OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 31 October 2019 (1)
Joined Cases C‑453/18 and C‑494/18
Bondora
(Requests for a preliminary ruling from the Juzgado de Primera Instancia No 11 de Vigo (Court of First Instance No 11, Vigo, Spain) and from the Juzgado de Primera Instancia No 20 de Barcelona (Court of First Instance No 20, Barcelona, Spain))
(Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 1896/2006 — European order for payment procedure — Directive 93/13/EEC — Unfair terms in consumer contracts — Review by a court of its own motion — Documents which are non-mandatory in the context of an application for a European order for payment but essential for assessing whether there are unfair terms)
Introduction
1. Is a court seised of an application for a European order for payment under Regulation (EC) No 1896/2006, (2) relating to a contract concluded between a seller or supplier and a consumer, required to review of its own motion the possible existence of unfair terms, within the meaning of Directive 93/13/EEC? (3) In that context, is that court entitled to request that the claimant provide it with a copy of the contract supporting his claim, on the basis of Article 7(2) of that regulation? If not, what conclusions should be drawn as to the validity of Regulation No 1896/2006, in particular in the light of Article 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’)?
2. Those are, in essence, the fundamental questions referred to the Court by the national courts in the present case. In consequence, for the first time, the Court will be required to clarify the relationship between the respective requirements of Regulation No 1896/2006 and of Directive 93/13 as regards the role of the courts.
3. Those two instruments of EU law appear to pursue objectives which are at first glance contradictory. The directive aims at consumer protection through active intervention by a court, whereas the regulation seeks to speed up and simplify recovery of claims by shifting the responsibility for initiating proceedings and placing greater responsibilities on the defendant.
4. It will be for the Court to determine whether one of those objectives must prevail over the other or whether — as I believe — it is in fact possible to reconcile them, by means of a combined interpretation of those two instruments.
Legal context
EU law
The Charter
5. Article 38 of the Charter provides:
‘Union policies shall ensure a high level of consumer protection.’
Directive 93/13
6. According to the 4th, 5th, 21st and 24th recitals of Directive 93/13:
‘Whereas it is the responsibility of the Member States to ensure that contracts concluded with consumers do not contain unfair terms;
Whereas, generally speaking, consumers do not know the rules of law which, in Member States other than their own, govern contracts for the sale of goods or services …
…
Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions;
…
Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts.’
7. In accordance with Article 1(1) thereof, ‘the purpose [of Directive 93/13] 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’.
8. Article 4(1) provides:
‘Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.’
9. Under Article 6(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.’
10. Article 7(1) provides:
‘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.’
Regulation No 1896/2006
11. Recitals 9, 13 and 14 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.’
12. In accordance with Article 1, entitled ‘Subject matter’:
‘1. 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;
and
(b) 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.
2. This regulation shall not prevent a claimant from pursuing a claim within the meaning of Article 4 by making use of another procedure available under the law of a Member State or under [EU] law.’
13. Under Article 2(1), entitled ‘Scope’:
‘This regulation shall apply to civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (“acta iure imperii”).’
14. Article 2(2) and (3) sets out other exceptions concerning its scope, which are not relevant in the present case.
15. Article 3, entitled ‘Cross-border cases’, provides:
‘1. 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.
2. Domicile shall be determined in accordance with Articles 59 and 60 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
…’
16. Under Article 7, entitled ‘Application for a European order for payment’:
‘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.
…’
17. Article 8, entitled ‘Examination of the application’, is worded as follows:
‘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.’
18. Article 9, entitled ‘Completion and rectification’, 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.’
19. In accordance with Article 10(1), if the requirements referred to in Article 8 are met for only part of the claim, the court is to inform the claimant to that effect. The claimant is to be invited to accept or refuse a proposal for a European order for payment for the amount specified by the court. Pursuant to Article 10(2) of that regulation, if the claimant accepts the court’s proposal, the court is to issue an order for that part of the claim accepted by the claimant. The consequences with respect to the remaining part of the initial claim are to be governed by national law.
20. Under Article 11(3):
‘The rejection of the application shall not prevent the claimant from pursuing the claim by means of a new application for a European order for payment or of any other procedure available under the law of a Member State.’
21. Article 12, 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. It shall not comprise the information provided by the claimant in Appendices 1 and 2 to form A.
…
4. In the European order for payment, the defendant shall be informed that:
(a) the order was issued solely on the basis of the information which was provided by the claimant and was not verified by the court;
(b) the order will become enforceable unless a statement of opposition has been lodged with the court in accordance with Article 16;
(c) where a statement of opposition is lodged, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure unless the claimant has explicitly requested that the proceedings be terminated in that event.
…’
22. In accordance with Article 22(3), under no circumstances may the European order for payment be reviewed as to its substance in the Member State of enforcement.
23. Under Article 26, all procedural issues not specifically dealt with in the regulation are to be governed by national law.
24. Finally, standard form A, as set out in Annex I, includes a series of sections which the claimant must complete. In the present case, it is appropriate to emphasise the sections numbered 6 (‘Principal’), 7 (‘Interest’), 8 (‘Contractual penalties’), 9 (‘Costs’), 10 (‘Evidence available in support of the claim’) and 11 (‘Additional statements and further information’).
