Provisional text

delivered on 14 November 2024 (1)

Case C-351/23

GR REAL s. r. o.

PO,

RT

(Request for a preliminary ruling from the Krajský súd v Prešove (Regional Court, Prešov, Slovakia))

( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Consumer credit contract – Contract secured by a charge on immovable property – Immovable property constituting the consumer’s family home – Acceleration clause for the repayment of the credit – Extrajudicial sale of the consumer’s home )

1.The landmark judgment in Aziz (2) demonstrated the ‘nexus’ between consumer law, mortgage law and human rights law. (3) Since that judgment, the case-law of the Court on Directive 93/13/EEC (4) in relation to the enforcement proceedings of residential mortgage contracts has led to the development of strong procedural safeguards for consumers. The Court’s interpretation of Directive 93/13 in the light of Article 7 and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) results in the emergence of ‘a powerful remedial system of relief’ (5) against repossessions.

2.The present case affords the Court the opportunity to develop the procedural safeguards against unfair terms in the context of extrajudicial mortgage enforcement proceedings and to delve into the impact of alleged procedural defects on the possibility for a consumer to challenge his or her eviction after the sale by auction of the mortgaged property.

II. Legal context

3. Under Article 7(1) of Directive 93/13:

‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’

‘Where a claim secured by charge is not fully settled in due time, the secured creditor may commence enforcement of the charge. In the enforcement of the charge, the secured creditor may obtain settlement of the claim by the means specified in the contract or by sale of the security at auction pursuant to a specific law … or he or she may apply for settlement of the claim by the sale of the security pursuant to specific statutory provisions …, unless provided otherwise by this law or a specific law.’

5. Paragraph 565 of the Civil Code is worded as follows:

‘In the event of repayment by means of instalments, the creditor may not demand repayment of the entire claim for failure to meet any monthly instalment unless this was agreed between the parties or established in a judgment. The creditor may, however, exercise that right at the latest at the due date of the first following instalment.’

6. Paragraph 16(1) of the zákon č. 527/2002 Z. z. o dobrovol’ných dražbách (Law No 527/2002 on voluntary auctions, as amended; ‘the Law on voluntary auctions’) provides that a sale by auction may proceed only on the basis of a signed agreement between the person requesting the sale and the auctioneer.

7. Paragraph 19(1) of the Law on voluntary auctions is worded as follows:

‘The auctioneer shall cancel the auction at the latest before the start of the auction (a) upon written request by the person seeking the sale by auction, (b) if it is proven to the auctioneer by means of an enforceable decision that the person seeking the sale by auction is not authorised to seek that sale; if a court has granted interim relief, it is sufficient to demonstrate to the auctioneer that the court has adopted such a measure [...].’

8. Paragraph 21(2) of the Law on voluntary auctions provides:

‘Where the validity of the charge agreement is challenged or the provisions of the present law are infringed, any person who claims that his or her rights have been adversely affected as a result of that infringement may apply to a court for a declaration that the sale is null and void. The right to apply to a court shall lapse, however, if it is not exercised within three months following the public auction, unless the grounds on which annulment is sought relate to the commission of a criminal offence and the sale concerns a residential property in which the former owner, at the time of the sale, was officially resident in accordance with specific rules; in that case, it shall be possible to apply for annulment of the sale even after the expiry of that period.’

3. The Code of Civil Procedure

9. In accordance with Paragraph 325(1) of the zákon 160/2015 Z. z. Civilný sporový poriadok (Law No 160/2015 on the Code of Civil Procedure):

‘The court may adopt an interim measure if it is necessary to rectify a certain situation immediately or if there are concerns that the enforcement of the judgment will be compromised.’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

10.On 7 April 2011, PO and RT, the defendants in the main proceedings, took out a consumer loan in the amount of EUR 63 000 with Slovenská Sporiteľňa, a.s. (‘the bank’). That loan was repayable in monthly instalments of EUR 424.41 starting on 20 June 2011, with the final payment due on 20 January 2030. That same day, the defendants also concluded an agreement to secure the loan by a mortgage. The subject of the contract establishing the mortgage charge was the house in which PO and RT were living with their three children.

11.By letter dated 3 November 2016, the bank announced that the loan was due with immediate effect and demanded that PO and RT repay the outstanding debt of EUR 56 888.08. (6) Under Slovak law, a person enforcing a mortgage is entitled to apply for the voluntary sale by auction of the property secured by that mortgage if so agreed by the parties.

12.On 21 April 2017, PO and RT brought an action before the Okresný súd Prešov (District Court, Prešov, Slovakia) seeking an order requiring the bank to refrain from enforcing the mortgage by voluntary auction. In their action, PO and RT claimed that the bank did not have the right to call in the totality of the loan early, as the parties to the loan contract had not entered into an agreement to that effect. They also applied for an interim measure ordering the bank to refrain from enforcement until the conclusion of the declaratory proceedings.

13.On 25 April 2017, the first round of the auction took place, at which PO raised an objection against the auction, referring to the pending court proceedings. The first round of the voluntary auction was unsuccessful, as no bids were made.

14.By order of 26 May 2017, the Okresný súd Prešov (District Court, Prešov) dismissed the application for interim measures without addressing the defendants’ claim that the bank had infringed their rights by calling in the totality of the loan. PO and RT filed an appeal against that order before the Krajský súd v Prešove (Regional Court, Prešov, Slovakia).

15.While the appeal proceedings were ongoing, the second round of bidding took place on 18 July 2017. At that auction, PO drew the attention of the auctioneer and the notary to the fact that legal proceedings were ongoing with a view to having the enforcement suspended. However, neither the notary nor the auctioneer acknowledged PO’s statement.

16.The successful bidder at the auction was GR REAL, a company which, inter alia, provides credit and loans and also maintains residential and non-residential properties. In accordance with Slovak law, following the winning bid, title to the property is transferred to the successful bidder.

