Provisional text

delivered on 19 June 2025 (1)

Case C‑320/24

CR,

TP

Soledil Srl, a company that has entered into a composition agreement with its creditors

(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))

( Reference for a preliminary ruling – Protection of consumers – Directive 93/13/EEC – Unfair terms – Faculty and obligation of the national court – Penalty clause in a consumer contract – Review of the possibly unfair nature of that contractual term – Validity of the contractual term covered by the force of (implicit) res judicata – Impossibility for the national court deciding on the merits and for the national court before which an appeal on a point of law has been brought to review the possibly unfair nature of the contractual term )

I.Introduction

1.The present question has been referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy), before which, for the second time, the same dispute has been brought concerning the performance of obligations under a preliminary contract through which two physical persons (CR and TP) undertook to acquire a real estate property from Soledil Srl, a company that subsequently entered into a composition agreement with its creditors.

2.The dispute initially concerned the question whether the conditions for the finalisation of that acquisition were met and, when that question was answered in the negative, the amount to which the seller was entitled under the penalty clause included in the contract. The determination of that amount was first (successfully) contested by Soledil before the Corte suprema di cassazione (Supreme Court of Cassation). Before that same jurisdiction, and following another stage of proceedings before an appeal court, CR and TP now argue, for the first time since the dispute arose, that the relationship at issue is one between a consumer and a professional and that the penalty clause is unfair within the meaning of Directive 93/13/EEC (2) and should therefore be declared invalid.

3.The referring court observes that, under the national procedural rules, it is impossible for that issue to be considered at such a late stage of the judicial proceedings since the question of validity of that term was not examined during the previous stages of those proceedings and has therefore (implicitly) been given the force of res judicata. At the same time, the Corte suprema di cassazione (Supreme Court of Cassation) is well aware that under the Court of Justice’s case-law there is an obligation for the national courts to disregard, under certain circumstances, the force of res judicata of a judicial decision, where the possibly unfair nature of the contractual terms had not been reviewed, to ensure the effective protection of the consumers’ right not to be bound by unfair terms in a consumer contract. (3) Hence why the referring court wonders whether the solution reached in those cases also has to apply in the context of the main proceedings.

4.What makes the present case novel is the fact that the existing Court’s case-law concerns mostly situations in the context of national judicial proceedings of a summary nature, such as those regarding enforcement proceedings of orders for payment or mortgages, which, as it is clear from the order for reference, is not the case in the main proceedings. Thus, the present case provides the Court with an opportunity to clarify the scope of the national courts’ obligation to ensure that the force of res judicata gives way to the imperative of the effectiveness of consumer protection and to address the tension that that obligation inevitably introduces when tested against the requirements of legal certainty.

II.Legal framework

A.European Union law

5.Pursuant to Article 6(1) of Directive 93/13, ‘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.’

6.Article 7(1) of Directive 93/13 provides that ‘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.’

B.Italian law

7.Point 6 of the third paragraph of Article 1469bis of the Codice Civile (Italian Civil Code; ‘the Civil Code’), in the version applicable to the facts of the main proceedings, provides for a presumption of unfairness of clauses under which, in the event of infringement, there would be an obligation for a manifestly excessive sum to be paid.

8.Article 1469quinquies of the Civil Code, in the version applicable to the facts of the main proceedings, provides inter alia that unfair terms are void and lack legal effect. The referring court specifies that such a matter can be raised by the court concerned of its own motion.

9.Moreover, pursuant to Article 394 of the Codice di procedura civile (Italian Code of Civil Procedure), the proceedings referred to a court of appeal are preordained to lead to a new ruling to replace the one annulled by the Corte suprema di cassazione (Supreme Court of Cassation), with the parties not being able to expand the subject matter of the judgment by putting forward new claims and objections, including matters that could have been raised by the court of its own motion that were not considered by the Corte suprema di cassazione (Supreme Court of Cassation) and on which an implied judgment had been developed.

III.Facts, national proceedings and the question referred

10.In 1998, CR and TP entered into a preliminary sales contract with Soledil to acquire real estate property, paid that company an advance payment of approximately EUR 72 000 and took possession of the property, pending the signature of the final contract.

11.That preliminary sales contract included a penalty clause providing that, in the event of non-performance by the purchaser, the seller was entitled to withhold the total amount of the advance payment made, without prejudice to his or her right to compensation for any greater damages.

12.A dispute arose over the failure to sign the final contract. That dispute was submitted to an arbitration board that determined, on 29 July 2002, that the preliminary sales contract had been terminated, and ordered CR and TP to give the property back to Soledil while the latter was ordered to pay the advance payment back to CR and TP.

