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OPINION OF THE ADVOCATE GENERAL

NIL'S CHOICE

of 12 December 2013 (1)

Case C ‑ 470/12

Pohotovosť s. R. O.

against

Miroslav Vašuta

(Request for a preliminary ruling from Okresný súd Svidník [Slovakia])

"Unfair terms in consumer contracts - Enforcement from an arbitration award - Right of a consumer protection association to intervene - Request for a preliminary ruling - 'Withdrawal' of the application for enforcement by the applicant in the main proceedings - Maintaining the request by the referring court - Jurisdiction of the Court of Justice"

1. 

With this reference for a preliminary ruling, the Okresný súd Svidník (District Court of Svidník) (Slovakia) seeks the interpretation of a number of provisions of Directive 93/13 / EEC (2) in conjunction with Articles 38 and 47 of the Charter of Fundamental Rights of the European Union ( 3), in order to be able to determine whether consumer protection associations have a right to intervene in a dispute in the context of a procedure for enforcement of an arbitral award with regard to the pursuit of the high level of consumer protection laid down in Union law.

2. 

In addition to the substantive issues formally submitted to the Court of Justice, the question arises as to whether the Court of Justice is still competent to rule on the request. In view of the development that the main dispute has taken with the withdrawal of the application for enforcement by the applicant - and in accordance with the likely decision of the legal dispute on which the request for a preliminary ruling is based - it must be clarified in advance whether the Court of Justice still has to decide, with the referring court has not yet formally withdrawn this request.

3. 

Despite the legitimate doubts that may exist as to whether the request has been settled and the scant information provided by the referring court, I believe that the spirit of cooperation which is supposed to underlie the preliminary ruling proceedings ultimately prompts the Court to do so should not deny its jurisdiction. As for the matter, I take the view that the effectiveness of the protection granted to consumers, given the current state of Union law, is not guaranteed either by national legislation that prevents a consumer protection association from entering into enforcement proceedings based on an arbitral award, nor by national legislation that prevents it this allows, is impaired.

I - Legal framework

A - Directive 93/13

4.

Article 6 (1) of Directive 93/13 states:

“Member States provide that unfair terms in contracts concluded between a trader and a consumer are not binding on the consumer and lay down the conditions for this in their national legislation; they also provide that the contract remains binding for both parties on the same basis if it can exist without the unfair terms. "

5.

Article 7 of the directive provides:

'1. Member States shall ensure that adequate and effective means are in place, in the interests of consumers and professional competitors, to put an end to the use of unfair terms by a trader in contracts he enters into with consumers.

(2) The means referred to in paragraph 1 must also include legislation whereby any person or entity with a legitimate interest in protecting consumers under national law may, in accordance with national law, refer the matter to the courts or the competent administrative authorities so that they can do so decide whether contractual terms drawn up for general use are unfair and use reasonable and effective means to put an end to the use of such terms.

(3) The legal remedies referred to in paragraph 2 may be directed separately or jointly against several traders in the same economic sector or their associations, who use the same general contractual clauses or similar clauses or recommend their use, taking into account national law. "

6.

Article 8 of Directive 93/13 provides:

"Member States can adopt or maintain stricter provisions in line with the EC Treaty in the area covered by this Directive in order to ensure a higher level of protection for consumers."

B - Slovak law

7.

Section 93 of the Code of Civil Procedure in the version relevant to the main proceedings provides:

"(1) In support of the plaintiff's or the defendant's motions, a person who has a legal interest in the outcome of the proceedings may join the proceedings, except in the case of divorce proceedings, proceedings on the validity of a marriage, or to determine whether there is a marriage.

(2) In support of the plaintiff's or the defendant's motions, a legal person whose activity consists in the protection of rights according to a special provision may join the proceedings.

…“

8.

Section 251 (4) of the Code of Civil Procedure provides:

"For the enforcement of decisions and the enforcement procedure in the sense of the special regulation ... the provisions of the preceding parts apply, unless otherwise stipulated in this special regulation. However, it is always decided by resolution. "

9.

Section 37 (1) of the Enforcement Order (hereinafter: Enforcement Order) provides in the version relevant to the main proceedings:

“The parties to the proceedings are the obligee and the debtor; other persons can only join the proceedings insofar as they are granted party status in this law. If the court decides on the costs of enforcement, the appointed bailiff is also a party to the proceedings. "

10.