Spanish law
25. Under the 23rd final provision of Ley 1/2000, de 7 de enero 2000, de Enjuiciamiento Civil (4) (Law 1/2000 of 7 January on the Code of Civil Procedure) (‘the LEC’), introducing measures to implement Regulation No 1896/2006 into Spanish law and, in particular, under paragraphs 2 and 11 thereof:
‘2. An application for a European order for payment shall be made using standard form A as set out in Annex I to Regulation (EC) No 1896/2006 and it shall not be necessary to submit any documents, which, if submitted, shall be ruled inadmissible.
…
11. Procedural issues relating to the issue of a European order for payment which are not provided for by Regulation No 1896/2006 shall be governed by the provisions [of the LEC] relating to orders for payment.’
26. Under Article 815(4) of the LEC:
‘If the claim for recovery of a debt is based on a contract between a company or a seller or supplier and a consumer or user, the Letrado de la Administración de Justicia (judicial officer), before making an order for payment, shall notify the court so that the latter may examine whether any of the terms on which the application is based, or which have determined the amount payable, are unfair. The court shall examine of its own motion whether any of the terms on which the application is based, or which have determined the amount payable, may be considered to be unfair. If the court finds that any of the terms may be considered to be unfair, it shall hear the parties within 5 days. After hearing the parties, the court shall rule as appropriate by means of an order within the next 5 days. Representation by a lawyer or court agent shall not be mandatory during that procedure. …
If any of the contractual terms is found to be unfair, the order made shall stipulate the consequences of that finding and rule either that the claim is inadmissible or that the proceedings are to continue without the application of the terms considered to be unfair.
If the court finds that there are no unfair terms, it shall make a ruling to that effect and the Letrado de la Administración de Justicia (judicial officer) shall proceed to issue an order for payment against the debtor as laid down in paragraph 1.
In any event, an appeal may lie directly against the order made.’
The disputes in the main proceedings, the questions referred and the procedure before the Court
Case C‑453/18
27. Bondora AS (‘Bondora’) is a commercial company which concluded a loan agreement with a consumer, Mr Carlos V.C. On 21 March 2018, the company applied for a European order for payment against him for EUR 755.27 before the Juzgado de Primera Instancia No 11 de Vigo (Court of First Instance No 11, Vigo, Spain).
28. Since the claim relied on by Bondora arose from a consumer loan agreement, the referring court requested, under Article 815(4) of the LEC, that Bondora submit documents in support of that claim with a view to assessing whether the terms of that loan agreement were unfair.
29. Bondora refused to produce those documents, arguing, first, that pursuant to paragraph 2 of the 23rd final provision of the LEC, in so far as concerns an application for a European order for payment, it is not necessary to submit documents in support of that claim and, secondly, that Articles 8 and 12 of Regulation No 1896/2006 make no reference to the submission of documents for the purpose of issuing a European order for payment.
30. The referring court considers that such an interpretation of the rules referred to in the preceding point is likely to give rise to difficulties where the claim sought to be enforced is based on a consumer contract.
31. In its request for a preliminary ruling, the referring court noted that Article 815(4) of the LEC had been adopted, in its current form, as a result of the case-law of the Court and, in particular, the judgment in Banco Español de Crédito, (5) which had established the need for a review by a court of its own motion of unfair terms in the context of an order for payment procedure under national law.
32. According to the referring court, Bondora’s refusal to submit the documents referred to in support of its claim, under paragraph 2 of the 23rd final provision of the LEC, effectively prevents the court seised from carrying out the review imposed on it by Article 815(4) of that law where an application for an order for payment relates to a consumer.
33. It is in those circumstances that the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is Article 7(1) of … Directive [93/13], and the case-law interpreting that directive, to be construed as meaning that that article of the directive precludes a national provision, like [point 2 of] the 23rd final provision of [the LEC], which provides that it is not necessary to submit documents with the application for a European order for payment and that, where documents are submitted, they will be ruled inadmissible?
(2) Is Article 7(2)(e) of Regulation No 1896/2006 … to be construed as meaning that that provision does not preclude a creditor institution from being required to submit documents substantiating its claim based on a consumer loan entered into between a seller or a supplier and a consumer, where the court considers it essential to examine the documents in order to determine whether there are unfair terms in the contract between the parties, thereby complying with the provisions of … Directive [93/13] and the case-law interpreting that directive?’
Case C‑494/18
34. In the second case, the same company (that is to say, Bondora) entered into a loan agreement with another consumer, XY. On 17 May 2018, Bondora requested that the Juzgado de Primera Instancia No 20 de Barcelona (Court of First Instance No 20, Barcelona, Spain) grant the company a European order for payment against XY for EUR 1 818.66.
35. In standard form A (Annex I to Regulation No 1896/2006), Bondora stated that XY was a consumer and that it had in its possession the loan agreement forming the basis of the claim and determining its amount. Bondora also stated that if the consumer decided to lodge a statement of opposition, it would request a declaration that there was no need to adjudicate on the action.
36. Having noted that one of the parties to the dispute was a consumer, the referring court asked Bondora to complete section 11 of form A, entitled ‘Additional statements and further information’, and to provide a breakdown of the claim and reproduce the terms of the contract relied on in support of the claim.
37. Bondora refused to provide that information, asserting that under Article 7(2) of Regulation No 1896/2006 it was not required to adduce further evidence in support of its claim. Indeed, in accordance with paragraph 2 of the 23rd final provision of the LEC, where an application for a European order for payment is made, it is not necessary to provide documents supporting the claim. Moreover, that company also argued that other courts had already accepted similar applications for orders for payment without requesting that it fulfil other requirements.
