delivered on 15 September 2016 (1)

Case C‑503/15

Ramón Margarit Panicello

Pilar Hernández Martínez

(Request for a preliminary ruling from the Secretario Judicial (Judicial Officer) attached to the Juzgado de Violencia sobre la Mujer Único de Terrassa (Single-Judge Court dealing with matters involving Violence against Women, Terrassa (Spain))

Reference for a preliminary ruling — Reference to the Court — National court — Concept — ‘Secretario judicial’ — Unpaid fee recovery procedure — Lawyers’ fees — Unfair terms in consumer contracts — Directive 93/13 — Unfair business-to-consumer commercial practices — Directive 2005/29 — Right to an effective remedy and to a fair trial — Article 47 of the Charter of Fundamental Rights’

I – Introduction

The present request for a preliminary ruling is concerned, in essence, with the compatibility of a national procedure for the simplified recovery of unpaid lawyers’ fees (‘unpaid fee recovery procedure’) with Directive 93/13 on unfair terms in consumer contracts. (2)

That issue, which has also arisen in several other cases pending before the Court, is of considerable significance in Spain, where a large number of unpaid fee recovery procedures are currently stayed pending an answer from the Court. (3)

Before the Court can turn to that issue, however, it will have to examine whether the official that made the present request, the Secretario Judicial (Judicial Officer), who is responsible for implementing the procedure in question, constitutes a court or tribunal within the meaning of Article 267 TFEU.

If the Court were to find that he does, the present proceedings would give it the opportunity to develop further its case-law on the specific requirements applicable to the effective guarantee of consumer protection rights enshrined in EU law in expedited procedures and enforcement proceedings at national level. In this context, the Court is asked to comment not only on Directive 93/13 but also on Directive 2005/29 on unfair commercial practices, (4) as well as on Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

II – Legal framework

A – EU law

Article 4 of Directive 93/13 is worded as follows:

‘1. … the unfairness of a contractual term shall be assessed, taking into account … all the circumstances attending the conclusion of the contract …

Article 6(1) of Directive 93/13 provides:

‘1. Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

Article 7(1) and (2) of Directive 93/13 provides 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.

In accordance with Article 3(3) of Directive 93/13, the annex to that directive is to contain an indicative and non-exhaustive list of the terms which may be regarded as unfair. Point 1(q) of that annex refers to

‘terms which have the object or effect of excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.’

Article 3(2) of Directive 2005/29 provides:

‘2. This Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract.’

Article 6(1)(d) of Directive 2005/29 defines ‘Misleading actions’ as follows:

‘1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.’

Article 7(1) defines ‘Misleading omissions’ as follows:

‘1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.’

Article 7(4)(c) provides:

‘4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

(c) the price …’

Article 11 of Directive 2005/29 states:

‘1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.

Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:

(a) take legal action against such unfair commercial practices;

and/or

(b) bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.

…’

Article 12 of Directive 2005/29 reads as follows:

‘Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings provided for in Article 11:

(a) to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case;

and

(b) to consider factual claims as inaccurate if the evidence demanded in accordance with point (a) is not furnished or is deemed insufficient by the court or administrative authority.’

B – Spanish law

Since the examination of the issue of whether the Secretario Judicial constitutes a court or tribunal and the consideration of the questions referred, which relate to the compatibility of the Spanish legislation with EU law, both require an analysis of the relevant provisions of Spanish law, those provisions must be set out below.

Book V, Title II (Articles 440 to 469a) of the Ley Orgánica 6/1985 del Poder Judicial (Organic Law on the Judiciary, ‘the LOPJ’), (5) which is entitled ‘Del cuerpo de los secretaries judiciales’ (The Judicial Officer Cadre), governs the legal status and duties of Secretarios Judiciales.

After the application forming the basis of the present proceedings had been submitted, the LOPJ was amended by Organic Law 7/2015 (6) and ‘Secretarios Judiciales’ were renamed ‘Letrados de la Administración de Justicia’. In accordance with the transitional provisions laid down in Organic Law 7/2015 and the submissions of the parties to the present proceedings, who are of the view that the amendments introduced by that Law are applicable immediately, the provisions of the LOPJ will be applied below in the version as amended by Organic Law 7/2015. For ease of comprehension, however, the referring body will continue to be called ‘Secretario Judicial’. (7)

Pursuant to Article 440 of the LOPJ, Secretarios Judiciales are officials tasked with the administration of justice who act under the authority of the Ministry of Justice. Articles 442 and 450 of the LOPJ provide that candidates for the position of Secretario Judicial are selected and appointed by competitive examination. Article 443(2) of the LOPJ then lists the grounds for loss of the status of Secretario Judicial. Those grounds include a criminal conviction and the disciplinary penalty of dismissal. The second subparagraph of Article 468c(2) read in conjunction with Article 468a(1) of the LOPJ further provides that Secretarios Judiciales may be dismissed only in the cases of very serious misconduct listed. Finally, Article 446 of the LOPJ lays down the rules governing the abstention and rejection of Secretarios Judiciales, which are very largely the same as those applicable to judges.

Furthermore, the first sentence of Article 452(1) of the LOPJ states that, in the exercise of their official functions, Secretarios Judiciales are to respect the principles of legality and impartiality at all times and that, while they are to exercise their power of certification autonomously and independently, they generally act under instruction. The second sentence of Article 452(1) of the LOPJ provides that, with the exception of the powers of certification referred to in Article 451(3) of the LOPJ, the functions of the Secretarios Judiciales may not be delegated.

Lastly, Article 465(8) of the LOPJ provides that higher-ranking staff may not issue instructions to the Secretarios Judiciales in relation to ongoing proceedings falling within the latter’s sphere of competence:

‘The Secretarios de Gobierno (Higher Judicial Officers) shall have the following powers:

8. … Nor may they issue special instructions in relation to specific cases in which a Secretario Judicial is acting as a certifying official or in the exercise of his powers to organise and manage the proceedings.’

Real Decreto 1608/2005 por el que se aprueba el Reglamento Orgánico del Cuerpo de Secretarios Judiciales (Royal Decree 1608/2005 approving the Organic Regulation governing the Judicial Officer Cadre, ‘Real Decreto 1608/2005’) (8) also contains rules on the law governing Secretarios Judiciales.

Articles 16(h) and 21(2) of Real Decreto 1608/2005 confirm that higher-ranking staff may not issue instructions to the Secretarios Judiciales in relation to ongoing proceedings falling within the latter’s sphere of competence. Article 16(h) of Real Decreto 1608/2005 reads as follows:

‘The Secretarios de Gobierno shall have the following powers, each in relation to his specific area of activity:

(h) … Nor may they issue special instructions in relation to specific cases in which a Secretario Judicial is acting as a certifying official or in the exercise of his powers to organise and manage the proceedings.’

Article 21(2) of Real Decreto 1608/2005 provides:

‘The Secretario General de la Administración de Justicia (Chief Judicial Officer) shall have the following powers:

(2) … Nor may he issue special instructions in relation to specific cases in which a Secretario Judicial is acting as a certifying official or in the exercise of his powers to organise and manage the proceedings.’

Pursuant to Article 81(1)(a) of Real Decreto 1608/2005, Secretarios Judiciales have an individual right to retain their status as civil servants, to perform in practice the functions assigned to the cadre of which they form part, and to be dismissed only in the circumstances determined by law and under the conditions established by law.

3. Ley 1/2000 de Enjuiciamento Civil

The unpaid fee recovery procedure at issue in the main proceedings is governed by Ley 1/2000 de Enjuiciamento Civil (Law 1/2000 on Civil Procedure, ‘the LEC’). (9) Following the amendments made to the LEC by Law 13/2009, (10) exclusive competence in respect of this procedure, which had originally come under the jurisdiction of the judiciary, was conferred on the Secretarios Judiciales in order to alleviate the judiciary’s workload. (11) From this point of view, the provisions governing the conduct of the procedure remained unchanged.

After the application forming the basis of the present proceedings had been made, the LEC was amended by Law 42/2015. (12) In accordance with the transitional provisions laid down in Law 42/2015, however, the amendments introduced by that Law are not applicable to ongoing proceedings. The following provisions of the LEC are therefore reproduced in the version applicable to the present proceedings prior to the amendments introduced by Law 42/2015. (13)

Article 34 of the LEC governs the procedure for the recovery of unpaid fees owed to ‘procuradores’ (legal representatives), the second and third subparagraphs of paragraph 2 of which provide:

If the principal lodges an objection within that time limit, the Secretario Judicial shall examine the fee note, the case-file and the documents submitted and shall within 10 days issue a decree determining the amount payable to the legal representative and advising the principal that recovery will be enforced if payment is not made within five days of service.