According to Section 25 (1) and (2) of Act No. 250/2007 on Consumer Protection, an association can appeal to an administrative body or a court to protect the rights of consumers or be a party to the proceedings if such objectives are the main object of its activity or they are included in the list of persons authorized by the national commission, without prejudice to the right of the court to determine whether that person may appeal in individual cases. In addition, on the basis of a mandate, an association can represent a consumer in proceedings before the state bodies that concern the exercise of his rights, including compensation for damage caused by the violation of his rights.

II - Facts and questions referred

11.

The facts as summarized by the referring court can be described as follows.

12.

Pohotovosť s.r.o. (hereinafter: Pohotovosť), the plaintiff in the main proceedings, granted a consumer credit to Mr Vašuta, the defendant in the main proceedings (4).

13.

For reasons not given, Mr. Vašuta was ordered by an award of the Stály rozhodcovský súd (Permanent Court of Arbitration) on December 9, 2010 to repay Pohotovosť an unspecified amount. According to the information provided by the referring court, that award has become final and enforceable.

14.

Pohotovosť then submitted an application to the competent bailiff for enforcement in accordance with the current Slovak regulations. On March 25, 2011, the bailiff applied to Okresný súd Svidník for permission to enforce the arbitration award. The district court ruled on June 29, 2011 that the enforcement proceedings should be discontinued insofar as it concerned the collection of interest on arrears, and refused the bailiff to collect the corresponding enforcement costs.

15.

On September 9, 2011, the Združenie na ochranu občana spotrebiteľa HOOS (HOOS Consumer Protection Association, hereinafter: HOOS Association) applied to join the enforcement proceedings. In particular, she submitted that the bailiff, who had been employed with Pohotovost ’in the past, had breached his duty of impartiality and that the proceedings should also be suspended.

16.

On March 27, 2012, Pohotovosť for her part applied for the HOOS association not to be admitted as an intervener, as this was not provided for in the enforcement order.

17.

The referring court ruled by an order issued by the highest ranking official (5) of the court on May 24, 2012 that this association's intervention in the enforcement proceedings was inadmissible and at the same time rejected its applications.

18.

On June 18, 2012, the HOOS association brought an action against this decision before the referring court. She alleged that Mr Vašuta had not been adequately informed and that the court had not granted him sufficient protection of its own motion against an unfair arbitration clause and had failed to draw the legal consequences of the failure to indicate the annual percentage rate in the consumer credit agreement. The referring court did not correctly apply the case-law (6).

19.

In these circumstances, Okresný súd Svidník decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

1.

Are Articles 6 (1), 7 (1) and 8 of Directive 93/13 in conjunction with Articles 47 and 38 of the Charter to be interpreted as meaning that they comply with a domestic provision such as that of Section 37 (1) and (3) of the Are there any enforcement regulations that do not allow a consumer protection association to intervene in enforcement proceedings?

2.

If the first question is answered in the sense that the above-mentioned provision does not conflict with Union law, the provisions of Section 37 (1) and (3) of the Enforcement Order are to be interpreted in such a way that they do not prevent a domestic court from acting on the basis of Article 6 (1), (7) (1) and (8) of that directive to grant a consumer protection association the status of intervener in enforcement proceedings?

III - Appreciation

A - As to whether the Court has to rule

20.

In view of the developments of which the Court of Justice became aware - and which I have described in more detail below - which are primarily related to the fact that the application for foreclosure against Mr Vašuta has been withdrawn, there are good reasons to ask whether the Court is still competent to rule on the questions referred to it.

21.

Above all, in the light of what I have said earlier, (7) it seems to me that the Court of Justice should be somewhat strict as regards its jurisdiction.

22.

It is true that it is established case-law that, in view of the specifics of the case, the national court is best placed to assess both the necessity of the reference in order to deliver its judgment and the relevance of the questions it has referred to the Court of Justice.

23.

In this sense, it seems quite customary to equate the examination of whether a dispute is actually pending before the referring court, which is a prerequisite for the jurisdiction of the Court of Justice, with the examination of the inherent relevance of the questions referred, which have a bearing on the practical effectiveness of the answers for the decision of the main dispute relates.

24.

Although it can easily be assumed that there is a presumption of the practical effectiveness of the questions referred, it is much more delicate to establish that the Court of Justice must, except in exceptional cases, declare itself competent as soon as it is referred. By definition, jurisdiction, especially that of the Court of Justice, cannot be presumed but must be demonstrated.

25.

It follows that, unlike the relative flexibility which I believe is appropriate in assessing the inherent relevance of the questions referred - I will address this issue in the second part of my Opinion - in assessing whether there is actually a dispute, must be more vigilant.

