Banco Primus SA v Jesús Gutiérrez García.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rodin
• ECLI: ECLI:EU:C:2017:60
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-421/14
• Celex Number: 62014CJ0421
• Date: 26 January 2017

JUDGMENT OF THE COURT (First Chamber)

26 January 2017 ( *1 )

‛Reference for a preliminary ruling — Directive 93/13/EEC — Contracts concluded between sellers or suppliers and consumers — Unfair terms — Mortgage loan agreements — Mortgage enforcement proceedings — Limitation period — Function of the national courts — Res judicata’

In Case C‑421/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia No 2 de Santander (Court of First Instance No 2, Santander, Spain), made by decision of 10 September 2014, received at the Court on 10 September 2014, in the proceedings

Banco Primus SA

v

Jesús Gutiérrez García,

THE COURT (First Chamber),

composed of A. Tizzano, Vice-President of the Court, acting as President of the First Chamber, M. Berger, A. Borg Barthet, S. Rodin (Rapporteur) and F. Biltgen, Judges,

Advocate General: M. Szpunar,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 24 September 2015,

after considering the observations submitted on behalf of:

— Banco Primus SA, by E. Vázquez Martín, abogado,

— the Spanish Government, by M.J. García-Valdecasas Dorrego, acting as Agent,

— the European Commission, by J. Baquero Cruz and M. van Beek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 February 2016,

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 Banco Primus SA and Mr Jesús Gutiérrez García concerning enforcement proceedings in respect of immovable property owned by the latter and used as security for a loan granted by Banco Primus.

Legal context

EU law

3 The 16th and 24th recitals of Directive 93/13 state: ‘Whereas … the requirement of good faith may be satisfied by the trader where he deals fairly and equitably with the other party whose legitimate interests he should take into account; … 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.’

4 Article 1(1) of that directive provides: ‘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.’

5 Article 3 of that directive is worded as follows: ‘1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. 2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. …’

6 Article 4 of Directive 93/13 states: ‘1. 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. 2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

7 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.’

8 Under Article 7(1) of the directive: ‘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

9 Ley 1/2000, de Enjuiciamiento Civil (Law 1/2000 on the Civil Procedure Code), of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575), as amended by Ley 1/2013, de medidas para reforzar la protección a los deudores hipotecarios, reestructuración de deuda y alquiler social (Law 1/2013 on the protection of mortgagors, restructuring of debt and social rent), of 14 May 2013 (BOE No 116 of 15 May 2013, p. 36373), then by Real Decreto-Ley 7/2013, de medidas urgentes de naturaleza tributaria, presupuestaria y de fomento de la investigación, el desarrollo y la innovación (Decree-Law 7/2013 on urgent fiscal and budgetary measures and promoting research, development and innovation), of 28 June 2013 (BOE No 155 of 29 June 2013, p. 48767), then by Real Decreto-Ley 11/2014, de medidas urgentes en materia concursal (Decree-Law 11/2014 on urgent measures in the area of bankruptcy), of 5 September 2014 (BOE No 217 of 6 September 2014, p. 69767) (‘the LEC’).

10 Article 695 of the LEC, relating to the procedure for objecting to mortgage enforcement proceedings, reads as follows: ‘1. In proceedings under this chapter, an objection to enforcement by the party against whom enforcement is sought may be admitted only if it is based on the following grounds: … (4) the unfairness of a contractual term constituting the basis for enforcement or which has enabled the amount due to be calculated. … 4. An appeal may lie against an order … rejecting an objection on the ground laid down in paragraph 1(4). Save in those circumstances, no appeal shall lie against orders adjudicating upon the objection to enforcement referred to in the present article and the effects of those orders shall be confined exclusively to the enforcement proceedings in which they are made.’

11 Pursuant to Article 556(1) of the LEC, an objection to enforcement on one of the grounds set out in Article 695 of the LEC must be lodged within 10 days of notification of the enforcement order.

12 According to Article 557(1) of the LEC, relating to the procedure for objecting to enforcement based on instruments that are neither judicial nor arbitral: ‘Where enforcement is ordered in respect of the enforceable orders referred to in Article 517.2(4), (5), (6) and (7), and for other enforceable orders mentioned in Article 517.2(9), the party against whom enforcement is sought may, within the periods and in the forms prescribed in the preceding article, object to enforcement only if he relies on one of the following grounds: … (7) The document contains unfair terms.’

13 Pursuant to Article 693(2) of the LEC, concerning the accelerated repayment of debts repayable in instalments: ‘The total amount owed by way of principal and interest may be claimed where it has been agreed that repayment in full is due in the event of non-payment of a number of instalments such that the debtor has failed to fulfil his obligation for a period of at least three months, and provided that such agreement is recorded in the instrument creating the mortgage.’

14 The First Transitional Provision of Law 1/2013 states: ‘This Law shall apply to judicial and extrajudicial mortgage enforcement proceedings in progress on the date of entry into force of the Law, provided that eviction has not taken place.’

15 Pursuant to the fourth transitional provision of that law: ‘1. The amendments to [Law 1/2000 of 7 January 2000 on the Civil Procedure Code] introduced by the present Law shall apply to enforcement proceedings already in progress at the date of entry into force of the present Law, only in respect of those enforcement measures still to be taken. 2. In any event, in enforcement proceedings in progress on the date of the entry into force of the present Law, in which the 10-day period for lodging an objection to enforcement laid down by Article 556.1 of [Law 1/2000 of 7 January 2000 on the Civil Procedure Code] has expired, the parties against whom enforcement is sought shall have a period of one month within which to submit an extraordinary application objecting to enforcement based on the existence of new grounds for opposition, set out in Article 557.1(7) and Article 695.1(4) of [Law 1/2000 of 7 January 2000 on the Civil Procedure Code]. In accordance with the provisions of Article 558 et seq. and Article 695 of [Law 1/2000 of 7 January 2000 on the Civil Procedure Code], the time limit of one month shall start to run from the day following the entry into force of the present Law, and the effect of the lodging by the parties of the application objecting to enforcement shall be to suspend proceedings until the application has been adjudicated upon. The present transitional provision shall be applicable to all enforcement proceedings that have not led to the buyer’s taking possession of the property in accordance with the provisions of Article 675 of [Law 1/2000 of 7 January 2000 on the Civil...