17.By decision of 9 August 2017, the Krajský súd v Prešove (Regional Court, Prešov) ruled on the appeal brought by PO and RT, setting aside the decision of the Okresný súd Prešov (District Court, Prešov) and referring the case back to that court. According to the Krajský súd v Prešove (Regional Court, Prešov), the court of first instance should have examined, in particular, PO and RT’s claim that they had not entered into an agreement with the bank that would have allowed the latter to call in the totality of the loan early. (7) Moreover, the court of first instance should have applied the principle of proportionality and examined whether the voluntary auction constituted an appropriate measure, taking into account, inter alia, the nature of the property auctioned as the family home of PO and RT, and the availability of alternative means for the creditor to satisfy the claim.

18.On 19 December 2017, PO and RT withdrew from the action to stay enforcement of the mortgage by voluntary auction on the ground that, given that the auction had already taken place, their action had become devoid of purpose. By decision of 11 January 2018, the Okresný súd Prešov (District Court, Prešov) discontinued the proceedings and ordered PO and RT to pay all the procedural costs incurred by the bank.

19.As a result of the auction, GR REAL was registered as the owner of the house in the land register and ordered PO and RT to vacate the family home.

20.PO and RT refused to leave their home where they live together with their three children, two of whom are minors and suffer from a serious psychological disorder. Moreover, PO suffered a stroke and requires daily care.

21.GR REAL disconnected the utilities of the home, such as water and electricity. It also brought an action for eviction seeking to have the defendants vacate the property. The action for eviction was dismissed by the Okresný súd Prešov (District Court, Prešov) and, on appeal, by the Krajský súd v Prešove (Regional Court, Prešov). Both courts took into account the fact that the property was the family home of PO and RT and that to evict them would be unconscionable. In its decision of 8 April 2021, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) set aside the two judgments and stated that the lower courts must take account of GR REAL’s property rights.

22.In its second judgment, the Okresný súd Prešov (District Court, Prešov) ordered PO and RT to vacate the property. It also dismissed their counterclaim seeking recognition of their ownership right over the house. According to that court, the property had already been sold at the voluntary auction; that auction had not been declared invalid and the court seised of that case did not have jurisdiction to rule on the auction’s validity.

23.GR REAL brought an appeal before the referring court against the part of the judgment at first instance that did not award it reimbursement of the costs of the proceedings. PO and RT also appealed against that judgment in so far as it required them to vacate the property and dismissed their counterclaim.

24.The referring court considers that the central issue raised in the main proceedings is whether the provisions of EU law on consumer protection apply in a situation in which the auction was held despite the fact that the consumers sought judicial protection and drew the auctioneer’s attention to the pending judicial proceedings.

25.The referring court emphasises the importance in the Slovak legal order of the principle of legal certainty and of the protection of the good faith of the successful bidder who acquires the property. However, good faith is not protected where the circumstances surrounding the acquisition of the property are ‘troubling’. The referring court considers to be ‘troubling’ the fact that, in the case in the main proceedings, the person who acquired the property was informed of the existence of pending judicial proceedings.

26.With regard to the possibility of the consumer seeking ex post judicial protection, the referring court points out that Paragraph 21(2) of the Law on voluntary auctions provides for only three grounds for the annulment of an auction, none of which allows the consumer to allege the existence of unfair terms. More particularly, according to that court, the unfairness of the disputed clause relating to the early repayment of the claim is not covered by the second of those grounds, namely the invalidity of the agreement establishing the charge. That is because the acceleration clause concerns the amount of the credit and the deadline for its repayment, as opposed to the security for the credit and its enforcement.

The referring court considers it important to determine whether Article 6(1) and Article 7(1) of Directive 93/13 are applicable to a procedure, such as that at issue in the main proceedings, where the consumer has availed himself or herself of the legal means to stay enforcement, yet the enforcement was carried out. It also enquires whether Directive 93/13 precludes the Slovak legislation on extrajudicial auctions to the extent that it does not provide for effective means for the consumer to stay the enforcement.

Finally, the referring court seeks to determine the relevance for the case in the main proceedings of Directive 2005/29/EC (8) with regard to the practices of the auctioneer.

In those circumstances, the Krajský súd v Prešove (Regional Court, Prešov) decided to stay the proceedings before it and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do [Article 6(1) and Article 7(1)] of [Directive 93/13] apply to proceedings such as those at issue in the main proceedings, which were initiated by a person who was the winning bidder in an auction for property, in respect of which a counterclaim by a consumer for the restitution of the status prior to the auction was simultaneously pending when, prior to the extrajudicial auction, the consumer used legal remedies to suspend enforcement of the lien by lodging an application for interim relief with the court and, at the same time, before the auction, informed the persons taking part in the auction of the pending court proceedings to suspend enforcement of the lien by voluntary auction, when the auction proceeded in spite of the legal proceedings?

(2) Is [Directive 93/13] to be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which, in the context of the enforcement by an undertaking staging private auctions (“the auctioneer”) of a lien over a consumer’s immovable property, with a view to recovering a debt due to a bank under a consumer credit agreement,

(a) does not allow the consumer to effectively raise objections before the auctioneer concerning the unfair nature of the terms of the contract on the basis of which the bank’s claim is to be enforced in order to postpone the auction, even though that claim is based on unfair contractual terms, and in particular a contractual term concerning early repayment of a loan,

(b) does not allow the consumer to prevent the auction of the property which is the consumer’s home, in spite of the fact that the consumer informed the auctioneer and the persons present at the auction of the court proceedings in respect of interim relief for the purpose of preventing the auction from being conducted, while the court had not yet issued its final decision on the application, when at the same time the interim relief measure is the only opportunity for the consumer to obtain temporary court protection against the conduct of the auction as a result of unfair contractual terms,

(c) does not allow consumers, in the circumstances referred to in the preceding paragraphs, to fully exercise their rights arising from the transposition of Directive [93/13] and to attain the objectives of that directive, since the legislation in question limits the possibility of raising a plea of nullity of a sale by auction to the following three grounds:

(i) the invalidity of the lien agreement,

(ii) infringement of the [Law on voluntary auctions],

(iii) commission of an offence?

