This document is an excerpt from the EUR-Lex website
View of Mr Advocate General Wahl delivered on 3 July 2014. # Juan Carlos Sánchez Morcillo and María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA. # Reference for a preliminary ruling: Audiencia Provincial de Castellón - Spain. # Reference for a preliminary ruling - Directive 93/13/EEC - Article 7 - Charter of Fundamental Rights of the European Union - Article 47 - Consumer contracts - Mortgage loan agreement - Unfair terms - Mortgage enforcement proceedings - Right to an appeal. # Case C-169/14.
Advocate General’s Opinion - 17 July 2014
Sánchez Morcillo and Abril García
Advocate General: Wahl
Advocate General’s Opinion - 17 July 2014
Sánchez Morcillo and Abril García
Advocate General: Wahl
Digital reports (Court Reports - general)
ECLI identifier: ECLI:EU:C:2014:2110
1. Issues relating to the consequences and limits of the consumer protection stemming from Directive 93/13/EEC (2) are repeatedly raised before the Court, in particular from the point of view of observance of the principle of the procedural autonomy of the Member States. The present case affords the Court the opportunity of making it clear that the influence of EU consumer law on the procedural law of the Member States is not unlimited.
2. This case directly echoes the Spanish legislative amendment resulting from Aziz . (3) In that judgment, the Court had ruled that the Spanish legislation applicable until then was not compatible with the principle of effectiveness, in that, in mortgage enforcement proceedings brought by sellers or suppliers against consumer defendants, it made application of the protection that Directive 93/13 is intended to confer on those consumers impossible or excessively difficult. In response to that judgment, the Spanish legislature amended certain provisions of the Code of Civil Procedure applicable to enforcement proceedings, in order to make it possible for an objection to be raised on the basis of the existence of unfair terms in mortgage enforcement proceedings, while retaining some of those provisions.
3. It is the provisions introduced by that legislative amendment that are now indirectly called into question by certain national courts, (4) in particular by the court making the reference. In the main proceedings, the national court is, in essence, unsure whether, in the first place, the obligation imposed on the Member States, under Article 7 of Directive 93/13, to deploy adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers and, in the second place, the right to effective judicial protection preclude a national provision that does not allow a party against whom enforcement proceedings are brought to lodge an appeal against the decision dismissing the objection to enforcement.
I – Legal framework
A – Directive 93/13
4. According to Article 6(1) of Directive 93/13:
‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
5. Article 7(1) of that directive provides that ‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’.
B – Spanish law
6. According to the statement of reasons given for Law 1/2013, the purpose of that law is to adopt various measures intended to alleviate the situation of mortgagors who, due to the economic and financial crisis, have difficulties in coping with their financial obligations. Again, according to that statement, the object of that law is to amend mortgage enforcement proceedings with a view to remedying certain aspects incompatible with EU law that were examined in Aziz (EU:C:2013:164).
7. Law 1/2013 amends, in particular, Article 695 of the Code of Civil Procedure, (5) which now provides, in matters of mortgage enforcement, as follows:
‘Objection to enforcement
1. In proceedings under this chapter, an objection to enforcement by the party against whom enforcement is sought may be admitted only if it is based on the following grounds:
(1) Extinction of the security or the secured obligation, …
(2) An error in determining the amount due, …
(3) In the case of enforcement against movable property mortgaged or property subject to a non-possessory pledge, the existence of another pledge, movable-property or immovable-property mortgage on, or seizure of, that property registered before the charge giving rise to the procedure, which must be proved by means of the corresponding certificate from the Registry.
(4) The unfairness of a contractual term constituting the grounds for enforcement or that has determined the amount due.
2. If an objection is lodged under the previous paragraph, the Judicial Officer shall suspend enforcement and shall summon the parties to appear before the court that issued the general enforcement order, no earlier than 15 days after the issue of the summons; at the hearing the court shall hear the parties, admit the documents presented and within two days adopt, by way of order, such decision as it thinks fit.
3. An order upholding the objection to enforcement on grounds 1 and 3 of paragraph 1 of the present article shall stay enforcement; an order upholding the objection to the enforcement on ground 2 shall determine the sum in respect of which enforcement is to continue.
If ground 4 of paragraph 1 of the present article is upheld, enforcement shall be discontinued where it is based on the contractual term. In other cases, enforcement shall be continued without the application of the unfair term.
4. An appeal may lie against the order discontinuing enforcement or disapplying an unfair term.
Save in those circumstances, no appeal shall lie against orders adjudicating upon the objection to enforcement referred to in the present article and the effects of those orders shall be confined exclusively to the enforcement proceedings in which they are made.’
