Judgment of the Court Grand Chamber of 17 May 2022, Unicaja Banco, C-869/19

• Date: 17 May 2022
• Year: 2022

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unfair – Existence of an action under ordinary law allowing the review of whether those terms were

unfair – Requirement of a security in order to suspend the enforcement proceedings

Judgment of the Court (Grand Chamber) of 17 May 2022, Unicaja Banco, C -869/19

Link to the complete text of the judgment

Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Principle

of equivalence – Principle of effectiveness – Mortgage agreement – Unfai rness of the ‘floor clause’ in the

agreement – National rules concerning the judicial appeal procedure – Limitation of the temporal effects

of the declaration that an unfair term is void – Restitution – Power of review by the national appeal court

of its own motion

The Court has received five requests for a preliminary ruling, from Spanish courts (Ibercaja Banco,

C-600/19, and Unicaja Ban co, C-869/19), an Italian court (SPV Project 1503, C-693/19 and C-831/19) and

a Romanian court (Impuls Leasing România, C-725/19), all concerning the interpretation of the Directive

on unfair terms.

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Those requests form part of different types of proceedings. Thus, the request in Ibercaja Banco

concerns mortgage enforcement proceedings in which the consumer did not lodge any objection and

the right of ownership of the mortgaged property had already been transferred to a third party. In

Unicaja Banco, the request was made in appeal proceedings brought following the judgment in

Gutiérrez Naranjo and Others.

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For their part, the req uests for a preliminary ruling in the Joined Cases

SPV Project 1503 concern enforcement proceedings based on enforceable instruments which have

acquired the force of res judicata. Lastly, the request in Impuls Leasing Româ nia has been made in the

context of enforcement proceedings on the basis of a leasing contract forming an enforceable

instrument.

By its four Grand Chamber judgments, the Court of Justice develops its case -law on the obligation and

power of national courts to examine of their own motion whether contractual terms are unfair under

the Directive on unfair terms. In that regard, the Court clarifies the interaction between the principle

of res judicata and time-barring, on the one hand, and the review of unfair terms by the courts, on the

other. The Court also rules on the scope of that review in accelerated proceedings for the recovery of

consumer debt and on the relationship between certain procedural principles enshrined in national

law relating to appeals and the power of a national court to examine of its own motion whether

contractual terms are unfair.

Findings of the Court

In the first place, the Court clarifies the relationship between the principle of res judicata and the

power of the court hearing the enforcement proceedings to examine of its own motion, in the course

of order for payment proceedings, whether a contractual term forming the basis of that order is

unfair.

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Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consume r contracts (OJ 1993 L 95, p. 29, ‘the Directive on unfair terms’).

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Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C-154/15, C-307/15 and C-308/15, EU:C:2016:980). In that judgment, the Court

of Justice essentially held that the case-law of the Trib unal Supremo (Supreme Court, Spain) imposing a temporal limitation on the

repayment of amounts that consumers wrongly paid to banks on the b asis of an unfair term known as a ‘floor clause’, was contrary to

Article 6(1) of the Directive on unfair terms and that those consumers are, therefore, entitled to repayment in full of those amounts

pursuant to that provision.