The decree referred to the preceding paragraph shall not be open to appeal, but shall not prejudice, even in part, any judgment given in subsequent ordinary proceedings.’

Article 35 of the LEC governs the procedure for the recovery of unpaid fees owed to ‘abogados’ (lawyers) and provides as follows:

If, within the aforementioned time limit, the fees are objected to on the ground that they are not due, the provisions of the second and third subparagraphs of the preceding article shall apply.

If the fees are objected to on the ground that they are excessive, they shall first be determined in accordance with Article 241 et seq., unless the lawyer establishes the existence of a written cost estimate accepted by the objecting party, and a decree shall be issued setting the amount due and advising the debtor that recovery will be enforced if payment is not made within five days of service.

That decree shall not be open to appeal, but shall not prejudice, even in part, any judgment given in subsequent ordinary proceedings.

3. If the party owing the fees does not lodge an objection within the prescribed time limit, an order shall be made for the enforced recovery of the total amount stated on the invoice, plus costs.

Article 206 of the LEC is entitled ‘Types of decision’ and provides in paragraph 2:

Article 207 of the LEC, which is entitled ‘Decisions terminating proceedings. Final decisions. Formal res judicata’, reads as follows:

3. A final decision acquires the force of res judicata, and the court that conducted the proceedings in which it was given shall in all circumstances be bound by its operative provisions.

4. If that decision remains unchallenged on expiry of the time limits for appealing against it, it shall become final and acquire the force of res judicata, the court that conducted the proceedings in which it was given being bound in all circumstances by its operative provisions.

Article 222 of the LEC is entitled ‘Substantive res judicata’, and the first paragraph thereof provides:

Article 246(1) of the LEC, to which the third subparagraph of Article 35(2) of the LEC refers, provides:

Article 517 of the LEC is entitled ‘Enforcement. Enforceable instruments’ and provides, in paragraphs 1 and 2(9):

Other procedural decisions and documents enforceable under this or another law.

Article 552 of the LEC is entitled ‘Refusal to make an enforcement order. Appeals’, and its first paragraph reads:

If the court finds that any of the terms included in one of the enforceable instruments listed in Article 557(1) may be considered to be unfair, it shall hear the parties within a period of 15 days. After hearing the parties, it shall give a ruling within five working days, in accordance with Article 561(1), point 3.

Article 556 of the LEC is entitled ‘Objection to the enforcement of procedural decisions, arbitral awards or mediation agreements’ and provides as follows in paragraphs 1 and 2:

If the enforceable instrument is a procedural decision or arbitral decision making an award, or a mediation agreement, the party against whom enforcement is sought may, within 10 days of service of the enforcement order, object to it in writing by claiming payment or compliance with the operative part of the judgment, arbitral award or agreement, in which case it must adduce documentary evidence.

It is also possible to object to enforcement by claiming that it is time-barred or by relying on any agreements or transactions which have been concluded in order to avoid enforcement, provided that such agreements and transactions are set out in a notarised act.

Article 557 of the LEC, which is entitled ‘Objection to enforcement based on instruments other than judicial decisions and arbitral awards’, provides as follows in paragraphs 1(7) and 2:

The instrument contains unfair terms.

III – Facts and request for a preliminary ruling

On application by Ms Hernández Martínez, the Single-Judge Court dealing with matters involving Violence against Women, Terrassa (Juzgado de Violencia sobre la Mujer Único de Terrassa) heard proceedings No 206/2013 with a view to settling a custody dispute. Ms Hernández Martínez instructed Mr Margarit Panicello, lawyer, to represent her in those proceedings. On 27 July 2015, Mr Margarit Panicello made an application to the Secretario Judicial attached to the Single-Judge Court dealing with matters involving Violence against Women, Terrassa, pursuant to Article 35 of the LEC, to have proceedings implemented to recover the fees owed to him.

The Secretario Judicial, who is responsible for implementing unpaid fee recovery proceedings, harbours doubts as to the compatibility of that procedure with EU law, since, in his view, the relevant provisions of national law do not allow him to assess ex officio whether the contract concluded contains unfair terms or whether the lawyer engaged in unfair commercial practices. Neither do those provisions permit the taking of evidence — other than documentation or expert testimony.

In those circumstances, the Secretario Judicial decided to stay the proceedings and refer the following questions to the Court of Justice of the European Union for a preliminary ruling:

(1) Are Articles 34, 35 and 207(2) to (4) of [the LEC], which govern the procedure for recovery of unpaid fees, incompatible with Article 47 of the Charter of Fundamental Rights of the European Union in that they preclude the possibility of judicial review? If the answer is in the affirmative:

In the context of the procedure provided for in Articles 34 and 35 of [the LEC], is a Secretario Judicial a ‘court or tribunal’ for the purposes of Article 267 of the Treaty on the Functioning of the European Union?

(2) Are Articles 34 and 35 of [the LEC] incompatible with Articles 6(1) and 7(2) of Directive 93/13, and Articles 6(1)(d), 11 and 12 of Directive 2005/29, inasmuch as they preclude any examination ex officio of possible unfair terms or unfair commercial practices in contracts concluded between lawyers and natural persons who are acting for purposes which are outside their trade, business or profession?

(3) Are Articles 34 and 35 of [the LEC] incompatible with Articles 6(1) and 7(2) of, and [point 1(q) of the Annex to], Directive 93/13, inasmuch as they preclude the production of evidence for the purpose of resolving the dispute in the procedure for recovery of unpaid fees?

IV – Assessment

It must be examined whether, in the role which he performs in the unpaid fee recovery procedure, the Secretario Judicial is a court or tribunal within the meaning of Article 267 TFEU. If that is the case, the Court must decide whether the unpaid fee recovery procedure requires the Secretario Judicial to assess ex officio whether there are any unfair terms or unfair commercial practices present. The way in which the unpaid fee recovery procedure works is thus decisive for the purposes of all the questions raised in the present preliminary ruling proceedings. We should therefore begin by providing an outline of the procedure in question.

A – The unpaid fee recovery procedure before the Secretario Judicial

The unpaid fee recovery procedure provided for in Articles 34 and 35 of the LEC allows a lawyer to obtain an enforceable instrument for the recovery of claims to fees accruing to him without the need for a contentious debate in relation to those claims, unless the debtor triggers such a debate by lodging an objection. To that extent, the procedure at issue in the present case is similar to the order for payment procedure at issue in Banco Español de Crédito and Finanmadrid. After all, this too provides for a shift of procedural initiative to the defendant (known as a reversal), whereby responsibility for initiating adversarial proceedings to prevent a payment order from becoming enforceable lies with the person to whom it is addressed.

The unpaid fee recovery procedure, which was specifically developed to secure the payment of lawyers’ fees accrued in the course of particular judicial proceedings, is not the only way in which a lawyer can recover his fees. Claims for such fees can also be pursued via ordinary judicial or order-for-payment proceedings.

The unpaid fee recovery procedure fees must be conducted before the Secretario Judicial attached to the court that heard the proceedings in which the lawyer acted for his client, and must be aimed at recovering only the fees incurred during those proceedings.

Where a lawyer submits a claim for fees to the Secretario Judicial, the latter examines whether the claims correspond to the legal services that were provided in the judicial proceedings in question and excludes non-refundable claims. The Secretario Judicial then seeks payment from the debtor. If the debtor does not lodge an objection, an order for enforcement is made.

If, however, the debtor contests the claim on the ground that the amount claimed is not owed, the Secretario Judicial examines the fee note, the case-file and the documents submitted and then issues a decree determining the amount to be paid to the lawyer.

If, moreover, the amount claimed is contested on the ground that it is excessive and there is no cost estimate that was accepted by the party lodging the objection, the Secretario Judicial determines the amount of the claim in the determination of costs procedure provided for in Article 241 et seq. of the LEC; in accordance with Article 246 of the LEC, that procedure makes provision for the creditor to be heard and for the matter to be referred to the Bar Association.

According to their wording, Articles 34 and 35 of the LEC expressly provide that the Secretario Judicial must issue a decree (‘decreto’) determining the amount of the fee claim only in cases where an objection has been raised. The Secretario Judicial also adopts a decision, however, in cases where he examines the lawyer’s fee note, excludes any non-refundable claims, seeks payment of the fee note from the debtor in accordance with the first subparagraph of Article 35(2) of the LEC and, in the absence of an objection, the claim then becomes enforceable in accordance with Article 35(3) of the LEC. For that reason, the expression ‘decision of the Secretario Judicial’ is used below to refer both to the decree, expressly provided for in Articles 34 and 35 of the LEC, which the Secretario Judicial issues in cases where an objection has been raised, and to the decision which he adopts inasmuch as he seeks payment from the debtor of the fee note which he has examined and, in the absence of an objection, that claim becomes enforceable. It must be assumed that the latter decision too takes the form of a decree (‘decreto’).