II – The dispute in the main proceedings, the questions referred and the procedure before the Court
8. The case in the main proceedings arises from a dispute between Banco Bilbao Vizcaya Argentaria SA (‘BBVA’) and Mr Sánchez Morcillo and Ms Abril García (‘the applicants’) in the context of an objection to the enforcement of a mortgage secured on their main residence.
9. It is clear from the order for reference that, on 9 June 2003, BBVA, by notarial act, concluded with the applicants a loan agreement secured by a mortgage. Under that agreement, BBVA lent the sum of EUR 300 500 to those applicants, who undertook to repay it by 30 June 2028 by means of the payment of 360 monthly instalments. The applicants secured their repayment obligation by creating a mortgage on their property and home. In accordance with clause 6 bis of the loan agreement, if the debtors defaulted on their payment obligations and BBVA found it necessary to declare the acceleration of the maturity date of the obligation to repay, the default interest would be charged at 19% per annum, while the statutory interest rate applicable in Spain, over the relevant period, was 4%.
10. Because the borrowers failed to fulfil their obligation to pay the monthly instalments as agreed, on 15 April 2011 BBVA lodged an application for enforcement of the mortgage against the applicants, seeking an order that they should make payment and for the auction of the property mortgaged as security for their fulfilment of the obligation to repay.
11. The Juzgado de Primera Instancia No 3 de Castellón (Court of First Instance No 3, Castellón), seised of the action, opened mortgage enforcement proceedings and, after authorising enforcement, ordered the applicants to make payment.
12. The applicants entered an appearance and, on 12 March 2013, lodged an objection to enforcement of the mortgage, claiming, in essence, first, that the instrument produced, namely, a copy of the mortgage loan agreement, was not an enforceable instrument and that the enforcement order was therefore void, and, secondly, that the Juzgado de Primera Instancia No 3 de Castellón did not have jurisdiction.
13. On 19 June 2013, the Juzgado de Primera Instancia No 3 de Castellón made an order dismissing the objection and ordering the enforcement to proceed in respect of the property mortgaged as security.
14. The applicants lodged an appeal against that decision. The appeal having been declared admissible, it was then remitted for a decision to the Audiencia Provincial de Castellón (Provincial Court, Castellón).
15. That court pointed out that Article 695(4) of the LEC allows the party seeking enforcement to appeal against an order upholding an objection and bringing the mortgage enforcement proceedings to an end or finding that there is an unfair term but, by excluding the possibility of an appeal in other circumstances, precludes the party against whom enforcement is sought from appealing against a decision unfavourable to him.
16. Considering that that provision might be incompatible with the protection pursued by Directive 93/13 and with the right to an effective remedy affirmed in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the Audiencia Provincial de Castellón decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is it incompatible with Article 7(1) of Directive 93/13/EEC, which imposes on Member States the obligation to ensure that, in the interests of consumers, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers, for a procedural rule of the kind laid down in Article 695(4) of the [LEC], applicable to appeals against a decision determining the outcome of an objection to enforcement proceedings in relation to mortgaged or pledged goods, to allow an appeal to be brought only against an order staying the proceedings or disapplying an unfair term and to exclude appeals in other cases, the immediate consequence of which is that whilst the party seeking enforcement may appeal when an objection to enforcement is upheld and the proceedings are brought to an end or an unfair term is disapplied, the consumer against whom enforcement is sought may not appeal if his objection is dismissed?
(2) Within the ambit of the EU legislation on the protection of consumers in Directive 93/13/EEC, is it compatible with the principle of the right to an effective remedy and a fair trial in accordance with the principle of equality of arms, affirmed in Article 47 of the Charter …, for a provision of national law of the kind laid down in Article 695(4) of the [LEC], applicable to appeals against a decision determining the outcome of an objection to enforcement proceedings in relation to mortgaged or pledged goods, to allow an appeal to be brought only against an order staying the proceedings or disapplying an unfair term and to exclude appeals in other cases, the immediate consequence of which is that whilst the party seeking enforcement may appeal when an objection to enforcement is upheld and the proceedings are brought to an end or an unfair term is disapplied, the party against whom enforcement is sought may not appeal if his objection is dismissed?’
17. By order of 5 June 2014, the President of the Court granted the request of the referring court for application to the present case of the accelerated procedure provided for by Article 23a of the Statute of the Court of Justice of the European Union and Article 105 of the Court’s Rules of Procedure.
18. Written observations were submitted by BBVA, the applicants, the Spanish Government and the European Commission.
19. BBVA, the Spanish Government and the Commission presented oral argument at the hearing which took place on 30 June 2014.