(3) Is Directive [2005/29] to be interpreted as meaning that enforcing a lien on the basis of an unfair contractual term relating to the early recovery of a debt arising under a consumer credit agreement and, therefore, the incorrect amount of the outstanding debt, may constitute an unfair commercial practice within the meaning of Article 5 of that directive, and more specifically an aggressive commercial practice within the meaning of Articles 8 and 9 of that directive, and that the liability of the bank and the objectives of Directive [2005/29] apply, in addition to the bank, to the auctioneer enforcing the bank’s rights under the lien?’

GR REAL, the Slovak Government and the European Commission submitted written observations. The Court sent a request for information to the referring court as well as a request for clarification. The referring court responded to those requests on 20 July 2023 and on 13 May 2024 respectively. I submitted questions for a written response to the parties to the main proceedings and to the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, in line with Article 62 of the Rules of Procedure of the Court of Justice. The parties to the main proceedings, the Slovak Government and the Commission replied to those questions. The referring court also expressed its views on those questions.

It must be observed as a preliminary point that, according to settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. (9)

In the present case, although the referring court formally confined its second question to the interpretation of Directive 93/13, that circumstance does not prevent the Court of Justice from providing it with all the elements of interpretation which may be useful for the judgment in the main proceedings, by extracting from the body of material provided by that court, and in particular from the statement of reasons for the order for reference, the elements of EU law which require interpretation in the light of the subject matter of the dispute. (10)

It follows from the order for reference that the referring court seeks the interpretation, more specifically, of Article 6(1) and Article 7(1) of Directive 93/13. The second question also relates to, in essence, and cites among the relevant elements of EU law, Article 7 and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Indeed, that question raises doubts as to the procedural safeguards afforded to consumers by national procedural law on extrajudicial enforcement when such enforcement is directed against a consumer’s dwelling. Thus, those provisions should be included alongside the EU instruments the interpretation of which is sought by the referring court.

Moreover, although the referring court formally refers in its question to the consumer being barred from raising objections before the auctioneer, it follows from the order for reference that its doubts concern, more generally, the absence of procedural safeguards resulting in a court staying the mortgage enforcement proceedings.

Thus, by its second question, which it is appropriate to consider first, the referring court seeks, in essence, to ascertain whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 7 and Article 47 of the Charter, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, in the context of the extrajudicial enforcement of a mortgage on immovable property which is the consumer’s family home, on the one hand, allows for the auction of that property to take place before delivery of the decision of the court having jurisdiction to rule on the substance of the case declaring the contractual term on which that enforcement was based to be unfair, even though the consumer sought the suspension of the auction, and, on the other hand, does not provide for any possibility to annul the auction on the ground of the existence of unfair terms contained in the contract in respect of which enforcement is sought.

It should be noted that the present question is raised in the context of a specific procedure for extrajudicial enforcement governed by the Law on voluntary auctions. (11) That procedure allows a creditor to enforce a security and sell by auction the property of a debtor (including a consumer) on the basis of the credit agreement, without prior involvement of the courts in the verification of the claim. (12)

Moreover, as in the case in the main proceedings, that procedure can be used to enforce a residential mortgage contract secured by an asset that meets an essential need of the consumer, namely a dwelling. (13)

It must be recalled that in the judgment in Kušionová, (14) the Court ruled that Directive 93/13 does not preclude the Slovak system on extrajudicial sale by auction. As I pointed out in my Opinion in Všeobecná úverová banka, (15) that finding was, however, conditional upon the availability of effective means to contest the enforcement based on potentially unfair terms.

The present reference for a preliminary ruling brings to light elements that cast serious doubts on the effectiveness of the available means of judicial review. More particularly, the consumers actively contested the enforcement, but, despite their active stance, the auction took place.

In those circumstances, it must be determined whether Directive 93/13 precludes a system of extrajudicial enforcement which (i) does not provide for effective means allowing the consumer to prevent the sale by auction, while his or her action against enforcement is pending, and (ii) does not provide for means allowing the auction to be annulled on the ground of unfair terms.

The first aspect of the second question of the referring court concerns, essentially, the lack of effective means enabling the consumer to prevent the auction of the property while the competent court is hearing the consumer’s application against the enforcement on the ground of the existence of unfair terms contained in the contract in respect of which enforcement is sought.

(a) The requirement of effective review of unfair terms

According to settled case-law of the Court, the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge. (16)

As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on consumers. It is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. (17)

In that context, the Court has held on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task. (18)

Moreover, given the nature and significance of the public interest constituted by the protection of consumers, Directive 93/13, as is apparent from Article 7(1) thereof, read in conjunction with its twenty-fourth recital, obliges the Member States to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’. (19)

The Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, reaffirmed in Article 7(1) of that directive and also guaranteed in Article 47 of the Charter, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights. (20)

In this respect, the Court has ruled that, without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed. (21)

It should be noted that it follows from the Court’s case-law that observance of the rights guaranteed by that directive must also be capable of being ensured, where appropriate, in the context of enforcement proceedings (22) and, more particularly, in the context of mortgage enforcement proceedings. (23)

(b) Effective protection of consumers in the context of mortgage enforcement proceedings

In connection with mortgage enforcement proceedings, the Court has developed comprehensive requirements of effective judicial protection against unfair terms contained in the contract of which enforcement is sought.

More particularly, it follows from the case-law of the Court that national courts must determine the potential unfairness of contractual terms before an auction takes place leading to the eviction of the consumer from his or her dwelling. In that regard, the Court has held that, in a situation in which enforcement proceedings have been concluded before delivery of the decision of the court having jurisdiction to rule on the substance of the case declaring the contractual term on which that enforcement was based to be unfair and, consequently, those proceedings to be invalid, that decision would enable the consumer to be guaranteed only ex post protection by way of compensation, which would be incomplete and insufficient and would not constitute an adequate or effective means of preventing the continued use of that term, contrary to what is provided for in Article 7(1) of Directive 93/13. (24)

25In addition, it follows from the case-law of the Court that national procedural rules must allow a court to adopt interim measures capable of staying or terminating unlawful mortgage enforcement proceedings based on a contract containing unfair terms, where such relief is necessary to ensure the full effectiveness of its final decision.

