We've previously discussed the opinion of AG Szpunar on this matter (Collective actions may not replace individual ones...). The CJEU agrees with the views expressed in this opinion that Spanish law is incompatible with Article 7 of the Unfair Contract Terms Directive, where it prevents Spanish courts to proceed with the examination of an individual consumer claim regarding unfair contract terms, when a collective action against such contract terms has been brought up by a consumer organisation and is pending, and when the consumer may not dissociate herself from this collective action.
"37 First, the
consumer will necessarily be linked to the outcome of the collective
action, even if he has decided not to participate in it, and the
obligation of the national court under Article 43 of the Code of Civil
Procedure thus prevents that court from conducting its own analysis of
the circumstances in the proceedings brought before it. In particular,
the question of individual negotiation of the allegedly unfair term will
not be decisive, nor even the nature of the goods or services for which
the contract in question was concluded.
38 Second,
the consumer is dependent, pursuant to Article 43 of the Code of Civil
Practice, as interpreted by the referring court, on the period within
which a judicial decision relating to the collective action is to be
taken, without the national court being able to examine in that regard
the relevance of the suspension of the individual action pending
delivery of a final judgment in the collective action.
39 Such
a national rule therefore appears incomplete and insufficient and does
not constitute either an adequate or effective means of bringing to an
end the continued use of unfair clauses, contrary to the requirements of
Article 7(1) of Directive 93/13."
The consumer may neither be forced to give up the possibility of the judicial analysis of her individual contractual position, or the possibility to waive the non-applicability of an unfair clause in her situation (Par. 40). Both these claims may not be raised in the collective action procedure, which is standardized for all consumers in similar situation and does not allow for individual exceptions. In one of the last arguments, the CJEU values lower the risk of overburdening national courts by having them adjudicate over more individual unfairness cases or of inconsistency of judgments issued by different national courts on the same unfairness issue, than of failing to provide sufficient consumer protection against unfairness (Par 41-42).
