Case C‑598/15

Banco Santander SA

v

Cristobalina Sánchez López

(Request for a preliminary ruling from the Juzgado de Primera Instancia de Jerez de la Frontera)

(Reference for a preliminary ruling — Directive 93/13/EEC — Consumer contracts — Unfair terms — Powers of the national court — Effectiveness of the protection afforded to consumers — Mortgage loan agreement — Extrajudicial enforcement procedure — Simplified declaratory court procedure for recognition of the real rights of the successful bidder)

Summary — Judgment of the Court (Fifth Chamber), 7 December 2017

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Extrajudicial mortgage enforcement procedure of consisting in the award of a consumer’s immovable property to his creditor without protest on the part of the consumer — Proceedings independent of the relationship between the creditor and the consumer — Not included

(Council Directive 93/13, Art. 6(1) and 7(1))

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer do not apply to proceedings such as those at issue in the main proceedings, brought by the successful bidder in an auction of immovable property, following extrajudicial enforcement of a mortgage granted over that property by a consumer to a creditor acting in the course of trade, such proceedings having been brought for the purpose of protecting real rights lawfully acquired by the successful bidder, provided that, first, the proceedings are independent of the legal relationship between that creditor and the consumer and, second, the mortgage has been enforced, the immovable property sold, the real rights over that property transferred, and the consumer has not availed himself of the legal remedies provided in that context.

In any event, in the first place, although the objective of Directive 93/13 is to ensure the protection it confers on consumers is guaranteed, to the point of requiring a national court, of its own motion, to review the unfairness of a contractual term falling within the scope of that directive, it should nevertheless be borne in mind that the provisions of the directive cannot be relied on where there is no corroborating evidence of an unfair term in a loan agreement secured by a mortgage which has been the subject of extrajudicial enforcement. In the second place, as stated by the Advocate General in point 70 of his Opinion and subject to verification by the referring court, it appears that Ms Sánchez López had the opportunity, at the time of the extrajudicial procedure for transfer of the property, to challenge or seek a suspension of the procedure on the ground that the mortgage loan agreement contained an unfair term, and apply for interim measures so as to suspend the sale of the immovable property of which she was the owner. It is within the course of the mortgage enforcement procedure that the court seised could, if necessary of its own motion, have carried out a review of the potential unfairness of terms stipulated in the mortgage loan agreement.

(see paras 48-50, operative part)