In accordance with Articles 34 and 35 of the LEC, the decision which the Secretario Judicial adopts in the unpaid fee recovery procedure is not subject to appeal, but it is without prejudice to any subsequent proceedings on the substance of the matter. A fee claim which has been determined by the Secretario Judicial may therefore be amended in subsequent ordinary proceedings. The decision of the Secretario Judicial thus has the force of only procedural but not substantive res judicata.

Thus, in accordance with Article 207 of the LEC, the force of procedural res judicata means only that no further appeal lies against a decision because the law makes no provision for such an appeal or because the time limit for appealing has expired. In accordance with Article 222(1) of the LEC, the force of substantive res judicata, on the other hand, means that the content of the decision adopted is binding on subsequent proceedings too.

The fact that the decision which the Secretario Judicial adopts in an unpaid fee recovery procedure does not have the force of substantive res judicata does not for that matter prevent it in any way from being enforceable. Thus, pursuant to Articles 34 and 35 of the LEC, the debtor is under an obligation to pay the amount determined by the Secretario Judicial and recovery will be enforced if that obligation is not discharged.

3. Enforcement of the decision of the Secretario Judicial

As far as enforcement itself is concerned, Spanish law provides for two different enforcement procedures depending on the nature of the enforceable instrument. In the case of ‘procedural’ decisions or arbitral awards, as well as in the case of mediation agreements, Article 556(1) and (2) of the LEC provides that, when raising a non-suspensory objection, the party against whom enforcement is sought may rely only on the grounds that he has discharged the relevant obligation, that enforcement is time-barred or that a non-enforcement agreement or transaction was concluded between the parties. In the case of instruments other than judicial decisions and arbitral awards, on the other hand, Article 557 of the LEC essentially provides for more extensive options for lodging a suspensory objection on grounds including the presence of unfair terms. Moreover, in accordance with Article 552(1) of the LEC, the judge responsible for enforcing such instruments must assess ex officio whether there are any unfair terms present.

The question as to which of those two categories the decision adopted by the Secretario Judicial in the unpaid fee recovery procedure properly falls into does not appear to be clear-cut. Thus, the Spanish Government takes the view that that decree is an instrument other than a judicial decision or an arbitral award as referred to in Article 557 of the LEC. In its view, it follows from this that, when it comes to enforcing such a decision, the judge responsible for enforcement must assess ex officio whether there are any unfair terms present. That assumption is one of the principal foundations of the line of argument put forward by the Spanish Government both in relation to the status of the Secretario Judicial as a court or tribunal and in relation to the answers to be given to the questions referred.

Spain’s line of argument is not easy to follow, however. After all, a closer inspection of the chain of references contained in the provisions of the LEC relating to enforcement (Articles 517, 556 and 557) shows that the decisions adopted by the Secretario Judicial are to be enforced in the same way as judicial decisions.

The Spanish Government bases its assumption on the fact that, by way of definition of instruments other than judicial decisions and arbitral awards, Article 557 of the LEC refers to Article 517(2) of the LEC, which itself defines all enforceable instruments and, in subparagraph 9, refers to the ‘other “procedural” decisions and documents that are enforceable under this … law’.

Article 557(1) of the LEC, however, refers only to the other ‘enforceable documents’ (22) mentioned in Article 517(2)(9) of the LEC, but not to the other ‘“procedural” decisions’ (‘resoluciones procesales’) also mentioned in that provision. The latter, after all, come under Article 556 of the LEC, which, according to its express wording, does concern the enforcement of ‘“procedural” decisions’.

Furthermore, the decrees (‘decretos’) issued by the Secretario Judicial in unpaid fee recovery procedures under Articles 34 and 35 of the LEC are not ‘enforceable documents’ within the meaning of Article 517(2)(9) of the LEC but ‘“procedural” decisions’ (‘resoluciones procesales’) within the meaning of that provision. For, in accordance with Article 206(2) of the LEC, decrees (‘decretos’) issued by the Secretario Judicial are one of the types of decision (‘resoluciones’) to be adopted by that official. The decrees (‘decretos’) issued by the Secretario Judicial in an unpaid fee recovery procedure are therefore without any doubt ‘“procedural” decisions’ (‘resoluciones procesales’) within the meaning of Article 556 of the LEC and must thus be treated as judicial decisions for the purposes of enforcement.

At the hearing, the Spanish Government was unable to put forward any substantiated arguments to counter that interpretation, which is based on the explicit wording of the provisions of the LEC, despite being specifically asked to do so. It thus confined itself to making a vague reference to the ‘schematic interpretation’ of the provisions in question without commenting specifically on the wording of those provisions.

Contrary to that argument, however, a schematic interpretation of the LEC also confirms that, for the purposes of their enforcement, the decisions adopted by the Secretario Judicial in unpaid fee recovery procedures, like judicial decisions, are subject to the regime laid down in Article 556 of the LEC. After all, Law 13/2009, which transferred the unpaid fee recovery procedure to the sphere of competences exercised by the Secretarios Judiciales, (23) also changed the heading of Article 556 of the LEC from ‘Objection to the enforcement of judicial decisions or arbitral awards …’ (‘Oposición a la ejecución de resoluciones judiciales o arbitrales …’) to ‘Objection to the enforcement of “procedural” decisions or arbitral awards …’ (‘Oposición a la ejecución de resoluciones procesales o arbitrales …’). As is expressly indicated in the preamble to Law 13/2009, that change was made in order to take into account the competences newly conferred on the Secretario Judicial by that Law. Accordingly, as the preamble to Law 13/2009 states, the term ‘“procedural” decisions’ (‘resoluciones procesales’) now refers both to judicial decisions and to decisions of the Secretarios Judiciales. (24)

Contrary to the view taken by the Spanish Government, those findings demonstrate that it was the Spanish legislature’s intention not only to transfer the unpaid fee recovery procedure, a matter formally reserved for the judiciary, to the sphere of competences exercised by the Secretarios Judiciales, but also to ensure that the decisions adopted by the Secretarios Judiciales in such a procedure are, like judicial decisions, enforceable in accordance with Article 556 of the LEC.

In the present preliminary ruling proceedings, therefore, it must be assumed that decisions adopted by the Secretario Judicial in the unpaid fee recovery procedure are, for the purposes of their enforcement, treated in the same way as judicial decisions. This means that, as far as enforcement is concerned, the law makes no provision either for the duty to carry out an ex officio assessment of the presence of any unfair terms or for the possibility of lodging a suspensory objection based on the existence of such terms.

B – Admissibility of the request for a preliminary ruling

Before turning to the question of whether the unpaid fee recovery procedure as outlined above is compatible with EU law, I shall first address the issue of the whether the Secretario Judicial has standing to make a reference for a preliminary ruling, together with other matters relating to admissibility.

In his request for a preliminary ruling, the Secretario Judicial expresses doubts as to whether he constitutes a court or tribunal within the meaning of Article 267 TFEU, since, in Spain, he is not technically regarded as a member of the judiciary, but as a civil servant in the employ of the Ministry of Justice. Ultimately, however, he concludes that he does have standing to make a reference for a preliminary ruling. Although that view is shared by the Commission, it is strongly opposed by the Spanish Government.

The question of whether a referring body is a court or tribunal within the meaning of Article 267 TFEU is to be assessed exclusively from the point of view of EU law. A body’s classification under national law is therefore irrelevant. That principle also applies to a body’s status under national case-law, and therefore, in the present proceedings, to the judgment of the Spanish Constitutional Court, mentioned by the Secretario Judicial and discussed at the hearing, in which a decision adopted by a Secretario Judicial in a procedure other than that at issue here was not classified as a judicial act within the meaning of Spanish constitutional procedural law.

For the purposes of assessing whether a body constitutes a court or tribunal from the point of view of EU law, however, a number of factors must be taken into account, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. (25)

Moreover, a national body may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. (26)

It is therefore appropriate to determine whether a body may refer a case to the Court on the basis of criteria relating both to the constitution of that body and to its function. In that connection, a national body may be classified as a court or tribunal within the meaning of Article 267 TFEU when it is performing judicial functions, but when exercising other functions, in particular of an administrative nature, it cannot be recognised as such. (27)

It follows that, in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a court or tribunal within the meaning of Article 267 TFEU, it is also necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court. (28)

In the present case, therefore, it must be examined whether the Secretario Judicial is to be regarded as a court or tribunal within the meaning of Article 267 TFEU within the specific context of his function in the unpaid fee recovery procedure under Article 35 of the LEC.