13.CR and TP challenged that arbitration award before the Corte d’appello di Ancona (Court of Appeal, Ancona, Italy) which, in a judgment of 28 March 2009, declared it null and void on procedural grounds. On the merits, that court rejected CR and TP’s claims that the preliminary sales contract should be performed, and ordered them to give back the property. Soledil was ordered to pay back the advance payment received, retaining – as a penalty – only the interest accrued on that sum. Soledil’s claim for further damages was rejected.

14.Soledil appealed against that judgment before the Corte suprema di cassazione (Supreme Court of Cassation), invoking, inter alia, the undue reduction of the penalty. CR and TP opposed that appeal and lodged a cross-appeal, contesting in particular the rejection of their plea aiming at the performance of the contract.

15.In its judgment of 14 November 2015, the Corte suprema di cassazione (Supreme Court of Cassation) upheld Soledil’s appeal, finding the reasoning of the Corte d’appello di Ancona (Court of Appeal, Ancona) insufficient with regard to the criteria it had applied to quantify the reduced penalty. It also dismissed the cross-appeal. Accordingly, it referred the case to the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) to re-calculate the amount of the penalty claimed by Soledil (‘the first judgment of the Supreme Court of Cassation’).

16.Before the Corte d’appello di Bologna (Court of Appeal, Bologna), Soledil claimed the entire amount of the advance payment under the penalty clause as well as compensation for further damages resulting from the unlawful occupation of the property. CR and TP asked for the dismissal of those claims, for the judgment of the Corte d’appello di Ancona (Court of Appeal, Ancona) to be upheld and, on a subsidiary basis, for the penalty to be reduced based on equitable criteria.

17.By its judgment of 12 October 2018, that latter court decided that the penalty due by CR and TP amounted to EUR 61 600 and rejected the claim for further damages put forward by Soledil. It held, inter alia, that the penalty clause was excessive, even taking into account that the de facto occupation of the property by CR and TP had lasted for many years.

18.CR and TP brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation), putting forward a new plea in law, namely, in essence, that the preliminary sales contract constituted a contract between a consumer and a professional and that the penalty clause was unfair in that it imposed the payment of a manifestly excessive sum of money by way of compensation. As such, they claimed that that contract should have been declared null and void by the court of its own motion, which the Corte d’appello di Bologna (Court of Appeal, Bologna) did not do.

19.In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Article 6(1) and Article 7(1) of [Directive 93/13] and Article 47 of the Charter of Fundamental Rights of the European Union [(“the Charter”)] to be interpreted:

(a)as meaning that they preclude the application of the national procedure principles according to which preliminary questions, including those relating to the nullity of the contract, which have not been raised before the [Corte suprema di cassazione (Supreme Court of Cassation)], and which are logically incompatible with the nature of that court’s judgment, cannot be examined in the remitted proceedings or upon the review of legality to which the parties submit the judgment which was handed down by the court to which the case had been remitted;

(b)also considering the complete passivity on the part of the consumers, where they never challenged the nullity/lack of legal effect of the unfair terms, except by appealing before the [Corte suprema di cassazione (Supreme Court of Cassation)] at the outcome of the proceedings held before the court to which the case had been remitted;

(c)and this with particular reference to the finding that a manifestly excessive penalty clause is unfair, the adjustment of its reduction according to appropriate criteria (quantum) having been ordered by the [Corte suprema di cassazione (Supreme Court of Cassation)], also on account of the consumers’ failure to argue that the clause is unfair (cause of action) except after the ruling by the court to which the case had been remitted?’

20.Written observations have been submitted by CR and TP, the Italian Government and the European Commission. These parties presented oral arguments during the hearing that took place on 26 February 2025.

IV.Assessment

21.By its question, the referring court is asking, in essence, whether Directive 93/13, in particular Article 6(1) and Article 7(1) thereof, read in combination with Article 47 of the Charter, must be interpreted as precluding a national rule of procedure which prevents the highest court of a Member State from finding that a term included in a contract concluded between a consumer and a professional is invalid where the impossibility to perform such a review is due to the fact that, in the absence of a plea raised to that effect by the consumer in previous stages of the proceedings, and given also that that issue was not raised by the respective national courts ex officio in those previous stages, the validity of that clause must be considered as impliedly adjudicated upon.

22.More specifically, in the main proceedings, it was not until the second appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation) that CR and TP raised a plea of invalidity of the penalty clause included in the preliminary sales contract. In the previous stages of the proceedings, the national courts considered whether that contract should be executed, and once that was determined in the negative, what the extent of Soledil’s rights arising under the penalty clause were. Since the validity of the penalty clause constituted the logical prerequisite to the examination of the extent of the rights and obligations arising thereunder, the validity of that clause had implicitly been given the force of res judicata as a result of the first judgment of the Supreme Court of Cassation.