26.

The existence of a dispute is an indispensable condition for the jurisdiction of the Court of Justice, which can and must be examined ex officio (9).

27.

Moreover, it is settled case-law that national courts are only empowered to refer a preliminary ruling to the Court of Justice if they are in a dispute in which they have to give a decision which can take account of the preliminary ruling. The Court of Justice does not therefore have jurisdiction to reply to a reference for a preliminary ruling made at a time when the proceedings before the referring court have already been concluded. The justification of the reference for a preliminary ruling and, consequently, the jurisdiction of the Court of Justice, does not lie in the provision of opinions on general or hypothetical questions (12), but in the fact that the reference is necessary for the effective resolution of an existing dispute. Once this has ended, there is no need to answer the questions for a preliminary ruling.

28.

These considerations, which have only recently been reconfirmed, (13) are not only of practical value in the sense that they can ultimately help to rationalize the flood of cases before the Court of Justice has to rule. They are part of the definition of the role assigned to the Court of Justice in this area, of jurisdiction over interpretation, which cannot be exercised in the abstract but must have a compelling reference to a question which was actually raised in the main proceedings. Otherwise, there is a high risk that the Court of Justice interferes in a legal discussion which is definitely not related to the interpretation of EU law. It follows inevitably from those principles that questions put in a reference for a preliminary ruling do not have to be answered by the Court if it turns out that they have no relation to a real dispute.

29.

It is indisputably for the referring court to determine that the referral is linked to a litigation actually pending before it. According to the wording used in Foglia v Novello, (15) it is essential that the national courts set out the reasons why they consider an answer to their questions relevant to the decision if those reasons are not clear from the file. The duty of the Court of Justice to respect the national court's own area of ​​responsibility also implies that the national court should take into account the particular task that the Court of Justice performs in ruling on references for a preliminary ruling. For example, the Court of Justice has only recently ruled that it does not have to rule in a case in which the referring court, despite a request to do so, maintained its reference for a preliminary ruling without the consequences of a development or event of which the Court of Justice was aware had managed to comment on the decision to be adopted in the main proceedings and the relevance of the questions referred to the decision.

30.

What is the conclusion to be drawn from these principles in the present case?

31.

To sum up, this is a particular case before the Court which is characterized by the following two aspects.

32.

On the one hand, Pohotovosť, in its written observations submitted to the Court of Justice under Article 23 (2) of the Statute of the Court of Justice of the European Union, inter alia. informed that on November 14, 2012, she had submitted a pleading to the referring court in which she had withdrawn her application for enforcement in full and asked it to "suspend" enforcement. In her observations, Pohotovosť pointed out that, under Paragraph 57 (1) (c) of the Enforcement Regulations, the referring court was obliged to decide whether to withdraw its application and to discontinue the enforcement proceedings, and that the Court of Justice, since the main proceedings had been settled, in any event did not have to decide on the present reference for a preliminary ruling.

33.

On the other hand, after having been asked by the Court of Justice, the referring court must indicate whether the dispute in the context of which it originally made its reference for a preliminary ruling is still pending with it in the light of this withdrawal of the application and, from that point of view, whether it is maintaining the request in In its letter of 2 July 2013, it merely stated that the case was still pending and that it therefore maintained its request. In a letter received by the Court of Justice on 10 September 2013, the referring court also stated that it had indeed taken note of an application by Pohotovost 'for a' suspension '(17) of the enforcement proceedings and that the files were also in the Krajský súd v Prešove (Prešov Regional Court), before which an appeal had been lodged against the decision ordering the present reference for a preliminary ruling.

34.

Admittedly, it is extremely astonishing and regrettable that the referring court initially did not consider it necessary to inform the Court of the procedural step which occurred less than a month after the present reference for a preliminary ruling was lodged, and then despite a request from the Court to do so has not given the precise reasons why it considers that the main proceedings are still pending, although there appears to be a relationship of total dependency between the enforcement proceedings at national level and the present reference for a preliminary ruling.

35.

Given the spirit of cooperation which is supposed to underlie relations between the Court of Justice and the national courts, (18) it would have been expected that in such a situation the referring court would have provided information on the legal consequences of a makes such a withdrawal for the General Court in order to justify that the answer to the reference for a preliminary ruling is necessary for the resolution of his legal dispute and that the Court of Justice therefore has jurisdiction.

36.

