CJEU Joined Cases C-453/18 and C-494/18/ Opinion Bondora

Introduction

  1. Is a court seised of an application for a European order for payment under Regulation (EC) No 1896/2006, (2) relating to a contract concluded between a seller or supplier and a consumer, required to review of its own motion the possible existence of unfair terms, within the meaning of Directive 93/13/EEC? (3) In that context, is that court entitled to request that the claimant provide it with a copy of the contract supporting his claim, in the context of Article 7(2) of that regulation? If that were not the case, what conclusions should be drawn from this as to the validity of Regulation No 1896/2006, in particular in the light of Article 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’)?
  2. Those are, in essence, the fundamental questions referred to the Court by the national courts in the present case. It is on that basis that, for the first time, the Court will be required to clarify the relationship between the respective requirements of Regulation No 1896/2006 and of Directive 93/13 as regards the role of the courts.
  3. Those two instruments of EU law appear to pursue objectives which are at first sight contradictory: that of the directive being consumer protection by means of active intervention by a court, and that of the regulation being the speeding up and simplifying of the recovery of claims by means of a reversal of responsibility for initiating proceedings and the placing of greater responsibilities on the defendant.
  4. It will be for the Court to determine whether one of those objectives must prevail over the other or whether — as I believe — it is actually possible to reconcile them, by means of a combined interpretation of those two instruments.

Conclusion

In the light of the foregoing, I propose that the Court answer the questions referred by the Juzgado de Primera Instancia No 11 de Vigo (Court of First Instance No 11, Vigo, Spain) and from the Juzgado de Primera Instancia No 20 de Barcelona (Court of First Instance No 20, Barcelona, Spain) as follows:

In the context of the examination of an application for an order for payment made under Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure and relating to a claim based on a contract concluded between a seller or supplier and a consumer, the court seised is entitled to review of its own motion the potentially unfair nature of the terms laid down in that contract, in accordance with Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Article 38 of the Charter of Fundamental Rights of the European Union and Article 6(1) TEU.

For that reason, under Article 9(1) of Regulation No 1896/2006, read in conjunction with Article 7(2)(d) and (e) of that regulation, the court seised may require the claimant to reproduce the contract relied on in support of his claim, with the aim of carrying out the review referred to above.

Articles 7 and 9 of Regulation No 1896/2006, read in conjunction with Articles 6 and 7 of Directive 93/13, preclude a provision of national law, such as that at issue in the main proceedings, which regards as inadmissible additional documents submitted by a claimant to the court seised, such as a copy of the contract supporting the claim brought against the consumer.

Paragraphs referring to EU Charter: 

1, 5, 38-41, 55-58, 134, 140, 143, 146