Juan Carlos Sánchez Morcillo and María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA.

• Jurisdiction: European Union
• Celex Number: 62014CJ0169
• ECLI: ECLI:EU:C:2014:2099
• Date: 17 July 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑169/14

JUDGMENT OF THE COURT (First Chamber)

17 July 2014 ( *1 )

‛Reference for a preliminary ruling — Directive 93/13/EEC — Article 7 — Charter of Fundamental Rights of the European Union — Article 47 — Consumer contracts — Mortgage loan agreement — Unfair terms — Mortgage enforcement proceedings — Right to an appeal’

In Case C‑169/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Provincial de Castellón (Spain), made by decision of 2 April 2014, received at the Court on 7 April 2014, in the proceedings

Juan Carlos Sánchez Morcillo

María del Carmen Abril García

v

Banco Bilbao Vizcaya Argentaria, SA,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, E. Levits (Rapporteur), M. Berger, S. Rodin and F. Biltgen, Judges,

Advocate General: N. Wahl,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 June 2014,

after considering the observations submitted on behalf of:

— Juan Carlos Sànchez Morcillo and Maria del Carmen García, by P. Medina Aina, procurador de los tribunales, and P.-J. Bastia Vidal, abogado,

— Banco Bilbao Vizcaya Argentaria SA, by B. García Gómez and J. M. Rodriguez Cárcamo, abogados,

— the Spanish Government, by S. Centeno Huerta and A. Rubio González, acting as Agents,

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

after hearing the Advocate General,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between Mr Sánchez Morcillo and Ms Abril García, the applicants in the main proceedings, and Banco Bilbao Vizcaya Argentaria SA (‘Banca Bilbao’) concerning their objection to the enforcement of a mortgage against their home.

Legal context

EU law

3 The ninth recital in the preamble to Directive 93/13 states: ‘… [A]cquirers of goods and services should be protected against the abuse of power by the seller or supplier …’

4 Article 1(1) of the directive is worded as follows: ‘The purpose of this irective 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 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.’

6 In accordance with 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.’

7 The annex to Directive 93/13 lists the terms referred to in Article 3(3) thereof. It includes, in particular, the following terms: ‘1. Terms which have the object or effect of: ... (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

8 Chapter III of Law 1/2013, of 14 March 2013, laying down measures to strengthen the protection of mortgage debtors, debt restructuring and social rents (Ley de medidas para reforzar la protección a los deudores hipotecarios, reestructuración de deuda y alquiler social) of 14 May 2013 (BOE No 116, of 15 May 2013, p. 36373, ‘Law 1/2013’) amended the Code on Civil Procedure (Ley de enjuiciamiento civil) of 7 January 2000 (BOE No 7, of 8 January 2000, p. 575), which was itself amended by Decree Law 7/2013, introducing urgent fiscal and budgetary measures and promoting research, development and innovation (decreto-ley 7/2013 de medidas urgentes de naturaleza tributaria, presupuestarias y de fomento de la investigación, el desarrollo y la innovación) of 28 June 2013 (BOE No 155, of 29 June 2013, p. 48767, the ‘LEC’).

9 Article 695 of the LEC, regarding the procedure for opposing the enforcement of the mortgage agreement, provides as follows: ‘Opposition to enforcement 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: (1) Extinction of the security or the secured obligation, … (2) An error in determining the amount due, … (3) In the case of enforcement against movable property mortgaged or property subject to a non-possessory pledge, the existence of another pledge, movable-property or immovable-property mortgage on, or seizure of, that property registered before the charge giving rise to the procedure, which must be proved by means of the corresponding certificate from the Registry. (4) The unfairness of a contractual term constituting the grounds for enforcement or that has determined the amount due. 2. If an objection is lodged under the previous paragraph, the Judicial Officer shall suspend enforcement and shall summon the parties to appear before the court that issued the general enforcement order, no earlier than 15 days after the issue of the summons; at the hearing the court shall hear the parties, admit the documents presented and within two days adopt, by way of order, such decision as it thinks fit. 3. An order upholding the objection to enforcement on grounds 1 and 3 of paragraph 1 of the present article shall stay enforcement; an order upholding the objection to the enforcement on ground 2 shall determine the sum in respect of which enforcement is to continue. If ground 4 of paragraph 1 of the present article is upheld, enforcement shall be discontinued where it is based on the contractual term. In other cases, enforcement shall be continued without the application of the unfair term. 4. An appeal may lie against the order discontinuing enforcement or disapplying an unfair term. 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.’

10 Article 552 of the LEC, which relates to the availability of an appeal if the court refuses to make an enforcement order, provides: ‘1. If the court considers that the rules and requirements laid down by law for issuing an enforcement order have not been observed, it shall make an order refusing enforcement. If the court finds that any of the terms that appear in one of the enforceable instruments referred to in Article 557(1) may be considered to be unfair, it shall hear the parties within 15 days. After hearing the parties, it shall give a ruling within 5 working days, in accordance with the provisions of Article 561(1)(3). 2. An appeal may lie directly against an order refusing enforcement; only the creditor shall take part in this procedure. The creditor may also, if it chooses, apply for review by the same jurisdiction before bringing the appeal. 3. Once the order refusing enforcement has become final, the creditor may assert its rights only in the relevant ordinary procedure, if this is not precluded by the principle of res judicata of the judgment or the final decision on which the request for enforcement was based.’

11 According to Article 557 of the LEC, relating to the procedure for objecting to enforcement based on instruments that are neither judicial nor arbitral: ‘1. When enforcement is ordered on the basis of instruments referred to in Article 517(2)(4), (5), (6) and (7) and of other enforceable documents referred to in Article 517(2)(9), the party against whom enforcement is sought may lodge an objection, within the period and in the form provided for in the preceding article, only if he relies on one of the following grounds: … 7° the instrument contains unfair terms. 2. If an objection referred to in the previous paragraph is made, the Judicial Officer shall suspend the enforcement by a measure of organisation of the procedure.’

12 Article 561(1) of the LEC concerns orders ruling on the objection on substantive grounds and is worded as follows: ‘1. After hearing the parties on an objection to enforcement not based on procedural defects and after any hearing that may be held, the court shall adopt, by order, for the purposes of enforcement only, one of the following decisions: (1) to order the enforcement to proceed in respect of the amount ordered, if the objection is rejected in...