Key facts of the case:
Reference for a preliminary ruling — Directives 93/13/EEC and 2008/48/EC — Application ratione temporis and ratione materiae — Events occurring prior to the accession of Romania to the European Union — Charter of Fundamental Rights of the European Union — Lack of implementation of EU Law — Manifest lack of jurisdiction — Articles 49 TFEU and 56 TFEU — Manifest inadmissibility.
Outcome of the case:
On those grounds, the Court (Sixth Chamber) hereby rules:
Council Directive 93/13/EEC of 5 April 1993 on unfair contract terms in consumer contracts and European Parliament and Council Directive 2008/48/EC of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC are inapplicable to the main proceedings.
Moreover, the Court of Justice of the European Union manifestly lacks jurisdiction to answer the third question referred by the Judecătoria Câmpulung (Romania), by decision of 25 February 2014, and the fifth question referred by that court is manifestly inadmissible.
1) This request for a preliminary ruling concerns the interpretation of Articles 49 TFEU and 56 TFEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 3 and 10 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as well as various provisions of Directive 2008/48/EC of the European Parliament and Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 1987 L 133, p. 66).
20) After ordering that an expert opinion of an accountant be obtained to establish the precise amount of the debt, the referring Court examined the compatibility of clauses determining interest rates of the type contained in the credit agreement at issue in the main proceedings with Directives 93/13 and 2008/48, and the compatibility of Article 120 of Emergency Decree No 99 with Articles 49 TFEU and 56 TFEU and Article 47 of the Charter.
21) In those circumstances the Judecătoria Câmpulung decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Are [Directives 93/13 and 2008/48] applicable also to a credit agreement concluded on 5 October 2006, before Romania acceded to the European Union, but whose effects are still produced now, in that the terms thereof form the subject of enforcement at present, following successive assignments of the debt for which it makes provision?
(2) If the answer to Question 1 is in the affirmative, can terms such as those concerning “service of the borrower’s debt”, that refer to the existence of delays in payment on the part of the debtor, and those relating to the increase in the rate of interest after one year, after which the rate is the variable reference rate of the Banca Comercială Română, posted at the bank’s headquarters, increased by 1.90 [percent], be considered to be unfair within the meaning of [Directive 93/13]?
(3) Does the principle of effective judicial protection of the rights that individuals derive from EU law, as guaranteed by Article 47 of the Charter …, preclude a provision of national law, such as that laid down in Article 120 of Emergency Decree No 99 …, which recognises the enforceability of a bank credit agreement concluded by private agreement and without allowing the terms thereof to be negotiated with the debtor, under which, with brief verification and after obtaining authorisation for enforcement in a non-contentious procedure, and with limited scope for the court to assess the amount of the debt, a bailiff may seize the debtor’s assets?
(4) Must [Directive 93/13] be interpreted as precluding a law of a Member State, such as Article 372 et seq. of the former Code of Civil Procedure, from allowing a creditor to seek enforcement of a debt deriving from unfair contractual terms by seizing an asset charged as security through the sale of the immovable property, notwithstanding the consumer’s objection, without an independent judge’s carrying out an examination of the contractual terms? ]
(5) Does the existence in national law of a provision such as Article 120 of Emergency Decree No 99 …, which recognises the enforceability of the bank credit agreement, prejudice the right to freedom of establishment laid down in Article 49 TFEU and the freedom to provide services laid down in Article 56 TFEU in that it discourages citizens of the Union from establishing themselves in a State in which the same value as an enforceable instrument represented by a judgment is conferred on a bank agreement concluded by a private institution?
(6) If the answer to the preceding questions is in the affirmative, can the national court raise of its own motion the non-enforceability of such an instrument pursuant to which the enforcement of a debt stated in a contract is carried out?’
43) By the third question, the referring court asks if the principle of judicial protection of the rights conferred on individuals by EU law, as guaranteed by Article 47 of the Charter, must be interpreted as precluding a provision of national law, such as Article 120 of Emergency Decree No 99, which recognises the enforceability of credits agreements concluded by a credit institution.
45) Similarly, Article 51(1) of the Charter provides that its provisions are addressed to the Member States only when they are implementing EU law. Article 6(1) TEU and Article 51(2) of the Charter provide that the provisions of the Charter do not extend the powers of the Union beyond those defined in the Treaties.
47) Furthermore, the order for reference does not contain any concrete element to justify the conclusion that the object of the main proceedings is connected with other provisions of EU law or rules of national law implementing EU law within the meaning of Article 51(1) of the Charter.