However, if, as in the present case, it is unclear how the effects of a procedural step on the existence of a dispute are to be assessed, that doubt will in some way benefit the referring court. In this sense, the Court has relied on the judgment of the national court on several occasions in order to avoid any hindrance to good cooperation between the Court and the national courts.

37.

In addition, it should not be overlooked that in the context of the preliminary ruling procedure, which establishes dialogue between judges, the Court of Justice's preferred interlocutor is the national court. In the circumstances at hand, it appears delicate to rely on the information provided by one of the parties to the main proceedings in order to conclude that the main proceedings are now completely devoid of purpose (20) and that the Court of Justice is therefore not competent.

38.

Therefore, given the spirit of cooperation and mutual trust that should underpin relations between the national courts and the Court of Justice, I believe that the Court of Justice is nevertheless relying on the conclusion reached by the national court must and must not deny its jurisdiction.

B - The questions referred

39.

First of all, the inherent relevance and thus the admissibility of the questions referred, which the Slovak and German Governments seriously questioned in their written observations, should be considered.

40.

Essentially, those governments have argued that the referring court has not indicated the reasons why the provisions of Directive 93/13 in question are related to the main proceedings and the extent to which the Court of Justice's answer is therefore necessary in order to resolve that dispute. The referring court is not asking for clarification in connection with the assessment of any unfair contract terms, but for a review of national procedural rules which are not covered by the harmonization resulting from that directive. The Slovak Government also points out that the second question, by which the referring court asks the Court of Justice to rule on provisions of national law, must in any event be declared inadmissible.

41.

In my opinion, the questions raised with regard to the admissibility of the questions referred are entirely understandable, but the Court of Justice must endeavor, in accordance with the spirit of cooperation on which the preliminary ruling procedure is to be based, to give a relevant answer to the question referred.

42.

However, if one considers the questions referred in the context of the main proceedings, it cannot be ruled out that - taken together and partially reformulated - they may be significant.

43.

It appears that the referring court is not asking for an interpretation of the provisions of Directive 93/13 in the light of the Charter, but rather, by its two questions referred, wants to know whether the effectiveness of the system for protecting consumers against unfair terms is one or the other Is affected by national legislation that does not grant consumer protection associations the right to enter into a dispute in the context of foreclosure proceedings from an arbitration award.

44.

In that regard, it emerges from the order for reference that in the main proceedings the HOOS association wanted to join the enforcement proceedings brought against Mr Vašuta by Pohotovost, in particular because it was of the opinion that the referring court's decision to suspend the enforcement proceedings was only partially and to allow enforcement in addition, did not grant the consumer sufficient protection ex officio against an unfair arbitration clause and failed to draw all legal consequences from the lack of indication of the annual percentage rate in the consumer credit agreement.

45.

Moreover, in view of the procedural coloring of the cases concerning the interpretation of Directive 93/13, the doubts of the referring court can easily be understood. This is shown in particular in the decisions cited by the referring court in this connection (21), but also more generally in the case law of the Court of Justice in the field in question, in which, although the principle of procedural autonomy is referred to, this is based on the principles of effectiveness and Equivalence (22) is framed.

46.

In my opinion, the questions referred should therefore be reworded slightly so that the aim is to determine whether EU law, in particular the system of protection created by Directive 93/13, requires or, on the contrary, excludes a consumer protection association from being allowed to enforce proceedings based on an arbitration award to join.

47.

After these clarifications, I will explain in the following explanations the reasons for which I, together with the Slovak and German governments and the European Commission, take the view that the question of consumer protection associations' right to join disputes in individual disputes is neither directly nor indirectly regulated by Union law. Then I will explain why the provisions of Directive 93/13 and EU law in general do not preclude national legislation that excludes the entry of a dispute by a consumer association (see section 1 below), and why, on the other hand, there is nothing to prevent a national provision or a national court allows such a dispute to be entered (see below, section 2).

1. Directive 93/13 does not preclude national legislation which excludes the participation of a consumer protection association

48.

First of all, it should be noted that the provisions of Directive 93/13, in particular those cited by the referring court, do not contain any reference to any right of a consumer protection association to be admitted to intervene in individual disputes in general (23) and proceedings for enforcement from an arbitral award in particular become.

49.

More generally, Directive 93/13, which only provides minimum harmonization, does not harmonize the procedural means available to these associations.

50.

However, it remains to be examined whether the pursuit of the objectives of Directive 93/13, in particular those listed in Articles 6 and 7, must indirectly lead to such a right guaranteeing effectiveness with regard to the principle at issue here alone becomes.