23.The question to be addressed here is whether, under such circumstances (in which the potentially unfair nature of the penalty clause had not been reviewed in the previous stages of the same proceedings), the force of res judicata that has come into effect with regard to an aspect of the (otherwise still pending) dispute must be disregarded to ensure the effectiveness of the prohibition on the use of the unfair terms in consumer contracts.

24.After I make some preliminary remarks about the elements of law and fact relevant for my assessment here (A) and address the Court’s case-law which the referring court (correctly) identifies as particularly relevant for the legal issue before it (B), I will explain why I believe that EU law does not impose the obligation to disregard the force of res judicata under the circumstances of the case in the main proceedings (C).

A.Preliminary remarks

25.In order to explain why the present case requires the limits imposed by EU law on the force of res judicata in national law to be considered in the first place, it is important to recall that national courts should have the possibility, and even have the obligation, to review of their own motion the potentially unfair nature of terms included in a contract between a consumer and a professional (or ‘seller or supplier’ to use the terms of Directive 93/13). (4)

26.That obligation arises, as the referring court observes, from the Court’s interpretation of Article 6(1) and Article 7(1) of Directive 93/13, read together with the principle of effectiveness, imposing on the Member States the obligation to ensure that unfair terms do not bind the consumer (Article 6(1)) and to provide for adequate and effective means to prevent the continued use of unfair terms in consumer contracts (Article 7(1)). It is rooted in the premiss that underlies that directive, according to which the consumer is in a weak position vis-à-vis the professional as regards his or her bargaining power and the gap in the level of expertise between them. (5) In that light, the active intervention of the national courts (6) to verify whether the relevant contractual term is unfair or not is perceived as a tool that re-establishes an effective equilibrium between the parties and therefore their equality. (7)

27.In that respect, the referring court confirms that the relationship at issue in the main proceedings is indeed one between two consumers and a professional. It also follows from the order for reference that although CR and TP participated in the different stages of the main proceedings (and indeed initiated some of them), they did not raise the issue of the potentially unfair nature of the penalty clause (until the case reached the Corte suprema di cassazione (Supreme Court of Cassation) for the second time). It follows that in those previous judicial stages there was an obligation on the part of the respective national court(s) to review of their own motion whether the penalty clause was unfair (given that the dispute concerned, inter alia, the extent of the rights and obligations arising under that clause).

28.However, that review had not been conducted. The Italian Government explained that it could have been conducted, under national procedural law, until and including the first time that the case had reached the Corte suprema di cassazione (Supreme Court of Cassation). In other words, the fact that the respective national court(s) had failed to comply with the obligation to review ex officio the potentially unfair nature of the penalty clause does not seem to be in dispute.

29.What is contentious is the question whether the obligation to examine the potential unfairness of that clause arises, as a matter of EU law, at the stage of the second review of legality pending before the Corte suprema di cassazione (Supreme Court of Cassation), where the above issue has been raised by the consumers concerned and where its examination is now precluded, by the effect of an (implicit) force of res judicata of the first judgment of the Supreme Court of Cassation. Indeed, that judgment appears to have ‘locked’ the scope of the dispute, limiting the issue that is to be examined upon remittal to the respective appeal court to the sole question of the amount to which Soledil is entitled under the penalty clause.

30.It is for those reasons that the present case brings to the fore the issue of exceptions to the principle of res judicata

that the Court has previously defined and required national courts to apply, in order to ensure that there is a judicial review of a potentially unfair contractual term, where that matter had not (or had not adequately) been examined in the previous stages of the proceedings. Given that the discussion in the present case is understandably focused on the applicability of those exceptions to the situation in the main proceedings, I will now turn to them in more detail.

B.The case-law basis of the discussion in the present case

31.I recall that the Court has repeatedly acknowledged, including in the field covered by Directive 93/13, the importance, both for the EU legal order and the national legal systems, of the principle of res judicata. It has constantly held that EU law does not require the final nature of a judicial decision to be set aside to rectify an incompatibility of a domestic situation with EU law, unless a contrary conclusion is mandated by the principle of equivalence or effectiveness. (8) Indeed, the absence of specific rules in Directive 93/13 as regards the enforcement of the protection offered thereunder means that that matter falls within the realm of the Member States’ procedural autonomy. (9) The above two principles constitute the traditional limits that that autonomy has to respect.

32.I observe that the case-law that has triggered the referring court’s doubts concerns the exceptions to the force of res judicata identified on the basis of the principle of effectiveness (by contrast no element in the file before the Court indicates that respect for the principle of equivalence may be called into question here).

