Request for a preliminary ruling from the Juzgado de Primera Instancia n.º 10 bis de Sevilla (Spain) lodged on 27 May 2021 – Vicente v Delia

(Case C-335/21)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia n.º 10 bis de Sevilla

Parties to the main proceedings

Applicant: Vicente

Defendant: Delia

Questions referred

Is a summary procedure for the recovery of a lawyer’s fees, in which the court is unable to examine of its own motion whether the terms in the consumer contract are unfair, since the procedure does not provide for the court to intervene at any point unless the client challenges the claim and one of the parties subsequently applies to the court for a review of the final decision of the Letrado de la Administración de Justicia (Registrar), compliant with Directive 93/13 ¹ and the principle of the effectiveness of the directive, in conjunction with the right to an effective remedy in Article 47 of the Charter [of Fundamental Rights of the European Union]?

Is the fact that, in this type of summary procedure, any consideration of the unfairness of terms by the courts, whether of their own motion or on the application of a party, takes place in the context of an application for review of the decision of a non-judicial body such as the Registrar, and that the courts must in principle restrict their consideration solely to the subject matter of the decision and may not examine any evidence other than the documentary evidence already submitted by the parties, compliant with Directive 93/13 and the principle of the effectiveness of the directive, in conjunction with the right to an effective remedy in Article 47 of the Charter?

Must a term in a contract between a lawyer and a consumer such as the term at issue, which provides specifically for payment of fees in the event that the client discontinues proceedings before the case is concluded or reaches an agreement with the entity either without his or her legal team’s knowledge or against its advice, be deemed to fall within the terms of Article 4(2) of Directive 93/13, on the grounds that it is a main contract term that concerns the subject matter of the contract, in this case, the price?

If the answer to the previous question is in the affirmative, can that term, which fixes the fees by reference to a fee scale set by a bar association which establishes different rules depending on the specific circumstances and which was not mentioned in the prior information, be considered plain and intelligible in accordance with the terms of the aforesaid Article 4(2) of Directive 93/13?

If the answer to the previous question is in the negative, can the inclusion in a contract between a lawyer and a consumer of a term such as the one at issue, which fixes the lawyer’s fees purely by reference to a fee scale set by a Bar association which establishes different rules depending on the specific circumstances and which was not mentioned in the quotation for services or in the prior information, be deemed an unfair business practice under the terms of Directive 2005/29? ²

____________

¹     Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

²     Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).