26Accordingly, the full effectiveness of the consumer protection intended by Directive 93/13 requires that it should be possible for the enforcement proceedings to be suspended, where appropriate according to rules which are not liable to discourage the consumer from bringing and pursuing an action, until the court having jurisdiction has carried out the review of whether the terms of the contract concerned are unfair.

That case-law applies all the more where, as in the main proceedings, the extrajudicial enforcement proceedings and the contract of which enforcement is sought are not preceded by any judicial review and are targeted at the home of the consumer and his or her family, which includes minor children.

Effective protection of the consumer’s family dwelling

27The case-law of the Court gives particular weight to the fact that the pledged property is the consumer’s dwelling, holding that the right to accommodation is a fundamental right guaranteed under Article 7 of the Charter that the national court must take into consideration when interpreting Directive 93/13.

28As observed in academic literature, the Court’s interpretation of Directive 93/13 ‘is moving towards a recognition of housing rights as inherent components of consumer protection’.

29In view of the interference with the fundamental rights of the consumer, mortgage enforcement proceedings against the consumer’s dwelling must ensure ‘the highest degree of procedural stringency’.

30The ‘procedural implications’ of Article 7 of the Charter may also be reflected by the intensity of the judicial review of terms that determine whether enforcement proceedings can be brought, such as the contested term in the main proceedings that allows the creditor to call in the loan prematurely and repossess the consumer’s dwelling.

31More specifically, the Court has ruled in the judgment in Všeobecná úverová banka that, having regard to the effects of an acceleration clause included in a consumer credit contract secured by the family home, the national court must, inter alia, examine the proportionality of the option available to the creditor under that term to demand all the sums due when it assesses whether it is unfair.

32In that regard, in its assessment of the means enabling the consumer to remedy the effects of the amounts due under the loan agreement becoming payable in full, that court must take into account the consequences of the eviction of the consumer and his or her family from the dwelling constituting their principal residence in the light of Article 7 of the Charter.

33It should be noted that Article 7 of the Charter, which recognises that everyone has the right to respect for his or her private and family life, home and communications, corresponds to Article 8(1) of the European Convention of Human Rights (ECHR), while Article 47 of the Charter, which guarantees the right to an effective remedy and the right to a fair trial, corresponds to Article 6(1) ECHR.

34In accordance with Article 52(3) of the Charter, which is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law, the Court must therefore take into account, when interpreting the rights guaranteed by Articles 7 and 47 of the Charter, the corresponding rights guaranteed by Article 8(1) and Article 6(1) ECHR, as interpreted by the European Court of Human Rights (ECtHR), as the minimum threshold of protection.

35With respect to repossession proceedings, the European Court of Human Rights has consistently held that the loss of one’s home is the most extreme form of interference with the right to respect for the home.

36In the case that gave rise to the judgment in Rousk v. Sweden, the enforcement took place before the appeal proceedings had been finally adjudicated. It follows from that judgment that the decision-making process leading to an interference of the magnitude of losing one’s home must be fair.

37The European Court of Human Rights found that in order to ensure that the remedies and procedural safeguards existing in domestic law are in ‘in fact available and sufficient, not only in theory but also in practice, … the eviction should have been postponed until the underlying contentious issues had been resolved’.

38In view of the case-law of the Court of Justice and of the European Court of Human Rights, the consumer must have an effective and genuine opportunity to obtain a judicial review of the unfair terms contained in the contract of which enforcement is sought before the sale by auction of his or her home. The auction may not be completed until the court having jurisdiction has carried out the review of whether terms of the contract concerned are unfair. Thus, the means of judicial review of unfair terms cannot be considered to be effective if the sale by auction takes place despite ongoing proceedings by which the consumer seeks to challenge the enforcement and obtain its suspension or termination.

Application to the case in the main proceedings

40In the present case, the consumers filed an appeal against the order of the court of first instance which rejected their application for measures of interim relief without addressing their claim that the bank did not have the right to call in the totality of the loan prematurely.

While the appeal was pending, the auction took place even though the consumers had informed the auctioneer of the pending proceedings.

41Although national legislation provides for certain means of judicial redress that are intended to enable suspension of the enforcement, it appears from the circumstances of the case in the main proceedings that in practice the available means of judicial redress lack sufficient coordination such as to ensure that the auction does not override the judicial process. The referring court stated that consumers have no influence over the time it will take a court to adopt its final decision or decide on interim measures. Thus, a consumer who actively defends his or her rights might still be unable to obtain suspension of the enforcement.

42Under such circumstances, the existing remedies available to consumers in the context of the extrajudicial enforcement proceedings do not appear to give consumers an effective and genuine opportunity to obtain the judicial review of unfair terms and prevent the auction before that auction takes place.

43In view of the above, I consider that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 7 and Article 47 of the Charter, preclude the national legal framework on extrajudicial enforcement at issue in this case, to the extent that it does not appear to afford consumers effective procedural safeguards against the enforcement and the sale by auction of their dwelling.

The annulment of the auction on the ground of the existence of unfair terms

44The second aspect of the second question of the referring court relates to the absence of a possibility for consumers to remedy the consequences of the sale by voluntary auction ex post. The referring court stated that none of the three grounds provided for in Paragraph 21(2) of the Law on voluntary auctions allows consumers to invoke the existence of unfair terms in the contract on the basis of which enforcement was sought.