III – Analysis
A – The first question: observance of the principle of effectiveness
20. By its first question, the referring court asks whether, having regard to the principle of effectiveness, a national procedural rule, in this case Article 695(4) of the LEC, that confines the right to lodge an appeal, in mortgage enforcement proceedings, to appeals against an order discontinuing enforcement or disapplying an unfair term, is compatible with Directive 93/13. In that regard, the referring court is of the view that that provision potentially constitutes an obstacle to the right of debtors to have access to a court of second instance, whereas that right is afforded to creditors, and to a declaration that an unfair term is void.
21. It is to be noted that the referring court began, it would seem, with the assumption that the legislative amendment made by Law 1/2013 does not take sufficient account of the conclusions to be drawn from Aziz (EU:C:2013:164). That court considers that Article 695(4) of the LEC, which, in the context of mortgage enforcement proceedings, does not allow the party against whom enforcement is sought to appeal against the decision taken at first instance dismissing his objection, jeopardises the effectiveness of consumer protection under Directive 93/13.
22. As a preliminary point, and although this question has not been considered by the referring court, it seems to me useful to deal briefly with the question whether Article 1(2) of Directive 93/13 prevents the Court from assuming jurisdiction to rule on the compatibi lity, in the light of that directive, of the national provisions at issue.
23. BBVA, in its written observations, argues that the national provision at issue in the main proceedings, namely, Article 695(4) of the LEC, is a mandatory provision that does not appear in any contract and accordingly does not fall within the scope of Directive 93/13. It refers, in particular, to the judgment recently delivered by the Court in Barclays Bank . (6)
24. I would recall that, in that case, the Court ruled that the national provisions referred to in the request for a preliminary ruling were excluded from the ambit of Directive 93/13. In support of that conclusion, it pointed out, first, that the national provisions that were the subject of the reference for a preliminary ruling were laws or regulations and were not set out in the contract in the main proceedings, (7) secondly, that none of those provisions related to the extent of the powers of the national court to assess the unfairness of a contractual term and, thirdly, that those provisions were applicable without any contractually agreed modification of the area covered or of the extent of that coverage. Therefore, it could legitimately be supposed that a contractual balance had been struck. (8)
25. In that regard, it should be pointed out that, under Article 1(2) of Directive 93/13, ‘[t]he contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive’. That provision must be read in the light of the 13th recital to that directive, which states in particular that ‘the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’.
26. In the present case, it is therefore reasonable to ask whether Directive 93/13 is applicable. It appears that neither the parties to the main proceedings nor the Juzgado de Primera Instancia No 3 de Castellón have relied, in one way or another, on the existence of terms that may be regarded as unfair within the meaning of Directive 93/13. The parties against whom mortgage enforcement proceedings have been brought confined themselves, in that regard, to pointing out that the instrument relied on to support the application for mortgage enforcement was vitiated by a formal defect and that, moreover, the Juzgado de Primera Instancia No 3 de Castellón did not have jurisdiction to rule on the matter. Furthermore, the reference made by the referring court to point 1 of the annex to Directive 93/13, which mentions, amongst the terms covered by Article 3(3)(q) of that directive, those having the aim of ‘excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy’, might suggest that what is, in the present case, in dispute stems not from the mortgage loan agreement binding the parties to the main proceedings, but from the mandatory provisions of the Spanish Code of Civil Procedure.
27. However, given that the term concerning default interest at 19% in the mortgage loan agreement has been referred to in the order for reference and, furthermore, the questions relating to the interpretation of EU law raised by the national court benefit from a presumption of relevance, it is not inconceivable that the potentially unfair nature of the contractual term relating to the determination of default interest is called into question in the present case, a situation which may be compared with those on which the Court had to rule in the cases giving rise to the judgments in Banco Español de Crédito (9) and Aziz . (10) Those cases related specifically to disputes in which the referring court sought to clarify the extent of the powers conferred on it by Directive 93/13 with a view to assessing whether contractual terms concerning default interest are unfair.
28. It follows from all the foregoing considerations that the applicability to the case in the main proceedings of Directive 93/13 therefore cannot be ruled out a priori .
29. That being said, I shall address below the substance of the issue by setting out at the outset some considerations on the meaning and scope of Aziz .
