delivered on 5 September 2013 (1)

Anuntis Segunda Mano SL

(Request for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain))

‘Unfair terms in consumer contracts — Adequate and effective means of preventing the continued application of unfair terms — Action for an injunction brought by a consumer protection association — Obligation to bring the action for an injunction before the court where the seller or supplier has its address or is established — No appeal from the decision declining territorial jurisdiction — Effective judicial protection — Procedural autonomy — Principle of effectiveness’

1.To what extent does the pursuit of a high level of consumer protection interfere with the procedural autonomy of the Member States in relation to actions for an injunction brought by consumer protection associations? Are such associations, in order to ensure the effectiveness of their campaign against unfair terms, to have the possibility of appealing against a ruling declining territorial jurisdiction handed down by the court before which an action for an injunction was brought, even where national law does not generally allow for such a possibility, and may those associations avail themselves of the preferential rules on jurisdiction hitherto reserved for consumers themselves? That, in essence, is the nature of the issues raised by the present request for a preliminary ruling.

I – Legal context

A — Directive 93/13/EEC

2.Recital 23 in the preamble to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (2) provides that ‘persons or organisations, if regarded under the law of a Member State as having a legitimate interest in the matter, must have facilities for initiating proceedings concerning contractual terms drawn up for general use in contracts concluded with consumers, and in particular unfair terms, either before a court or before an administrative authority competent to decide upon complaints or to initiate appropriate legal proceedings; … this possibility does not, however, entail prior verification of the general conditions obtaining in individual economic sectors’.

3.Recital 24 in the preamble to Directive 93/13 goes on to state that the ‘courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.

4.Article 7 of Directive 93/13 is worded as follows: 1. 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. 2. The means referred to in Article 7(1) are to include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate effective means to prevent the continued use of such terms. …

B — Spanish law

5.The relevant legal context of the present request for a preliminary ruling may be summarised as follows.

6.According to the Code of Civil Procedure (Ley 1/2000 de Enjuiciamento civil) (3) (‘the LEC’), actions for a declaration of nullity of general contractual conditions must be brought before the court where the claimant has its address. By contrast, in the case of actions for an injunction, where the object is to compel the defendant to discontinue his conduct or to prevent repetition in the future, (4) it is the court where the defendant — the seller or supplier — is established or has its address that has jurisdiction, provided that that address or establishment is situated on Spanish territory. (5) Therefore the latter rule of territorial jurisdiction applies where the action in question is brought to defend collective and general interests of consumers (6) and is brought by a consumer protection association which meets the conditions laid down by law.

7.No appeal lies against decisions declining territorial jurisdiction handed down by the court before which an action was brought. (8)

II - The dispute in the main proceedings and the questions for a preliminary ruling

8.The Asociación de Consumidores Independientes de Castilla y León (‘the ACICL’) is a consumer protection association registered in the Registry of Consumer and User Organisations of the Autonomous Community of Castile-León in Spain. It has its registered office in Salamanca. It has 110 members and had a budget of EUR 3 941 for 2010. Its remit is limited to the territory of Castile-León. It is not federated or integrated in any confederation or federation of consumer associations at regional or national level. Furthermore, it meets the statutory requirements for defending the collective interests of consumers before the courts.

9.At first instance before the Juzgado de Primera Instancia No 4 y de lo Mercantil de Salamanca (Court of first instance and commercial court No 4, Salamanca) (Spain), the ACICL brought an action for an injunction against the company Anuntis Segunda Mano SL, which is established in the province of Barcelona. By that action it sought a declaration of nullity of certain provisions of the conditions of use that appear on that company’s website (9) on the ground that they were unfair terms, and to prevent repetition of the offending conduct in the future.