38. The referring court therefore inquires as to the interpretation of Regulation No 1896/2006 in the light of the need to protect consumers and the case-law of the Court. (6) According to the referring court, issuing a European order for payment relating to a consumer without any review as to the existence of unfair terms could undermine the obligation to protect consumers and, on that basis, infringe Article 38 of the Charter and Article 6(1) TEU.
39. Also in the view of the referring court, Article 38 of the Charter, Article 6(1) TEU and Article 6(1) and Article 7(1) of Directive 93/13 do not preclude a national provision such as paragraph 2 of the 23rd final provision of the LEC, provided that that provision allows the court to ascertain the content of the terms of the contract with a view to reviewing of its own motion any potentially unfair terms.
40. However, if under Regulation No 1896/2006 it is not possible to obtain any further clarification with a view to assessing the possible existence of unfair terms, that regulation should be held to be contrary to Article 6(1) TEU and Article 38 of the Charter.
41. It is in those circumstances that the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is national legislation such as section 4 of [the 23rd final provision] of the [LEC], which does not permit a contract or an itemisation of the debt to be provided or required in a claim in which the defendant is a consumer and where there is evidence that the sums being claimed could be based on unfair terms, compatible with Article 38 of the [Charter], Article 6(1) [TEU] and Articles 6(1) and 7(1) of Directive [93/13]?
(2) Is it compatible with Article 7(2)(d) of Regulation [No 1896/2006] to require the applicant, in a claim against a consumer, to specify the itemisation of the debt he is claiming in section 11 of standard form A? Is it also compatible with that provision to require that the content of the contractual terms on the basis of which the applicant is making a claim against a consumer, beyond the principal subject matter of the contract, be reproduced in section 11 in order to assess whether they are unfair?
(3) If the answer to the second question is negative, can the [Court] state whether it is permissible, under the current wording of Regulation No 1896/2006, to assess ex officio, prior to the grant of a European payment order, whether unfair terms are being applied in a contract with a consumer, and the legal basis on which that assessment may be carried out?
(4) In the event that it is not possible to assess ex officio, under the current wording of Regulation No 1896/2006, the existence of unfair terms prior to granting a European payment order, the [Court] is asked to rule on the validity of the regulation referred to and on whether it is contrary to Article 38 of the Charter and Article 6(1) [TEU].’
Procedure before the Court
42. By decision of the President of the Court of 6 September 2018, the two cases were joined for the purposes of the written procedure. The joinder of the two cases was subsequently continued for the purposes of the oral procedure and the judgment.
43. Written observations were submitted by the Spanish, Latvian and Hungarian Governments, and by the European Commission, the Council and the European Parliament.
44. Since the parties did not request that a hearing be held, the Court decided to dispense with it, pursuant to Article 76(2) of the Rules of Procedure of the Court.
Analysis
Preliminary observations on the legal instruments applicable in the present case
45. Before examining the questions referred by the referring courts, it is necessary to establish whether Directive 93/13 and Regulation No 1896/2006 are applicable in the present case.
46. Directive 93/13 applies to contracts concluded between a seller or supplier and a consumer (Article 1(1) of that directive).
47. It is apparent from the information set out in the requests for a preliminary ruling that the disputes in the main proceedings concern claims arising from loan agreements concluded between Bondora, an entity which is a seller or supplier, and consumers (Carlos V.C. and XY). Accordingly, Directive 93/13 applies in the context of the disputes in the main proceedings.
48. The scope of Regulation No 1896/2006 is determined by Article 2 thereof: that regulation is to apply ‘to civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal’, subject to the exceptions set out in Article 2(1), (2) and (3).
49. It is apparent from the information set out in the requests for a preliminary ruling that the disputes in the main proceedings fall within the concept of civil and commercial matters and are not covered by any of the abovementioned exceptions. However, the question whether those disputes are of a ‘cross-border nature’, for the purposes of Article 2(1) of that regulation, remains open.
50. That aspect has not been referred to in the orders for reference, which remain silent as to Bondora’s place of domicile.
51. Under Article 3(1) of Regulation No 1896/2006, 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. Domicile is to be determined in accordance with the relevant provisions of Regulation (EU) No 1215/2012, (7) namely Articles 62 and 63. They provide inter alia that it is for the court seised of an application to determine the place where a party is domiciled.
52. It is therefore for the referring courts to establish that the requirement laid down in Article 3(1) of Regulation No 1896/2006 has been fulfilled. My researches suggest, however, that Bondora is a company whose registered office is in Estonia and which is entered in the register of legal persons of that Member State. The requirement set out in Article 3(1) thus appears in principle to be fulfilled.
53. The referring courts will be called upon to implement the requirements of EU secondary legislation applicable in the present case. Since Regulation No 1896/2006 and Directive 93/13 are instruments of secondary legislation and, more specifically, legislative acts (within the meaning of Article 289 TFEU) of the same rank in the hierarchy of norms, (8) and since no provision of the regulation expressly excludes or restricts application of the directive, both instruments should therefore be read together in order to establish whether it is possible to interpret them in a harmonious manner.
54. In the comments which follow, I shall carry out a joint analysis of the first and second questions referred in Cases C‑453/18 and C‑494/18 and the third question in Case C‑494/18, before then addressing the fourth question referred in Case C‑494/18.