1. Meaning and scope of Aziz as regards the effectiveness in the light of Directive 93/13 of mortgage enforcement proceedings
30. In the case giving rise to Aziz , I recall, as an extension of what I stated in my Opinion in Macinský and Macinská , (11) that the question referred to the Court formed part of the general issue of the powers and obligations of the national court in reviewing the unfairness of terms contained in consumer contracts. It was concerned, more precisely, with the definition of the duties of the court hearing declaratory proceedings linked to mortgage enforcement proceedings, with the objective of ensuring the effectiveness of any judgment in the declaratory proceedings declaring unfair the contractual term on which the right to seek enforcement and thus to initiate those enforcement proceedings is based. (12)
31. Pointing out the limits of procedural autonomy that are necessary in accordance with the principle of the effectiveness of EU law, the Court held that the Spanish rules hitherto applicable concerning the enforcement of mortgages compromised the protection sought by the directive, in that they made it impossible for the court hearing the declaratory proceedings — before which the consumer had brought proceedings claiming that the contractual term on which the right to seek enforcement is based was unfair — to grant interim relief capable of staying or terminating the mortgage enforcement proceedings, when such relief was necessary in order to ensure the full effectiveness of its final decision. (13)
32. The Court’s judgment seeks therefore to call in question, from the angle of the principle of effectiveness, national rules that do not allow a consumer, or a fortiori the court, to rely on the existence of unfair terms in the contract to object to mortgage enforcement proceedings. The Court’s reasoning was based in particular on the fact that, in the system hitherto applicable, a consumer was not in a position to object to — or the court in a position to stay — mortgage enforcement proceedings by relying on grounds alleging the unfairness of terms contained in the loan agreement at issue. It was a case dealing with a situation in which a posteriori compensatory protection alone seemed conceivable, protection which was not such as to constitute an adequate and effective means to prevent the continued use of terms prohibited by Directive 93/13.
33. In other words, it is the fact that the mortgage enforcement proceedings were totally disconnected from the proceedings brought by the consumer on the merits seeking a declaration that certain unfair terms were void that was held to be problematic, from the angle of the protection which Directive 93/13 guarantees consumers. That protection is clearly incomplete when, even though substantive proceedings have been brought by the debtor in default in order to plead that some of the contractual terms of the mortgage loan agreement were unfair, there is no possible way of blocking the mortgage enforcement proceedings against the property. It is not the mortgage enforcement proceedings that are in themselves called into question, but their connection to an action for a declaration that the terms found to be unfair are void.
2. Assessment of the procedural provision at issue in the main proceedings
34. The present case is concerned with an issue quite different from that considered in Aziz (EU:C:2013:164), for it relates only to the procedural rule in Article 695(4) of the LEC, which does not allow an appeal to a higher court when the decision of the court hearing of the mortgage enforcement proceedings is unfavourable to the debtor consumer.
35. Article 695(4) of the LEC is concerned with an issue that is in no way governed by Directive 93/13. That directive contains no provision relating to the number of instances of jurisdiction responsible for the judicial review of contractual terms falling within its scope.
36. As the Court has consistently held, in the absence of harmonisation, that issue is a matter for the procedural autonomy of the Member States, on condition that the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not in practice render impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (14)
37. In the present case, I am of the view that the national provision at issue in the main proceedings is in no way problematic from the point of view of observance of those two principles.
38. With regard to the principle of equivalence, there is, in my view, no evidence to suggest that the protection of the rights afforded debtors by the EU legal order is less favourable than that afforded by national law in similar actions. It appears that, from the point of view of the consumer’s procedural rights, the rule applicable to the grounds of objection based on Directive 93/13 is comparable to the rule applicable to the grounds of objection based on the provisions of national law. Article 695 of the LEC precludes any appeal by the party against whom enforcement is sought in all cases, whether such appeal is based on the possible unfairness, for the purposes of Directive 93/13, of the terms of the mortgage agreement or on the other grounds of objection referred to in that article.
39. Nor, from the point of view of the principle of effectiveness, as I shall explain in the following arguments, is there anything to suggest that the national law at issue in the present case has made it impossible or excessively difficult to exercise the rights conferred by Directive 93/13.
40. In order to answer the referring court’s questions, I shall first of all address the issue of the right of appeal in the context of mortgage enforcement proceedings and I shall then examine the issue of whether there is imbalance between the creditor and the debtor in the enforcement of mortgages.
a) The effectiveness of the debtor’s right of appeal in mortgage enforcement proceedings
41. First, contrary to what the referring court would seem to suggest, (15) I am of the opinion that the requirements, as regards the effectiveness of the protection set out in Directive 93/13, stemming from Aziz (EU:C:2013:164) were fully satisfied by the insertion into the LEC of the possibility of relying on a ground of objection to enforcement relating to the unfairness of terms in the context of mortgage enforcement proceedings. There is nothing in that judgment to suggest that, above and beyond that addition, the Spanish legislature was required to insert a provision governing the conditions in which an appeal may be made against a decision determining the outcome of an objection raised in such proceedings.
42. Secondly, as the Commission has observed, the effectiveness of the application of EU law, which undeniably has as a corollary the right to effective judicial protection, affirmed in Article 47 of the Charter, does not require the Member States to establish two levels of judicial review.
