Bondora AS v Carlos V. C. and XY.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2019:1118
• Date: 19 December 2019
• Docket Number: C-453/18
• Procedure Type: Reference for a preliminary ruling
• Celex Number: 62018CJ0453
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

19 December 2019 (*)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — European order for payment procedure — Regulation (EC) No 1896/2006 — Provision of additional documents to support the claim — Unfair terms in consumer contracts — Directive 93/13/EEC — Review by the court seised in the context of an application for a European payment order)

In Joined Cases C‑453/18 and C‑494/18,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia No 11 de Vigo (Court of First Instance No 11, Vigo, Spain) and by the Juzgado de Primera Instancia No 20 de Barcelona (Court of First Instance No 20, Barcelona, Spain), made by decisions of 28 June and 17 July 2018, received at the Court on 11 and 27 July 2018, in the proceedings

Bondora AS

v

Carlos V.C. (Case C‑453/18),

XY (C‑494/18),

THE COURT (First Chamber),

composed of J.‑C. Bonichot, President of the Chamber, M. Safjan, L. Bay Larsen, C. Toader (Rapporteur) and N. Jääskinen, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of

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

– the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,

– the Hungarian Government, by M. Fehér and Z. Wagner, acting as Agents,

– the European Parliament, by S. Alonso de León and T. Lukácsi, acting as Agents,

– the Council of the European Union, by J. Monteiro, S. Petrova Cerchia and H. Marcos Fraile, acting as Agents,

– the European Commission, by J. Baquero Cruz, N. Ruiz García and M. Heller, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 31 October 2019,

gives the following

Judgment

1 These requests for a preliminary ruling relate to the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), Article 7(2)(d) and (e) 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) and Article 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and to the validity of Regulation No 1896/2006.

2 The request have been made in two European order for payment proceedings between Bondora AS and, first, Mr Carlos V.C. and, second, XY, concerning the recovery by Bondora of claims arising from loan contracts.

Legal context

European Union law

Directive 93/13

3 Article 1 of Directive 93/13 provides:

‘1. 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.

2. The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

4 Article 3(1) of that directive provides:

‘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.’

5 Article 6 of that directive states:

‘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.

…’

6 Article 7 of that directive provides:

‘1. 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.

2. The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

…’

Regulation No 1896/2006

7 Recitals 9, 13, 14 and 29 of Regulation No 1896/2006 are worded as follows:

‘(9) The purpose of this Regulation is 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 to permit the free circulation of European orders for payment throughout the Member States by laying down minimum standards, compliance with which renders unnecessary any intermediate proceedings in the Member State of enforcement prior to recognition and enforcement.

…

(13) In the application for a European order for payment, the claimant should be obliged to provide information that is sufficient to clearly identify and support the claim in order to place the defendant in a position to make a well-informed choice either to oppose the claim or to leave it uncontested.

(14) In that context, it should be compulsory for the claimant to include a description of evidence supporting the claim. For that purpose the application form should include as exhaustive a list as possible of types of evidence that are usually produced in support of pecuniary claims.

…

(29) Since the objective of this Regulation, namely to establish a uniform rapid and efficient mechanism for the recovery of uncontested pecuniary claims throughout the European Union, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the Regulation, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’

8 Article 1(1)(a) of that regulation provides:

‘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’.

9 Article 2(1) of Regulation No 1896/2006 states:

‘This Regulation shall apply to civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal. …’

10 Under Article 3(1) of that regulation:

‘For the purposes of this Regulation, a cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised.’

11 Article 5 of that regulation provides:

‘For the purposes of this Regulation, the following definitions shall apply:

…

(3) “court” means any authority in a Member State with competence regarding European orders for payment or any other related matters;

(4) “court of origin” means the court which issues a European order for payment.’

12 Article 7 of that regulation provides:

‘1. An application for a European order for payment shall be made using standard form A as set out in Annex I.

2. The application shall state:

(a) the names and addresses of the parties, and, where applicable, their representatives, and of the court to which the application is made;

(b) the amount of the claim, including the principal and, where applicable, interest, contractual penalties and costs;

(c) if interest on the claim is demanded, the interest rate and the period of time for which that interest is demanded unless statutory interest is automatically added to the principal under the law of the Member State of origin;

(d) the cause of the action, including a description of the circumstances invoked as the basis of the claim and, where applicable, of the interest demanded;

(e) a description of evidence supporting the claim;

(f) the grounds for jurisdiction;

and

(g) the cross-border nature of the case within the meaning of Article 3.

…’

13 Pursuant to Article 8 of Regulation No 1896/2006:

‘The court seised of an application for a European order for payment shall examine, as soon as possible and on the basis of the application form, whether the requirements set out in Articles 2, 3, 4, 6 and 7 are met and whether the claim appears to be founded. This examination may take the form of an automated procedure.’

14 Article 9 of that regulation provides:

‘1. If the requirements set out in Article 7 are not met and unless the claim is clearly unfounded or the application is inadmissible, the court shall give the claimant the opportunity to complete or rectify the application. The court shall use standard form B as set out in Annex II.

2. Where the court requests the claimant to complete or rectify the application, it shall specify a time limit it deems appropriate in the circumstances. The court may at its discretion extend that time limit.’

15 Article 12 of that regulation, entitled ‘Issue of a European order for payment’, provides:

‘1. If the requirements referred to in Article 8 are met, the court shall issue, as soon as possible and normally within 30 days of the lodging of the application, a European order for payment using standard form E as set out in Annex V.

The 30-day period shall not include the time taken by the claimant to complete, rectify or modify the application.

2. The European order for payment shall be issued together with a copy of the application form...