1.

The present request for a preliminary ruling concerns the interpretation of Directive 1999/44/EC. ( 2 ) The essential issue is whether a court must, of its own motion, reduce the sale price of defective goods (in this case, a convertible car with a non-watertight roof) in the case where rescission of the contract is excluded owing to the minor nature of the defect but the consumer concerned has applied to the court solely for rescission of the contract.

2.

The background to this request for a preliminary ruling is the organisation of Spanish procedural law, which, according to the referring court, precludes an order granting a price reduction. The Court of Justice must therefore examine whether Directive 1999/44 requires the national court to act of its own motion in such a situation.

3.

This is the third time that Directive 1999/44 has been the subject of a request for a preliminary ruling. ( 3 ) However, unlike the other two cases, the present case does not concern the extent or scope of a consumer’s rights, but, for the first time, the assertion of those rights in legal proceedings.

4.

According to recital 1 in the preamble to Directive 1999/44, the purpose of the Directive is to achieve a high level of consumer protection. Consequently, recital 5 states that a common set of minimum rules of consumer law should be created. Recital 24 states that Member States should be allowed to adopt or maintain in force more stringent provisions to ensure an even higher level of consumer protection.

5.

Article 3 of the Directive regulates the rights of the consumer and reads as follows:

‘1.   The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.

2.   In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, in accordance with paragraph 3, or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods, in accordance with paragraphs 5 and 6.

…

5.   The consumer may require an appropriate reduction of the price or have the contract rescinded:

6.   The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.’

6.

Article 8 of the Directive is entitled ‘National law and minimum protection’ and paragraph 2 thereof states as follows:

‘Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection.’

7.

Ley 23/2003 de Garantías en la Venta de Bienes de Consumo ( 4 ) (Law on guarantees covering sales of consumer goods; ‘Law 23/2003’), of 10 July 2003, transposed Directive 1999/44 into Spanish law. ( 5 )

8.

Articles 4 to 8 of that law contain provisions which correspond to Article 3 of Directive 1999/44. The provisions on reduction and contract rescission corresponding to Article 3(5) and (6) of the Directive are contained in Article 7 of Law 23/2003.

9.

The Spanish Code of Civil Procedure (Ley de Enjuiciamiento Civil; ‘the LEC’) ( 6 ) contains a provision on the dispositive principle (the principle that the parties themselves are to determine the subject matter of proceedings) (Article 216 of the LEC) which states that the courts are to decide cases on the basis of the facts, evidence and claims put forward by the parties. Article 218 of the LEC lays down the principle of congruency and provides that judgments must not go beyond the subject matter of the application and other claims and contentions of the parties, properly put forward in the course of the proceedings.

10.

Article 400 of the LEC provides that, when the remedy claimed in an action can be based on various facts or various legal principles, it will be necessary to specify in the action those which are known or can be relied on at the time when the action is brought. It is not permissible to defer claims to later proceedings. Moreover, for the purposes of the res judicata rule, the facts and legal bases put forward in any proceedings will be regarded as being the same as those put forward in an earlier case if they could have been pleaded in that earlier case.

11.

In July 2004, Ms Soledad Duarte Hueros (‘Ms Duarte’) purchased a Citroën car from Autociba S.A. (‘Autociba’) for the price of EUR 14 320. The car model was a Citroën C3 Pluriel 1.41, which has a sliding roof and can therefore be converted into an open-topped car. The car was delivered and licensed to Ms Duarte in August 2004.

12.

The car subsequently had to be brought to the workshop on numerous occasions because, when it rained, water leaked in through the roof. The defect could not be removed despite several attempts to rectify it. ( 7 ) Ms Duarte initially requested that the car be replaced, a request which was rejected by Autociba. Finally, in March 2011, Ms Duarte brought an action against Autociba and the manufacturer of the car, Automóviles Citroën España (‘Citroën Spain’), seeking rescission of the sale contract and repayment of the purchase price.

13.