45The Slovak Government, in its written submissions, contends that the referring court’s interpretation of the national legislation at issue is not correct. It refers to recent case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), which adopts a broad interpretation of the relevant legislative provision to the effect that the existence of unfair terms in the credit contract constitutes a ground on which an auction may be declared null and void. According to that case-law, as cited by the Slovak Government, such a possibility should exist as the auction is not preceded by any preliminary review or any examination of the debt and verification that the conditions for that sale were observed. Moreover, it follows from that case-law that the debtor must be able to invoke the infringement of any procedural or material requirement that affects the enforcement of the guarantee and of the sale, capable of challenging the validity of the credit contract or of the security as well as the amount and nature of the claim.

46The case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) supports the conclusion that a consumer must be able to obtain annulment of the auction on the ground of the existence of unfair terms in the credit contract serving as the basis for enforcement where that enforcement was initiated without judicial review of the claim.

47The Court of Justice sent a request for clarification to the referring court asking whether, in view of those submissions of the Slovak Government, a response to the part of its question related to the grounds on which an auction may be declared null and void was still required.

48The referring court, in its response to the request for clarification, maintained its question. It stated that when the auction took place in 2017, there was no case-law recognising unfair terms as a possible ground for annulment of an auction. It also stated that the recent orders of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) do not reflect settled case-law on that issue.

49In that regard, it is necessary to state that, in the first place, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law.

50In the second place, it must be noted that the principle of interpreting national law in conformity with EU law is inherent in the system of the Treaties, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them.

51In accordance with that principle, it is for the national courts, taking into account the whole body of rules of national law and applying methods of interpretation recognised by that law, to decide whether and to what extent a national provision can be interpreted in a manner that is consistent with the relevant provisions of EU law.

52That principle has certain limits. Thus the obligation on national courts to refer to the content of EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law that is contra legem.

53In view of the fact that the national courts alone have jurisdiction to interpret national law, in accordance with the case-law referred to in point 73 of the present Opinion, it is for the referring court to determine whether it is possible to interpret Paragraph 21(2) of the Law on voluntary auctions as meaning that the existence of unfair terms in the contract constitutes a ground on which an auction may be declared null and void.

54The case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) appears to indicate that an interpretation in conformity with EU law is possible. The fact that, as the referring court states, that case-law is not yet settled does not prevent the national court from adopting an interpretation in conformity with EU law. Indeed, according to settled case-law of the Court of Justice, a national court cannot, in particular, validly consider that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law.

55Nevertheless, it must be pointed out that an interpretation according to which national law allows consumers to seek the annulment of an auction on the ground of unfair terms is without prejudice to the question whether, at the time the auction took place, PO and RT could have availed themselves of that remedy. As has already been set out above, the referring court explains that the developments in case-law recognising the existence of unfair terms as a ground on which an auction may be declared null and void are recent. It also explains that at the time the auction took place, no judgment had been handed down granting an annulment on such grounds.

56In view of the uncertainty described by the referring court as to the interpretation of Paragraph 21(2) of the Law on voluntary auctions, an average consumer, defined as being reasonably well informed and reasonably observant and circumspect, could not be expected to know that such a provision makes it possible to seek the annulment of an auction on the ground of unfair terms. As one commentator eloquently put it, ‘the average consumer is not a lawyer’. The average consumer also cannot be expected to be an activist that will seek to break new ground in case-law.

In view of all the above considerations, Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 7 and Article 47 of the Charter, must be interpreted as precluding national legislation and practice, such as those at issue in the main proceedings, which, in the context of the extrajudicial enforcement of a mortgage on immovable property which is the consumer’s family home, on the one hand, allows for the auction of that property to take place before delivery of the decision of the court having jurisdiction to rule on the substance of the case declaring the contractual term on which that enforcement was based to be unfair, even though the consumer sought the suspension of the auction, and, on the other hand, does not provide for any possibility to annul the auction on the ground of unfair terms contained in the contract in respect of which enforcement is sought.

82.By its first question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 apply to a procedure in which the winning bidder of immovable property, adjudicated in extrajudicial enforcement proceedings, seeks to enforce his or her property rights, in circumstances where the auction took place despite ongoing judicial proceedings brought by the consumer to prevent the auction and despite the bidder being informed of those proceedings.

83.As a preliminary point, I will address the objection raised by GR REÁL with regard to the admissibility of the question. GR REÁL contends, essentially, that it is not concerned by that question as it is the winning bidder and not a seller or supplier within the meaning of point (c) of Article 2 of Directive 93/13. It states that it has no involvement in the issue as to whether the contract terms included in the mortgage contract are unfair.

84.In that regard, it must be recalled that the dispute in the main proceedings arises in the context of an action for eviction by the winning bidder and a counterclaim by the consumers, by which they seek to enforce their property rights against the successful bidder. The referring court states that GR REAL, which is the registered owner of the property in the land register, has standing in the context of such proceedings. As the referring court explains, the consumers maintain that they have property rights over the house because the bank was not entitled to initiate the enforcement proceedings, which culminated in the sale by auction. In those circumstances, as the Commission pointed out, the question relates not to the assessment of the unfairness of the terms included in the mortgage contract, but to the procedural protection afforded to the consumers in the course of the extrajudicial enforcement proceedings and the impact of any defects of that procedure on the sale by auction.

85.On the substance, this question of the referring court relates to the limitations on the applicability of Directive 93/13 in the course of an eviction procedure. More specifically, the main issue is whether the transfer of the property to the successful bidder prevents the consumer from relying on Directive 93/13 in order to contest the eviction, where the sale by auction of his or her dwelling took place before the completion of the judicial process related to the review of unfair terms.

86.As it will be explained in the following section, the effectiveness of Directive 93/13 does not require, in principle, the examination of the unfairness of contractual terms in situations in which the mortgage enforcement proceedings have ended and the ownership rights over the property have been transferred to a third party, where such examination would undermine the legal certainty of the transfer of ownership made to a third party.

87.However, the circumstances of the present case may justify, in my view, a different outcome of the balancing of the various interests involved.

