Official Journal of the European Union

(Case C-40/08)

(Directive 93/13/EEC - Consumer contracts - Unfair arbitration clause - Measure void - Arbitration award which has become final - Enforcement - Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void - Principles of equivalence and effectiveness)

2009/C 282/12

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Asturcom Telecomunicaciones SL

Defendant: Cristina Rodríguez Nogueira

Re:

Reference for a preliminary ruling — Juzgado de Primera Instancia No 4 de Bilbao — Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Adequate and effective means to prevent the continued use of unfair terms — Application for the enforcement of a final arbitration award made in default on the basis of an unfair arbitration clause

Operative part of the judgment

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.

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(1) OJ C 92, 12.4.2008.