33.I also observe that, although there are more examples of the Court’s case-law concerning the issue of EU-law-based exceptions to the force of res judicata in national law (and addressing it in the light of the principle of effectiveness) – to which I will later turn – the cases that the referring court identifies as particularly relevant here are the three res judicata judgments of 17 May 2022, as previously mentioned. (10)

34.First, in its judgment in Ibercaja Banco, the Court required the force of res judicata that took effect at the end of mortgage enforcement proceedings to be disregarded, where the enforcement court had examined the contractual terms without, however, providing any express statement to that effect. The Court considered that, under such circumstances, the consumer had not been informed about the review or the grounds on which the enforcement court had found that the terms at issue were not unfair, which in turn had prevented the consumer from making an informed decision on whether to challenge that decision. (11)

35.Second, in the judgment in SPV Project 1503, the Court concluded, in essence, that the enforcement court must have the power to review the potential unfairness of contractual terms, where an order for payment has not been the subject of an objection lodged by a consumer and which results in an (implicit) force of res judicata. (12) The Court explained that conclusion by pointing out that national legislation – under which the ex officio examination of the unfairness of contractual terms is deemed to have taken place (impliedly) and under which an order for payment acquires the force of res judicata, even where there is no statement of reasons as to the review of the terms – is liable to render the above obligation to examine the possible unfairness of contractual terms meaningless. (13)

36.Third, in the judgment in Unicaja Banco, the Court mandated in particular that the force of res judicata of a part of the first-instance judgment be disregarded where it prevented the recovery of part of the sum paid based on a ‘floor clause’ included in a mortgage agreement that was considered to be unfair. (14) While that first-instance judgment ordered the amounts paid by the consumer based on that clause to be reimbursed, that restitutory obligation was limited, in accordance with the (then) case-law of the respective national supreme court. Indeed, that judgment only required the restitution of the amounts paid by the consumer once that court’s judgment declaring the floor clause unfair had been published. Subsequently, in the context of another case, the Court of Justice held that that temporal limitation was contrary to Directive 93/13. (15) However, the Court’s determination was made after the time limits for bringing an appeal in the proceedings having led to the judgment in Unicaja Banco had lapsed, with only the bank involved having appealed the decision on costs. In that context, the Court held that the appeal court concerned was required to raise the question of the unfairness of the temporal limitation, although that part of the first-instance judgment was (understandably) not contested by the bank and had therefore become final under the respective national law.

37.Turning to the present proceedings, CR, TP and the Commission, on the one hand, and the Italian Government, on the other hand, take different positions as to what the interpretation of the principle of effectiveness in the abovementioned judgments imply for the main proceedings and for the reply to be given to the question referred.

38.The Italian Government is of the view that, contrary to the circumstances which gave rise, in particular, to the judgments in SPV Project 1503 and Ibercaja Banco, the circumstances characterising the main proceedings do not necessitate (nor allow for) the force of res judicata to be disregarded. It is of the view that compliance with the principle of effectiveness must be considered in the light of the features of the system of remedies provided in the specific legal order. It points out that the abovementioned judgments concerned summary proceedings whose nature made it difficult for the consumers to safeguard their right not to be bound by (potentially) unfair terms. That is, however, not the situation in the main proceedings, which have been ordinary, fully contradictory proceedings whose characteristics do not create any particular difficulty to argue the unfairness of a contractual term. Moreover, CR and TP were represented in the (rather long) course of those proceedings by a lawyer. (16)

39.In contrast, CR, TP and the Commission consider, in essence, that the solution reached in the res judicata judgments of 17 May 2022 must be applied, mutatis mutandis, to the situation in the main proceedings. More specifically, the Commission considers that the requirements of the principle of effectiveness, in the context of Directive 93/13, go further than what has been argued by the Italian Government. In fact, that principle cannot be considered to be complied with when, in the given case, the relevant contractual terms have not been reviewed by a court at some stage of the proceedings and, if need be, ex officio. Since the penalty clause at issue here has not been reviewed, the effect of an (implicit) res judicata of the first judgment of the Supreme Court of Cassation must be disregarded.

40.I will examine those positions in more detail in the next section with a view to proposing a reply to the question referred.

C.Answer to the question referred

41.I will begin this section by commenting on the role of the principle of effectiveness as a limit to the force of res judicata. In that context, I will clarify that the interpretation of the principle of effectiveness in the res judicata judgments of 17 May 2022 must be understood as basing the conclusion that the force of res judicata must be disregarded on the particularly restrictive procedural context of the cases that gave rise to those judgments (1). I will then explain that extending the solution reached in those cases beyond such a context would be inconsistent with the fundamental importance of the principle of res judicata, repeatedly recalled in the Court’s case-law (2), and would disproportionately affect the other rights and interests at stake (3).