10.By order of 6 April 2011, the Juzgado de Primera Instancia No 4 y de lo Mercantil de Salamanca declined jurisdiction to hear the action for an injunction brought by the ACICL. It held, on the basis of Article 52(1)(14) of the LEC, that the court having jurisdiction to hear actions for injunctions brought for the defence of consumers’ collective interests is the court where the defendant is established. It nevertheless referred to the possibility of bringing an appeal against the finding that it had no jurisdiction, although no national rule provides for such a possibility.

11.The ACICL therefore brought an appeal before the Audiencia Provincial de Salamanca (Provincial Court, Salamanca). Two issues arise before that court.

12.First of all, under the national procedural rules, more specifically Articles 60 and 67 of the LEC, no appeal lies against a decision declining territorial jurisdiction, with the result that, if it wishes to pursue its action for an injunction, the ACICL must bring an action before the court where the defendant is established. The referring court has some doubts as to whether, in those circumstances, the fact that no appeal lies against the decisions of Spanish courts declining territorial jurisdiction for collective actions for an injunction brought in the interest of consumers impedes the attainment of the objective pursued by EU law in general and by Directive 93/13 in particular of ensuring a high level of consumer protection. If so, the referring court must disregard the national procedural rules and agree to rule on the appeal pending before it.

13.Secondly, the referring court has some doubts as to the compatibility with: (i) EU law; (ii) the objective of a high level of consumer protection; and (iii) the recognised importance of actions brought in this area by consumer protection associations, of the rule on jurisdiction under which an action for an injunction brought by such an association must be brought before the court where the supplier or seller has its address or is established, an action which the ACICL would ultimately be unable to bring due to its modest budget and limited territorial scope.

14.In those circumstances, the Audiencia Provincial de Salamanca, decided to stay the proceedings and, by an order for reference received at the Court Registry on 11 September 2012, to refer the following two questions to the Court for a preliminary ruling under Article 267 TFEU:

‘(1) Does the protection afforded to the consumer under [Directive 93/13] allow the Audiencia Provincial [de Salamanca], as a national court of appeal, to hear and determine, in spite of the absence of any relevant domestic legal rule, the appeal brought against the decision of the [Juzgado de Primera Instancia No 4 y de lo Mercantil de Salamanca] assigning to a court of the place where the defendant [is established] territorial jurisdiction to hear and determine the action for an injunction brought by a consumer [protection] association of restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?

(2)Must Articles 4 [TFEU], 12 [TFEU], 114 [TFEU] and 169 [TFEU] and Article 38 of the Charter of Fundamental Rights of the European Union, read in conjunction with Directive 93/13 and the case-law of the Court of Justice relating to the high level of protection of the interests of consumers, as well as to the practical effect of directives and the principles of equivalence and effectiveness, be interpreted as meaning that the court of the place where that association has its address, and not the court of the place where the defendant has its address, is to have territorial jurisdiction to hear and determine an action for an injunction against the use of unfair terms, to protect the collective or general interests of consumers and users, brought by a consumer [protection] association with restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?

II – The procedure before the Court

15.The claimant in the main proceedings, the Spanish Government and the European Commission have lodged written observations before the Court.

III – Legal assessment

A – Consideration of the first question

16.First, I shall consider the Spanish Government’s argument concerning the inadmissibility of the first question before turning, secondly, to the principles arising from the Court’s settled case-law that will assist in my reflection. Thirdly, I shall consider the absence, in the legal system of a Member State, of two-tiered territorial jurisdiction in the light of the abovementioned principles, in particular the principle of effectiveness.

17.It is necessary to dismiss immediately the Spanish Government’s argument that the first question addressed to the Court is inadmissible on the ground that the case is purely internal and the procedural rule in question should be considered solely in the light of effective judicial protection, as guaranteed by the Spanish Constitution. For that purpose, suffice it to bear it mind that the action brought by the ACICL before the Juzgado de Primera Instancia No 4 y de lo Mercantil de Salamanca, and before the referring court seeks a declaration that the terms used by the defendant company in the main proceedings are unfair; therefore, the action clearly involves the question of the enforceability of the consumer protection provided for by Directive 93/13, if necessary through action by the consumer protection associations referred to in Article 7(2) of that directive.