The referring court states that the requested rescission of the contract is excluded under Law 23/2003 because the defect is minor. Ms Duarte is entitled only to a reduction of the full purchase price. However, the amount of the reduction cannot be awarded to her under Spanish procedural law as Ms Duarte sought only rescission of the contract and repayment of the purchase price and did not (at least in the alternative) request a price reduction. Ms Duarte was also unable to defer her claim for a reduction to later proceedings. This is precluded under the LEC by the extension of res judicata to cover all claims which could have been made, but were not made, in earlier proceedings.

14.

The Juzgado de Primera Instancia no 2 de Badajoz (Court of First Instance, Section No 2, Badajoz) therefore stayed the proceedings by order of 13 January 2012, received at the Registry of the Court of Justice on 24 January 2012, and referred the following question to the Court of Justice for a preliminary ruling:

‘If a consumer, after failing to have the product brought into conformity – because, despite repeated requests, repair has not been carried out – seeks in legal proceedings only rescission of the contract, and such rescission is not available because the lack of conformity is minor, may the court of its own motion grant the consumer an appropriate price reduction?’

15.

In the proceedings before the Court of Justice, Autociba, the Commission and the Spanish Government made written and oral submissions. Ms Duarte and the French, Hungarian and Polish Governments also took part in the written procedure. The German Government presented only oral argument.

16.

As regards the admissibility of the request for a preliminary ruling, it should be noted that, under Article 267 TFEU, the Court of Justice has jurisdiction only to interpret European Union law. However, the wording of the question referred does not concern the interpretation of European Union law but refers more abstractly to the question whether a national court may grant a reduction of its own motion.

17.

In the light of the further remarks made in the request for a preliminary ruling, my understanding, like that of the Spanish and Polish Governments, of the question referred is that the referring court wishes to know whether Directive 1999/44 must be interpreted as meaning that a court must be able to grant a reduction of its own motion in the case where the consumer has not requested it in the procedure but is entitled to it under the Directive. The question referred is therefore admissible in this adapted formulation.

18.

In my view, the question referred must also be reformulated in another respect: the referring court asks whether the Directive allows a national court to grant a reduction of its own motion, in other words, whether the national court may grant a reduction of its own motion. However, in order to provide a helpful reply, it is necessary, rather, to examine whether the Directive requires the national court to grant a reduction of its own motion, in other words, whether the national court must grant a reduction of its own motion.

19.

Autociba, Citroën España and the Ministerio Fiscal ( 8 ) also cast doubt on the admissibility of the request for a preliminary ruling on the ground that, as the Spanish legislature transposed the Directive into national law, the present case concerns only issues of national law. Therefore, they argue, the Court of Justice does not have jurisdiction to interpret the question.

20.

However, this is not correct, as this argument conflicts with the principle of uniform application of European Union law. That a directive has been transposed into national law does not, of course, alter the fact that the provisions ultimately refer to a provision of European Union law. In order to preserve the uniformity of European Union law, it is also crucial, for purposes of their interpretation, how the directive on which they are based is to be interpreted. The Court of Justice alone has jurisdiction to interpret that directive. Thus, the request for a preliminary ruling is also admissible in this respect.

21.

Finally, Autociba contends that the claim to a reduction and to rescission of the contract is time-barred and that the request for a preliminary ruling is therefore inadmissible. The question as to when claims under the Directive become time-barred is determined in principle by national law, which, however, must observe the minimum limitation period of two years laid down in Article 5(1) of the Directive. It is solely for the national court to examine whether or not the limitation period has actually expired. In the context of a request for a preliminary ruling, it is also a matter for the national court before which the dispute has been brought to determine the need for a preliminary ruling in order to enable it to deliver judgment. Accordingly, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling. ( 9 ) As the referring court has not submitted any question on the interpretation of Article 5(1) to the Court, there can be no question of any time-barring of Ms Duarte’s claims in respect of the present request for a preliminary ruling and of the admissibility of the preliminary ruling.

22.

The referring court wishes to know whether Directive 1999/44 requires a court to reduce the purchase price of a defective product of its own motion if a consumer has sought only rescission of the contract in legal proceedings, to which, however, he is not entitled.