51.

According to settled case law, the protection system created by Directive 93/13 assumes that the consumer is in a weaker negotiating position with the trader and has a lower level of information, which means that he agrees to the conditions pre-formulated by the trader without theirs To be able to influence the content (25).

52.

In view of the disadvantageous situation in which the consumer finds himself, Article 6 (1) of Directive 93/13 provides that unfair terms are not binding on the consumer. As the case-law shows, it is an overriding provision which seeks to replace the formal balance of the rights and obligations of the contracting parties with a material balance, thereby restoring their equality.

53.

In order to guarantee the protection sought by Directive 93/13, the Court of Justice has also repeatedly emphasized that the existing inequality between consumers and traders can only be compensated for by positive intervention by third parties who are independent of the contracting parties.

54.

Examination of the case law of the Court of Justice on Directive 93/13 clearly shows, in my opinion, that the 'independent intervention' in question consists primarily in the intervention of the court which is to rule on the dispute, regardless of which party The nature of the dispute or the stage of the proceedings in which it intervenes. The power of the courts to examine ex officio the unfairness of a clause in a contract submitted to them for examination (28) is an appropriate means of attaining the objective set out in Article 6 of Directive 93/13, which is is to prevent the individual consumer from being bound by an unfair term and, on the other hand, to promote the achievement of the objective of Article 7 of the directive, since such a test can act as a deterrent and thus contribute to the use of unfair terms is put to an end by traders in consumer contracts (29).

55.

In a case constellation like that in the main proceedings, I believe that the case law clearly shows that such intervention should be incumbent on the court in which proceedings for enforcement based on a final arbitration award are pending. As the Court of Justice has pointed out, a national court seised of an application for enforcement of a final arbitration award is also obliged to determine the unfairness of an arbitration clause if it has to examine ex officio under the provisions of its national procedural law that an arbitration clause has violated mandatory national rules in view of Article 6 of the directive ex officio as soon as it has the necessary legal and factual bases for this.

56.

With this intervention by the court, the effectiveness of the protection of the consumer against unfair contractual clauses is fully guaranteed, since in the event of disagreement between the parties, only the court is authorized to determine the nullity or to change the content of the unfair term.

57.

According to the information provided by the Slovak government, according to Section 2 in conjunction with Section 45 (1) (c) of Act No. 244/2002 on Arbitration, as amended, the enforcement court is obliged, in certain cases, to determine ex officio that the enforcement proceedings have been completed is, especially if the arbitration award of a party abandons a service, the provision of which is actually impossible. The referring court is therefore not only obliged to examine the unfairness of the clauses in the loan agreement at issue but is also in a position to determine that the enforcement proceedings have been completed.

58.

It is also clear from the order for reference that the referring court, which had been called upon to intervene before enforcement of the arbitration award, did not fail to examine and object to the unfair clause on default interest but apparently did not consider it necessary to examine ex officio the unfairness of the arbitration clause contained in the contract concluded between the parties to the main proceedings.

59.

In view of the above, I can hardly imagine the extent to which an entry into a dispute by the consumer protection association could have guaranteed the effectiveness of the consumer protection resulting from Directive 93/13. Such an entry into a dispute cannot make it easier for a court or compel it to carry out an examination of the unfairness of the clauses of the contested contract.

60.

While the role that consumer associations can play in pursuing the objectives of Directive 93/13 cannot be underestimated, it is, as recital 23 of the directive shows, on a completely different level and from a completely different point of view to be seen as the one who has to perceive the judgment. Actions for injunctive relief by persons or organizations who can assert a legitimate interest in protecting the consumer are, in principle, of a preventive nature and pursue a deterrent purpose, regardless of specific individual disputes (34).

61.

The Court of Justice has pointed out that, under Article 7 (1) of Directive 93/13, the Member States must ensure that adequate and effective means are in place to put an end to the use of unfair terms in consumer contracts, and to that extent from Paragraph 2 of this article states that these means include the possibility for persons or organizations with a legitimate interest in the protection of consumers to refer to the courts in order to clarify whether contractual clauses have been drawn up with a view to general use , are abusive, and possibly to achieve their prohibition (35).

62.

According to these provisions, the member states must enable consumer protection associations to take action against the unfair terms themselves on the basis of their legitimate interests. On the other hand, Directive 93/13 - just as little as the legal acts regulating injunctions for the protection of consumer interests (36) - do not contain any provisions on the role that consumer protection associations can or must play in individual disputes in which a consumer is involved is involved.