18.Article 7(1) of Directive 93/13 requires the Member States to ensure that ‘adequate and effective means exist to prevent the continued use of unfair terms’. The question raised by the referring court is whether adequate and effective means must include the possibility of appealing against a decision declining territorial jurisdiction in an action brought by a consumer protection association.

19.Directive 93/13 does not harmonise the procedural means available to such associations. The Court has held that ‘the freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues’. It has repeatedly been held that ‘the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty under Article [4(3) TEU] to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts’, which have ‘the responsibility in particular to provide the legal protection which individuals derive from the rules of [European Union] law and to ensure that those rules are fully effective’. Furthermore, in the absence of EU rules governing the matter, which is the situation in the main proceedings, ‘it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from [EU] law’, provided that those rights are effectively protected.

20.In that regard it is apparent from well-established case-law that ‘the detailed procedural rules governing actions for safeguarding an individual’s rights under [EU] law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by [EU] law (principle of effectiveness)’.

21.All those considerations must guide our assessment of the question in this case.

22.The situation in the main proceedings thus indeed falls to be examined in the light of the principles of equivalence and effectiveness. However, the principle of equivalence is not in issue here. What remains to be determined, then, is what the situation is in terms of the principle of effectiveness.

23.Generally speaking, in the sphere of consumer protection, there is no particular obligation under EU law as to the number of instances of jurisdiction that the Member States must have. Jurisdictional structure is a matter left entirely to the procedural autonomy of the Member States. There is, moreover, general acceptance that the treaties did not intend to create new legal remedies other than those already provided for, unless it is apparent from the overall scheme of the national legal system in question that no legal remedy exists which makes it possible to ensure, even indirectly, respect for an individual’s rights under Community law.

24.The present question from the referring court raises the issue of the impossibility of appealing against a decision declining territorial jurisdiction handed down by the court before which proceedings have been brought and designating the court having territorial jurisdiction before which the case must be brought. As observed by the Commission, the only rule at EU level on the subject concerns the EU Courts themselves. The second paragraph of Article 54 of Protocol (No 3) on the Statute of the Court of Justice of the European Union, annexed to the treaties, provides that, ‘where the General Court finds that it does not have jurisdiction to hear and determine an action in respect of which the Court of Justice has jurisdiction, it shall refer that action to the Court of Justice; likewise, where the Court of Justice finds that an action falls within the jurisdiction of the General Court, it shall refer that action to the General Court, whereupon that Court may not decline jurisdiction’. No appeal lies against decisions referring an action.

25.Admittedly, a referral of a case from one EU Court to another does not involve the same geographical difficulties as those arising in the context of the main proceedings.

26.However — and this is fundamental for a proper understanding of the first question — the question involves an assessment of the compatibility with EU law of the national procedural rule (Article 67(1) of the LEC) under which no appeal lies against decisions declining territorial jurisdiction, whereas the aforementioned difficulties originate from the application of the rule under which an action for an injunction brought by a consumer protection association must be brought before the court where the seller or supplier has its address or is established (Article 52(1)(14) of the LEC). The question referred does not relate to this provision, however.

27.In those circumstances, the comparison with the procedural rules applicable to the EU Courts remains relevant and it is apparent from those rules that neither the system of appeals specific to the EU Courts nor Spanish procedural law provides for the possibility of appealing against decisions declining jurisdiction.

28.Turning to the sources of secondary law, neither Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests nor Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests, which succeeded it, has gone so far as to regulate in detail the question of the number of instances of jurisdiction for which the Member States should provide in relation to decisions declining territorial jurisdiction handed down against consumer protection associations.