First, there is no question that the Secretario Judicial performs an activity established by law and is permanent. (29) Furthermore, there is no doubt that, in the unpaid fee recovery procedure governed by Articles 34 and 35 of the LEC, the Secretario Judicial applies rules of law.

What is in dispute in the present case, however, is whether the Secretario Judicial is independent and whether the unpaid fee recovery procedure at issue constitutes a compulsory inter partes procedure in which the Secretario Judicial is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.

a) The independence of Secretarios Judiciales

According to settled case-law, there are two aspects to the concept of judicial independence: one external and one internal.

With regard, first of all, to the internal aspect of independence, this aspect is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests in relation to the subject matter of those proceedings. (30)

In the context of the unpaid fee recovery procedure, the internal independence of the Secretario Judicial is guaranteed by the fact that he acts as an independent third party in relation to the lawyer and his client. Furthermore, the first sentence of Article 452(1) of the LOPJ provides that he is to carry out his duties impartially at all times. Finally, the rules governing the abstention and rejection of Secretarios Judiciales are very largely the same as those applicable to judges. (31)

The external aspect of independence presupposes that the body called upon to give judgment is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. (32)

In addition, those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. In that regard, in order to consider that the condition regarding the independence of the body making the reference has been met, the case-law requires, inter alia, that dismissals of members of that body should be determined by express legislative provisions. (33)

With regard to Secretarios Judiciales, it must be pointed out first of all that they are appointed by competitive examination. Furthermore, they have an individual right to retain their status as civil servants, to perform in practice the tasks assigned to the cadre of which they form part, and to be dismissed only in the situations determined by law and under the conditions established by law. (34) Finally, they may be dismissed only on grounds of a criminal conviction or in the cases of very serious misconduct which are exhaustively listed and sufficiently precisely defined in law. (35)

What is more, the competence exercised by Secretarios Judiciales in respect of the unpaid fee recovery procedure cannot be delegated to other officials. (36) Most importantly of all, however, the applicable provisions establish that, in individual procedures, Secretarios Judiciales act exclusively in accordance with the competences conferred on them, not under instruction. Thus, their employer, as the Secretario Judicial in this case makes explicitly clear in the order for reference, may not exert any influence over ongoing proceedings or issue instructions in relation to specific cases. (37) Despite their status as civil servants rather than members of the judiciary under the national justice system, and despite the fact that they generally act under the instructions of their parent department, (38) Secretarios judiciales are therefore unquestionably independent in the performance of the tasks assigned to them in a specific unpaid fee recovery procedure.

Contrary to the view expressed by the Spanish Government at the hearing, it must be assumed in this regard that the legal provisions which prohibit parent departments from issuing instructions to Secretarios Judiciales in relation to specific cases (39) also apply to the unpaid fee recovery procedure. It is true that those provisions refer only to the competences of the Secretario Judicial in matters of certification and the adoption of decisions relating to the organisation of procedure. However, the wording of those provisions dates back to the time before competence in respect of the unpaid fee recovery procedure was transferred to the Secretarios Judiciales. There is therefore no doubt that the principle of freedom from instruction in individual cases is also applicable, by analogy, to the decisions which the Secretario Judicial must adopt in the unpaid fee recovery procedure.

In the light of the aforementioned criteria, Secretarios Judiciales thus benefit, from the point of view of both their status and the tasks they perform in the unpaid fee recovery procedure, guarantees sufficient to satisfy the criterion of independence.

The Spanish Government’s contrary view, based exclusively on the wording of Article 452 of the LOPJ, to the effect that Secretarios Judiciales act autonomously and independently only when exercising their certifying powers, whereas they generally act under instruction when performing their other duties, cannot therefore be endorsed. Furthermore, it must be noted in this regard that the wording of that provision too dates back to the time before competence in respect of the unpaid fee recovery procedure was transferred to the Secretarios Judiciales and, therefore, does not yet take into account the more recent quasi-judicial tasks performed by those officials.

It follows from all the foregoing that, despite his status as a civil servant in the Ministry of Justice, the Secretario Judicial acts with sufficient independence in the exercise of his competences under the unpaid fee recovery procedure to be regarded as a court or tribunal within the meaning of Article 267 TFEU.

b) The function of Secretarios Judiciales in the unpaid fee recovery procedure

The question as to whether the Secretario Judicial is a court or tribunal in the unpaid fee recovery procedure at issue here is a point of contention between the parties from the point of view of the adversarial and inter partes nature of that procedure, whether it is compulsory and whether it is intended to lead to a decision of a judicial nature.

As far as the first point is concerned, it must be stated first of all that the unpaid fee recovery procedure certainly has adversarial features. (40) It is true that, under this procedure, it is theoretically possible for a lawyer to obtain an enforceable instrument without any contentious debate in relation to his claims, provided that the debtor does not lodge an objection. (41) However, the procedure becomes adversarial, at the stage when the party against whom recovery is sought lodges such an objection if not sooner, to the extent that, in such circumstances, the Secretario Judicial must not only examine the claims pursued by the lawyer but also gives the latter a hearing. (42)

It was for that very reason, as the referring body explains, that the decision to entrust the unpaid fee recovery procedure to the Secretario Judicial triggered a national debate about whether it was compatible with the rule of law to transfer quasi-judicial powers to bodies responsible for the administration of justice. Finally, the fact that the unpaid fee recovery procedure is incidental in nature and dependent on prior judicial proceedings (45) is also no indication that that procedure, which to this extent is similar to the taxation of costs procedure with which the Court is also familiar, is not an inter partes procedure intended to settle a pending legal dispute.

87.With regard to the compulsory nature of the unpaid fee recovery procedure, it must further be observed that the competence exercised by the Secretario Judicial in that procedure does not depend on the parties’ agreement, and that his decisions are binding on them. (46)

88.On the one hand, the competence exercised by Secretarios Judiciales in the unpaid fee recovery procedure is compulsory in so far as that procedure is provided for by law and is therefore independent of any agreement between the parties. For that reason, the fact that a lawyer can also avail himself of other procedures for the purposes of recovering unpaid fees does not preclude the classification of the unpaid fee recovery procedure as compulsory. After all, once a lawyer initiates such a procedure, the client concerned automatically becomes a party to it and cannot oppose it. It must also be pointed out in this regard that the Court has already, in the judgment in Consorci Sanitari del Maresme, recognised a referring body’s optional jurisdiction as being compulsory. (47) To this extent, the situation in the present case is similar.

89.Even if, as was submitted at the hearing, a contested fee claim could at the same time form the subject matter of both an unpaid fee recovery procedure and an ordinary procedure, and in such a way as not to constitute lis pendens, that state of affairs would not militate against the judicial nature of the function performed by the Secretario Judicial in the unpaid fee recovery procedure. If the position were otherwise, the — in the present proceedings, undisputed — judicial nature of the function performed by the ordinary court before which the contested claim is brought at the same time as it is brought before the Secretario Judicial would also have to be called into question.

90.On the other hand, the arguments advanced by the Spanish Government with respect to the effect of the decision adopted in the unpaid fee recovery procedure cannot call into question the binding or judicial nature of that decision either.

91.First of all, the fact that the decision adopted in the unpaid fee recovery procedure does not have the force of substantive res judicata (48) is not such as to rule out its judicial nature in the present case. For, notwithstanding the fact that it can subsequently be called into question in separate proceedings, a decision adopted by the Secretario Judicial unquestionably has the same effect on the parties to the unpaid fee recovery procedure as a judicial decision. After all, since it is not open to challenge, it has the force of procedural res judicata and thus establishes an independently enforceable claim to payment against the debtor or, as the case may be, an independently effective obligation to accept a reduction of the claim incumbent on the creditor. (49) It thus exhibits some parallels with decisions adopted in proceedings for interim measures. These too are immediately enforceable but are without prejudice to the decision given in the subsequent main proceedings.

92.As regards enforcement itself, the Spanish Government’s argument that it is not the decree issued by the Secretario Judicial but the fee note issued by the lawyer that is the enforceable instrument is unfounded. After all, even if an order for payment is made in the amount originally claimed, the unpaid fee recovery procedure is still necessary in order to convert a lawyer’s fee note into an enforceable instrument.

93.In this regard, the foregoing discussion of the provisions governing the enforcement of decisions adopted in unpaid fee recovery procedures (50) suggests that their enforcement is subject to the same rules as are applicable to the enforcement of judicial decisions. So it is, in particular, that the debtor is precluded from delaying enforcement by lodging a suspensory objection. This is a strong indication that the decision at issue here is judicial in nature.