43. As Advocate General Mengozzi remarked in his opinion in Asociación de Consumidores Independientes de Castilla y León , (16) in the sphere of consumer protection, there is no particular obligation under EU law as to the number of instances of jurisdiction that the Member States must have. It is generally accepted that the Treaties did not intend to create legal remedies other than those already provided for, unless it is apparent from the overall scheme of the national legal system in question that there is no legal remedy making it possible to ensure, even indirectly, respect for an individual’s rights under EU law. Likewise, to date no right to two-tiered jurisdiction has, at least in civil matters, been affirmed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950. (17) In short, the principle of effective judicial protection affords an individual a right of access to a court or tribunal but not to several levels of jurisdiction. (18)
44. Thirdly, I consider that the national rule at issue in the main proceedings, which prevents the party against whom mortgage enforcement proceedings are brought from appealing against a decision dismissing his objection, does not have the effect in practice of rendering impossible or excessively difficult the application of the rights which he derives from EU law.
45. First of all, to go by the conclusions to be drawn from the case-law, and in particular those in Aziz (EU:C:2013:164), it appears that the rights consumers derive from Directive 93/13 are effectively protected, for, on the one hand, consumers are able to rely on the existence of unfair terms before the court hearing the objection to mortgage enforcement and, on the other hand, the court is able to raise of its own motion the existence of such terms and, where appropriate, stay enforcement of the mortgage.
46. To return to the case in the main proceedings, it seems to me that both the debtors and the court first seised have had the opportunity of raising the point that the contractual terms in the mortgage loan agreement referred to in the main proceedings could be unfair.
47. It has, admittedly, been stated that, in the circumstances of this case, a problem lies in the fact that the national law applicable at the time of the mortgage enforcement proceedings did not provide that the existence of unfair terms in the contested loan agreement could constitute a ground of objection to enforcement of the mortgage or could be raised of its own motion by a national court seised of an application for enforcement.
48. It follows, moreover, from the evidence provided by the referring court that the court first seised did not rule on whether there was an unfair term in the mortgage loan agreement at issue in the main proceedings.
49. It is thus apparent from the order for reference that the objection to mortgage enforcement at issue was made on 12 March 2013, that is to say, before Law 1/2013 entered into force. The applicants were therefore not in a position to rely on the unfairness of the terms of the mortgage loan agreement in support of their objection.
50. However, it must be pointed out that, in accordance with the first transitional provision of Law 1/2013, (19) the Juzgado de Primera Instancia No 3 de Castellón had, since 14 May 2013, been in a position to assess of its own motion the unfair nature of the contractual term concerning default interest. It was therefore already possible on 19 June 2013, the date on which that court ruled on the objection to enforcement of the mortgage, for the court responsible for enforcement to examine that term, determine whether or not it was unfair and, accordingly, order that enforcement be discontinued or stayed.
51. Similarly, the fourth transitional provision gave consumers the opportunity of raising in extraordinary proceedings an objection based on the existence of the new grounds of objection provided for, in particular, in Article 695(4) of the LEC. Under that provision, it was open to the applicants to complain of the unfair terms within a period of one month from the entry into force of Law 1/2013, that is to say, from 16 May to 16 June 2013.
52. Fourthly, the fact that the applicants are precluded from appealing does not have the effect of depriving them of any legal remedy that would enable their application for a declaration of nullity of the contractual terms they consider unfair to be heard on its merits. As is clear from the case-law of the Court, every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. (20)
53. However, we must not lose sight of the fact that the enforcement proceedings at issue in the case in the main proceedings, the subject-matter of which is the recovery of a debt supported by an enforceable instrument presumed to be valid, are, by their very nature, very different from the proceedings on the substance of the matter. It is for the debtor who considers that he may have suffered injury to initiate a substantive action, in the context of which the court seised may take cognisance of all issues relating to the actual existence of the right of enforcement.
54. As the Commission has stated, it remains possible in Spanish mortgage enforcement proceedings to arrange a legal debate on the issues relating to the validity of the debt and of the loan agreement in the context of fully adversarial proceedings on the substance of the matter. In that regard, I would point out that Article 695(4) of the LEC, although it states that, save in the cases of staying the enforcement or disapplying an unfair term, no appeal is to lie against orders determining the outcome of the objection referred to in that article, expressly provides that ‘the effects of those orders shall be confined exclusively to the enforcement proceedings in which they are made’. In other words, if the court responsible for enforcement rejects the claims of the debtor consumer, the effects of that decision are confined to the enforcement proceedings.