23.

The background to the question referred is the organisation of Spanish procedural law. In her application, Ms Duarte has sought solely rescission of the sale contract and repayment of the whole purchase price, to which she is not entitled where the defect is minor in nature (see the second sentence of Article 7 of Law 23/2003 and, correspondingly, Article 3(6) of the Directive). Although she is indisputably entitled to a price reduction under the first sentence of Article 7 of Law 23/2003 (which corresponds to Article 3(5) of the Directive), she did not apply for that reduction in her application. The referring court states that it is therefore precluded under the principle of congruency applicable in Spanish law ( 10 ) from merely granting a price reduction instead of rescission of the contract. The court is bound by the specific claim put forward by the consumer. ( 11 ) Similarly, there can be no question of amending the application under Spanish law, and a new application for payment of a reduced amount is also excluded because of the extension of the res judicata effect of the first set of proceedings under Article 400 LEC. The referring court is therefore uncertain whether that outcome is compatible with Directive 1999/44.

24.

As the Spanish Government rightly states, a distinction should therefore be drawn between two questions. Firstly, what rights does Ms Duarte have under the Directive and, secondly, how can an existing right be procedurally enforced. Since Ms Duarte, according to the referring court, is indisputably entitled to a reduction in the purchase price and the referring court has also established that the right to rescission of the contract is excluded, the present case merely concerns the second question, namely how Ms Duarte can assert her rightful claim in legal proceedings.

25.

The purpose of Directive 1999/44, according to recital 1 in the preamble thereto, is to achieve a high level of consumer protection. ( 12 ) In the case of a defective supply, which is consequently in breach of contract, Article 3 of the Directive therefore lays down numerous rights for the consumer. However, the Directive contains no provisions on how those rights are to be asserted in judicial proceedings. ( 13 )

26.

It is the Court’s settled case-law that, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Directive 1999/44. ( 14 ) However, the Member States must have regard for the principles of equivalence and effectiveness in this respect. ( 15 )

27.

As the French Government states, the national court can be obliged to grant a price reduction of its own motion in the present case only if such a possibility already exists in national law or if it is necessary in order to guarantee the full effectiveness of European Union law. Since, according to the request for a preliminary ruling, Spanish procedural law does not provide for a court to grant a reduction of its own motion, the question arises as to whether that law respects the principles of equivalence and effectiveness.

28.

The principle of equivalence requires that the specific procedural rules governing claims under European Union law must not be less favourable than those governing similar domestic actions. ( 16 ) There has been no apparent infringement of the principle of equivalence in this case. The provisions of Spanish procedural law apply irrespective of whether the subject of the action is a claim under European Union law or a claim under national law.

29.

The principle of effectiveness requires that a provision of national procedural law must not render virtually impossible or excessively difficult the exercise of rights conferred by European Union law. ( 17 ) Account must be taken in this regard of the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances, ( 18 ) and, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure. ( 19 )

30.

It should first be noted in this connection that Ms Duarte could, in principle, have applied for a price reduction in her action. ( 20 ) It would also have been possible to apply for a reduction in the alternative, alongside the application for rescission of the sale contract. When questioned, the Spanish Government stated that there would have been no disadvantage for the applicant, such as higher court costs, in submitting a claim in the alternative. In principle, therefore, Spanish procedural law does not exclude the assertion in legal proceedings of the right derived by the applicant from the Directive. Rather, all consumers are free to bring actions in respect of all of their claims under the Directive, with the result that it is possible to exercise the rights derived from the Directive.

31.

However, in my view, the organisation of Spanish procedural law makes it excessively difficult to exercise those rights.

32.

