Request for a preliminary ruling from the Juzgado de Primera Instancia No 49, Barcelona (Spain) lodged on 12 August 2020 – EL, TP v Caixabank, S. A.
(Case C-385/20)
Language of the case: Spanish
Referring court
Juzgado de Primera Instancia No 49, Barcelona
Parties to the main proceedings
Applicants: EL, TP
Defendant: Caixabank, S. A.
Questions referred
Does the interpretation of Articles 251, 394(3) and 411 of the LEC [Ley de Enjuiciamiento Civil] (Law on Civil Procedure) set out in the reasoned decision of 1 October 2019, which equates the amount at issue in the proceedings with the financial interest of the dispute and, consequently, leads to a reduction of the fees that the consumer has paid his or her lawyer, on the basis of a fixed sum (EUR 18 000), established in law only in respect of an amount that cannot be estimated and not an amount that is unspecified, conflict with Articles 6(1) and 7(1) of the Directive, 1 since it cannot restore the consumer to the factual and legal position which he or she would have been in if that term had not existed, even though there is, in the consumer’s favour, a judicial declaration that the term is unfair, and since it does not remove an unreasonable procedural requirement relating to a limitation of costs where such removal would ensure that the consumer has the most suitable and effective means of legitimately exercising his or her rights?
Does Article 394(3) of the LEC in itself conflict with Articles 6(1) and 7(1) of the Directive and make it impossible or excessively difficult to exercise in court the rights which the Directive grants to consumers, since the limitation which that article imposes on consumers, in the sense that they have to bear a portion of their own procedural costs, means that the consumer cannot be restored to the factual and legal position which he or she would have been in if that term had not existed, even though there is, in the consumer’s favour, a judicial declaration that the term is unfair, and since it does not remove an unreasonable procedural requirement relating to a limitation of costs where such removal would ensure that the consumer has the most suitable and effective means of legitimately exercising his or her rights?
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1 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).