55. Moreover, when a consumer decides to initiate ordinary proceedings on the substance of the matter (action for a declaration of invalidity) and the court adjudicating on the substance declares one or more terms of the mortgage loan agreement void, because unfair, the enforcement of the instrument contained in that agreement will inevitably be called into question and, in all likelihood, stayed. Even if the introduction of an action for a declaration of invalidity based on the existence of unfair terms did not have the effect of staying concurrent enforcement proceedings, the effectiveness of the protection conferred by Directive 93/13 is, it seems to me, sufficiently guaranteed by the additional possibility offered to consumers and to the court, by the national provisions applicable in enforcement proceedings, to object to enforcement of the mortgage. The situation in the main proceedings is distinct from the particular set of circumstances at issue in the case giving rise to the judgment in Aziz (EU:C:2013:164), in which enforcement of the mortgage could in no circumstances be stayed.
b) Effectiveness and alleged existence of procedural inequality because it is open to the creditor in mortgage enforcement proceedings to bring an appeal
56. In the present case, the argument is put forward, by the Commission in particular, that by depriving the consumer of any possibility of bringing an appeal against the order dismissing his objection, while the opposing party, namely, the seller or supplier, is authorised to lodge an appeal before a higher jurisdiction in the event of a decision unfavourable to its interests, Article 695(4) of the LEC places the consumer at a clear disadvantage in relation to the seller or supplier. Refusing to allow one of the parties to the proceedings to appeal against a decision running counter to his interests, whereas the opposing party may do so, is, according to the Commission, clearly contrary to the principle of equality of arms affirmed in Article 47(2) of the Charter. That is all the more so because Directive 93/13 pursues the specific objective of re-establishing equality between consumers and sellers or suppliers.
57. That presentation of matters, although it is, a priori , most attractive, stems, in my opinion, from a superficial examination of the situation at issue in the present case and, for the following reasons, is far from convincing me.
58. Certainly, it is indisputable that, as the European Court of Human Rights has pointed out in criminal matters, (21) national provisions that establish asymmetry between the parties as regards legal remedies before a higher jurisdiction are potentially incompatible with the principle of equality of arms.
59. Nonetheless, the fact that the parties against whom enforcement is sought may not lodge an appeal against the decision dismissing their objection, whereas an appeal may lie against the decision ordering the stay of enforcement or the disapplication of an unfair term, is explained by the very nature of enforcement proceedings.
60. This request for a preliminary ruling has actually arisen in the context of mortgage enforcement proceedings, the subject-matter of which was the enforcement, at the request of a creditor, of an enforceable instrument deriving from a mortgage. Such proceedings necessarily imply that property has previously been mortgaged as security and that the creditor may, on that basis, in the event of the debtor’s failure to fulfil his repayment obligations, rely on an enforceable instrument validated by notarial instrument and registered at the land registry. It is generally presumed that the right deriving from the instrument is certain and that that instrument is enforceable. (22)
61. In other words, the fact that the possibilities of bringing an appeal are limited to cases of partial or total discontinuance of enforcement is readily explained by the fact that, given the preferential nature of the enforceable instrument which the creditor has relied upon, enforcement must remain the principle.
62. Moreover, in such proceedings, the subject-matter of which is circumscribed and which are summary in nature, the court seised does not, in principle, examine the merits of the case and the grounds justifying the staying of enforcement are limited to those provided for in the Code of Civil Procedure.
63. The ostensible ‘preference’ enjoyed by the creditor, who, unlike the debtor, is afforded the possibility of bringing a fresh appeal against a decision unfavourable to him, is therefore explained by the fact that the mortgage procedure is specifically intended to protect the holder of a preferential enforceable instrument. As observed by the Spanish Government, it must be possible for the mortgage creditor to rely on its enforceable instrument in respect of a judicial decision contrary to the prior enforcement order.
64. To decide otherwise would amount, therefore, to disregard of the rights of the holder of an enforceable instrument which mortgage enforcement proceedings are intended to safeguard, for it would allow the debtor to create obstacles to enforcement and thus to the exercise of a previously declared right.
65. Consequently, I am of the opinion that it is incorrect to assert that the contested national legislation places the consumer in a situation of procedural disadvantage. (23)
66. In that context, it seems to me important to recall that what Aziz (EU:C:2013:164) requires is simply that, in those mortgage enforcement proceedings, it should be permissible, in support of an objection to enforcement, for the parties against whom enforcement is sought also to be able to put forward as grounds those claiming that the instrument or its terms are void because unfair or, in the subsequent proceedings on the substance of the matter, that it should be possible for an interim measure to be adopted staying enforcement of the mortgage if a declaration is sought of the nullity of a term of that kind, a claim that has not been made by the applicants in the present case. Law 1/2013 specifically meets those requirements by introducing, among other amendments, a ground of objection to enforcement based on the unfair nature of an agreement forming the basis of enforcement.