94.Finally, the question of whether the obligation to assess the presence of unfair terms falls within the competence of the Secretario Judicial or, as the Spanish Government submits, within the jurisdiction of the judge responsible for enforcement is irrelevant to the assessment of whether the Secretario Judicial constitutes a court or tribunal. After all, it will be for the Court, when assessing the substance of the questions referred, to decide whether, in the light of the way in which the unpaid fee recovery procedure is conducted and the enforcement that follows, EU law requires that the Secretario Judicial carry out an assessment of whether there are unfair terms present.

95.In summary, I am therefore of the view that, in the context of the unpaid fee recovery procedure, the Secretario Judicial is a court or tribunal within the meaning of Article 267 TFEU because he adjudicates independently and autonomously on a legal dispute in inter partes proceedings and his decision is judicial in nature.

While the Commission raises the question of whether the Court has sufficient material at its disposal to be able to give an answer to the request for a preliminary ruling made by the Secretario Judicial, the Spanish Government takes the view that the questions of interpretation submitted to the Court are not relevant to the decision to be given in the main proceedings.

a) Whether the request for a preliminary ruling is sufficiently detailed

97.The question of whether the information provided by the Secretario Judicial is sufficient must ultimately be answered, as the Commission answers it, in the affirmative. For, despite its concision, the request for a preliminary ruling describes not only the nature of the dispute to be adjudicated upon, the procedure concerned and the issue of the potential failure to provide the client with information on price, but also the legal bases of the unpaid fee recovery procedure and the doubts entertained by the Secretario Judicial with respect to the compatibility of that procedure with the acts of EU law whose interpretation he seeks.

98.The further, extensive, objections raised by the Spanish Government at the hearing, to the effect that the Secretario Judicial did not provide sufficient information on the precise details of the terms agreed between the lawyer and his client must therefore be dismissed. What is more, those objections fail to take into account that, in the present request for a preliminary ruling, the Court is asked to rule not on the compatibility of the content of particular terms with Directive 93/13 but on the compatibility of the unpaid fee recovery procedure with that directive.

99.The account given by the Secretario Judicial of the legal and factual context of the dispute in the main proceedings is therefore sufficient to enable a useful answer to be given to the questions referred. It also provided the parties to the proceedings with a genuine opportunity to submit observations. This is borne out not least by the content of the observations submitted to the Court.

100.Furthermore, although the foregoing submissions are based on extensive research, this has served only to confirm the concise account given by the Secretario Judicial. If the Spanish Government had not sewn what were ultimately unfounded doubts about the information contained in the request for a preliminary ruling, that research would have been unnecessary.

b) Whether the questions referred are relevant to the decision to be given in the main proceedings

101.The Spanish Government submits that neither the interpretation of Directives 93/13 and 2005/29 nor the interpretation of Article 47 of the Charter is relevant to the decision to be given in the main proceedings

i) Whether an interpretation of Directive 93/13 is relevant to the decision to be given in the main proceedings

102.With regard, first of all, to Directive 93/13, the Spanish Government takes the view that the questions referred are not relevant to the decision to be given by the Secretario Judicial. In its submission, the task of assessing the presence of unfair terms falls not to the Secretario Judicial but to the judge who will subsequently be responsible for enforcing that decision.

103.That objection must be dismissed.

104.On the one hand, as I have argued above, (51) it has by no means been demonstrated that the judge responsible for enforcing the decision to be given by the Secretario Judicial must ascertain ex officio whether there are unfair terms present.

105.On the other hand, it is settled case-law that Directive 93/13 applies to legal provisions relating to the powers of the national courts to determine whether contractual terms are unfair. (52) The unpaid fee recovery procedure pending before the Secretario Judicial thus falls within the scope of that directive. The question of whether it falls to the Secretario Judicial or to the judge subsequently responsible for enforcement to examine ex officio whether unfair terms are present may therefore, it is true, be a factor in the compatibility of the unpaid fee recovery procedure with Directive 93/13. However, that question must be addressed as part of the substantive examination of the questions referred and not as part of the examination of whether those questions are relevant to the decision to be given in the main proceedings and, therefore, whether they are admissible.

ii) Whether an interpretation of Directive 2005/29 is relevant to the decision to be given in the main proceedings

106.The Spanish Government takes the view that Directive 2005/29 does not provide that national courts must ascertain ex officio whether there are unfair commercial practices present, but prescribes specific measures which Member States must adopt in order to combat such practices.

107.By that argument, however, the Spanish Government also fails to take into account the dividing line between the admissibility and the substantive assessment of the request for a preliminary ruling. After all, the question of whether Directive 2005/29 requires national courts to ascertain ex officio whether there are unfair commercial practices present is concerned with the interpretation of that directive itself, not with its relevance to the main proceedings. However, the question of whether the interpretation of a legal act is necessary in the context of a reference for a preliminary ruling is concerned not with the interpretation of that legal act but with the preliminary matter of whether such an interpretation is necessary for the purposes of assessing the situation at issue in the light of EU law.

108.In this regard, the Secretario Judicial expressly states in the order for reference in the present case that there is no record of whether Mr Margarit Panicello informed Ms Hernández Martínez in advance about the costs of his services. It seems questionable to the Secretario Judicial, as he goes on to explain, whether it is appropriate to require Ms Hernández Martínez to pay a relatively large sum of money without being able to ascertain whether the failure to provide information on price constitutes an unfair commercial practice.

109.Furthermore, Directive 2005/29 applies to unfair commercial practices by traders in dealings with consumers before, during and after a commercial transaction in relation to any service. (53) In the light of the Court’s case-law concerning Directive 93/13, a contract between a lawyer and his client for the provision of legal services is to be regarded as a commercial transaction in relation to a service within the meaning of Directive 2005/29. (54)

110.Thus, if the Secretario Judicial were to find that Mr Margarit Panicello did not in fact inform his client about the price of his services and this caused her to take a transactional decision that she would not have taken otherwise, the failure to provide information on price would have to be regarded as an unfair commercial practice within the meaning of Directive 2005/29. (55)

111.In the light of the foregoing, there would seem to be nothing to indicate that the question concerning the interpretation of Directive 2005/29 bears no relation to the actual facts or subject matter of the dispute in the main proceedings or that it is irrelevant to the decision to be given in those proceedings. (56)

iii) Whether Article 47 of the Charter is relevant to the decision to be given in the main proceedings

112.According to the Spanish Government, the unpaid fee recovery procedure does not fall within the scope of the Charter, in accordance with Article 51 thereof, there being no provision of EU law on the recovery of fees by lawyers. In its submission, therefore, an interpretation of Article 47 of the Charter cannot be relevant to the decision to be given in the main proceedings.

113.That argument is untenable.

114.It is after all clear from the judgment in Åkerberg Fransson that, if national legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights. (57)

115.In the present case, there is no doubt that the provisions governing the unpaid fee recovery procedure fall within the scope of EU law, since the contract at issue in the main proceedings was concluded between a lawyer and a consumer, and thus falls within the scope of Directive 93/13. (58) What is more, that directive is applicable to legal provisions which relate to the powers of the national court to determine whether contractual terms are unfair. (59)

116.Moreover, the Court has already held that the obligation for the Member States to ensure the effectiveness of the rights that individuals derive from Directive 93/13 against the use of unfair clauses implies a requirement of judicial protection, also guaranteed by Article 47 of the Charter, that is binding on the national court. (60)

117.The compatibility of national legislation with the requirements of Directive 93/13 in relation to the powers of examination exercised by the national court must therefore also be assessed in the light of the requirement of judicial protection enshrined in Article 47 of the Charter.

It must therefore be concluded that the questions referred are relevant to the decision to be given in the main proceedings.

3. Interim conclusion

Consequently, the request for a preliminary ruling is admissible and the Court must answer the questions so referred.

C – The questions referred

120.In the following analysis, I shall begin by addressing the first part of the first question and the second question referred, which concern the compatibility of the unpaid fee recovery procedure with Directives 93/13 and 2005/29 in conjunction with Article 47 of the Charter. I shall then deal with the third question referred, which asks in particular whether the powers of the Secretario Judicial to take evidence in the course of the unpaid fee recovery procedure satisfy the requirements of Directive 93/13.

a) The requirements governing the powers of examination exercised by national courts under Directive 93/13 and whether they are transposable to Directive 2005/29

121.Since the imbalance between consumers and traders may be corrected only by positive action on the part of a third party, it falls to the national courts to guarantee the effectiveness of the rights conferred on consumers by Directive 93/13. For that reason, the national courts are required to assess of their own motion whether a contractual term falling within the scope of Directive 93/13 is unfair. (61)

122.

The Court does not yet appear to have ruled on whether such an obligation also exists under Directive 2005/29 and whether the national court is also required to assess ex officio whether unfair commercial practices are present.

