11.7.2022

Official Journal of the European Union

C 266/2

(Case C-600/19)

(Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms in consumer contracts - Principle of equivalence - Principle of effectiveness - Mortgage enforcement proceedings - Unfairness of the term setting the nominal rate for default interest, and of the advanced repayment term in the loan agreement - Force of res judicata and time-barring - Loss of the possibility of relying on the unfairness of a contractual term before a court - Power of review by the national court of its own motion)

(2022/C 266/02)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: MA

Defendant: Ibercaja Banco SA

Intervening party: PO

Operative part of the judgment

1.Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding national legislation which, by virtue of the effect of res judicata and time-barring, neither allows a court to examine of its own motion whether contractual terms are unfair in the course of mortgage enforcement proceedings, nor a consumer, after the expiry of the period for lodging an objection, to raise the unfairness of those terms in those proceedings or in subsequent declaratory proceedings, where the potential unfairness of those terms has already been examined by the court of its own motion, at the stage when the mortgage enforcement proceedings were initiated, but the judicial decision authorising the mortgage enforcement does not contain any grounds, even of a summary nature, attesting to the existence of that examination, nor state that the assessment of that court at the end of that examination could no longer be called into question if an objection were not lodged within the aforementioned period.

2.Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding national legislation which does not allow a national court, acting of its own motion or at the request of the consumer, to examine the possible unfairness of contractual terms where the mortgage security has been realised, the mortgaged property sold and the ownership rights in that property transferred to a third party, provided that the consumer whose property was the subject of mortgage enforcement proceedings may assert his or her rights during subsequent proceedings with a view to obtaining compensation, under that directive, for the financial consequences resulting from the application of unfair terms.

(1) OJ C 357, 21.10.2019.