63.

Consequently, national rules such as those in the main proceedings, which do not provide for a consumer protection association to enter into enforcement proceedings based on a final judgment or arbitration award, do not run counter to the effectiveness of the objectives pursued by Directive 93/13.

64.

In addition, according to the regulation at issue in the main proceedings, an association can directly represent such a consumer in all proceedings, including enforcement proceedings, if it has been instructed accordingly by it. The fact that such a consumer may not have been informed of the procedure affecting him cannot result in the principle of effectiveness being interpreted as meaning that in such a case he would require a consumer protection association to be granted the right to intervene in a dispute to compensate for the consumer's lack of defense, since that principle does not mean that a total inaction on the part of the consumer concerned must be completely remedied (37).

65.

Finally, it remains to be examined whether the provisions of the Charter cited by the referring court can change that result in any way.

66.

With regard to Article 38 of the Charter, according to which “[t] he policy of the Union ... ensures a high level of consumer protection”, this article, which does not refer to a directly defined individual legal position, is evident - although it is in the Explanations to the Charter (38) is not cited as an example - a principle laid down and not a right (39), so that, according to Art. 52 Para Case of Directive 93/13.

67.

Even if Directive 93/13 gives consumer protection associations a legitimate interest in protecting consumers by bringing them to the courts to clarify whether contractual terms drawn up with a view to general use are unfair and, if so, their prohibition To achieve this, it does not stipulate that these associations must have a right to join individual disputes in which such consumers are involved. In this context, Article 38 of the Charter cannot lead to this directive having to be interpreted in the sense of recognition of such a right.

68.

Article 47 of the Charter provides for the right to an effective remedy and an impartial tribunal, which means that legal aid may be granted to persons who do not have sufficient resources, insofar as this aid is necessary in order to have effective access to justice guarantee.

69.

To the extent that, as already stated, Directive 93/13 requires positive intervention by the court, which is independent of the contracting parties and dealing with such disputes, in legal disputes between a trader and a consumer, in my opinion it can hardly be assumed that the refusal to establish a consumer protection association in To allow a legal dispute between a consumer and a trader to intervene is a violation of the consumer's right to effective judicial protection as guaranteed in Art. 47. The intervention of a consumer protection association cannot be equated with legal aid, which according to Art. 47 (4) is to be granted in certain cases to persons who do not have sufficient funds.

70.

Finally, as regards the possibility for a consumer protection association to invoke Article 47 in this connection, it should be noted that the refusal to admit it to intervene in proceedings in which a consumer is involved implies its right to effective judicial protection With regard to the defense of their rights as a consumer protection association, in particular their rights recognized in Article 7 (2) of Directive 93/13 to take collective action.

2. Directive 93/13 does not preclude consumer protection associations from being granted the right to intervene

71.

On the other hand, I am of the opinion that, since Directive 93/13 only provides minimum harmonization, Article 8 of the directive allows the Member States to adopt or maintain stricter provisions compatible with the Treaty in the area regulated by them in order to achieve a higher level of protection for to guarantee the consumer, and that national legislation such as Section 93 (2) of the Slovak Code of Civil Procedure can give consumer protection associations the right to intervene in civil proceedings in support of the claims made by consumers on the merits. These provisions should not prevent the court from allowing a consumer protection association to join a dispute, provided the consumer agrees, in proceedings for enforcement from an arbitration award.

72.

Such an entry into a dispute can namely as consumer protection in the sense of i.a. Serving Directive 93/13, since in this way an intervention not provided for by the court, which is independent of the contracting parties, is added to the positive intervention required under the Directive. As pointed out by the HOOS association, the intervention of consumer protection associations may result in the court becoming aware of certain national practices or clauses that have been deemed abusive by other national courts.

73.

Furthermore, the accession of consumer protection associations to enforcement proceedings should fully comply with the principle of effectiveness, since the modalities and conditions for intervening are no less favorable than those which apply to comparable situations covered by national law. In relation to the main proceedings, the question of whether or not consumer protection associations join the dispute according to Section 37 (1) of the Enforcement Code concerns all persons who wish to join the enforcement proceedings, regardless of their respective capacity or the subject area concerned.

74.

