Thursday, 14 January 2016

Collective actions may not replace individual ones - opinion AG Szpunar C-381/14, C-385/14 (Sales Sinués)

14 January 2015: AG Szpunar's opinion in joined cases C-381/14 and C-385/14 (Sales Sinués)

AG Szpunar published today his opinion in a new Spanish set of cases concerning unfair contract terms in consumer credit contracts. While Spanish consumers are trying to invalidate some terms in their credit contracts, based on their unfairness, Spanish banks asked for the stay of these individual proceedings, since there are also collective proceedings ongoing in Spain on the same issue (Par 17-18). Spanish Code of Civil Procedure seems to demand that individual proceedings were stayed in such cases and that the outcome of collective proceedings will be decisive for an individual case, without the consumer being able to dissociate herself from the collective action. Spanish courts are unsure whether these provisions of national law are compliant with consumer protection standards set in the Unfair Contract Terms Directive 93/13 since, among other things, at the moment of the referral the collective proceedings have been ongoing for four years and no date has yet been fixed for the hearing (Par. 21)

AG Szpunar in its opinion stresses that the literal interpretation of the Spanish Code of Civil Procedure provides a possibility for national courts to stay proceedings, and not an obligation to do so (Par. 29, 60), which opinion is shared by the Spanish Government and the Commission (Par. 34). However, Spanish courts appear to differently interpret this provision, including, as giving precedence to collective proceedings, which mandates the stay of individual proceedings (Par. 31-33). AG Szpunar concurs with the Commission's point of view that individual and collective actions against unfairness serve different purposes and collective actions are just "a complementary means of guaranteeing" consumer protection (Par. 53-54). This follows also from the abstract test used in collective proceedings, not allowing to include careful examination of all circumstances of an individual case (Par. 55). As such, Member States need, first, to guarantee a possibility to raise an individual claim of unfairness (Par. 56). Following on these arguments, AG Szpunar concludes that "it is therefore clear ... that, under Directive 93/13, the relationship between collective actions for an injunction and the specific terms by which consumers are bound must be one that is favourable to the consumer, not one which poses an obstacle to individual actions or replaces individual actions by collective actions for an injunction" (Par. 59). He evaluates thus the Spanish procedural rules, unsurprisingly, as potentially breaching the principle of effectiveness if they oblige national courts to stay individual proceedings when parallel collective proceedings are being conducted, with consumer not being able to dissociate herself from the collective action (Par. 67 and further).  "... if ... it is to be presumed that Directive 93/13 confers individual in personam rights on which it must be possible to rely in the context of individual legal actions and that collective actions for an injunction are complementary to, and different and distinct from individual actions, then there is no justification for the mandatory or automatic staying of individual actions until such time as a final judgement is delivered in collective proceedings" (Par. 68). Another important point raised is that the outcome of both procedures may differ, due to the need to take consumer's contractual individual circumstances into account in individual actions: "Accordingly, a consumer who decides to act in his individual capacity should not be directly affected by a judgement delivered in collective proceedings, even though the court hearing his individual action will obviously take that judgement into account." (Par. 72). Concluding, if the consumer would choose to follow collective way of enforcing her rights - its her choice, but the choice needs to be left open to the consumer to dissociate herself from the actions of a consumer organisation and to raise her individual claims separately (Par. 74).

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