28.11.2016

EN

Official Journal of the European Union

C 441/9

(Case C-486/16)

(2016/C 441/12)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Bankia, S.A.

Defendant: Alfredo Sánchez Martínez, Sandra Sánchez Triviño

Questions referred

1.First.- Is it contrary to Articles 4(1) and 7(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts to take into account, when deciding whether an early repayment term, like that in the contract at issue concluded between an operator and a consumer, is unfair, not only the circumstances attending the conclusion of the contract but also the seriousness of the breach by the consumer after the formation of the contract?

2.Second.- Is it contrary to the principle of effectiveness laid down in Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts for an enforcement order to be made on the basis of an early repayment term declared unfair by a final judgment given in previous mortgage enforcement proceedings between the same parties and based on the same mortgage loan agreement, even if that earlier judgment is not recognised under national law as having the positive effect of substantive res judicata, but national law does provide that fresh enforcement proceedings may not be brought on the basis of the same enforceable instrument?

3.Third.- In mortgage enforcement proceedings in which the court of first instance refused to make an enforcement order because the application was based on an early repayment term declared unfair in other, earlier mortgage enforcement proceedings, based on the same instrument and between the same parties, and in which the refusal to make an enforcement order was overturned by the appeal court which referred the case back so that an enforcement order could be made at first instance, is it contrary to the principle of effectiveness laid down in Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts to make the decision on appeal binding on the lower court or must national law be interpreted as meaning that the lower court is not bound by the decision on appeal when there is already an earlier final judgment annulling the early repayment term on which the enforcement order is based and, in that case, must the application for enforcement again be ruled inadmissible?

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