The first and second questions referred in Cases C‑453/18 and C‑494/18 and the third question referred in Case C‑494/18
55. By those questions, the referring courts seek to establish, in essence:
– whether the national court seised of an application for a European order for payment relating to a contract concluded between a seller or supplier and a consumer is entitled to review of its own motion the potentially unfair nature of the terms laid down in the contract concerned, as required by Articles 6 and 7 of Directive 93/13 as interpreted by the Court, taking into consideration Article 38 of the Charter and Article 6(1) TEU;
– whether, on that basis, the court seised may require the claimant, under Article 9(1) of Regulation No 1896/2006, read in conjunction with Article 7(2)(d) and (e), to reproduce the content of the contractual terms on which its application is based or to provide a copy of the contract relied on in support thereof, with the aim of carrying out the review referred to above, and
– whether the above provisions of Regulation No 1896/2006 therefore preclude national legislation, such as that at issue in the main proceedings, which treats as inadmissible additional documents submitted by a claimant, such as a copy of the contract forming the basis of the claim.
56. In order to provide an answer to that three-fold question, it is necessary to begin by examining the principles set out in Article 38 of the Charter, Articles 6 and 7 of Directive 93/13 and the case-law of the Court relating to the role of the courts, in particular in the context of applications for orders for payment under national law, before examining how those principles are applied in the context of Regulation No 1896/2006, in the light of the wording, the context and the objectives of those instruments. (9)
Reminder of the principle set out in Article 38 of the Charter
57. Article 38 of the Charter provides that European Union policies are to ensure a high level of consumer protection. Article 6(1) TEU provides that ‘the Union recognises the rights, freedoms and principles set out in the Charter’, which is to have the same legal value as the Treaties.
58. According to the Explanations relating to the Charter, (10) the principles set out in Article 38 thereof were based on Article 169 TFEU. In accordance with that provision, in order to promote the interests of consumers and to ensure a high level of consumer protection, the European Union is to contribute, inter alia, to protecting their economic interests.
The role of the courts in the light of Directive 93/13 and the case-law of the Court
– General principles
59. Articles 6 and 7 of Directive 93/13 enshrine two objectives. They are intended, on the one hand, to prevent consumers from being bound by unfair terms (as defined in that directive) and, on the other hand, to deter sellers or suppliers from using such terms in consumer contracts.
60. Those provisions have given rise to a substantial body of case-law over the last 20 years. It is appropriate briefly to summarise the elements in that body of case-law which are relevant to my analysis in the present case. (11)
61. According to settled case-law since 2000, (12) the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. That leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of the terms.
62. The Court takes the view that, in order to guarantee the protection intended by Directive 93/13, the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract. (13)
63. For that reason, the Court has held that a national court in the exercise of the functions incumbent upon it pursuant to the provisions of Directive 93/13 is required to assess of its own motion whether a contractual term is unfair and, in so doing, correct the imbalance that exists between the consumer and the seller or supplier, (14) where it has available to it ‘the legal and factual elements necessary for that task’. (15) To that end, the court must be able to investigate of its own motion whether a term used in a contract which is the subject of a dispute before it falls within the scope of Directive 93/13. (16)
64. According to the case-law of the Court, those obligations for the national court must be regarded as necessary to ensure that the consumer enjoys effective protection, in view of the real risk that he may be unaware of his rights or may encounter difficulties in enforcing them. (17)
65. In that regard, the Court has pointed out that Article 6(1) of Directive 93/13 is a mandatory provision which must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy. (18)
– Application to order for payment procedures under national law
66. The principles outlined above are applicable in accelerated or simplified procedures, such as an order for payment procedure under national law. (19)
67. Such a procedure enables creditors to secure an enforceable instrument for uncontested claims swiftly and with minimal procedural requirements. Although the specific rules vary from one country to the next, in the main the procedure does not entail any exchange of arguments on the substance, except where triggered by the debtor’s objections. That shift of procedural initiative to the defendant — known as a ‘reversal of the litigation’ — means that responsibility for initiating adversarial proceedings to prevent the payment order from becoming enforceable lies with the person to whom it is addressed. (20)
68. In that respect, the order for payment procedure places significant responsibility on the defendant. That reversal of responsibility for initiating proceedings means that the exchange of arguments before a court is deferred and conditional — in that it depends on an active challenge by the defendant. In the absence of such a challenge, that exchange of arguments will never take place. Although that mechanism entails significant advantages in terms of effectiveness and rapidity, it nevertheless places the defendant at a procedural disadvantage, particularly when he is a weak party, such as a consumer likely to be taken aback by the initiation of such a procedure. (21)
69. Before analysing the relevant case-law of the Court, it is necessary to make a preliminary observation concerning the types of order for payment procedures which exist within the European Union.
70. Within the various Member States, a distinction is generally drawn between two forms of order for payment procedures, (22) that is to say, ‘documentary’ (or ‘evidence’) procedures (23) on the one hand, and non-documentary (‘no-evidence’) procedures (24) on the other.
