Mohamed Aziz v Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa).

• Jurisdiction: European Union
• Celex Number: 62011CJ0415
• ECLI: ECLI:EU:C:2013:164
• Docket Number: C‑415/11
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 14 March 2013

AZIZ JUDGMENT OF THE COURT (First Chamber)

14 March 2013 (*1 )

‛Directive 93/13/EEC — Consumer contracts — Mortgage loan agreement — Mortgage enforcement proceedings — Powers of the court hearing the declaratory proceedings — Unfair terms — Assessment criteria’

In Case C-415/11,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Mercantil No 3 de Barcelona (Spain), made by decision of 19 July 2011, received at the Court on 8 August 2011, in the proceedings

Mohamed Aziz

v

Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa),

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, A. Borg Barthet, M. Ilešič, J.-J. Kasel and M. Berger, Judges,

Advocate General: J. Kokott,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 19 September 2012,

after considering the observations submitted on behalf of:

— Mr Aziz, by D. Moreno Trigo, abogado,

— the Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa), by I. Fernández de Senespleda, abogado,

— the Spanish Government, by S. Centeno Huerta, acting as Agent,

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

after hearing the Opinion of the Advocate General at the sitting on 8 November 2012,

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; ‘the directive’).

2 The request has been made in proceedings between Mr Aziz and the Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) (‘Catalunyacaixa’), concerning the validity of certain terms of a mortgage loan agreement entered into by those parties.

Legal context

European Union law

3 The sixteenth recital in the preamble to the directive states: ‘Whereas … the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account’.

4 Article 3 of the directive provides: ‘(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. … (3) The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’

5 Pursuant to Article 4(1) of the 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.’

6 Article 6(1) of the directive states 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.’

7 Article 7(1) of the directive states: ‘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.’

8 The annex to the directive lists, in paragraph 1, the terms referred to in Article 3(3) of the directive. It includes the following terms: ‘1. Terms which have the object or effect of: … (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation; … (q) 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.’

Spanish law

9 Under Spanish law, consumers were initially protected against unfair terms by General Law 26/1984 for the protection of consumers and users (Ley General 26/1984 para la Defensa de los Consumidores y Usuarios) of 19 July 1984 (BOE No 176 of 24 July 1984, p. 21686).

10 General Law 26/1984 was subsequently amended by Law 7/1998 on general contractual conditions (Ley 7/1998 sobre condiciones generales de la contratación) of 13 April 1998 (BOE No 89 of 14 April 1998, p. 12304), which transposed the directive into Spanish domestic law.

11 Lastly, Royal Legislative Decree 1/2007 approving the re-cast text of the General Law for the defence of consumers and users and related laws (Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias) of 16 November 2007 (BOE No 287 of 30 November 2007, p. 49181) adopted the consolidated version of Law 26/1984, as amended.

12 According to Article 82 of Royal Legislative Decree 1/2007: ‘1. All stipulations not negotiated individually and all practices not expressly agreed which, contravening the requirements of good faith, give rise, in a manner detrimental to the consumer or user, to a significant imbalance in the rights and obligations of the parties arising under the contract, shall be regarded as unfair terms. … 3. The unfairness of a contractual term shall be assessed taking into account the nature of the contractual goods or services for which the contract was concluded and by referring 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. 4. Notwithstanding the foregoing paragraphs, terms shall always be regarded as unfair if, in accordance with the provisions of Articles 85 to 90, both inclusive, they: (a) make the contract dependent on the wishes of the supplier or seller, (b) limit the rights of the consumer or user, (c) determine that there shall be no contractual reciprocity, (d) require the consumer or user to provide disproportionate guarantees or improperly impose upon him the burden of proof, (e) are disproportionate in relation to the formation or performance of the contract, or (f) contravene the rules on jurisdiction and applicable law.’

13 As regards the order for payment procedure, the Code of Civil Procedure (Ley de Enjuiciamiento Civil), as applicable at the date on which the proceedings which gave rise to the main proceedings were initiated, lays down, in its chapter V of Title IV of Book II, entitled ‘Detailed provisions for enforcement in respect of mortgaged or pledged property’, in particular in Articles 681 to 698 thereof, the mortgage enforcement proceedings at the centre of the case in the main proceedings.

14 Article 695 of the Code of Civil Procedure provides: ‘(1) In the proceedings referred to in this chapter, an objection to enforcement by the defendant may be accepted only where it is based on the following grounds: 1. extinguishment of the security or secured obligation, on condition of production of a certificate from the register, showing the annulment of the mortgage or as appropriate of the non-possessory pledge (registered pledge), or of a notarial instrument attesting receipt of payment or annulment of the security; 2. an error in determining the amount due, where the secured debt is the closing balance of an account between the creditor seeking enforcement and the party against whom enforcement is sought. The party against whom enforcement is sought shall produce his copy of the statement of account and the objection shall be accepted only if the balance shown in that statement differs from the balance submitted by the creditor seeking enforcement. … 3. … the existence of another guarantee or mortgage … registered before the security which is the subject of the proceedings, together with the corresponding registration certificate. (2) If an objection is lodged under the preceding paragraph, the registrar shall stay enforcement and summon the parties to a hearing before the court which ordered the enforcement. There shall be at least four days between the summons and the date of the hearing in question. At that hearing, the court shall hear the parties, admit the documents that are submitted and issue the decision that it considers reasonable within two days in the form of an order …’

15 Article 698 of the Code of Civil Procedure provides: ‘(1) Any application made by a debtor, third-party debtor or other interested party, which is not covered by the...