88.The judgment in Banco Santander set out, for the first time, the limitations on the application of Directive 93/13 after the lawful acquisition of property by a successful bidder. The Court, in that judgement, essentially excluded the application of Directive 93/13 in proceedings brought by the successful bidder to protect his or her lawfully acquired real rights, following the auction of a property over which the consumer had granted a mortgage. It considered that to allow the debtor who has granted a mortgage over the property to set up defences founded on the mortgage loan agreement against the transferee of that property, an agreement to which that transferee may nevertheless be a third party, would be liable to affect legal certainty in pre-existing proprietary relationships.

89.One of the conditions, however, to which the limitations on the application of Directive 93/13 was subject, was the availability of legal remedies, including the possibility for the consumer to challenge or seek suspension of the procedure on the ground that the mortgage agreement contained an unfair term and the possibility to apply for interim relief. In the case giving rise to the judgment in Banco Santander, the Court took into account the fact that the consumer did not avail himself or herself of the existing legal remedies.

90.In subsequent case-law, in the judgment in Ibercaja Banco, the Court, sitting as the Grand Chamber, confirmed the importance of the principle of legal certainty and the protection of the owner’s real rights over the property after an auction takes place. That case arose in the context of mortgage enforcement proceedings authorised by a judicial decision. It raised two main issues. The first issue was whether the court responsible for enforcement must be able to review the possible unfairness of contractual terms notwithstanding the national procedural rules applying the principle of res judicata with regard to a judicial decision which does not expressly reflect any examination on that point. The second issue concerned the determination of the point in time as from which the mortgage enforcement proceedings must be regarded as completed with regard to the examination of the unfairness of the contractual terms.

91.On the first issue, the Court found that the effective review of the possible unfairness of contractual terms cannot be guaranteed if the force of res judicata is extended also to judicial decisions which do not indicate such a review. Thus, the consumer must be able to rely on Directive 93/13 even at subsequent stages of proceedings or during subsequent declaratory proceedings.

92.On the second issue, the Court found that in a situation in which the mortgage enforcement proceedings have ended and the ownership rights over the property have been transferred to a third party, a court, acting of its own motion or at the request of the consumer, can no longer carry out an examination of the unfairness of contractual terms which would lead to the annulment of the acts transferring ownership and call into question the legal certainty of the transfer of ownership already made to a third party.

93.Nevertheless, the Court ruled that, in such a situation, the consumer must, in accordance with Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, be able to rely, in separate subsequent proceedings, on the unfairness of the terms of the mortgage loan agreement in order to be able to exercise effectively and in full his or her rights under that directive, with a view to obtaining compensation for the financial damage caused by the application of those terms.

94.The referring court emphasises that the Slovak legal order protects third parties that acquire property at a public auction and recognises the need to observe the principle of legal certainty. However, it considers that the case in the main proceedings justifies a different balancing of the interests involved and a departure from the rule of protection of the successful bidder. The reasons for that departure essentially lie, according to the referring court, in the fact that the auction was completed before the competent court carried out a review of the potential unfairness of the terms stipulated in the mortgage loan agreement and in the knowledge of the successful bidder as to the ongoing proceedings.

95.It must therefore be determined whether those elements can be considered to be capable of justifying the application of Directive 93/13 after the auction takes place and the property is transferred to the successful bidder.

96.As it is apparent from the analysis above, the Court’s case-law, inspired by the case-law of the European Court of Human Rights, attaches particular weight to the existence of procedural safeguards in repossession proceedings having regard to the serious interference with the right to respect for the home.

97.Thus, the measures of enforcement must ensure that the consumer’s right to his or her home is properly considered and protected and that the consumer has available effective procedural means enabling him or her to assert his or her rights under Directive 93/13 and to obtain the judicial review of unfair terms before the sale by auction takes place. Consumers must also have effective means to obtain suspension of the enforcement until the fairness of the terms is assessed.

98.The absence of an effective and genuine opportunity to obtain judicial review of the unfair terms by a court before the auction takes place is a serious infringement of the requirement of effective judicial protection of the consumer guaranteed in Article 47 of the Charter and of the right to respect for one’s home under Article 7 of the Charter. A consumer deprived of that opportunity during mortgage enforcement proceedings must exceptionally be able to rely on Directive 93/13 after the auction takes place.

99.Neither the protection of the bona fide purchaser nor the general interest in preserving legal certainty is sufficient to outweigh the consideration that a person is dispossessed of his or her home without obtaining a judicial review of his or her case. That consideration applies a fortiori when that person’s family includes minor children.

100.In the case in the main proceedings, the consumer’s home was auctioned without the contract serving as a basis for the enforcement sought being subject to a judicial review to examine whether any of its terms were unfair and while the proceedings to declare the contractual terms unfair were ongoing. The auctioned property is a dwelling where the consumers live with their children, two of whom are minors and suffer from a psychological disorder. Despite the absence of judicial verification of the claim and the absence of a review of the proportionality of the option available to the creditor to call in the loan prematurely, the sale by auction took place.

101.A further element that may justify a different balancing of the interests involved in the case in the main proceedings, compared to the case which gave rise to the judgment in Ibercaja Banco, is the bidder’s knowledge of the ongoing proceedings related to the unfairness of the term on the basis of which the creditor initiated the enforcement. The referring court described the knowledge of the bidder as the ‘troubling circumstances’ in which the transfer of property occurred.

102.As the Commission essentially observed, it is a matter for the referring court to determine, according to its national law, whether those circumstances amount to flaws in the acquisition of property and what the possible consequences would be for the legality of the transfer of the property. In that assessment, the successful bidder’s knowledge of the ongoing proceedings may be taken into account as a factor liable to undermine the need for protection of the bidder.

103.It is true, as GR REAL states, that challenging terms of a contract which is the basis for the enforcement alone does not presage the outcome of the proceedings. However, a bidder that acquires property despite ongoing judicial proceedings against the contract serving as a basis for the enforcement and despite the absence of prior judicial review should be aware of an increased risk of annulment of the auction and that the legal status of the property is uncertain.