As for the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), it is interesting to observe that it was necessary to wait until Protocol No 7 (21) to that convention to see a right to two-tiered jurisdiction enshrined. (22) However, not only is that right enshrined only in respect of criminal matters, Protocol No 7 has still not been ratified by all the Member States of the European Union. This shows the extent to which the number of adjudicative instances varies from one Member State to another, whatever the type of case.

In the absence of a rule laying down at EU level the precise scope of the judicial safeguards available to consumer protection associations, it must be determined whether the national rule at issue in the main proceedings, which precludes any appeal against a decision declining territorial jurisdiction, makes it practically impossible or excessively difficult for such associations to exercise rights or prerogatives conferred on them by EU law.

On that point it must be observed, first, that the impossibility of appeal, with which the ACICL is faced, concerns only territorial jurisdiction and does not have the effect of depriving the ACICL of any legal remedy to have its application for an injunction to prevent the continued use of terms it deems to be unfair heard on its merits. Nevertheless, it does indeed have a legal remedy available to it, as access to the court hearing the case on its merits is guaranteed by the obligation of the court designated by the court which declined jurisdiction not to question its own territorial jurisdiction. Consequently, there is no question of justice being denied.

Secondly, the absence of a possibility of appeal does not have the effect of putting a definitive end to the issue of territorial jurisdiction because the jurisdiction of the court where the defendant is established may be challenged once again (23) after the court gives its decision on the merits.

Although I understand perfectly well the difficulties facing the ACICL and I do not deny the disadvantages of being unable to appeal against a decision which will bring an end to proceedings in the geographical area of the claimant in the main proceedings, it must also be recognised that the ACICL can bring its action before another court, one having territorial jurisdiction, and in that way contribute to the objective pursued by the directive.

I repeat that the geographical relocation of the action, which is the cause of the difficulties confronting the ACICL, is not in itself a consequence of the fact that there is no possibility of appealing against the decision declining territorial jurisdiction, but follows from the application of Article 52(1)(14) of the LEC, which is at the heart of the second question from the referring court.

It is true that, as a result of the ruling by the Juzgado de Primera Instancia No 4 y de lo Mercantil de Salamanca, declining territorial jurisdiction, the ACICL may have to abandon its action solely on financial grounds. However, I think it is difficult to conclude that the principle of effectiveness is infringed whenever an individual, after meeting with a decision declining jurisdiction, refrains from bringing an action by reason of the cost, provided, of course, that the global cost of the proceedings is not so excessive that it becomes a deterrent. However, it has never been suggested in this case that the cost of relocation of the action was <span class="italic">objectively</span> excessive.

What has been established is that the cost of relocation cannot, <span class="italic">subjectively</span> be borne by the claimant in the main proceedings. However, the particular economic situation of the ACICL is a factor which, in my view, cannot be taken into account in assessing compliance with the principle of effectiveness. As the rules laid down by national legislatures relating to the structure of legal remedies and the number of instances of jurisdiction to which each type of decision is subject pursue a general interest in the sound administration of justice and foreseeability, they must naturally prevail over individual interests and it cannot be envisaged that they might vary from case to case, depending on the financial situation of the parties. (24)

Lastly, it must be borne in mind that, in the application of the principles of equivalence and effectiveness, ‘each case which raises the question whether a national procedural provision renders application of [EU] law impossible or excessively difficult has to be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances’. (25) The factors that I have already mentioned relating to: (i) there being no denial of justice; (ii) the presence of a legal remedy actually available to the consumer protection association; and (iii) the possibility of reopening, if necessary, the issue of territorial jurisdiction once a decision on the merits has been handed down, lead me to conclude that Article 52(1)(14) of the LEC does not make it practically impossible or excessively difficult to exercise the rights conferred by Directive 93/13 on consumer protection associations; nor does it jeopardise the attainment of the objective pursued by the directive.