71. It was in the context of a documentary national order for payment procedure that the Court first had to rule on whether a court was required to determine of its own motion whether terms are unfair before the lodging of any statement of opposition by the defendant. That was the issue in Banco Español de Crédito. (25)
72. After recalling the general principles set out above, the Court noted that the detailed rules for national order for payment procedures are a matter for the domestic legal system of the Member States, by virtue of their procedural autonomy. According to settled case-law, that procedural autonomy is, however, constrained by the requirement to respect the principles of equivalence (26) and effectiveness. (27)
73. As regards the principle of effectiveness, the Court has recalled that every case must be analysed by reference to the role of the relevant provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. (28)
74. After having analysed the characteristics of the Spanish order for payment scheme, and in particular the shortness of the time limit for lodging a statement of opposition imposed on the defendant (20 days), the Court held that such a procedural arrangement, which does not permit the court before which an application for order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has all the legal and factual elements necessary for that task available to it, whether terms contained in a contract concluded between a seller or supplier and a consumer are unfair where that consumer has not lodged an objection, is liable to ‘undermine the effectiveness of the protection intended by Directive 93/13’. (29)
75. The Court held that, given the characteristics of the order for payment procedure in Spanish law, its stages and special features, viewed as a whole, there was a significant risk that ‘the consumers concerned will not lodge the [statement of opposition] (30) required either because of the particularly short period provided for that purpose, or because they might be dissuaded from defending themselves in view of the costs which legal proceedings would entail in relation to the amount of the disputed debt, or because they are unaware of or do not appreciate the extent of their rights, or indeed because of the limited content of the application for the order for payment submitted by the sellers or suppliers, and thus the incomplete nature of the information available to them’. (31)
76. The Court has thus developed an analytical framework which is particularly useful for establishing whether there is a risk that the effectiveness of the protection which consumers should enjoy under Directive 93/13 will be undermined. (32) Following that judgment, Spain amended its legislation. That reform resulted in the current wording of Article 815(4) of the LEC, as noted here by the referring courts.
77. The Court supplemented its analysis in Finanmadrid EFC, explaining that Directive 93/13 precludes ‘national legislation … which does not permit the court ruling on the enforcement of an order for payment to assess of its own motion whether a term in a contract concluded between a seller or supplier and a consumer is unfair, when the authority hearing the application for an order for payment does not have the power to make such an assessment’. (33)
78. The judgment in Profi Credit Polska (34) enabled the Court to clarify its position, in the context of a procedure under national law in which the referring court did not have available to it legal and factual elements necessary to examine whether the terms supporting the claim were unfair. (35) Such an examination could take place only if the consumer lodged a statement of opposition.
79. In that judgment, the Court ruled that ‘effective protection of the rights conferred on the consumer by [Directive 93/13] can be guaranteed only if the national procedural system allows [the national court], during the order for payment proceedings or the enforcement proceedings concerning an order for payment, to check of its own motion whether terms of the contract concerned are unfair’. (36) The procedure under national law called into question must be ‘examined in its entirety, including both the first stage before the statement of opposition is lodged and the subsequent second stage’. (37)
80. After recalling the principles of procedural autonomy and effectiveness, the Court emphasised that consumers must have ‘the possibility of … lodging a statement of opposition under reasonable procedural conditions, so that the exercise of their rights is not subject to conditions, in particular time limits or costs, which reduce exercise of the rights guaranteed by Directive 93/13’. (38)
81. On that basis, the Court (after recalling the criteria set out in point 74 of this Opinion) held that Article 7(1) of Directive 93/13 precluded national legislation ‘which permits issue of an order for payment …, where the court [seised] does not have the power to examine whether the terms … are unfair, if the detailed rules for exercising the right to lodge a statement of opposition against such an order do not enable observance of the rights which the consumer derives from that directive to be ensured’. (39)
82. What conclusion should be drawn from that case-law?
83. In my view, it should be concluded that review by a court of the (potentially) unfair nature of the terms relied on by a claimant in support of his claim must be possible at the stage when the examination of the application for an order for payment is examined, including in a non-documentary (no evidence) procedure, unless the defendant has effective access to the court hearing the opposition (in other words, provided that the applicable procedural rules do not create a significant risk that the consumer in question will not lodge a statement of opposition) or unless the court responsible for enforcement is empowered to carry out such a review.
84. Having the court seised determine of its own motion whether terms are unfair does not, in itself, pose any specific problem in a documentary procedure, in that that court has available to it the documents submitted by the creditor in support of his claim.
85. However, in my view, the guidance to be derived from the case-law referred to above must also apply to non-documentary procedures.
86. Otherwise, the consumers concerned (who are subject to such procedures) would be deprived of the benefit of the mandatory provisions of Directive 93/13. A teleological interpretation of those provisions and that case-law should therefore be adopted, in order to ensure their ‘effet utile’. Where there is no effective access to the court hearing the opposition or where the court responsible for enforcement does not carry out a review, the procedural rules for non-documentary procedures should therefore be adapted to allow the authority seised of an application for an order for payment to request that the claimant adduce evidence comprising ‘the factual and legal elements necessary’ to verify compliance with the requirements of Directive 93/13. Where no such possibility exists, those procedures could be regarded as not complying with the requirements of that directive.
87. Those requirements should now be transposed to the context of Regulation No 1896/2006.
Application in the context of Regulation No 1896/2006
– The origin of Regulation No 1896/2006
88. Regulation No 1896/2006 is the result of extensive legislative work. The Commission’s initial draft (published in 2004) envisaged a ‘pure’ non-documentary procedure. (40)
89. The final version of the regulation departs in many respects from that initial draft.
90. As I shall note in the comments which follow, the EU legislature arrived at a ‘hybrid’ model which combines characteristics specific to non-documentary procedures (such as the absence of an obligation to submit, at the outset, documents other than form A, which is annexed to Regulation No 1896/2006) and characteristics more akin to those of documentary-type procedures (such as the obligation for the court seised to examine whether the claim appears to be well founded — see Article 8 of the regulation).