104.The uncertain status of the property rights acquired by a bidder in the context of the system of extrajudicial enforcement proceedings appears to be supported by the case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), subject to verification by the referring court. As pointed out above, it follows from that case-law that the consumer must be able to challenge the validity of the auction where the voluntary sale by auction is not preceded by judicial review or any judicial verification of the debt and the conditions of the sale.

105.An element that adds to the complexity of the present case is that the consumers did not bring an action to annul the auction. In that regard, the Court has held that the need to comply with the principle of effectiveness cannot be stretched so far as to make up fully for the complete inaction on the part of the consumer concerned. However, as the referring court explained in its response to the request for clarification, when the main proceedings were brought, the case-law of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) did not exist. PO and RT could not be expected to be aware of the broad interpretation of the law allowing an action for annulment to be brought. Ιn such circumstances, those consumers cannot be regarded as having displayed complete inaction.

106.The circumstances of the case expose serious defects in the procedural safeguards available to consumers in the context of the national system of extrajudicial enforcement, at least as it applies in practice. As the Commission essentially pointed out, there are doubts as to the efficiency as a whole of the procedural guarantees afforded to the consumers in the context of a voluntary sale by auction. The bidder’s knowledge of the risks involved in an auction in which the underlying issues have not been resolved exacerbates those defects.

The cumulative effect of the lack of procedural safeguards of the system of extrajudicial enforcement and of the circumstances of the specific case on the right to an effective remedy under Directive 93/13 should be capable of justifying a departure from the general rule laid down in the judgment in Ibercaja Banco. Thus, consumers should be entitled to rely on their right to an effective judicial protection under Directive 93/13 in the context of eviction proceedings. It is a matter of national procedural law to provide for the exact arrangements so as to allow the consumer to obtain an effective review of the terms of the contract on the basis of which the enforcement was sought and to draw all the consequences of that review.

108.In view of the above, I consider that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 7 and Article 47 of the Charter, must be interpreted as being applicable to a procedure in which the winning bidder of immovable property, adjudicated in extrajudicial enforcement proceedings, seeks to enforce his or her property rights, in circumstances where the auction took place despite ongoing judicial proceedings seeking to prevent the auction and despite the bidder being informed of those proceedings, to the extent that the existing procedural means did not provide the consumer with an effective and genuine opportunity to obtain the judicial review of unfair terms and the suspension of the proceedings before the auction took place or to seek the annulment of the auction.

109.By its third question, the referring court asks, in essence, whether Article 5 of Directive 2005/29 must be interpreted as meaning that the enforcement of a charge on the basis of an unfair contractual term relating to the early recovery of a debt may constitute an unfair commercial practice which may engage the liability of the auctioneer.

110.The parties that submitted observations contend that the question is inadmissible.

111.It is settled case-law that questions concerning EU law referred by a national court enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

112.In the present case, it is not clear from the reference for a preliminary ruling how the question relates to the actual facts of the main action or its purpose. More particularly, as pointed out by the Slovak Government, neither the bank nor the auctioneer is a party to the main proceedings. Thus, it does not appear that the interpretation of Directive 2005/29 could have an impact on the case in the main proceedings.

113.Moreover, as the Commission pointed out, an unfair commercial practice, pursuant to Article 5(2)(b) of Directive 2005/29, is a behaviour that ‘materially distorts or is likely materially to distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed’. However, the referring court does not elaborate on the type of commercial decision taken by the consumer that the bank or the auctioneer purportedly intended to distort.

114.For those reasons, I consider the third question to be inadmissible.

V.Conclusion

115.In view of all of the above, I propose that the Court answer the questions referred by the Krajský súd v Prešove (Regional Court, Prešov, Slovakia) as follows:

(1)Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Article 7 and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation and practice, such as those at issue in the main proceedings, which, in the context of the extrajudicial enforcement of a mortgage on immovable property which is the consumer’s family home, on the one hand, allows for the auction of that property to take place before delivery of the decision of the court having jurisdiction to rule on the substance of the case declaring the contractual term on which that enforcement was based to be unfair, even though the consumer sought the suspension of the auction, and, on the other hand, does not provide for any possibility to annul the auction on the ground of unfair terms contained in the contract in respect of which enforcement is sought.

(2)Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 7 and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as being applicable to a procedure in which the winning bidder of immovable property, adjudicated in extrajudicial enforcement proceedings, seeks to enforce his or her property rights, in circumstances where the auction took place despite ongoing judicial proceedings seeking to prevent the auction and despite the bidder being informed of those proceedings, to the extent that the existing procedural means did not provide the consumer with an effective and genuine opportunity to obtain the judicial review of unfair terms and the suspension of the proceedings before the auction took place or to seek the annulment of the auction.

(3)The third question is inadmissible.

*

Original language: English.

Judgment of 14 March 2013 (C‑415/11, EU:C:2013:164).

Kenna, P., ‘Introduction’ in Kenna, P. et al., Loss of Homes and Evictions Across Europe – A Comparative Legal and Policy Examination, Edward Elgar, Cheltenham, United Kingdom and Northampton, Massachusetts, United States, 2018, pp. 1 to 65, at p. 41.

Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

Collins, H., ‘Building European contract law on charter rights’ in Collins, H. (ed.), European Contract Law and the Charter of Fundamental Rights, Intersentia, Cambridge, 2017, pp. 1 to 32, at p. 17.

It follows from the grounds of the order for reference that what triggered the demand for early repayment was the failure of the consumers to pay certain instalments of the loan.

The referring court stated that the disputed contractual term on early repayment of the loan may be considered not to exist because of a lack of transparency. That term was included in the general conditions of the bank but was not brought to the attention of the consumers.

Directive of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

Judgment of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraph 49).

Ibid., paragraph 50.

See point 6 et seq. of the present Opinion.

The title of that legislation refers to a ‘voluntary’ sale. However, the characteristics of that procedure point to a forced sale by auction.