Although there can, in principle, be no objection to the court being bound by the applicant’s specific application, this assumes that the applicant will make the right application if he wants to be successful in the procedure. That provision is the expression of the dispositive principle applicable both in Spanish procedural law and in many other codes of procedure of the Member States, according to which the parties determine the procedure and take the initiative in proceedings. The objective of that principle is to safeguard the rights of the defence and to ensure the proper conduct of proceedings by, in particular, protecting those proceedings from the delays inherent in the examination of new pleas. ( 21 ) The Court of Justice has already stated on several occasions that the dispositive principle is, in itself, compatible with the requirement of effectiveness. ( 22 ) In general, therefore, a consumer can be expected to assert his claims in judicial proceedings and make the right application, if necessary also in the alternative. This applies all the more so in respect of proceedings in which, as in the present case, the parties must be represented by a lawyer.

33.

However, Spanish procedural law is so organised that a single procedural error, such as the submission of an incorrect application or the failure to submit an application in the alternative, has the result that an entitlement actually based on the Directive can no longer be asserted. This outcome, particularly in view of the fact that the Directive is intended to achieve a high level of consumer protection, seems to me to be very drastic and strict and also, in view of the objective pursued by the relevant provisions, disproportionate.

34.

Firstly, Spanish law, as outlined by the referring court, adopts, on the one hand, a very narrow interpretation of the binding nature of an application on the national court, since only the claim specifically submitted will be examined. However, on the matter of the extension of res judicata, it adopts, on the other hand, a very broad interpretation whereby all claims which the consumer could have brought are covered and excluded from any new action. This alone results in an excessive burden on the consumer.

35.

Secondly, the provisions go beyond what is necessary to achieve their objectives. The binding of a court’s decision to a specific application is designed to protect the defendant’s rights and to promote the resolution of the dispute. Whereas preservation of the defendant’s rights would also be possible at a later stage of the procedure, by, for example, giving the defendant the opportunity to make his views known on an amended application, there is no longer any possibility of protecting the applicant’s rights at a later stage because this is precluded by the extension of res judicata. Although the resolution of the dispute is undoubtedly aided by the provisions of the LEC, no significant delay in the proceedings is at all likely to occur in the present case. The matter of a reduction concerns the same facts and the same parties as the rescission of the contract, with the result that recourse could be had to the findings previously made in the proceedings. The – in any event – small risk of a delay in the proceedings is out of all proportion to the drastic measure involved in the complete exclusion of the possibility of protecting the consumer’s rights.

36.

Moreover, precisely in issues of fact such as, for example, the minor nature of a defect, the success of the application often depends on the evidence submitted in the proceedings and cannot be foreseen before the action is brought. This is quite clear from the case here at issue. Ms Duarte applied for rescission of the contract because an expert opinion did not consider the defect to be minor. However, the taking of evidence by the competent court resulted in a different conclusion. In order to fulfil the requirements of Spanish procedural law as described in the request for a preliminary ruling, a consumer must always submit all possible claims, at least in the alternative. Only in this manner can the consumer ensure, in view of possible developments in the course of the proceedings, that he can enforce his rights derived from the Directive in relation to a specific factual situation. In view of the potential consequences of failure to submit an alternative claim, this renders enforcement of those rights excessively difficult and infringes the principle of effectiveness.

37.

The question therefore arises how the principle of effectiveness can be taken into account in the present case. The Court has already ruled that, if the referring court were to find such an infringement of the principle of effectiveness, it would be for that court to interpret the domestic jurisdictional rules in such a way that, wherever possible, they contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under European Union law. ( 23 ) Should this not be possible, the national court is under a duty to set aside, of its own motion, the conflicting provision of national legislation, that is to say, in the present case, the national procedural rules at issue in the main proceedings which require the decisions of national courts to be strictly bound by the form of order sought. ( 24 )

38.

The referring court must therefore examine whether, by way of interpretation of national procedural law, measures can be found to enable the consumer’s rights to be effectively protected and her claim under the Directive to be enforced even in spite of the incorrectness of her initial application.

39.

However, the procedural autonomy of the Member States must be respected in this regard. The interpretation of national law must take account of the value judgments on which the Member State’s rules are based. The purpose of the provision in Spanish procedural law is, inter alia, to protect the rights of defence of the other party to the proceedings and to facilitate the final resolution of the dispute. It is not therefore necessary for a consumer to have unlimited scope to alter or resubmit his application at will. This would not be compatible with the defence rights of the opposing party. It is merely sufficient for him to be given the possibility of responding at least once to any developments in the proceedings such as the outcome of the taking of evidence. In this way, moreover, the final resolution of the dispute is not jeopardised.