– Examination of the main provisions of Regulation No 1896/2006
91. It is clear from recital 9 and Article 1 of Regulation No 1896/2006 that the purpose of that regulation is, inter alia, to simplify and speed up procedures and to reduce the costs related to the trans-border recovery of outstanding debts over which no legal controversy exists. It is in the light of those objectives that Regulation No 1896/2006 must be interpreted. (41)
92. Article 7 lists the information which the claimant must provide by means of form A when he lodges his application for an order for payment. That information includes: (i) 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 (Article 7(2)(d)), and (ii) a description of the evidence supporting the claim (Article 7(2)(e)). (42) Under the first sentence of Article 8, the court seised of an application for a European order for payment is to examine, as soon as possible and on the basis of that application form, whether the requirements set out (inter alia) in Article 7 of the regulation are met and whether the claim appears to be founded.
93. It has rightly been pointed out in the legal literature that ‘it makes little difference whether the evidence is described or whether nothing is written about it’. (43) Accordingly, only very limited information is available to both the defendant and the court seised. Thus the court’s examination of the merits of the claim based solely on the information included in form A is, on the face of it, rather superficial, (44) which is hardly likely to ensure effective protection of the consumer concerned.
94. In accordance with Article 9(1) of Regulation No 1896/2006, if the requirements set out in Article 7 are not met, the court is to give the claimant the opportunity to complete or rectify the application (45)
95. Under Article 12, where the requirements of Article 8 are met the court is to issue a European order for payment. (46) In that context, a limited amount of information must be received by the defendant. (47) In particular, the defendant is to be advised that he can to oppose the order by lodging with the court of origin a statement of opposition, to be sent within 30 days of service of the order on him.
96. If the defendant does not lodge a statement of opposition, the order for payment becomes enforceable (Article 18 of Regulation No 1896/2006).
– Need for judicial review at the stage of the initial examination by the court seised of an application for a European order for payment
97. As I pointed out (see point 83 above), in the absence of express provisions to that effect, (48) it is necessary to determine whether judicial review should take place at the stage of the (initial) examination of the application for an order or whether, on the contrary, the consumer has effective and adequate access to the court hearing the opposition, or whether, in the last resort, the court responsible for enforcement is in a position to carry out such a review.
98. I shall begin by dismissing the latter possibility. Pursuant to Article 22(3) of Regulation No 1896/2006, any review as to substance in the Member State of enforcement is prohibited. (49)
99. As regards access to the court hearing the opposition, although European consumer law is not intended to make up for ‘total inertia on the part of the consumer’ and it is therefore not in itself problematic that the consumer has to lodge a statement of opposition to the order for payment in order to trigger the second stage of the procedure, in which the court will of its own motion assess the unfairness of the clause supporting the application for an order, (50) it is nevertheless necessary to ascertain whether the detailed rules for exercising the right to lodge a statement of opposition against the order ensure observance of the rights which the consumer derives, inter alia, from Directive 93/13. (51)
100. In other words, is it sufficient to entrust the task of intervening to the court hearing the opposition, without the possibility of an earlier review by the court seised of an application for an order for payment?
101. Here, the criteria laid down by the Court in the judgment in Banco Español de Crédito (52) make it possible to carry out an overall assessment (53) of the procedure established by Regulation No 1896/2006.
102. Is there a significant risk that a consumer against whom such an application for a European order for payment is made will not lodge a statement of opposition to it, in the light of the detailed rules of that procedure?
103. Like the Commission, I consider that the answer to that question is in the affirmative. That is so in particular because, first, of the time limit for lodging a statement of opposition, second, of the risk that the consumer is unaware of the extent of his rights and third, of the limited nature of the information made available to him.
104. In very general terms, Regulation No 1896/2006 seems to have been conceived in a way that favours considerations of rapidity and effectiveness of the procedure over legal ‘safeguards’ likely to protect the defendant. (54)
105. Thus, the time limit for lodging a statement of opposition is a single time limit of 30 days from service of the order for payment. (55) By way of comparison, the Court has already pointed out in Banco Español de Crédito, that a period of 20 days was ‘particularly short’. That factor must be taken into consideration at the same time as the information made available to the consumer (I shall return to this subsequently, in point 107 below). I recall that Banco Español de Crédito was concerned with a documentary procedure which — by its very nature — allows a consumer more easily to acquaint himself with the evidence relied on against him, unlike the essentially non-documentary model on which the European order for payment procedure is based.
106. Moreover, the risk that the defendant may be unaware of or may not appreciate the extent of his rights cannot be underestimated. The question whether a term of the underlying contract is unfair may turn out to be complex and the answer may not be obvious from a reading of the information available to the consumer, (56) a fortiori given that he may even be unaware of the existence of the legal concept of ‘unfair term’. An average consumer who is reasonably well informed and reasonably observant and circumspect may not be aware of the content of Directive 93/13 or, a fortiori, of all the terms which are likely to be included within its scope. (57) In that respect, access to knowledge of the law is a prerequisite for access to the opposition procedure. (58) That access to knowledge of the law is all the more problematic where persons are already in debt and may not be in a position to use the services of a lawyer to examine the contract in question and uncover any illegalities. (59)
107. Lastly, it is necessary to take into account the limited content of an application for an order for payment and the incomplete nature of the information available to the consumer in that regard. As I pointed out in point 93 above the system which the EU legislature selected, based on a non-documentary procedural model mitigated by a ‘description’ of the evidence, does not make it possible to ensure the informed exercise by the consumer of his right to lodge a statement of opposition. The information provided both by the claimant (in the context of form A) and by the court seised at the stage of service of the order is very limited and in no way draws the consumer’s attention to the need to check, inter alia, whether the underlying contract contains any unfair terms. (60) This comment is linked to my earlier remark on access to knowledge of the law, which is the sine qua non for the informed exercise of the right to lodge a statement of opposition (or for the waiving of that right).
