Case C-40/08

Asturcom Telecomunicaciones SL

v

Cristina Rodríguez Nogueira

(Reference for a preliminary ruling from the Juzgado de Primera Instancia nº 4 de Bilbao)

(Directive 93/13/EEC – Consumer contracts – Unfair arbitration clause – Measure void – Arbitration award which has become final – Enforcement – Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void – Principles of equivalence and effectiveness)

Summary of the Judgment

Approximation of laws – Unfair clauses in consumer contracts – Directive 93/13

(Council Directive 93/13, Art. 6(1))

Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.

For the purpose of that assessment, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6 of the directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy.

(see paras 52, 59, operative part)