In the light of the foregoing, I propose that the national court should reply that the protection afforded to consumers by Directive 93/13, read in conjunction with Articles 38 and 47 of the Charter, must be interpreted as meaning that that directive may be subject to circumstances such as those in the main proceedings does not preclude a provision of national law that does not allow a consumer protection association to enter into enforcement proceedings arising from an arbitration award. However, these provisions also do not prevent the court from allowing such an association to intervene in proceedings for the enforcement of an arbitration award.

IV result

75.

Having said that, I propose that the Court answer the questions put by Okresný súd Svidník as follows:

The protection granted to consumers by Council Directive 93/13 / EEC of April 5, 1993 on unfair terms in consumer contracts, in particular in Article 6 Paragraph 1, Article 7 Paragraph 1 and Article 8, is in connection with to interpret Articles 38 and 47 of the Charter of Fundamental Rights of the European Union in such a way that, in circumstances such as those in the main proceedings, this directive does not preclude a provision of national law which does not allow a consumer protection association to enter into enforcement proceedings based on an arbitration award. However, these provisions also do not prevent the court from allowing such an association to intervene in proceedings for the enforcement of an arbitration award.


(1) Original language: French.

(2) Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(3) Hereinafter: Charter.

(4) According to information I received after consulting the national files, this contract is said to have been concluded in 2010.

(5) This is the name given in the order for reference. It cannot be determined whether this officer is a judge or not.

(6) It refers to the judgment of October 6, 2009, Asturcom Telecomunicaciones (C-40/08, 2009 ECR I-9579), and to the decision of November 16, 2010, Pohotovosť (C-76/10 , Coll. 2010, I-11557).

(7) See my Opinion in Macinský and Macinská (C ‑ 482/12), before the Court of Justice.

(8) Judgments of October 21, 2010, Padawan (C-467/08, ECR 2010 ECR I-10055, paragraphs 21 et seq. And the case-law cited), and of December 9, 2010, Fluxys (C-241 / 09, ECR 2010, ECR I-12773, paragraph 28).

(9) See in particular the judgment of September 11, 2008, UGT ‑ Rioja et al. (C-428/06 to C-434/06, ECR 2008, ECR I-6747, paragraph 40), and order of 22 October 2012, Šujetová (C ‑ 252/11).

(10) See, to that effect, judgment of 20 January 2005, García Blanco (C-225/02, 2005 ECR I-523, paragraph 27), and order of 24 March 2009, Nationale Loterij (C- 525/06, ECR 2009, ECR I-2197, paragraphs 10 and 11).

(11) Judgments of April 21, 1988, Pardini (338/85, ECR 1988, 2041, paragraph 11) and of October 4, 1991, Society for the Protection of Unborn Children Ireland (C-159/90, ECR 1991, I-4685, paragraph 12).

(12) Judgment of 7 November 2013, Romeo (C ‑ 313/12, paragraph 40 and the case-law cited).

(13) See order in Šujetová, paragraphs 27 to 32, and judgment of 24 October 2013, Stoilov i Ko (C ‑ 180/12, paragraphs 39, 44 and 46).

(14) Related to e.g. B. on the main proceedings, it emerges from the written observations that the Slovak courts interpret the provisions of the Slovak Code of Civil Procedure and the Slovak Enforcement Code on the right of consumer protection associations to enter into foreclosure proceedings differently. In addition, there is the suspicion of partiality on the part of the persons involved in the enforcement proceedings, in this case the bailiff commissioned with enforcement (see No. 15 of this Opinion).

(15) Judgment of 16 December 1981 (244/80, 1980 ECR, 3045, paragraphs 17 and 20).

(16) That was the case in which the judgment of 27 June 2013, Di Donna (C ‑ 492/11, paragraph 28), was given. See, to that effect, Stoilov i Ko, paragraphs 39, 44 and 46.

(17) However, the referring court stated that it was notified of this request on 27 December 2012.

(18) In this regard, it should be recalled that point 30 of the Recommendations to the national courts with regard to the submission of references for a preliminary ruling (OJ 2012, C 338, p. 1) expressly states that the referring court in the interests of a For the orderly conduct of the preliminary ruling procedure before the Court of Justice and in order to ensure its effectiveness in practice, it is necessary to inform the Court of all procedural steps which may affect the reference.

(19) Cf. in particular judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, ECR 1974, 33, paragraph 4), and of 16 December 2008, Cartesio (C-210/06, 2008 ECR I-9641, paragraph 96).

(20) In that regard, the main proceedings differ from the case in which the Šujetová order was given. This followed immediately after Ms. Šujetová's action was withdrawn, who benefited from the protection provided by Directive 93/13, and not only after information from the creditor.