67. It is clear from all the foregoing considerations that Article 7 of Directive 93/13 does not preclude a provision of national law, such as Article 695(4) of the LEC, which, in mortgage enforcement proceedings, allows an appeal to be lodged only against the order discontinuing enforcement.
B – The second question: observance of the principle of equality of arms and of the right to effective judicial protection
68. By its second question, the referring court asks whether the national provision at issue is compatible with the principle of equality of arms, which forms part of the right to effective judicial protection affirmed in Article 47 of the Charter.
69. Before addressing the substance of the question referred, it is necessary, beforehand, to determine whether the Court has jurisdiction to give a ruling on the ground that the situation facing it is one of implementation of EU law for the purposes of Article 51(1) of the Charter. (24)
70. As observed by BBVA and the Spanish Government, that may well be considered doubtful, for the legal situation at issue here is not, a priori, directly governed by EU law.
71. It is true that it must be borne in mind that the Court takes a very broad view of what falls within its jurisdiction, since it is now well established that it covers all situations of ‘implementation of EU law’, that latter expression being construed broadly. (25)
72. However, unlike, for example, the situation in Åkerberg Fransson , concerning the link between Articles 2, 250(1) and 273 of Directive 2006/112/EC (26) and Article 325 TFEU, the link, in the main proceedings, to Directive 93/13 is very difficult to identify, as is demonstrated, moreover, by the fact that the reference to that directive was, it seems, inserted in the order for reference following an observation made by BBVA in the course of the proceedings. (27)
73. It is difficult to comprehend precisely what provision or what principle of EU law is at issue in this case. As is clear from the considerations I put forward in answering the first question, in the absence of harmonisation of the detailed procedural rules governing enforcement proceedings, the issue of the right to appeal against a judgment ruling on an objection to mortgage enforcement is governed by the principle of procedural autonomy. Moreover, there is nothing to suggest, as EU law now stands, that the principle of effectiveness precludes a national provision such as Article 695(4) of the LEC. A mere general reference, by the referring court, to the requirements of consumer protection deriving from Directive 93/13 cannot suffice for the Court to declare that it has jurisdiction to give an answer.
74. It seems to me that the legal issue in question in the main proceedings, which relates to the national provisions concerning legal remedies available against a judgment ruling on an objection to the enforcement of a mortgage, is entirely governed by national law and that it does not relate to a case of ‘implementation of EU law’. To decide otherwise would amount to failure to have regard to the conditions laid down in Article 51(1) of the Charter, which would have the effect of extending the scope of EU law beyond the competences of the Union. (28)
75. At all events, even supposing that the Court were to decide to find that it has jurisdiction to answer the question, there is, it seems to me, nothing capable of jeopardising the principles of equality of arms and of the right to a fair trial.
76. In view of the answer given to the first question, it must be considered unnecessary to answer the second question.
77. Given that it has been concluded that the national provision at issue in the main proceedings fully complies with the requirements stemming from the principle of effectiveness, it does not seem to me necessary to examine whether, in addition, that provision is consistent with the right to effective judicial protection laid down in Article 47 of the Charter. Although that provision covers various elements, the scope of the right to effective judicial protection is, in the present case, being confused, in relation to the rights of appeal available against decisions ruling on an objection to mortgage enforcement, with the examination concerning observance of the principle of effectiveness carried out in replying to the first question.
78. It follows from the foregoing considerations that the principle of equality of arms, which is related to the right to judicial protection laid down in Article 47 of the Charter, even assuming it to be applicable in the enforcement procedure at issue in the main proceedings, does not preclude a rule of national law such as Article 695(4) of the LEC, which allows, in the context of mortgage enforcement proceedings, the lodging of an appeal only against an order discontinuing enforcement.
IV – Conclusion
79. In view of all the foregoing considerations, I therefore propose that the Court answer the questions from the Audiencia Provincial de Castellón as follows:
Neither the principle of effectiveness, envisaged for the purpose of protection pursued by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, nor the right to effective judicial protection precludes a national procedural provision under which, in mortgage enforcement proceedings, the right to lodge an appeal is restricted to an appeal against an order discontinuing enforcement or disapplying an unfair term.
(2) – Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
(3) – C‑415/11, EU:C:2013:164.
(4) – The present case is not, in fact, an isolated one. Law 1/2013 on measures to strengthen the protection of mortgage debtors, debt restructuring and social rents (Ley 1/2013 de medidas para reforzar la protección a los deudores hipotecarios, reestructuración de deuda y alquiler social) of 14 May 2013 (BOE No 116, of 15 May 2013, p. 36373, ‘Law 1/2013’) is called into question in several cases currently pending before the Court (see, in particular, Cajas Rurales Unidas (C‑645/13), concerning a request for a preliminary ruling from the Juzgado de Primera Instancia No 34, Barcelona, in connection with an issue analogous to that raised in the present case).