See, to that effect, judgment of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 38).

Judgment of 10 September 2014 (C‑34/13, EU:C:2014:2189, paragraph 68).

Opinion of Advocate General Medina in Všeobecná úverová banka (C‑598/21, EU:C:2023:845, point 83).

Judgment of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396, paragraph 46).

Judgment of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396, paragraph 47).

See, to that effect, judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 73 and the case-law cited).

Judgment of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 25).

Judgment of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396, paragraph 55, and the case-law cited).

See, to that effect, judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 59); of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396, paragraph 56); and of 9 November 2023, Všeobecná úverová banka (C‑598/21, EU:C:2023:845, paragraph 85).

See, to that effect, judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 82).

Judgment of 9 November 2023, Všeobecná úverová banka (C‑598/21, EU:C:2023:845, paragraph 85).

Kenna, P. and Simón-Moreno, H., ‘Towards a common standard of protection of the right to housing in Europe through the Charter of Fundamental Rights’, European Law Journal, Vol. 25, 2019, pp. 608 to 622, at p. 608.

Whitehouse, L., ‘The home-owner: Citizen or consumer?’, in Bright, S. and Dewar, J., Land Law – Themes and Perspectives

, Oxford University Press, Oxford, 1998, pp. 183 to 205, at p. 183 (emphasis added).

30Kenna, P. and Simón-Moreno, H., footnote 28, op.cit., p. 614.

31See, to that effect, judgment of 9 November 2023 (C‑598/21, EU:C:2023:845, paragraphs 82 and 84).

32By virtue of which the creditor may call in the loan early.

33Judgment of 9 November 2023, Všeobecná úverová banka (C‑598/21, EU:C:2023:845, paragraph 85).

34See, to that effect, judgment of 8 December 2022, Orde van Vlaamse Balies and Others (C‑694/20, EU:C:2022:963, paragraph 25).

35Ibid., paragraph 26.

36ECtHR, 25 October 2013, Rousk v. Sweden, CE:ECHR:2013:0725JUD002718304, § 137 and the case-law cited (emphasis added).

37Ibid., paragraphs 120 and 139.

38Ibid., paragraph 137.

39Ibid., paragraph 139 (emphasis added).

40See point 14 above.

41The national court can adopt measures of interim relief pursuant to Paragraph 325 of the Code of Civil Procedure. Moreover, it follows from Paragraph 19(1) of the Law on voluntary auctions, that the auctioneer is required to suspend the auction if a court has adopted a measure of interim relief.

42The Slovak Government refers, more particularly, to the orders of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) of 7 December 2022, reference 6Cdo/159/2020, and of 23 February 2022, reference 4Cdo/149/2020.

43Judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 31).

44Ibid., paragraph 61.

45Ibid., paragraph 62.

46Ibid., paragraph 63.

47See, to that effect, judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 65).

48On the concept of the average consumer, see judgment of 4 July 2024, Caixabank and Others (Review of transparency in collective actions) (C‑450/22, EU:C:2024:577, paragraph 48).

49Rott, P., ‘The average consumer is not a lawyer! Case C‑66/19 JC v Kreissparkasse Saarlouis’, Maastricht Journal of European and Comparative Law, Vol. 27(3), pp. 379 to 386, commenting on the judgment of the Court of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242).

50See points 21 and 22 of the present Opinion.

51See, Faber, W. and Martinson, C., ‘Can ownership limit the effectiveness of EU consumer contract law directives? – A suggestion to employ a ‘functional approach’, Austrian Law Journal (ALJ), 2019, pp. 85 to 123.

52Judgment of 7 December 2017 (C‑598/15, EU:C:2017:945, ‘the judgment in Banco Santander’, paragraph 50).

53Ibid., paragraph 45.

54Ibid., paragraph 49.

55Ibid., paragraph 50.

56Judgment of 17 May 2022 (C‑600/19, EU:C:2022:394; ‘the judgment in Ibercaja Banco’).

57The judgment in Ibercaja Banco, paragraph 50.

58Ibid., paragraph 56.

59Ibid., paragraph 57.

60The judgment in Ibercaja Banco, paragraph 58), and judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 83).

61GR REÁL, in its written submissions, denies that it was aware of the action brought by the consumers against the enforcement proceedings. However, according to settled case-law, under the division of jurisdiction between the Courts of the European Union and the national courts, the Court of Justice must take into account the factual and legal context, as set out in the order for reference, of the questions referred for a preliminary ruling. Therefore, since the referring court has defined the factual and legislative context of the questions it is asking, it is not for the Court to verify the accuracy of those questions (see, to that effect, judgment of 29 June 2023, International Protection Appeals Tribunal and Others (Attack in Pakistan) (C‑756/21, EU:C:2023:523, paragraphs 37 and 38 and the case-law cited).

62See point 54 et seq. of the present Opinion.

63See above, point 63 of the present Opinion.

64See Rutgers, J.W, ‘The Right to housing (Article 7 of the Charter) and unfair terms in general conditions’ in Collins, H., (ed.), footnote 5, op. cit., pp 125 to 137, at p. 134.

65See, to that effect, ECtHR, judgment of 16 July 2009, Zehentner v. Austria, CE:ECHR:2009:0716JUD002008202, §§ 62 and 65.

66For an overview see, Martínez Valencoso, L.M. et al. (eds.), Transfer of Immovables in European Private Law, Cambridge University Press, 2017.

67See, to that effect, ECtHR, judgment of 1 July 2014, Buceaş and Buciaş v. Romania, CE:ECHR:2014:0701JUD003218504, § 43.

68See point 69 of the present Opinion.

69Judgment of 17 May 2022, Unicaja Banco (C‑869/19, EU:C:2022:397, paragraph 28 and the case-law cited).

70See point 79 of the present Opinion.

71Judgment of 17 May 2022, Unicaja Banco (C‑869/19, EU:C:2022:397, paragraph 38).

72Judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578, paragraph 34 and the case-law cited).