Limits to the force of res judicata under the principle of effectiveness

fundamental importance of the principle of res judicata

60.I note that although in the res judicata judgments of 17 May 2022 the Court required the principle of res judicata to be disregarded, it also recalled its established case-law that has constantly stressed the importance that should be attached to the finality of judicial decisions, including those resulting in an incorrect application of EU law. (26)

61.There is nothing surprising about such an emphasis in the light of the fundamental role that that principle plays for the ‘stability of the law and legal relations and [for] the sound administration of justice’. (27) Indeed, its aim is to ensure an efficient conduct of the legal proceedings and, once they are concluded by a final decision, to create legal stability for the parties. More generally, it contributes to the foreseeability of the legal situations and makes it possible for the society to trust that the cases finally adjudicated upon will not be called into question (or that they can only be so in the limited scenarios which allow for the successful triggering of the extraordinary remedies, as defined in a given legal order). (28) In other words, the principle of res judicata constitutes an important aspect of the principle of legal certainty, (29) a fundamental principle of any modern legal system based on the rule of law, (30) and an implicit element of the right to effective judicial protection.

62.The European Court of Human Rights (ECtHR) recalled that second aspect in the context of Article 6 of the European Convention on Human Rights (ECHR), (31) explaining that although the requirements of the principles of legal certainty and res judicata are not absolute, ‘a departure [therefrom] is justified only when made necessary by circumstances of a substantial and compelling character, such as the correction of fundamental defects or a miscarriage of justice’. (32)

63.The same balanced approach to situations in which the force of res judicata may be disregarded must therefore be adopted also in the context of Article 47 of the Charter, which naturally applies to the present circumstances.

64.In that light, if one admits, as the Commission suggests, that the solution reached in the res judicata judgments of 17 May 2022 applies irrespective of any restrictive context, the resulting approach vis-à-vis the principle of res judicata becomes, in situations covered by Directive 93/13, rather different from the one referred to in point 60 above, consistently adopted by the Court.

65.Indeed, rather than embodying the idea that final judicial determinations have to remain, in principle, intact even where they lead to an incorrect application of EU law, that approach would require, in situations covered by Directive 93/13, the reversal of a final judicial determination every time an incorrect application of EU law occurred (that amounts, in the present context, to each time there has been a failure on the part of the national court to examine the potential unfair nature of the contractual terms ex officio).

66.Not only do I agree with the Italian Government that the abovementioned judgments do not lend themselves to such a far-reaching general conclusion, I also consider that such an interpretation of the principle of effectiveness would not sit well with the necessity to link the departure from the imperative of legal certainty to the circumstances in which such a departure is genuinely justified. Therefore, I find it difficult not to understand the interpretation of the principle of effectiveness embraced in the res judicata judgments of 17 May 2022 as having been mandated by the specific circumstances of those cases (as already explained above).

67.Indeed, when the circumstances of a case do not reveal any such specific need to compensate for an increased difficulty for the consumers to assert their rights, requiring the force of res judicata to be disregarded would amount, as I will explain now, to a disproportionate affectation of the respective rights and interests at stake.

3.Balancing the rights and interests at stake

68.I have already explained that the enhanced protection that must be offered to consumers under Directive 93/13 implies the obligation for the national courts to examine, of their own motion if need be, whether the contractual terms included in a consumer contract are unfair or not, within the meaning of that directive. If judged unfair, those terms must be regarded as never having existed (unless the consumer decides, in an informed manner, not to rely on their unfairness). (33)

69.By emphasising the above obligation of the courts (that applies irrespective of the circumstances of the case, in particular, of whether the consumer is represented by a lawyer or not), (34) the Court has, thus, compensated for the imbalance inherently affecting the consumer-professional relationship also through the use of specific tools of procedure. Indeed, it goes without saying that the substantive protection (against the use of unfair terms) would risk becoming meaningless without adequate means of enforcement because there is no reason to presume that the inherent weakness of the consumer vis-à-vis the professional disappears when, in particular, the latter decides to pursue the judicial enforcement of his or her rights under a consumer contract.

70.At the same time it must recalled that although the rule, pursuant to which unfair terms do not bind the consumer as set out in Article 6(1) of Directive 93/13, ‘must be regarded as a provision of equal standing to that of national rules that have, within the domestic legal system, the character of rules of public policy’, (35) the consumer’s protection provided for by the above directive is not absolute. (36) It follows that while the extent of that protection must reflect the necessity to compensate for the above imbalance, its parameters cannot be defined without due regard to the genuine scope of that necessity and the legal consequences for the other party involved flowing from that specific protection.

71.In that light, it is, in my view, one thing to argue that the principle of effectiveness requires the national court to proceed, in all circumstances, with an ex officio examination of potentially unfair contractual terms, but another altogether to suggest that when that obligation has not been complied with, the principle of effectiveness requires the force of res judicata to be set aside, irrespective of the circumstances of the case.