(5) – (Ley de enjuiciamiento civil) of 7 January 2000 (BOE No 7, of 8 January 2000, p. 575); law as amended by Decree-Law 7/2013, of 28 June 2013 (BOE No 155, of 29 June 2013, p. 48767, ‘the LEC’).
(6) – Barclays Bank (C‑280/13, EU:C:2014:279).
(7) – Ibid., paragraph 40.
(8) – The Court points out that, unlike the case which gave rise to the judgment in RWE Vertrieb (C‑92/11, EU:C:2013:180, paragraph 25), the parties did not agree to extend the scope of rules laid down by the national legislature ( Barclays Bank , EU:C:2014:279, paragraph 41).
(9) – C‑618/10, EU:C:2012:349.
(10) – EU:C:2013:164.
(11) – C‑482/12, EU:C:2013:765, point 72 et seq.
(12) – Aziz (EU:C:2013:164, paragraph 49).
(13) – Ibid., paragraph 59.
(14) – Peterbroeck (C‑312/93, EU:C:1995:437, paragraph 12); Unibet (C‑432/05, EU:C:2007:163, paragraphs 39 and 43); and van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 28).
(15) – In fact, the Audiencia Provincial de Castellón states that the Spanish legislature ‘transposed incorrectly’ the criteria laid down by the Court.
(16) – C‑413/12, EU:C:2013:532, point 23.
(17) – Ibid., in particular points 23 and 29. I would point out, in that regard, that, according to the case-law of the European Court of Human Rights, Article 6(1) of that convention does not require the contracting States to establish jurisdictions to hear appeals on the facts or on points of law (see, in particular, European Court of Human Rights, Antonenko v. Russia , No 42482/02, 23 May 2006).
(18) – See, in that regard, Samba Diouf (C‑69/10, EU:C:2011:524, paragraph 69).
(19) – According to that provision, ‘[t]his law shall apply to judicial and extrajudicial mortgage enforcement proceedings, initiated on the date of entry into force of the law, where eviction has not yet taken place’. That provision must be read in the light of the second paragraph of the new Article 552(1) of the LEC, which provides inter alia that ‘[w]hen the court considers that one of the terms included in one of the enforceable instruments ... can be deemed unfair, it shall hear the parties within fifteen days’.
(20) – See Asociación de Consumidores Independientes de Castilla y León (C‑413/12, EU:C:2013:800, paragraph 34 and case-law cited).
(21) – See, in that regard, European Court of Human Rights, Berger v. France , No 48221/99, § 38, 3 December 2002.
(22) – In that regard, the authority to execute supporting the notarial instrument and the subsequent recognition of the creditor’s interest in rapid enforcement are matters that were, in particular, noted by Advocate General Kokott in her Opinion in Aziz (C‑415/11, EU:C:2012:700, point 55). Likewise, the European Court of Human Rights pointed out that proceedings to enforce a right on the basis of a notarial instrument providing security for a specific debt must, like proceedings to enforce a right on the basis of a judgment, be conducted within a reasonable time (see European Court of Human Rights, Estima Jorge v. Portugal , Reports of Judgments and Decisions 1998-II).
(23) – I would point out that, seised of issues of constitutionality, the Tribunal Constitucional (Constitutional Court) (see, in particular, judgments 41/1981, of 18 December 1981, and 217/1993, of 30 June 1993, and order 113/2011, of 19 July 2011) emphasised the summary nature characteristic of the procedure for enforcement of a registered mortgage of real property and the fact that the party against whom enforcement is sought always has the possibility of recourse to the corresponding substantive proceedings. That party cannot, therefore, in the context of the enforcement proceedings, rely on rights of the defence. More specifically, the Tribunal Constitucional, Second Chamber, in an order of 21 July 1988, confirmed that the impossibility of lodging an appeal against a decision determining the outcome of an objection was constitutional, declaring that it did not prejudice the principle of the equality of the parties.
(24) – It is to be recalled that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing Union law.
(25) – See, in particular, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 16 et seq.).
(26) – Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
(27) – BBVA stated that, in the course of the national proceedings, the referring court contemplated making a request for a preliminary ruling relying only on the provisions of Article 47 of the Charter, without any reference to Directive 93/13. It was following a comment by BBVA that the referring court decided to reformulate the question so as to introduce Directive 93/13 into the dispute.
(28) – For a recent overview of the principles applicable, see, inter alia, Pelckmans Turnhout (C‑483/12, EU:C:2014:304, paragraphs 17 to 21).