I therefore suggest that the Court should rule that, as EU law stands at present, the principle of effectiveness, considered together with the objective, as pursued by Directive 93/13, of ensuring a high level of consumer protection does not, in the context of the dispute in the main proceedings, preclude a national procedural rule under which no appeal lies against a decision declining territorial jurisdiction handed down by the court before which an action for an injunction has been brought by a consumer protection association where it is clear that, under national law, a legal remedy is in fact available to that association in order to have its claim heard on its merits.

B – Consideration of the second question

The second question referred asks in essence whether the objective pursued at EU level of ensuring a high level of consumer protection is jeopardised by the Spanish procedural rule under which, in the context of a non-cross-border case, the court having jurisdiction to hear and rule on an action for an injunction brought by a consumers’ association is the court where the seller or supplier has its address or is established, where that address or establishment is known.

In view of the answer I have suggested for the first question, I very much doubt whether the Court has jurisdiction to rule on the second question. I shall explain why immediately.

As I am inclined to take the view that EU law does not, in the circumstances of the main proceedings, require an appeal to lie against a decision declining territorial jurisdiction, once the Court has given its answer to the first question from the referring court, the action brought by the ACICL will become devoid of purpose. Since it will be unable to rule on the appeal lodged by the ACICL, the referring court will have to close the proceedings. Consequently, the ACICL’s action for an injunction will have to be brought before the court having jurisdiction under the LEC, that is to say, the court where the seller or supplier is established.

I observe therefore that, in those circumstances, as from the moment when the referring court learns of the Court’s reply to the first question, it will no longer have before it an action the resolution of which requires an answer to the second question referred.

According to settled case-law, the preliminary ruling procedure presupposes that a case is actually pending before the national courts in which they are called upon to give a decision which is capable of taking account of the preliminary ruling. (26) The justification for a request for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. (27) That is no longer necessary once the referring court has declined jurisdiction — this time on the merits.

It might nevertheless be imagined that the Court might give some kind of answer in anticipation of the case being brought before the court having territorial jurisdiction. This remains very hypothetical, however, as it is clear from the file that the ACICL would be induced, by reason of its size and budget, to abandon its action. Moreover, even if the ACICL did finally bring the action for an injunction before the court having territorial jurisdiction, it could not make submissions concerning territorial jurisdiction before that court because, in accordance with the LEC and in order to avoid a negative conflict of jurisdiction, the court designated by the court which declined jurisdiction cannot call into question its own territorial jurisdiction. As I have already said, and in accordance with the pleadings of the Spanish Government and the Commission, which concur on this point, such submissions will be admissible only in the context of an appeal against the decision on the merits of the case handed down at first instance.

Therefore the following brief observations are made only by way of utmost alternative.

Lastly, it must be borne in mind that, in the application of the principles of equivalence and effectiveness, ‘each case which raises the question whether a national procedural provision renders application of [EU] law impossible or excessively difficult has to be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances’. (25) The factors that I have already mentioned relating to: (i) there being no denial of justice; (ii) the presence of a legal remedy actually available to the consumer protection association; and (iii) the possibility of reopening, if necessary, the issue of territorial jurisdiction once a decision on the merits has been handed down, lead me to conclude that Article 52(1)(14) of the LEC does not make it practically impossible or excessively difficult to exercise the rights conferred by Directive 93/13 on consumer protection associations; nor does it jeopardise the attainment of the objective pursued by the directive.

The ACICL’s situation, to which the contested national rule of territorial jurisdiction is being applied, must be considered in the light of the principles of equivalence and effectiveness referred to above.

The principle of equivalence is not at issue here.

With regard to the principle of effectiveness, the ACICL claims that, by reason of its size, its territorial scope and its budget, bringing an action for an injunction before the court where the seller or supplier has its registered office would involve a cost which it cannot meet, with the consequence that it would have to abandon its action. Such a situation would impede considerably the attainment of the objective pursued by that association by limiting, de facto, its own ability to seek an injunction, particularly in relation to allegedly unfair terms. The rule on jurisdiction applicable to the ACICL for such actions would have to be the same as the one which applies to actions brought by consumers against sellers or suppliers, namely that the court where the claimant has its address has jurisdiction.

