SMART Capital, a.s.
(Request for a preliminary ruling from the
Krajský súd v Prešove)
(Reference for a preliminary ruling — Directive 93/13/EEC — Unfair terms — Consumer credit agreement — Article 1(2) — Term reflecting a mandatory statutory provision — Scope of the directive — Articles 3(1), 4, 6(1) and 7(1) — Security for credit in the form of a charge on immovable property — Whether it is possible to enforce the charge by means of a sale by auction — Judicial review)
Summary — Judgment of the Court (Third Chamber), 10 September 2014
1. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer
(Art. 267 TFEU)
2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Means to prevent the use of unfair terms — National legislation permitting the recovery of a debt by the extrajudicial enforcement of a charge on immovable property provided as security by the consumer — Lawfulness — Conditions — Principles of effectiveness and equivalence — Impact of the fundamental right of accommodation — Verification a matter for the national court
(Charter of Fundamental Rights, Arts 7, 38, 47; Council Directive 93/13)
3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Exclusion provided for in respect of contractual terms which reflect mandatory statutory or regulatory provisions — Verification a matter for the national court
(Council Directive 93/13, Art. 1(2))
1. See the text of the decision.
(see para. 38)
2. Directive 93/13/EEC on unfair terms in consumer contracts must be interpreted as not precluding national legislation which allows the recovery of a debt that is based on potentially unfair contractual terms by the extrajudicial enforcement of a charge on immovable property provided as security by the consumer, in so far as that legislation does not make it excessively difficult or impossible in practice to protect the rights conferred on consumers by that directive, which is a matter for the national court to determine.
(see para. 68, operative part 1)
3. Article 1(2) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that a contractual term included in a contract concluded by a seller or supplier with a consumer falls outside the scope of that directive only if that contractual term reflects the content of a mandatory statutory or regulatory provision, which is a matter for the national court to determine.
(see para. 80, operative part 2)