72.Indeed, the ex officio examination, on the one hand, and the force of res judicata, on the other hand, encapsulate values of different importance and one should not be tempted to put them on equal footing (by concluding that the breach of the former necessarily triggers the need to disregard the latter).

73.More specifically, the ex officio examination obligation contributes to avoiding situations in which the courts would end up adjudicating entitlements that rely on an unlawful basis, more so than in other areas of law (given the underlying imbalance of the parties’ positions). (37) At the same time, while that obligation clearly adds to the burden of the courts, I do not think that it affects the professional, as the opposing party, in a disproportionate manner given that that party has simply to accept the review of the legality of the basis for its claim (when that legality is not contested by the consumer). For that reason, one can argue that such an intervention allows for the pre-existing imbalance of the parties’ position to be resolved without creating a new (reverse) one.

74.Turning now to the principle of res judicata, it is true that one could likewise explain the necessity to revisit the final judicial determination when the national courts had omitted to review (adequately) the respective contractual terms in order to avoid the risk of potentially unlawful claims being adjudicated. However – and contrary to the rather mild, negative effects for the opposing party (that is, the professional) of the ex officio examination of the contractual terms that the consumer does not contest – to impose a reversal of the final nature of a judicial determination every time such an ex officio obligation is not respected, irrespective of the circumstances, would have at least the following two excessive consequences.

75.First, it would affect disproportionately the professional’s right to effective judicial protection enshrined in Article 47 of the Charter, which implies, as already pointed out, the necessity to respect the finality of a judicial determination. Indeed, while the interference with legal certainty may be justified by the specific circumstances that restricted the consumer’s capacity to defend his or her rights, I fail to see any reason for such an interference when the situation at hand does not create any such difficulty (and where the underlying imbalance does not ‘spill over’ to the litigation/enforcement stage due to the applicable rules of procedure).

76.In fact, rather than restoring the equality of arms between parties, such a solution would result in a reverse imbalance by allowing the consumer to ‘unlock’, at any time of the proceedings, the door that closed the access to the possibility of review, even though that door had been open long enough and no particular obstacle had prevented the consumer from going comfortably through it, while the same possibility is not offered to the other party.

77.At this stage, I wish to clarify that the fact that the final judicial determination in the main proceedings was made in proceedings that are still ongoing is irrelevant per se. It is well known that the concept of a final decision (to which the force of res judicata attaches) is not limited to the resulting single formal decision by which any given proceedings are factually concluded (because the parties have decided not to pursue them or because they have exhausted all the available remedies). Indeed, the force of res judicata can emerge within the ongoing proceedings, at different stages thereof and on different aspects of the dispute, due to the fact that the parties did not initially raise the issue concerned or did not later contest its assessment. That applies not only to matters explicitly discussed but also to those that constitute the necessary legal premisses of the arguments raised (such as the validity of the penalty clause here at issue when the arguments of the parties concerned the extent of their respective rights and obligations arising thereunder). The fact that within the same ongoing proceedings the possibility to discuss some points progressively disappears (and the metaphorical door to that possibility thus closes) constitutes the necessary tool for any proceedings to be conducted efficiently and, no less importantly, within reasonable time limits.

78.Turning to my second point (and the second disproportionate consequence) mentioned in point 74 above, the ECtHR has held that quashing a final judgment giving rise to a ‘possession’, within the meaning of Article 1 of the Protocol to the ECHR, (38) ‘constitutes an interference with the judgment beneficiary’s right to the peaceful enjoyment of that possession’, (39) even if disregarding the principle of res judicata does not presume the outcome of the matter whose relevant aspect is to be examined anew. (40)

79.Translated into the EU legal order, it follows that Article 17 of the Charter (enshrining the right to property) constitutes another reason why, in my view, one cannot extend blithely the application of the solution reached in the res judicata judgments of 17 May 2022 to any dispute arising under Directive 93/13, irrespective of the specific circumstances of the case.

80.I note that both of the above aspects of the disproportionate impact would be further aggravated when considered against other dimensions of consumer protection, in particular, against the rule related to time limits in which a consumer may bring a claim for unjust enrichment (having resulted from the application of an unfair term). The Court clarified that those time limits cannot begin to run from the date on which the unjust enrichment occurred because the consumer might not have been aware of the unfair nature of a term or did not appreciate the extent of his or her rights deriving from Directive 93/13. (41)

81.The moment when such awareness is acquired thus constitutes the relevant point in time, prior to which the applicable time limits to bring a claim for unjust enrichment cannot expire. When that element is combined with the absence of the force of res judicata of a possible previous judgment in which an ex officio review was omitted and in which the professional prevailed, the latter may be placed in a situation of considerably prolonged legal uncertainty.