Although I understand perfectly well the problems with which the ACICL is faced, I must also point out that EU law does not require the preferential procedural treatment reserved for consumers to be extended to consumer protection associations.

First, Directive 93/13 merely states that ‘organisations … having a legitimate interest in the matter, must have facilities for initiating proceedings concerning contractual terms drawn up for general use in contracts concluded with consumers’. (28) The adequate and effective means referred to in Article 7 of Directive 93/13 include provisions whereby such organisations may take action before the courts or the competent administrative bodies. (29) The directive contains no requirements as to the court before which actions for an injunction must be brought by such organisations.

Secondly, it has consistently been held that ‘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 bargaining power and his level of knowledge’. (30) Although it is easy to accept that the protection of consumers’ rights as provided for by EU law requires the recognition of a privileged forum for consumers — in the light of what is recognised in a cross-border context (31) — to require the Member States to extend the benefit of a privileged forum to consumer protection organisations would mean taking matters one step further. (32)

Without denying the fundamental importance of their work and the essential role which they must be able to play in order to attain a high level of consumer protection within the European Union, (33) it must at the same time be recognised that legal proceedings bringing such an association face to face with a seller or supplier do not present exactly the same imbalance as that mentioned above. An action for an injunction is not an action in contract. (34)

The Spanish Government and the Commission have tried hard — convincingly, I think — to illustrate that distinction by referring to the rules on jurisdiction laid down in Regulation No 44/2001. They thus asserted that, in that context, the Court has rejected the argument that the special rules on jurisdiction for actions brought by consumers who are parties to a cross-border contract concluded with a seller or supplier should apply by analogy to actions brought by consumer protection associations. (35)

It is true that, in the context of Directive 93/13, the Court has held that a term in a contract which was not individually negotiated and which had the systematic result of conferring jurisdiction for a dispute relating to the contract on the court for the seller’s or supplier’s principal place of business was unfair. (36) However, that does not mean that, where such jurisdiction is conferred by the national legislature — without any contractual framework — in relation to actions for an injunction brought by consumer protection associations, it necessarily conflicts with the objective of protecting consumers or even more with the principle of effectiveness.

That approach, which is differentiated according to whether the action is, on the one hand, in contract or, on the other, in delict or quasi-delict, is confirmed by Directives 98/27 and 2009/22, which state that it is indeed the courts of the Member State where the defendant has its address or registered office (37) that have jurisdiction to hear actions for an injunction brought by consumer protection associations or similar groups from other Member States in the event of an intra-Community infringement of EU consumer protection legislation.

Moreover, the ACICL may, at some cost, decide in spite of everything to bring the matter before the court having territorial jurisdiction or, as the Commission claims, report the allegedly unfair conduct to an association which can be a party to legal proceedings in the province of Barcelona. In any event, in addition to having a form of action specifically available to it, it may also continue to assist consumers in their individual actions in contract before the courts of the Autonomous Community of Castile-León.

I shall conclude by observing that, in order to assess compliance with the principle of effectiveness, as required by the Court’s case-law, (38) it is necessary to take account of the entire procedure, its progress and the particular features before the different national courts. The explanations in the Spanish Government’s pleadings concerning the procedural treatment of actions for an injunction brought by consumer protection organisations, such as the waiver of security and the fact that there is no time bar on such actions, combined with the justification put forward to the effect that such a rule on jurisdiction pursues the two-fold objective of avoiding contradictory judicial decisions (39) and facilitating the implementation, by the seller or supplier, of the decision which will be given, (40) ultimately persuade me that the legislation at issue in the main proceedings does not make it practically impossible or excessively difficult to apply the rights which the organisations concerned derive from EU law in general and Directive 93/13 in particular.

