Case C-618/10

Banco Español de Crédito, SA

v

Joaquín Calderón Camino

(Reference for a preliminary ruling from the Audiencia Provincial de Barcelona)

‛Directive 93/13/EEC — Consumer contracts — Unfair term concerning interest on late payments — Order for payment procedure — Powers of the national court’

Summary of the Judgment

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim

   (Council Directive 93/13)

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation on the national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair — Scope

   (Council Directive 93/13)

3. European Union law — Direct effect — National procedural rules — Conditions under which applicable — Observance of the principles of equivalence and of effectiveness

4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Order for payment procedure — No power for the national court to assess of its own motion whether a term in a contract submitted to it for assessment is unfair in the case where the consumer has not lodged an objection — Not permissible — Failure to comply with the principle of effectiveness

   (Council Directive 93/13)

5. European Union law — Interpretation — Methods — Literal, systematic and teleological interpretation

6. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a term is unfair — Scope — National legislation allowing a national court which finds that an unfair term is void to revise its content — Not permissible

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

7. Acts of the institutions — Directives — Implementation by the Member States — Need to ensure that directives are effective — Obligations of national courts — Obligation to interpret national law in conformity with European Union law

   (Council Directive 93/13)

8. Preliminary rulings — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no connection to the subject matter of the main proceedings — Lack of jurisdiction of the Court

   (Art. 267 TFEU)

1.  See the text of the judgment.

   (see paras 39, 40)

2.  See the text of the judgment.

   (see paras 42-44)

3.  See the text of the judgment.

   (see paras 46, 47, 49)

4.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court before which an application for an 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 the legal and factual elements necessary for that task available to it, whether a term concerning interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection. Such national legislation appears not to comply with the principal of effectiveness because it makes it impossible or excessively difficult, in proceedings initiated by suppliers and sellers in which consumers are defendants, the application of the protection which Directive 93/13 seeks to confer on those consumers.

   (see paras 56, 57, operative part 1)

5.  See the text of the judgment.

   (see para. 61)

6.  It follows from the wording of Article 6(1) of Directive 93/13 on unfair terms in consumer contracts that the national courts are required only to exclude the application of an unfair contractual term in order that it does not produce binding effects with regard to the consumer, without being authorised to revise its content. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible.

   Consequently, Article 6(1) of Directive 93/13 must be interpreted as precluding legislation of a Member State which allows a national court to modify a contract concluded between a seller or supplier and a consumer, by revising the content of the unfair term concerning interest on late payments, in the case where it finds that that term is void.

   (see paras 65, 73, operative part 2)

7.  See the text of the judgment.

   (see para. 72)

8.  See the text of the judgment.

   (see paras 76, 77, 88)