40.

The referring court proposes that it should grant a price reduction of its own motion. This undoubtedly affords the consumer the possibility of ensuring that her rights are preserved. However, this would also result in the dispositive principle being severely restricted and one of the basic procedural principles of the Member States would thereby be affected. If the requirement of a specific claim were disregarded, a consumer could act passively in the proceedings and wait until the court grants him what he is actually entitled to. This goes beyond what is necessary to protect the consumer.

41.

In fact, the Directive does not require a consumer’s claims under Article 3 to be granted to him without his involvement. If that were the intention, provisions to that effect would have been adopted in the Directive. As the Polish Government rightly points out, the Directive provides that the consumer may choose which rights derived from the Directive he would like to assert (see Article 3(2) and (5) of the Directive). Secondly, it assumes that the consumer must be able to assert his rights by the normal means available under the law (but he also has to do this if he wishes to enforce his rights), where necessary even on the condition that the consumer observes specific time-limits for informing the seller of a defect. ( 25 ) Also, the requirement of effective legal protection demands no more than this. ( 26 ) All that is necessary is that the consumer can assert his rights, but this already implies that he must also do this. Thus, the Directive does not impose a general obligation on the national court to grant a reduction of its own motion.

42.

Moreover, no obligation to grant a reduction can be derived from the Court’s case-law on Directive 1993/13, ( 27 ) as the Commission suggests. Unlike the Commission, I do not, in fact, consider that that case-law can be transposed.

43.

Although the two directives are similar inasmuch as they both relate to consumer protection in legal relations and are intended to achieve a high level of consumer protection, they are, by reason of their differing aims, not so comparable as to allow transposition of the Court’s case-law on the Unfair Terms Directive.

44.

Whereas Directive 1993/13 seeks to compensate for the inferior position in which a consumer finds himself when concluding a contract with an undertaking, Directive 1999/44 concerns the implementation of a contract which has already been concluded. These are two very different situations.

45.

An imbalance at the time of conclusion of a contract can only be removed by the intervention of a third party. ( 28 ) A consumer cannot normally judge whether a term is unfair. If such knowledge were expected of him and if he were required to rely on the invalidity of a term, the enforcement of the Directive would be jeopardised. ( 29 )

46.

Undertakings should also be deterred from using unfair terms. Directive 1993/13 can act as a deterrent only if it is not ‘worthwhile’ for an undertaking to attempt to use unfair terms. This in turn can be ensured only by the intervention of a third party. Otherwise, it would be more favourable for an undertaking to use unfair terms in the hope that the consumer is unaware of his rights under the Unfair Terms Directive and does not rely on them in judicial proceedings, with the result that the unfair term ultimately prevails. The effet utile of Directive 1993/13 would therefore be compromised without the intervention of a third party.

47.

However, the situation is different with regard to Directive 1999/44. Firstly, action as a deterrent taken by a national court of its own motion is irrelevant to the implementation of a contract. In most cases, unsatisfactory performance is not, in fact, dependent on the will of the parties, in particular where the contracting partner is not the manufacturer of the product and normally has no influence over its quality or, in the case of non-obvious defects, knows nothing about it.

48.

Moreover, the consumer is not in a comparably weak position with regard to the implementation of the contract. Unlike the position with regard to the unfairness of a term, the consumer can easily detect whether the product is of the agreed quality. This is also demonstrated by the present case, where it is precisely the consumer who is asserting her claims before the national court. In the judgments which have been delivered on the Unfair Terms Directive, on the other hand, it was generally the undertakings which relied on their claim on the basis of an unfair term. Therefore, action by a national court of its own motion would not strengthen consumer protection, but would rather provide the consumer with an additional means of attack. Thus, the case-law on Directive 1993/13 also does not result in an obligation on the national court to grant a reduction of its own motion in respect of Directive 1999/44.

49.