IV – Conclusion

In the light of the foregoing considerations, I propose that the Court reply as follows to the questions submitted to it for a preliminary ruling by the Audiencia Provincial de Salamanca: As EU law stands at present, the principle of effectiveness, considered together with the objective, as pursued by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, of ensuring a high level of consumer protection does not, in the context of the dispute in the main proceedings, preclude a national procedural rule under which no appeal lies against a decision declining territorial jurisdiction handed down by the court before which an action for an injunction has been brought by a consumer protection association where it is clear that, under national law, a legal remedy is in fact available to that association in order to have its claim heard on its merits.

(1) Original language: French.

(2) OJ 1993 L 95, p. 29.

(3) In force until 22 July 2014.

(4) See Article 53 of the Ley General de Defensa de Consumidores y Usarios (General Law on the Protection of Consumers and Users) (‘the LGDCU’).

(5) See Article 52(1)(14) of the LEC. If that is not the case, the dispute will be cross-border in nature and the jurisdictional issue will be determined in accordance with the rules on jurisdiction laid down in Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L12, p. 1).

(6) See Article 52(1)(16) of the LEC.

(7) See Article 54(1)(b) of the LGDCU.

(8) See Article 67(1) of the LEC.

(9) On that point it must be observed that electronic commerce is an area in which the European Union also seeks to provide a high level of consumer protection, as shown by the attention given to Directive 93/13 by Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1). See, in particular, recital 11 in the preamble to and Article 1(3) of that directive.

(10) See, among the abundant case-law on the point, Case C-268/06 Impact [2008] ECR I-2483, paragraph 40 and the case-law cited.

(11) Impact, paragraph 41 and the case-law cited.

(12) Impact, paragraph 42 and the case-law cited.

(13) Impact, paragraph 44 and the case-law cited.

(14) Case C-432/05 Unibet [2007] ECR I-2271, paragraphs 40 and 41.

(15) For the distribution of jurisdiction between the General Court and the Civil Service Tribunal, see Article 8(2) of Annex I to the Statute of the Court of Justice.

(16) See, by way of example, Case T‑413/06 P Gualtieri v Commission [2008] CST I‑B‑1-35 and II‑B‑1-253, paragraph 27.

(17) OJ 1998 L 166, p. 51.

(18) OJ 2009 L 110, p. 30.

(19) The ECHR was signed in Strasbourg on 22 November 1984 and entered into force on 1 November 1988.

(20) Article 2 of Protocol No 7 to the ECHR.

(21) It should be noted in that regard that the decision declining territorial jurisdiction by Juzgado de Primera Instancia No 4 y de lo Mercantil de Salamanca was handed down after the parties had been heard on the question.

(22) On the contrary, in such cases schemes for offsetting the claimant’s limited financial means come into the picture (legal aid, exemption from costs, etc.), but the very structure of legal remedies is itself never arranged or adjusted to take account of those means. The imperative of foreseeability of legal actions requires absolute stability in the rules of jurisdiction and procedure. The same is true of safeguarding the defendant’s rights.

(23) Joined Cases C-430/93 and C-431/93 van Schijndel and van Veen [1995] ECR I-4705, paragraph 19; Joined Cases C-222/05 to C-225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 33; and, to the same effect, Case C-210/09 Scott and Kimberly Clark [2010] ECR I-4613, paragraph 24.

(24) Case C‑492/11 Di Donna [2013] ECR, paragraph 26 and the case-law cited.

(25) Case C-225/02 García Blanco [2005] ECR I-523, paragraphs 27 and 28.

(26) Recital 23 in the preamble to Directive 93/13.

(27) Article 7(2) of Directive 93/13.

(28) Case C-243/08 Pannon GSM [2009] ECR I-4713, paragraph 22 and the case-law cited, and Case C‑472/10 Invitel [2012] ECR, paragraph 33 and the case-law cited.