(21) The Asturcom Telecomunicaciones judgment concerned an application for enforcement of a final arbitration award made in the absence of the consumer and the obligation of the enforcement judge to examine ex officio the unfairness of the arbitration clause. The Pohotovosť decision, following on from this judgment, specifies the obligation of the enforcement judge to examine ex officio the unfairness of the sanction provided for in a loan agreement.

(22) See in particular judgments of 14 June 2012, Banco Español de Crédito (C ‑ 618/10), and of 14 March 2013, Aziz (C ‑ 415/11).

(23) This question differs from the protective measures which these associations can take (see points 59 et seq. Of this Opinion).

(24) See point 19 of the Opinion of Advocate General Mengozzi of 5 September 2013 in the case in which the judgment of 5 December 2013, Asociación de Consumidores Independientes de Castilla y León (C ‑ 413/12), was given .

(25) Judgments of 27 June 2000 in Océano Grupo Editorial and Salvat Editores (C-240/98 to C-244/98, ECR 2000 ECR I-4941, paragraph 25) and of 26 October 2006 in Mostaza Claro (C-168/05, ECR 2006 ECR I-10421, paragraph 25) and the Pohotovost order (paragraph 37).

(26) Judgments in Mostaza Claro, paragraph 36, and of 4 June 2009, Pannon GSM (C-243/08, 2009 ECR I-4713, paragraph 25) and the Pohotovost 'order (paragraph 38) .

(27) Judgments in Océano Grupo Editorial and Salvat Editores (paragraph 27), Mostaza Claro (paragraph 26) and Asturcom Telecomunicaciones (paragraph 31) and the Pohotovost 'order (paragraph 39).

(28) See in particular the judgments in Banco Español de Crédito (paragraphs 42 to 44) and Aziz (paragraphs 46 and 47).

(29) Judgments of 21 November 2002, Cofidis (C-473/00, ECR 2002, ECR I-10875, paragraph 32), Mostaza Claro (paragraph 27) and the Pohotovost 'order (paragraph 41).

(30) See, to that effect, Pannon GSM (paragraph 32) and Asturcom Telecomunicaciones (paragraph 53) and the Pohotovost 'order (paragraph 51).

(31) I would remind you that in the Pohotovost 'order (paragraphs 40 and 41) the Court of Justice had already given important explanations about the options available to the courts when contracts do not contain information on the APR.

(32) It was decided on June 29, 2011 that the procedure regarding the collection of interest on arrears at the daily rate of 0.25% on an amount of EUR 309 was not to be carried out from July 8, 2010 until the date of payment, and that insofar enforcement costs incurred are not to be recovered.

(33) The annex to Directive 93/13, which contains an indicative list of clauses which may be declared unfair, states in point 1 (q) clauses which aim at or have the effect that “the consumer will The possibility of appealing to court or other means of appeal is taken away or made more difficult, in particular by the fact that he is only referred to arbitration proceedings that are not subject to the legal provisions, the evidence available to him is unduly restricted or the burden of proof is on him is imposed which would be incumbent upon another contracting party under applicable law ”.

(34) Judgment of 26 April 2012, Invitel (C ‑ 472/10, paragraph 37 and the case-law cited). See also point 12 of the Opinion of Advocate General Geelhoed in the case in which the judgment of 9 September 2004, Commission v Spain (C-70/03, 2004 ECR I-7999) was given.

(35) Invitel, paragraphs 35 and 36 and the case-law cited.

(36) It is indeed noteworthy that Directive 2009/22 / EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumer interests (OJ L 110, p. 30) and Directive 2011 / 83 / EU of the European Parliament and of the Council of October 25, 2011 on consumer rights, amending Directive 93/13 and Directive 1999/44 / EC of the European Parliament and of the Council and repealing Directive 85/577 / EEC of the Council and Directive 97/7 / EC of the European Parliament and of the Council (OJ L 304, p. 64) do not provide that a consumer protection association can join an individual legal dispute.

(37) See, to that effect, Asturcom Telecomunicaciones, paragraph 47.

(38) In the explanatory notes on the Charter of Fundamental Rights (OJ 2007, C 303, p. 17), Art. 25, 26 and 37 are cited as examples of the principles recognized in the Charter.

(39) Regarding the distinction between 'rights' and 'principles' and the conditions for invoking the latter, reference is made in particular to points 43 et seq. Of the Opinion of Advocate General Cruz Villalón in the Association de médiation sociale (C ‑ 176 / 12) referenced.