82.In that respect, it is hardly necessary to note that not every allegation of unfairness will be successful on its merits. As a matter of fact, one cannot exclude that raising such a plea at a particular stage of the proceedings may constitute a litigation strategy or could even be frivolous, and one cannot therefore predict with certainty which party will prevail in the end. I recall that it follows from the abovementioned case-law of the ECtHR that the mere fact of having to undergo re-litigation of finally closed matters constitutes interference with the right to property and the right guaranteed by Article 6 ECHR. Where that interference is not justified by the specific circumstances of the case, it should not occur at all.

83.For that matter, I recall that, where the approach adopted by a national court adjudicating at last instance in any given proceedings infringes EU law, the party that considers itself grieved must have the possibility to introduce an action in State liability. (42) Although that action is subject to specific conditions, it avoids the severity of the consequences that would follow if the force of res judicata were to be disregarded in the absence of any restrictive conditions.

84.Furthermore, I have already explained that the res judicata judgments of 17 May 2022 concern a context characterised by a restrictive or otherwise specific procedural framework which prevented the consumers from asserting effectively their rights. That restrictive national procedural framework constitutes, in my view, the necessary element to understand the scope of the Court’s observation, recalled in those judgments, according to which ‘without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed’. (43) In fact, that observation follows from the Court’s previous case-law related to the ex officio examination of contractual terms (44) and, for the reasons explained above, one cannot simply extract it from the circumstances having characterised the res judicata judgments of 17 May 2022 to indiscriminately require the reversal of the force of res judicata each time contractual terms are not examined, without due regard to the circumstances of the case.

85.I should add that the necessity for the existence of such a restrictive context to allow for the force of res judicata to be disregarded also follows from the Court’s case-law that both precedes and post-dates the res judicata judgments of 17 May 2022.

86.As regards the older case-law, in concluding, in the judgment in Asturcom Telecomunicaciones, that there was no obligation to disregard the final nature of an arbitration award, the Court simultaneously confirmed that the national rules imposing a two-month time limit in which that award could have been challenged were consistent with the principle of effectiveness. (45) Similarly, when it concluded in Finanmadrid EFC that there was an obligation to disregard the final nature of the determination of the consumers’ obligations, that conclusion was embedded in the specific restrictive conditions identified in the Spanish legislation that allowed for the force of res judicata to take effect. (46) Finally, the Court concluded in its judgment in Banco Primus that the force of res judicata of an earlier judgment (in which only some of the contractual terms of a loan agreement were examined) cannot preclude the examination of other terms of the same agreement (when the consumer has properly objected to the enforcement). (47) That finding was made against the procedural context of an application against eviction from the mortgaged property, a context that is again, by nature, restrictive.

87.More recently, in its judgment in Profi Credit Polska, the Court (sitting in Grand Chamber formation) concluded, in essence, that the principle of effectiveness does not go as far as obliging Member States to provide for extraordinary remedies to reopen the proceedings closed by a final default judgment (handed down based on a promissory note) in which the review of the contractual terms was omitted.

88.Although the Court in fine required the availability of the remedies on the basis of which the consumer had to be able to seek compensation for the amount paid under the allegedly unfair contractual terms, that conclusion was reached by reference to the restrictive conditions under which the default judgment could have been challenged. In other words, the conclusion as to the obligation to disregard the finality of the judgment was linked to the consideration of the inadequacy of the procedural frame in which the consumer would have to defend his or her rights. (48) By contrast, such a (standard) condition of the non-applicability of the force of res judicata could not have applied if the absence of that force followed from the mere absence of the review of the contractual terms in the procedure having led to the default judgment at issue in that case.

89.In a similar vein, in its judgment in Getin Noble Bank the Court stated the obligation of the enforcement court to review of its own motion the possible unfairness of the contractual terms, where the default on the part of the consumer led to the issuance of an order for payment having acquired the force of res judicata

and where no review of the terms was conducted when the order for payment was issued. The Court linked the above obligation, to a great extent, to the (possible) restrictive conditions under which the order could have been contested, which could have in turn created a significant risk that the consumer would not trigger the review.

90.The consideration of the above elements thus lead me to conclude that, in the light of the absence, in the present case, of any similar procedural conditions restricting the possibility for the consumer to safeguard his or her rights (which of course remains for the referring court to verify), the necessity to ensure the effectiveness of the consumers’ right not to be bound by a potentially unfair contractual term included in a consumer contract does not require the force of res judicata of a judicial determination that has come into effect in the given (and ongoing) judicial proceedings to be disregarded, despite the fact that, within those proceedings, the potentially unfair nature of the relevant contractual term had not been examined.