108. The fact that the right to lodge a statement of opposition can be exercised without having to state reasons (under Article 16(3) of Regulation No 1896/2006) is irrelevant in that regard. (61) In the absence of adequate information as to the appropriateness of making a challenge, a consumer may refrain from lodging a statement of opposition and pay the amount referred to in the order for payment, for fear of bringing legal proceedings whose cost is difficult to predict (62) and whose outcome is uncertain.
109. In short, I am of the view that there is a significant risk that a consumer will refrain from lodging a statement of opposition in such circumstances.
110. Thus, Regulation No 1896/2006 can (and must) be interpreted as meaning that the court seised of an application for an order for payment is empowered to review of its own motion any potentially unfair terms. As I shall demonstrate below, according that power to a court makes it possible to ensure compliance with the requirements of Directive 93/13, as interpreted by the Court, without thereby disregarding the letter and the spirit of that regulation. Before proceeding with that demonstration, I must first examine the extent to which the court seised may obtain additional information under that regulation, so as to exercise its power of review.
– Scope of the powers of review of the court seised
111. The question therefore becomes what further information should the court seised be able to request and may the creditor may be required by law to provide that information under Regulation No 1896/2006?
112. Assuming that they are completed correctly, sections 6, 7, 8 and 9 of form A will allow a diligent court to identify (at the outset) certain anomalies. In practice, the most common unfair terms relate to the method of calculating default interest and to contractual penalties. However, in order to be certain of the position, a court must have the wording of the clauses at issue. That is precisely the situation which arose in the disputes in the main proceedings and which has given rise to the present references for a preliminary ruling.
113. Moreover, as the Commission has rightly pointed out, a contract may contain claims whose unfair nature becomes apparent only after a reading of the contract in its entirety, because of their combined effect.
114. Form A permits the inclusion (in section 11) of information additional to that which is formally covered by the abovementioned sections.
115. I read Article 9(1) taken in conjunction with Article 7(2)(d) and (e) (63) as entitling the court seised to invite the claimant to supplement his application and to reproduce all the terms relied on in support of his claim, in particular by means of section 11 of form A.
116. Reproducing the entire contract makes it possible to prevent an unscrupulous creditor from opportunistically selecting the clauses that the court will review. Otherwise the court seised will be prevented from understanding the overall balance of the contract and from bringing to light the potentially unfair nature of a combination of terms.
117. For the sake of rapidity and simplicity, the court will thus request the claimant to produce a full copy of the contract (instead of having to include the entire text of that contract by using a ‘copy and paste’ process on the form).
118. That interpretation of the provisions of Regulation No 1896/2006 makes it possible to ensure an appropriate review of the relevant terms, in compliance with Article 4 of Directive 93/13, according to which ‘the unfairness of a contractual term shall be assessed … by referring … to all the other terms of the contract’ (emphasis added).
119. Where there is uncertainty as to the merits of the claim, on account of the potentially unfair nature of a particular term, the court will therefore be in a position to refuse to issue a European order for payment, on the basis of Article 11(1)(b) of Regulation No 1896/2006, or to issue a partial order, as provided for in Article 10. (64)
– Conformity with the wording and objectives of Regulation No 1896/2006 and Directive 93/13, in the light of Article 38 of the Charter
120. Do the wording and objectives of Regulation No 1896/2006 make it possible to adopt the interpretation proposed above?
121. In my view, the answer is ‘yes’.
122. Admittedly, there is a potential tension between the requirement for active intervention by a court (stemming from Directive 93/13, as interpreted by the Court) and the objectives of rapidity, simplification and reduction of costs pursued by Regulation No 1896/2006.
123. That tension, resulting from the hybrid nature of the regulation and the limited requirement concerning a description of evidence, (65) is accentuated by the judgment of the Court in Szyrocka. (66) The Court there held that Article 7 of Regulation No 1896/2006 must be interpreted ‘as governing exhaustively the requirements to be met by an application for a European order for payment’. (67)
124. Is it necessary to conclude that that judgment precludes any possibility of requiring additional information or documents, (68) in particular for the purpose of reviewing the (potentially) unfair nature of the clauses relied on in support of an application for a European order for payment?
125. In my opinion, that would be an incorrect reading of in Szyrocka (69).
126. The reasoning behind that judgment was as follows: the objective pursued by Regulation No 1896/2006 would be undermined if the Member States were able generally to impose in their national legislation additional requirements to be met by an application for a European order for payment. Such requirements would lead not only to the imposition of different conditions in the various Member States for such an application but also to an increase in the complexity, duration and costs of the European order for payment procedure. (70)
127. In the present case, which concerns unfair terms in contracts concluded with a consumer, the court’s power of review implicitly and necessarily derives from Directive 93/13, as interpreted by the Court. Accordingly, the requirement in question derives directly from EU law: it is not an additional requirement arbitrarily imposed by one Member State and liable to result in irreconcilable differences between the Member States. For that same reason, such a requirement undermines neither the independence of the procedure established by Regulation No 1896/2006 nor its predictability or uniformity. (71)
128. The power to request a copy of the contract does not, moreover, fundamentally undermine the objectives of celerity, simplification and cost-reduction established in Article 1 of Regulation No 1896/2006. (72)
129. The court seised is empowered to demand additional information under Article 9 of Regulation No 1896/2006. That power includes the right to be sent a copy of the contract — something that does not unreasonably complicate the course of the procedure.