123.

The Commission takes the view that the relevant case-law concerning Directive 93/13 can be transposed to Directive 2005/29. The Spanish Government, on the other hand, submits that that case-law is not transposable, since Articles 11 and 12 of Directive 2005/29 require Member States not to ensure generally that the courts assess ex officio whether commercial practices are unfair, but to prescribe specific measures to combat such commercial practices.

124.

In the present case, however, the question of whether the principles developed in the context of Directive 93/13 with respect to the ex officio assessment by the national courts of the presence of unfair terms is generally transposable to Directive 2005/29 can be left unanswered.

125.

After all, as is clear from the information provided by the Secretario Judicial, in a situation such as that in the main proceedings, the potential existence of an unfair commercial practice consisting in the failure to provide information on price would be relevant not in itself but only for the purposes of assessing whether the terms of the contract concluded between the lawyer and his client are unfair.

126.

In this connection, the finding that a commercial practice is unfair is one element among others upon which the assessment of the unfairness of a term may be based, since under Article 4(1) of Directive 93/13 the unfairness of a term is to be assessed taking into account all the circumstances attending the conclusion of the contract. The foregoing is not precluded by the fact that a finding that a commercial practice is unfair is not such as to establish, automatically and on its own, that a contractual term is unfair, since Article 3(2) of Directive 2005/29 provides that that directive ‘is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract’. (62)

127.

In a situation such as that at issue here, therefore, the national court has an obligation, when assessing whether there are unfair terms present, to take into account also the potential presence of unfair commercial practices and thus Directive 2005/29.

128.

It must be concluded from the foregoing that, in a situation such as that in the main proceedings, the principles developed in the context of Directive 93/13 with respect to the need for an ex officio assessment of the presence of unfair terms must be transposed to Directive 2005/29 in so far as an assessment of the unfairness of contractual terms under Directive 93/13 must necessarily be carried out in the light of an assessment of the unfairness of commercial practices under Directive 2005/29.

129.

The forgoing is not precluded by Article 4(2) of Directive 93/13. It is true that that provision states that the assessment of the unfair nature of contractual terms is not to relate to the adequacy of the price, on the one hand, as against the services in exchange, on the other. However, this applies only in so far as those terms are in plain intelligible language.

130.

In a situation such as that in the present one, it is therefore entirely possible that a contractual term the assessment of which might need to take into account the failure to provide information on price would be concerned with the adequacy of the price in relation to the service provided. In such circumstances, however, the term in question would presumably not be drafted in plain intelligible language, in which case Article 4(2) of Directive 93/13 would not preclude the assessment of its content by the national court. (63)

b) Compatibility of the unpaid fee recovery procedure with Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter

131.

In line with the foregoing considerations, the first part of the first question and the second question are to be understood as meaning that the Secretario Judicial wishes to ascertain whether Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter precludes national legislation, such as that governing the unpaid fee recovery procedure, which does not make it possible for the decision-making body to assess ex officio the presence of unfair terms or unfair commercial practices.

132.

Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter precludes a procedure which makes it possible for a trader to obtain the enforcement of a claim against a consumer but the procedure culminating in enforcement does not include a stage involving the ex officio assessment of the presence of unfair terms or unfair commercial practices. Consequently, if the procedure is divided into an initial phase, during which the enforceable instrument is obtained, and a second stage, during which the claim is actually enforced, an assessment of the presence of unfair terms and unfair commercial practices must be included in at least one of those two phases. (64)

133.

That principle might at first give the impression that the question referred by the Secretario Judicial could adequately be answered as follows: Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter precludes the impossibility of an assessment of the presence of unfair terms and unfair commercial practices by the Secretario Judicial, responsible for implementing the unpaid fee recovery procedure, only where the judge subsequently responsible for enforcing the decision adopted by the Secretario Judicial is also not empowered to carry out such an assessment. This answer would be consistent with the stance taken by the Spanish Government in these proceedings.

134.

Such an answer must be rejected, however.

135.

An examination of the procedure for the adoption and enforcement of a decision under the unpaid fee recovery procedure in its entirety clearly shows that it would not be expedient to move the assessment of the presence of unfair terms and unfair commercial practices to the enforcement phase. (65) After all, in that event, a consumer would be asked, under the threat of subsequent enforcement, to settle a claim potentially based on unfair terms or unfair commercial practices in the course of the prior procedure for the issue of the enforceable instrument.

136.

The notion of deferring the assessment of the presence of unfair terms and unfair commercial practices to the enforcement stage must therefore be rejected on grounds of both procedural economy and the effective implementation of the EU legislation concerned. Such a deferment would, after all, give rise to the not insignificant risk that, because of the authority naturally attaching to the decision of the Secretario Judicial, the debtor might proceed to make payment immediately upon receiving that decision, in which event a subsequent enforcement procedure would not even be necessary. After all, the very existence of an enforceable decision exerts a not to be underestimated pressure on the consumer to discharge his (alleged) payment obligations, particularly where, as here, the procedure for the issue of the enforceable instrument is configured as an inter partes procedure intended to lead to a decision of a judicial nature. Furthermore, as the Commission rightly pointed out at the hearing, an objection lodged in the course of the enforcement procedure bears no comparison to the possibility of challenging the decision adopted by the Secretario Judicial. This is particularly true given that, as I have submitted above, (66) the lodging of such an objection during the enforcement procedure would not have suspensory effect in the present case.

137.

Carrying out the assessment as to the existence of unfair terms and unfair commercial practices not in the course of the procedure before the Secretario Judicial but in the course of the subsequent enforcement procedure would thus promote the settlement of claims which, although declared enforceable in the unpaid fee recovery procedure, are nonetheless potentially founded on unfair terms or unfair commercial practices. Such a solution would clearly be at odds with the consumer protection required by Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter.

138.

I therefore propose that the Court’s answer to the first part of the first question and the second question referred should be as follows: Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the body responsible for implementing the unpaid fee recovery procedure may not assess ex officio the unfairness of a term contained in a contract between a lawyer and a consumer or the existence of unfair commercial practices.

139.

By his third question, the Secretario Judicial wishes to ascertain whether the provisions governing the unpaid fee recovery procedure infringe Directive 93/13 because they limit the powers of that official to take evidence and thus restrict the consumer’s right to produce evidence.

140.

First, there is some doubt as to the admissibility of this question, since the Secretario Judicial reflects on the fact that his limited powers of investigation in the course of the unpaid fee recovery procedure might prevent him from examining factors, such as any changes to the terms and conditions of the contract, part payments of fees which have already been made or customary practice with respect to the settlement of fees, which bear no relation to the presence of unfair terms. However, the question referred by the Secretario Judicial might also be understood as meaning that he wishes to ascertain whether the restrictions on the taking of evidence in the unpaid fee recovery procedure render Directive 93/13 ineffective.

141.

The role of the national courts in the implementation of Directive 93/13 is not limited to a mere power to rule on the possible unfairness of contractual terms, but also consists of the obligation to examine that issue of its own motion. (67) The national courts thus play an active role in the protection of consumers under Directive 93/13. What is more, it follows generally from the requirements laid down by EU law with respect to the effectiveness of judicial review in the implementation of Directive 93/13 that national procedural rules must not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by that directive. (68)

142.

A situation in which a court has before it indications that certain contractual terms are unfair but cannot investigate these because its powers of examination are restricted would thus be manifestly problematic. (69)

143.

In the present case, it is clear from the provisions of the LEC governing the unpaid fee recovery procedure that, for the purposes of examining the claim, the Secretario Judicial takes into account not only the case-file from the judicial proceedings the lawyer’s services in which gave rise to the fee claim but also the lawyer’s fee note and other documents, such as a cost estimate or contract. Furthermore, in cases where the claim is challenged on the ground that it is excessive, the Secretario Judicial must give the lawyer a hearing and, if the latter refuses to reduce the claim, forward the case-file for examination to the Bar Association. (70) Those powers of investigation should generally be sufficient to enable the Secretario Judicial to examine and assess the presence of unfair terms.

144.

As the Commission points out, more extensive powers of investigation, such as in particular the right to hear witnesses, might be necessary to enable the Secretario Judicial to assess the presence of unfair terms at most in cases in which only a verbal contract was made. The Commission takes the view, however, that, in the light of the case-law established by the Spanish Constitutional Court in this regard, the provisions of the LEC might be interpreted as being compatible with EU law if the powers of examination exercised by the Secretario Judicial could, in legitimate cases, also extend beyond the examination of documentary evidence and thus include the hearing of witnesses.

145.

