Barclays Bank SA v Sara Sánchez García and Alejandro Chacón Barrera.

• Jurisdiction: European Union
• Celex Number: 62013CJ0280
• ECLI: ECLI:EU:C:2014:279
• Date: 30 April 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑280/13

JUDGMENT OF THE COURT (Sixth Chamber)

30 April 2014 (*1 )

‛Request for a preliminary ruling — Directive 93/13/EEC — Thirteenth recital in the preamble — Article 1(2) — Consumer contracts — Mortgage loan agreement — Mortgage enforcement proceedings — National statutory and regulatory provisions — Contractual balance’

In Case C‑280/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia No4 de Palma de Mallorca (Spain), made by decision of 23 April 2013, received at the Court on 22 May 2013, in the proceedings

Barclays Bank SA

v

Sara Sánchez García,

Alejandro Chacón Barrera,

THE COURT (Sixth Chamber),

composed of A. Borg Barthet, President of the Chamber, E. Levits, and S. Rodin (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Barclays Bank SA, by J. Rodríguez Cárcamo and B. García Gómez, abogados,

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

— the European Commission, by M. van Beek, É. Gippini Fournier and L. Banciella, 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).

2 The request has been made in proceedings between Barclays Bank SA (‘Barclays’) and Ms Sánchez García and Mr Chacón Barrera (‘the debtors’) concerning the recovery of unpaid debts arising from a mortgage loan agreement between those parties in the main proceedings.

Legal context

EU law

3 The ninth recital in the preamble to Directive 93/13 reads as follows: ‘… acquirers of goods and services should be protected against the abuse of power by the seller or supplier …’.

4 The thirteenth and fourteenth recitals in the preamble to that directive state, as regards the national statutory or regulatory provisions: ‘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 and the principles or provisions of international conventions to which the Member States or the Community are party; 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, particularly because this Directive also applies to trades, business or professions of a public nature.’

5 Article 1 of that directive provides: ‘1. The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive. 2. The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive.’

6 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. … 3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’

7 Article 4(1) of Directive 93/13 reads as follows: ‘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.’

8 Article 6(1) of that directive is worded 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.’

9 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.’

10 The annex to the directive contains a list of the terms referred to in Article 3(3) thereof. This letter reads as follows: ‘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; …’

Spanish law

11 Article 1911 of the Civil Code (Código Civil) provides: ‘The debtor shall be liable for settlement of his obligations using all his present and future assets.’

12 Article 105 of the Law on Mortgages (Ley Hipotecaria) codified by the Decree of 8 February 1946 (BOE No 58 of 27 February 1946, p. 1518), as amended most recently by Law 1/2013, provides: ‘A mortgage may be created as security for all types of obligations and it shall not alter the unlimited personal liability of the debtor laid down in Article 1911 of the Civil Code.’

13 However, Article 140 of that law authorises the conclusion of agreements to the contrary limiting the debtor’s liability. That article states: ‘Without prejudice to Article 105, it may validly be agreed in the document creating the voluntary mortgage that the obligations secured shall be effective only with regard to the assets mortgaged. In that case, the liability of the debtor and the action by the creditor shall be limited, by virtue of the mortgage loan, to the amount of the goods mortgaged, and shall not extend to the debtor’s other assets.’

14 Under the heading ‘Conclusion of enforcement proceedings’, Article 570 of the Code of Civil Procedure (Ley de enjuiciamiento civil, ‘the LEC’) is drafted as follows: ‘Enforcement proceedings shall be concluded only when the party seeking enforcement has received full and final settlement, which shall be determined by an order of the Clerk of the Court, against which a direct appeal for review may be brought.’

15 Under Article 579 of the LEC, entitled ‘Monetary enforcement in cases of specifically mortgaged or pledged property’: ‘If, after the mortgaged or pledged property has been auctioned, the proceeds are insufficient to cover the debt, the party seeking enforcement may apply for enforcement in respect of the shortfall against the persons concerned and the enforcement proceedings shall continue in accordance with the ordinary rules applicable to all enforcement proceedings.’

16 Under the heading ‘Auction with no bidders’, Article 671 of the LEC, in the version resulting from Law 13/2009 of 3 November 2009 amending the legislation on court proceedings in order to introduce the new court offices (BOE No 266 of 4 November 2009, p. 92103), provides: ‘If there are no bidders at the auction, the creditor may apply for the award of the property at a value equal to or greater than 50% of the sum at which it was valued or at a value equal to the amount which he is owed in respect of all items. …’

17 Article 9 of Royal Decree 716/2009 of 24 April 2009 implementing certain aspects of Law 2/1981 of 25 March 1981 concerning regulation of the mortgage market and other provisions of the mortgage and financial systems (BOE No 107 of 2 May 2009, p. 38490) provided: ‘Where, for market reasons or as a result of any other circumstance, the value of the mortgaged property falls below the initial valuation by more than 20% … the creditor institution, following a valuation carried out by an approved independent company, may require the debtor to extend the mortgage to other property sufficient to cover the difference between the value of the property and the loan or credit secured by it, in respect of which a demand may be made. … … If the debtor, within a period of two months of being required to effect the extension, has failed...