Thursday, 12 November 2015

Execution proceedings enriched with an unfairness test: AG Szpunar in Finanmadrid (C-49/14)

11 November 2015: AG Szpunar's opinion in case Finanmadrid (C-49/14)

Yesterday, in another Spanish case on unfair contract terms, where a consumer defaulted on his credit payments (this time for a motor vehicle instead of a house), AG Szpunar issued an opinion following the so far set line of judgements. 

In this case the order for payment was issued by secretario judicial (court's secretary), who (at the time) was not obliged pursuant to Spanish law to ex officio test for unfairness of a penalty clause in a credit contract. Since the consumer did not raise the issue of unfairness, only when the order for payment became final, in the execution proceedings, the court raised a question whether they should not be able to test for unfairness of the contractual provision, on which the order for payment is based. Pursuant to Spanish law this was not possible.

AG Szpunar, unsurprisingly, concludes that if Spanish law did not oblige the court's secretary to assess unfairness of his own motion, then such an obligation should bind judges in the execution proceedings (par. 98). Still, he considers that conducting of the unfairness test in the execution proceedings is undesirable, e.g. because these proceedings usually do not include investigation of facts, there is a possibility that the previous decision already became final (par. 54-58). However, if this test has not been conducted at an earlier stage of the judicial process, this may be the only solution left to Spanish courts to comply with the principle of effectiveness in applying consumer protection against unfair contract terms (par. 60). The preferred solution would be, however, to oblige the secretario judicial  (as an employee of the justice system) to conduct ex officio control of unfair contract terms - which is what the recent Spanish law reform aimed at (par. 50-51).

One other interesting point: AG Szpunar refers to the relationship between art. 47 of the Charter and the principle of effectiveness. Currently, there is a lot uncertainty as this relationship and whether art. 47 of the Charter is supposed to complete the requirements following from the principle of effectiveness or whether maybe it will replace them and create a new test for effective judicial protection/remedy (par. 85). While AG Szpunar considers that art. 47 of the Charter requires effective remedies to be granted also through national procedural rules, he concludes that Spanish law in this case could not be seen as infringing art. 47 and that the level of protection granted in the UCTD reaches further than the level of protection of art. 47 (par. 89-90). This is an interesting point of view that the CJEU will most likely not delve into (since the question may be answered without any reference being made to the Charter), so it's good to take a note to AG Szpunar's arguments for anyone interested in the issue of a relationship between the Charter and EU private law.

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