In the light of those considerations, I propose that the answer to the third question referred should be that Directive 93/13 does not preclude national legislation such as that at issue in the main proceedings, provided that it allows sufficient evidence to be taken to enable an effective assessment of the presence of unfair terms. This is a matter for the national court to determine.

V – Conclusion

146.

In the light of the foregoing submissions, I propose that the Court’s answers to the questions referred by the Secretario Judicial attached to the Juzgado de Violencia sobre la Mujer Único de Terrassa (Single-Judge Court dealing with matters involving Violence against Women, Terrassa, Spain) should be as follows:

(1)

In the context of the procedure governed by Articles 34 and 35 of Law 1/2000, the Secretario Judicial is to be regarded as a court or tribunal with standing to make a request for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union.

(2)

Directive 93/13 in conjunction with Directive 2005/29 and Article 47 of the Charter is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the body responsible for implementing the unpaid fee recovery procedure may not assess ex officio the unfairness of a term contained in a contract between a lawyer and a consumer or the existence of unfair commercial practices.

(3)

Directive 93/13 does not preclude national legislation such as that at issue in the main proceedings, provided that it allows sufficient evidence to be taken to enable an effective assessment of the existence of unfair terms. This is a matter for the national court to determine.

—

(1) Original language: German.

(2) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011.

(3) See the information provided by the referring body in Case-269/16, the proceedings in which are currently stayed, to the effect that it alone has pending before it more than 50 unpaid fee recovery procedures which it has stayed until such time as judgment is given in the present proceedings.

(4) Directive 2005/29/EC 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 (OJ 2005 L 149, p. 22).

(5) Ley Orgánica 6/1985, de 1 julio, del Poder Judicial, BOE 157 of 2 July 1985.

(6) Ley Orgánica 7/2015, de 21 julio, por la que se modifica la Ley Orgánica 6/1985, de 1 julio, del Poder Judicial, BOE 174 of 22 July 2015, which entered into force on 1 October 2015.

(7) For the sake of completeness, it should be pointed out that the provisions of the LOPJ that are relevant to the present proceedings do not appear to have been the subject of any amendments introduced by Basic Law 7/2015 that would have a bearing on the assessment of whether the Secretario Judicial constitutes a court or tribunal or on the answers to the questions referred.

(8) BOE 17 of 20 January 2006.

(9) BOE 7 of 8 January 2000.

(10) Ley 13/2009 de reforma de la legislación procesal para la implantación de la nueva Oficina judicial (Law 13/2009 amending the procedural legislation for the purposes of the establishment of the new Judicial Administration Support Bureau), BOE 266 of 4 November 2009.

(11) See the preamble to Law 13/2009 amending the procedural legislation for the purposes of the establishment of the new Judicial Administration Support Bureau.

(12) Ley 42/2015, de 5 de octubre, de reforma de la Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil, BOE 239 of 6 October 2015.

It should be pointed out that that Law does not appear to have introduced to those provisions of the LEC that are relevant to the present proceedings any amendments which would have a bearing on the assessment of whether the referring Secretario Judicial constitutes a court or tribunal or on the answers to the questions referred. A number of notable amendments are nonetheless mentioned in footnotes 16, 17, 20 and 42 below. These references are useful from the point of view of two further requests for a preliminary ruling (Cases C‑609/15 and C‑269/16) pending before the Court, and currently stayed, which also concern the unpaid fee recovery procedure but which, it would appear, do fall within the scope of the LEC rules as amended by Law 42/2015.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0014" href="#c-ECR_62015CC0503_EN_01-E0014">14</a> </span>) See the description given in the Opinion of Advocate General Szpunar in Finanmadrid EFC (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A746&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑49/14</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A746&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2015:746</a>, points <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A746&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point27" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">27</a> and <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A746&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point46" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">46</a>): unlike in the case of the unpaid fee recovery procedure at issue here, however, an objection raised in the order for payment procedure triggers the transition to an ordinary procedure. On simplified procedures for the recovery of pecuniary claims in general, see the Opinion of Advocate General Trstenjak in Banco Español de Crédito (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A74&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑618/10</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A74&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2012:74</a>, points <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A74&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point23" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">23</a> to <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A74&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point25" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">25</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A74&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point50" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">50</a> and <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A74&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point51" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">51</a>).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0015" href="#c-ECR_62015CC0503_EN_01-E0015">15</a> </span>) In accordance with the judgment of the Spanish Constitutional Court of 25 March 1993 in Case 110/1993, BOE 100 of 27 April 1993.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0016" href="#c-ECR_62015CC0503_EN_01-E0016">16</a> </span>) In the version as amended by Law 42/2015, the LEC further provides that, before issuing that decree, the Secretario Judicial must inform the creditor of the objection and give him the opportunity to comment on it: see the second subparagraph of Article 35(2) in conjunction with the second subparagraph of Article 34(2) of the LEC, as amended by Law 42/2015.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0017" href="#c-ECR_62015CC0503_EN_01-E0017">17</a> </span>) As amended by Law 42/2015, the LEC further provides that, even before the determination of costs procedure provided for in Article 241 et seq. of the LEC is initiated, the Secretario Judicial must give the lawyer the opportunity to comment and to accept a reduced fee: see the third subparagraph of Article 35(2) of the LEC, as amended by Law 42/2015.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0018" href="#c-ECR_62015CC0503_EN_01-E0018">18</a> </span>) ‘Resoluciones procesales o arbitrales’.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0019" href="#c-ECR_62015CC0503_EN_01-E0019">19</a> </span>) ‘Titulos no judiciales ni arbitrales’.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0020" href="#c-ECR_62015CC0503_EN_01-E0020">20</a> </span>) While the version of the LEC applicable in the present case refers only to the ‘finding’ that unfair terms are present (‘Cuando el tribunal apreciare que alguna de las cláusulas incluidas en un título ejecutivo … pueda ser calificada como abusiva’), the second subparagraph of Article 552(1) of the LEC, as amended by Law 42/2015, expressly imposes on the court a duty to conduct an examination ex officio (‘El tribunal examinará de oficio si alguna de las cláusulas incluidas en un título ejecutivo … puede ser calificada como abusiva’).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0021" href="#c-ECR_62015CC0503_EN_01-E0021">21</a> </span>) ‘Las demás resoluciones procesales y documentos que, por disposición de esta … ley, lleven aparejada ejecución’.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0022" href="#c-ECR_62015CC0503_EN_01-E0022">22</a> </span>) ‘Otros documentos con fuerza ejecutiva a que se refere el número 9.o del apartado 2 del artículo 517’.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0023" href="#c-ECR_62015CC0503_EN_01-E0023">23</a> </span>) See above, point 25 and footnote 10.

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0024" href="#c-ECR_62015CC0503_EN_01-E0024">24</a> </span>)

