Banco Español de Crédito, SA v Joaquín Calderón Camino.

• Jurisdiction: European Union
• Celex Number: 62010CJ0618
• ECLI: ECLI:EU:C:2012:349
• Date: 14 June 2012
• Docket Number: C‑618/10
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (First Chamber)

14 June 2012 ( *1 )

‛Directive 93/13/EEC — Consumer contracts — Unfair term concerning interest on late payments — Order for payment procedure — Powers of the national court’

In Case C-618/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Audiencia Provincial de Barcelona (Spain), made by decision of 29 November 2010, received at the Court on 29 December 2010, in the proceedings

Banco Español de Crédito SA

v

Joaquín Calderón Camino,

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, M. Safjan, M. Ilešič, E. Levits and M. Berger, judges,

Advocate General: V. Trstenjak,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 1 December 2011,

after considering the observations submitted on behalf of:

— Banco Español de Crédito SA, by A. Herrador Muñoz, V. Betancor Sánchez and R. Rivero Sáez, abogados,

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

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

— the European Commission, by M. Owsiany-Homung and E. Gippini Fournier, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 February 2012,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of: — Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29); — Article 2 of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30); — the provisions of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1); — Articles 5(1)(l) and (m), 6, 7 and 10(2)(l) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66); and — Article 11(2) of 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 (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

2 The reference has been made in the course of proceedings between Banco Español de Crédito SA (‘Banesto’) and Mr Calderón Camino concerning the payment of sums due under a consumer credit agreement concluded between those parties.

The legal framework

European Union legislation

Directive 87/102/EEC

3 Article 6 of Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48) provided: ‘1. Notwithstanding the exclusion provided for in Article 2(1)(e), where there is an agreement between a credit institution or financial institution and a consumer for the granting of credit in the form of an advance on a current account, other than on credit card accounts, the consumer shall be informed at the time or before the agreement is concluded: — of the credit limit, if any, — of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended, — of the procedure for terminating the agreement. This information shall be confirmed in writing. 2. Furthermore, during the period of the agreement, the consumer shall be informed of any change in the annual rate of interest or in the relevant charges at the time it occurs. Such information may be given in a statement of account or in any other manner acceptable to Member States. 3. In Member States where tacitly accepted overdrafts are permissible, the Member States concerned shall ensure that the consumer is informed of the annual rate of interest and the charges applicable, and of any amendment thereof, where the overdraft extends beyond a period of three months.’

4 According to Article 7 of that directive: ‘In the case of credit granted for the acquisition of goods, Member States shall lay down the conditions under which goods may be repossessed, in particular if the consumer has not given his consent. They shall further ensure that where the creditor recovers possession of the goods the account between the parties shall be made up so as to ensure that the repossession does not entail any unjustified enrichment.’

Directive 93/13

5 The twelfth recital in the preamble to Directive 93/13 states that: ‘… however, as they now stand, national laws allow only partial harmonization to be envisaged; … in particular, only contract terms which have not been individually negotiated are covered by this Directive; … Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive’.

6 The twenty-first recital in the preamble to that directive is worded as follows: ‘… Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions’.

7 The twenty-fourth recital in the preamble to that directive states: ‘… 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.’

8 Article 6 of Directive 93/13 provides that: ‘1. 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. 2. Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States.’

9 Article 7(1) of that directive 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.’

10 Article 8 of Directive 93/13 provides: ‘Member States may adopt or retain the most stringent provisions compatible with the [EC] Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’

Directive 2005/29

11 Article 11(1) and (2) of Directive 2005/29 provides: ‘1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers. … 2. Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest: (a) to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices; or (b) if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice, even without proof of actual loss or damage or of intention or negligence on the part of the trader. Member States shall also make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure: — either with interim effect, or — with definitive effect, on the understanding that it is for each Member State to decide which of the two options to select. …’

Regulation No 1896/2006

12 Recital 10 in the preamble to Regulation No 1896/2006 states: ‘The procedure established by this Regulation should serve as an additional and optional means for the claimant, who remains free to resort to a procedure provided for by national law. Accordingly, this Regulation neither replaces nor harmonises the existing mechanisms for the recovery of uncontested claims under national law.’

13 Article 1 of Regulation No 1896/2006 provides: ‘1. The purpose of this Regulation is: (a) to simplify, speed up and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims by creating a European order for payment procedure; and (b) to permit the...