procedure, the court may grant interim relief where it is necessary temporarily to adjudicate on the relations between the parties or where there is a risk of the enforcement of the judgment being undermined. Article 76(1) of that code provides that the court may impose interim measures on a party, in particular in order ‘for it to take action, for it to abstain from taking action or for it to allow action to be taken’.

15 In Paragraph 6 thereof, the Law on Voluntary Sale by Auction defines the auctioneer as ‘the person who organises the auction and meets the conditions laid down in this specific law authorising that person to conduct such business’. Paragraph 7(1) of that law defines the person requesting sale by the auction as the owner of the subject-matter of the sale, the secured creditor or any other person who is authorised to request that a sale by auction be held under a specific law.

16 As regards, more specifically, the secured creditor, Paragraph 7(2) of the Law on Voluntary Sale by Auction states that such a person is required to declare in writing, not only that the subject-matter of the sale may be sold at auction, but also the amount of the debt in respect of which an application for enforcement of the charge has been made under that law and that the debt is genuine and payable.

17 According to Paragraph 16(1) of that law, a sale by auction may be proceeded with only on the basis of a signed agreement between the person initiating the sale and the auctioneer.

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