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0025" href="#c-ECR_62015CC0503_EN_01-E0025">25</a> </span>) See, for example, judgment of 24 May 2016 in MT Højgaard and Züblin (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A347&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑396/14</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A347&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2016:347</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A347&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point23" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">23</a> and the case-law cited).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0026" href="#c-ECR_62015CC0503_EN_01-E0026">26</a> </span>) See order of 12 January 2010, Amiraike Berlin (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A5&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑497/08</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A5&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2010:5</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A5&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point17" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">17</a> and the case-law cited); judgment of 31 January 2013, Belov (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑394/11</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2013:48</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point39" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">39</a> and the case-law cited).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0027" href="#c-ECR_62015CC0503_EN_01-E0027">27</a> </span>) See judgment of 31 January 2013, Belov (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑394/11</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2013:48</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point40" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">40</a> and the case-law cited); see also judgment of 19 December 2012, Epitropos tou Elegktikou Synedriou (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A825&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑363/11</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A825&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2012:825</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2012%3A825&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point21" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">21</a> and the case-law cited); thus, in proceedings in which it acts as an administrative authority, a national court does not have the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU; see, for example, in relation to a German Amtsgericht (Local Court) hearing proceedings for the appointment of a ‘supplementary’ liquidator, the order of 12 January 2010, Amiraike Berlin (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A5&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑497/08</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A5&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2010:5</a>).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0028" href="#c-ECR_62015CC0503_EN_01-E0028">28</a> </span>) See judgment of 31 January 2013, Belov (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑394/11</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2013:48</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A48&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point44" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">44</a> and the case-law cited).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0029" href="#c-ECR_62015CC0503_EN_01-E0029">29</a> </span>) See Articles 440 to 469a of the LOPJ (see point 16 et seq. above) and Real Decreto 1608/2005 (see point 21 et seq. above); on the permanent nature of Secretarios Judiciales, see also, in particular, Article 81(1)(a) of Real Decreto 1608/2005 (see point 24 above).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0030" href="#c-ECR_62015CC0503_EN_01-E0030">30</a> </span>) Judgments of 19 September 2006, Wilson (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑506/04</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2006:587</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point52" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">52</a>), and of 22 December 2010, RTL Belgium (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A821&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑517/09</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A821&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2010:821</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A821&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point40" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">40</a>); see, similarly, judgment of 6 July 2000, Abrahamsson and Anderson (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑407/98</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2000:367</a>, paragraphs <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point34" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">34</a> to <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point37" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">37</a>), and order of 14 May 2008, Pilato (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑109/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2008:274</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point24" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">24</a>).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0031" href="#c-ECR_62015CC0503_EN_01-E0031">31</a> </span>) See Article 446 of the LOPJ (see above, point 18).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0032" href="#c-ECR_62015CC0503_EN_01-E0032">32</a> </span>) Judgments of 19 September 2006, Wilson (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑506/04</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2006:587</a>, paragraphs <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point50" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">50</a> and <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A587&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point51" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">51</a>), and of 22 December 2010, RTL Belgium (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A821&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑517/09</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A821&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2010:821</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A821&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point39" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">39</a>), as well as order of 14 May 2008, Pilato (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑109/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2008:274</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point24" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">24</a> and the case-law cited); see, similarly, judgment of 6 July 2000, Abrahamsson and Anderson (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑407/98</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2000:367</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point34" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">34</a> to <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2000%3A367&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point37" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">37</a>).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0033" href="#c-ECR_62015CC0503_EN_01-E0033">33</a> </span>) See order of 14 May 2008, Pilato (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑109/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2008:274</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A274&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point24" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">24</a> and the case-law cited); judgment of 31 January 2013, D. and A. (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A45&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑175/11</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A45&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2013:45</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2013%3A45&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point97" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">97</a>).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0034" href="#c-ECR_62015CC0503_EN_01-E0034">34</a> </span>) See Articles 442 and 450 of the LOPJ as well as Article 81(1)(a) of Real Decreto 1608/2005 (see points 18 and 24 above).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0035" href="#c-ECR_62015CC0503_EN_01-E0035">35</a> </span>) See Article 443(2) and the second subparagraph of Article 468c(2) of the LOPJ in conjunction with the first subparagraph of Article 468a(1) thereof (see point 18 above).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0036" href="#c-ECR_62015CC0503_EN_01-E0036">36</a> </span>) See Article 452(1) of the LOPJ (see point 19 above).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0037" href="#c-ECR_62015CC0503_EN_01-E0037">37</a> </span>) See Article 465(8) of the LOPJ (see point 20 above), as well as Articles 16(h) and Article 21(2) of Real Decreto 1608/2005 (see points 22 and 23 above).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0038" href="#c-ECR_62015CC0503_EN_01-E0038">38</a> </span>) See Article 440 and the first sentence of Article 452(1) of the LOPJ (see points 18 and 19 above).

(<span class="note"> <a id="t-ECR_62015CC0503_EN_01-E0039" href="#c-ECR_62015CC0503_EN_01-E0039">39</a> </span>) See above, footnote 37.

(40) In accordance with the case-law of the Court, the requirement that a procedure be adversarial is not an absolute criterion in the determination of whether a body constitutes a court or tribunal within the meaning of Article 267 TFEU; see judgments of 17 September 1997, Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 31); of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 63) and point 1 of the operative part of the judgment); and of 31 January 2013, D. and A. (C‑175/11, EU:C:2013:45, paragraph 88).

(41) See points 41 and 44 above.

(42) The version of the LEC applicable to these proceedings provides for such a hearing in cases where the debtor lodges an objection based on the excessive nature of claims to fees for which no cost estimate accepted by the client is present; the version of the LEC as amended by Law 42/2015 requires that the lawyer be given a hearing in the event of an objection on *any* grounds (see point 46 and footnotes 16 and 17 above).

(43) The parallels drawn by the Spanish Government with cases in which the Court has found the referring body not to constitute a court or tribunal because it was acting as an administrative authority and was not required to resolve a legal dispute must therefore be rejected; see judgment of 15 January 2002, Lutz and Others (C‑182/00, EU:C:2002:19, paragraphs 13 and 14).

(44) See point 25 above.

(45) See point 43 above.

(46) On these criteria, see judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 23 and the case-law cited).

(47) Judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraphs 23 to 25).

(48) See above, points 48 to 50.

(49) In this regard, the decision adopted by the Secretario Judicial in the unpaid fee recovery procedure differs from decisions at issue in other requests for a preliminary ruling, the lack of any force of *res judicata* attaching to which was the reason why the referring bodies were held not to constitute courts or tribunals; see judgment of 19 December 2012, in Epitropos tou Elegktikou Synedriou (C‑363/11, EU:C:2012:825, paragraph 27); see also order of 17 July 2014, Emmeci (C‑427/13, EU:C:2014:2121, paragraph 30).

(50) See above, points 53 to 59.

(51) See points 51 to 60 above.

(52) See, to that effect, judgment of 30 April 2014, Barclays Bank (C‑280/13, EU:C:2014:279, paragraphs 38-40).

(53) See Article 3(1) in conjunction with Article 2(a) to (d) of Directive 2005/29.

(54) See judgment of 15 January 2015, Šiba (C‑537/13, EU:C:2015:14, paragraphs 24 and 35).

(55) See, to that effect, judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraph 41).

(56) In this regard, the situation in the present case differs from that at issue in the judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 85-87), where there was no evidence of the existence of an unfair commercial practice.

(57) Judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 19).

(58) See point 109 above.

(59) See, to that effect, judgment of 30 April 2014, Barclays Bank, (C‑280/13, EU:C:2014:279, paragraphs 38-40).

(60) Judgment of 17 July 2014. Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 35); order of 16 July 2015, Sánchez Morcillo and Abril García (C‑539/14, EU:C:2015:508, paragraph 36).

(61) See judgment 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 41 to 43 and the case-law cited). See also judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 46 and the case-law cited).

(62) See judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraphs 42-44); for further explanation, see also the Opinion of Advocate General Trstenjak in Pereničová and Perenič (C‑453/10, EU:C:2011:788, points 82 to 85, 88 et seq., [91] and 111).

(63) Judgment of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid (C‑484/08, EU:C:2010:309).

EU:C:2010:309

32

; see also, to that effect, order of 16 November 2010, Pohotovosť (C‑76/10, EU:C:2010:685, paragraphs 73 and 77), and judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraph 43). For a detailed discussion of this issue, see the Opinion of Advocate General Trstenjak in Pereničová and Perenič (C‑453/10, EU:C:2011:788, points 115 to 119).

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0064" href="#c-ECR_62015CC0503_EN_01-E0064">64</a></span>) See judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 57 and point 1 of the operative part of the judgment), in the light of the judgment of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraph 55 and point 1 of the operative part of the judgment). With regard to the background to the procedures at issue in those two cases, it should be noted that the order for payment procedure which still lay within the jurisdiction of a court at the time of the proceedings in Banco Español de Crédito had been transferred to the Secretario Judicial by the time of the proceedings in Finanmadrid; see judgment of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraphs 37 and 38). With regard to the specific case of notaries, which cannot be transposed to the main proceedings here, see judgment of 1 October 2015, ERSTE Bank Hungary (C‑32/14, EU:C:2015:637, paragraphs 47 to 49, 59, 64 and 65).

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0065" href="#c-ECR_62015CC0503_EN_01-E0065">65</a></span>) See also, to that effect, the Opinion of Advocate General Szpunar in Finanmadrid EFC (C‑49/14, EU:C:2015:746, point 53 et seq.).

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0066" href="#c-ECR_62015CC0503_EN_01-E0066">66</a></span>) See point 60 above.

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0067" href="#c-ECR_62015CC0503_EN_01-E0067">67</a></span>) Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 43).

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0068" href="#c-ECR_62015CC0503_EN_01-E0068">68</a></span>) See, to that effect, judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 46).

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0069" href="#c-ECR_62015CC0503_EN_01-E0069">69</a></span>) In this connection, the Court has already held that the national court must investigate of its own motion whether a term falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair; see judgments of 9 November 2010, Pénzügyi Lízing (C‑137/08, EU:C:2010:659, paragraph 56 and point 3 of the operative part of the judgment); of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 44); and of 21 February 2013, Banif Plus Bank (C‑472/11, EU:C:2013:88, paragraph 24).

(<span class="note"><a id="t-ECR_62015CC0503_EN_01-E0070" href="#c-ECR_62015CC0503_EN_01-E0070">70</a></span>) Following the amendments introduced by Law 42/2015, not yet applicable at the material time of the present case, the lawyer must be given a hearing in the event of an objection on any grounds (see footnote 16 above).