130. Nowadays it is, in principle, simplicity itself to copy a document and send it by email. If a creditor receives such a request from the court seised of an application for an order for payment, he should be able to comply without delay, without particular difficulty and, in principle, without cost. (73) Such a solution is compatible with the computerisation of the procedure. (74)
131. Moreover, since the review carried out by the court is strictly limited to a prima facie assessment of the potentially unfair nature of the terms relied on (in the course of examining whether the claim appears to be well founded), such a solution should not entail any significant delay in dealing with that claim — especially for a court experienced in consumer law disputes.
132. Furthermore, the proposed solution also makes it possible to ensure compliance with the objectives of Directive 93/13 read in the light of Article 38 of the Charter.
133. That solution provides effective protection for the consumer, by allowing the court to refuse to issue an order for payment (or to issue a partial order for payment) when the terms relied on appear, at first glance, potentially unfair. (75) It also fulfils the objective of deterrence referred to in Article 7(1) of Directive 93/13, by discouraging predatory behaviour.
134. Indeed, the adoption of a different interpretation of the two instruments at issue would confer a windfall gain on unscrupulous creditors by enabling them to use the simplified procedure of Regulation No 1896/2006 (76) to circumvent the mandatory scheme established in Directive 93/13. (77) Such a solution would not ensure the high level of consumer protection referred to in Article 38 of the Charter, (78) in particular in terms of consumers’ economic interests. (79)
135. In the disputes in the main proceedings, as the Commission rightly noted, such an outcome would be particularly aberrant, because the order for payment procedure under national law would ensure a higher level of consumer protection than the European procedure established by Regulation No 1896/2006 (in so far as the procedure under national law, amended as a result of Banco Español de Crédito, (80) does include a review of the court’s own motion when the application for an order for payment is examined). (81)
136. The proposed solution thus allows the balance which the EU legislature sought to strike (82) between sellers or suppliers and consumers to be restored, a balance that might otherwise be upset by the reversal of responsibility for initiating proceedings which characterises the procedure provided for by Regulation No 1896/2006 and which makes it all the more necessary to provide adequate information to the court and to the defendant-consumer. (83)
137. Finally, I observe that, in accordance with Articles 8 and 11 of Regulation No 1896/2006, the court seised of an application for an order for payment is required, when accepting or rejecting such an application, to rule only on whether it appears to be well founded.
138. In other words, if the application is rejected (on account, for example, of doubts as to the potentially unfair nature of the terms relied on), that will clearly not prevent the creditor from obtaining satisfaction of his claim, where appropriate, by other procedural means. (84) That is expressly confirmed by Article 1(2) and Article 11(3) of Regulation No 1896/2006. (85)
Conclusion
139. The first and second questions in Cases C‑453/18 and C‑494/18 and the third question in Case C‑494/18 should, in my view, be answered in the affirmative.
140. Accordingly, a national court examining an application for a European order for payment relating to a contract concluded between a seller or supplier and a consumer is entitled to review of its own motion the potentially unfair nature of the terms laid down in the contract concerned, as required by Articles 6 and 7 of Directive 93/13, read in the light of Article 38 of the Charter and Article 6(1) TEU.
141. The court seised may thus require the claimant, under Article 9(1) of Regulation No 1896/2006, read in conjunction with Article 7(2)(d) and (e) of that regulation, to reproduce the contract relied on in support of the claim, with the sole aim of carrying out the review referred to above.
142. Consequently, the above provisions of Regulation No 1896/2006 and of Directive 93/13 preclude national legislation, such as that at issue in the main proceedings, which treats as inadmissible additional documents submitted by a claimant, such as a copy of the contract forming the basis of the claim.
The fourth question referred in Case C‑494/18
143. The referring court essentially enquires as to the validity of Regulation No 1896/2006 and asks, in particular, whether that regulation is compatible with Article 38 of the Charter (and with Article 6 TEU), in the event that the questions examined above are answered in the negative.
144. In so far as those questions must, in my view, be answered in the affirmative, there is no need to rule on that point.
145. The interpretation of Regulation No 1896/2006 proposed above makes it possible to reconcile that regulation with the mandatory scheme laid down by Directive 93/13 and to ensure the high level of consumer protection referred to in Article 38 of the Charter.
Conclusion
146. In the light of the foregoing, I propose that the Court answer the questions referred by 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) as follows:
In the context of the examination of an application for an order for payment made under Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure and relating to a claim based on a contract concluded between a seller or supplier and a consumer, the court seised is entitled to review of its own motion the potentially unfair nature of the terms laid down in that contract, in accordance with Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Article 38 of the Charter of Fundamental Rights of the European Union and Article 6(1) TEU.
The court seised may thus require the claimant, under Article 9(1) of Regulation No 1896/2006, read in conjunction with Article 7(2)(d) and (e) of that regulation, to reproduce the contract relied on in support of his claim, with the aim of carrying out the review referred to above.
Articles 7 and 9 of Regulation No 1896/2006, read in conjunction with Articles 6 and 7 of Directive 93/13, preclude a provision of national law, such as that at issue in the main proceedings, which treats as inadmissible additional documents submitted by a claimant to the court seised, such as a copy of the contract forming the basis of the claim brought against the consumer.