In my view, it is therefore sufficient for the preservation of the principle of effectiveness if the national procedural law can be interpreted and applied in such a manner that it makes available to the consumer an instrument allowing him to assert his rights himself. A suitable example of this is the possibility of amending an application, where necessary at the instruction of the competent court, in so far as national law so provides.

50.

It might also be possible to interpret the application to the effect that the procedural application for a reduction was included in the application for rescission of the contract. However, the question here is not whether the claim under substantive law for a reduction under the first indent of Article 3(5) is included in the claim for rescission of the contract under the second indent of Article 3(5). This would be a question of interpretation of European Union law which the referring court has not asked. The question is rather whether the application for a reduction is covered by the procedural application for rescission of the contract as a ‘lesser’ claim. Whether the procedural application can be interpreted in this manner in the light of the Directive must be assessed by the national court, which alone has jurisdiction to interpret national procedural law. However, according to the Spanish Government, there is nothing to indicate that Spanish procedural law precludes such an interpretation. ( 30 ) Rather, the Spanish Government has argued that the relevant provisions of the LEC must be understood as meaning that a reduction is also included within the application for rescission of the contract.

51.

A further possibility would be an interpretation of the national provision regulating extension of res judicata in such a manner that it is understood as comparably narrowly or broadly as is the case with the binding of a court to the specific application or with the principle of congruency.

52.

However, if none of these measures is possible, a reduction of the court’s own motion is conceivable as a last resort. In any event, the Directive does not, in fact, preclude such a course of action. As is clear from recitals 1 and 5 in the preamble thereto, the high level of protection which it intends to achieve is merely designed to create minimum rules of consumer law. Article 8(2) of the Directive therefore allows the Member States to adopt or maintain in force more stringent provisions to ensure an even higher level of consumer protection. ( 31 ) In so far as a Member State’s code of procedure thus provides for a national court to grant a reduction of its own motion or to apply national law in this way, this would be compatible with the Directive.

53.

Irrespective of what measure the national court chooses, two things must be taken into account. Firstly, a measure must not be adopted against the applicant’s will. The right to effective legal protection also includes the option not to assert one’s rights. The consumer’s specific wish must therefore be determined. This poses no problem in the present case, as Ms Duarte now wishes to obtain a price reduction. Secondly, the defence rights of the opposing party must not be disregarded. It must, in any event, be at least given the opportunity to express its views again on the matter in question and, where appropriate, to make a further submission.

54.

In summary, the Directive imposes no obligation on a national court to grant a reduction of its own motion. However, the national court must take appropriate measures to enable the consumer to rectify an incorrect application if the consumer cannot at all assert his rights under the Directive by other means. The other party’s rights of defence must be preserved in respect of all measures so taken.

55.

The referring court has found that the contract cannot be rescinded because the defect in the vehicle is only minor. A number of parties have cast doubt on this finding.

56.

The referring court has not, however, sought an interpretation of Article 3(6) of the Directive, which contains the phrase ‘if the lack of conformity is minor’. It is for the referring court alone to establish the facts and to decide what questions should be referred to the Court of Justice.

57.

However, as the question of the minor nature of the defect is a question of interpretation of European Union law, I would point out that the Court of Justice has not so far ruled on the interpretation of the term ‘minor’ in Article 3(6) of the Directive. Other European courts, including, in particular, supreme courts, ( 32 ) have ruled in apparently comparable cases that the entry of water is not to be regarded as a defect of a minor nature. ( 33 ) The fact that the vehicle can be used as a means of transport although the roof is not watertight, which is stated by the referring court in the reference for a preliminary ruling as the justification for its finding, was irrelevant to the decisions in those cases. It would therefore have been useful for the sake of the uniformity of European Union law and certainly helpful for the resolution of the dispute pending before it if the Juzgado de Primera Instancia no 2 de Badajoz had also referred the question of the minor nature of the defect and, consequently, of the interpretation of Article 3(6) to the Court of Justice for a preliminary ruling.

58.

To conclude, I propose that the Court answer the question referred for a preliminary ruling as follows: