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Case C-497/19: Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 26 June 2019 — Ibercaja Banco, S.A. v SO and TP
ECLI:EU:UNKNOWN:62019CN0497
62019CN0497
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Valentina R., lawyer
21.10.2019
Official Journal of the European Union
C 357/11
(Case C-497/19)
(2019/C 357/16)
Language of the case: Spanish
Referring court
Parties to the main proceedings
Appellant: Ibercaja Banco, S.A.
Respondents: SO and TP
Questions referred for a preliminary ruling
(1)Is national legislation compatible with EU law where it may be inferred from that legislation that, if a particular unfair term withstood an initial review conducted by a court of its own motion when making an enforcement order, that review prevents the same court from subsequently assessing that term of its own motion where the factual and legal elements existed from the outset, even if that initial review did not express, in the operative part or in the grounds, any considerations on the validity of the terms?
(2)Where factual and legal elements exist which determine the unfairness of a term in a consumer contract and the party against whom enforcement is sought fails to rely on that unfairness in the application objecting to enforcement laid down for that purpose by the Law, can that party, following the resolution of that application, make a further preliminary application aimed at determining whether one or more other terms is/are unfair when that party could have relied on those terms at the outset in the ordinary procedural step provided for in the Law? In short, is a time-barring effect created which prevents the consumer from raising again the issue of unfairness of another term in the same enforcement proceedings, and even in subsequent declaratory proceedings?
(3)If the conclusion that the party is not entitled to make a second or subsequent application objecting to the enforcement proceedings, in order to allege the unfairness of a term which that party could have raised earlier because the necessary factual and legal elements had already been determined, is held to be compatible with EU law, can this serve as a basis for use as a means whereby the court, having been alerted to the unfairness of that term, is able to exercise its power of review of its own motion?