Case C‑168/15

Milena Tomášová

v

Slovenská republika — Ministerstvo spravodlivosti SR

and

Pohotovosť s. r. o.

(Request for a preliminary ruling

from the Okresný súd Prešov)

‛Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Credit agreement containing an unfair term — Enforcement of an arbitration award in accordance with that term — Member State liability for damage caused to individuals by breaches of EU law attributable to a national court — Conditions of engagement — Existence of a sufficiently serious breach of EU law’

Summary — Judgment of the Court (First Chamber), 28 July 2016

1. EU law — Rights conferred on individuals — Infringement by a Member State — Obligation to make good damage caused to individuals — Conditions in the case of infringement ascribable to a supreme court — Whether the infringement is obvious — Criteria

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 —Proceedings for enforcement of a final arbitration award — Obligation for the court dealing with the enforcement proceedings to assess of its own motion the unfair nature of the contractual terms which give rise to the debt determined in that arbitration award

   (Council Directive 93/13)

3. EU law — Rights conferred on individuals — Infringement by a Member State — Obligation to make good damage caused to individuals — Conditions in the case of infringement ascribable to a supreme court — Whether the infringement is obvious — Consumer protection — Proceedings for enforcement of a final arbitration award —National judicial decisions preceding the case-law establishing the obligation on the national court to examine of its own motion the unfairness of a contractual term — Exclusion of the obligation — No manifest infringement

   (Council Directive 93/13)

4. EU law — Rights conferred on individuals — Infringement by a Member State — Obligation to make good damage caused to individuals — Conditions — Rules on compensation — Application of national law — Limits — Respect for the principles of equivalence and effectiveness

1.  See the text of the decision.

   (see paras 18-20, 22-26)

2.  Although, according to the Court’s case-law, the system of consumer protection established by Directive 93/13 on unfair terms in consumer contracts involves recognition of the national court’s power to determine of its own motion whether a term is unfair, it is only in its judgment of 4 June 2009 in Pannon GSM, C‑243/08, that the Court clearly stated that the role assigned by EU law to national courts is not limited to a mere power to rule on the possible unfairness of a contractual term falling within the scope of that directive, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task. In particular, in such a case, the national court hearing an action for enforcement of a final arbitration award has available to it the necessary legal and factual elements, that court is required to assess of its own motion the unfair nature of the contractual terms which give rise to the debt determined in that arbitration award in the light of the provisions of that directive, when, under national rules of procedure, it must, in similar enforcement proceedings, assess of its own motion whether such terms are in conflict with national rules of public policy.

   (see paras 28, 30, 32)

3.  Member State liability for damage caused to individuals as a result of a breach of EU law by a decision of a national court may be incurred only where that decision is made by a court of that Member State adjudicating at last instance, which it is for the referring court to determine in respect of the main proceedings. If that is the case, a decision by that national court adjudicating at last instance may constitute a sufficiently serious breach of EU law, capable of giving rise to that liability, only where, by that decision, that court manifestly infringed the applicable law or where that infringement takes place despite the existence of well-established Court case-law on the matter.

   It cannot be concluded that a national court which, prior to the judgment of 4 June 2009 in Pannon GSM, C‑243/08, failed, in the context of proceedings for enforcement of an arbitral award upholding a claim for payment of debts under a contractual term which must be regarded as unfair within the meaning of Council Directive 93/13 on unfair terms in consumer contracts, to assess of its own motion whether that term is unfair, although it has available to it the legal and factual elements necessary for that purpose, manifestly disregarded the Court’s case-law on the matter and, therefore, committed a sufficiently serious breach of EU law.

   (see paras 33, 34, 36, operative part 1)

4.  The rules regarding reparation for damage caused by a breach of EU law, such as those concerning the assessment of such damage or the relationship between a claim for that reparation and other remedies which could be available, such as an action for the recovery of undue payments, are determined by the national law of each Member State, in conformity with the principles of equivalence and effectiveness.

   (see paras 39-41, operative part 2)