V.Conclusion

91.In the light of the above, I propose that the Court answer the question referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as not precluding a national rule of procedure which prevents a national cassation court from finding that a term in a contract concluded between a consumer and a professional is invalid where the impossibility to perform such a review is due to the fact that, in the absence of a plea raised to that effect by the consumer in previous stages of the proceedings, and given also that that issue was not raised by the respective national courts of their own motion in those previous stages, the validity of that clause must be considered as impliedly finally adjudicated upon, as a result of a previous judgment of the national cassation court, where:

–the matter arises in a context in which, due to the applicable rules of procedure, the enforcement of the consumer’s obligations is not particularly facilitated, and where, therefore, there is no particular difficulty for the consumer to assert his or her rights derived from Directive 93/13; and

–the conditions under which the previous stages of the procedure unfolded did not make it, in any other manner, practically impossible or excessively difficult for the consumer to enforce his or her rights derived from Directive 93/13.

—

1Original language: English.

2Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

3Reference is made, in particular, to the judgments of the Court (sitting in Grand Chamber formation) of 17 May 2022, SPV Project 1503 and Others (C‑693/19 and C‑831/19, ‘the judgment in SPV Project 1503’, EU:C:2022:395); of 17 May 2022, Unicaja Banco (C‑869/19, ‘the judgment in Unicaja Banco’, EU:C:2022:397); and of 17 May 2022, Ibercaja Banco (C‑600/19, ‘the judgment in Ibercaja Banco’, EU:C:2022:394) (together, ‘the res judicata judgments of 17 May 2022’). I note that the fourth case handed down on the same date, Impuls Leasing Romania (C‑725/19, EU:C:2022:396), did not concern the question whether the force of res judicata had to be disregarded.

4See, for instance and recently, judgments of 11 April 2024, Air Europa Líneas Aéreas (C‑173/23, EU:C:2024:295, paragraph 29 and the case-law cited), and of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, ‘the judgment in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision)’, EU:C:2024:282, paragraph 66 and the case-law cited).

5See, for instance and recently, judgment of 13 March 2025, APS Beta Bulgaria and Agentsia za kontrol na prosrocheni zadalzhenia (C‑337/23, EU:C:2025:183, paragraph 53 and the case-law cited).

6Or ‘positive action unconnected with the actual parties to the contract’, as the Court recalls. See, for instance, judgment of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, ‘the judgment in Getin Noble Bank’, EU:C:2024:58, paragraph 42 and the case-law cited).

7See, for example, the judgment in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 72 and the case-law cited.

8See, for example, the judgment in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraphs 37 to 39.

9See, for example, ibid., paragraph 39 and the case-law cited.

10The other relevant references are (as regards the older cases), in particular, judgments of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, ‘the judgment in Asturcom Telecomunicaciones’, EU:C:2009:615); of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98); and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60). The more recent examples are, in particular, the judgments in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), in Getin Noble Bank; and of 29 February 2024, Investcapital (C‑724/22, EU:C:2024:182).

11The judgment in Ibercaja Banco, paragraph 49.

12The judgment in SPV Project 1503, paragraph 68 (see also paragraph 22 for the procedural context).

13Ibid., paragraph 65.

14The judgment in Unicaja Banco, paragraph 40.

15Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 72 to 75).

16Which is an element for the referring court to verify.

17See footnote 8 above and, more recently (and generally), judgment of 16 January 2025, BALTIC CONTAINER TERMINAL (C‑376/23, EU:C:2025:20, paragraphs 71 and 72 and the case-law cited).

18Judgments of Târșia (C‑69/14, EU:C:2015:662, paragraph 29 and the case-law cited), or in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 38 and the case-law cited.

19See, for instance, judgments of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraphs 36 and 37 and the case-law cited), and of 16 January 2025, BALTIC CONTAINER TERMINAL (C‑376/23, EU:C:2025:20, paragraph 74 and the case-law cited).

20Judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraphs 61 to 63). For the observation concerning the ‘highly specific’ context of that conclusion, see judgment of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 61).

21Judgments of 3 September 2009, Fallimento Olimpiclub (C‑2/08, EU:C:2009:506, paragraphs 29 to 31); of 11 November 2015, Klausner Holz Niedersachsen (C‑505/14, EU:C:2015:742, paragraphs 43 to 45 and the case-law cited); of 2 April 2020, CRPNPAC and Vueling Airlines, C‑370/17 and C‑37/18, EU:C:2020:260, paragraphs 95 and 96); of 16 July 2020, UR (VAT liability of lawyers) (C‑424/19, EU:C:2020:581, paragraphs 32 and 33); and of 7 April 2022, Avio Lucos (C‑116/20, EU:C:2022:273, paragraphs 102 to 104).

22The Court held that the consumer must also be informed of the consequences of his or her inaction as regards the time-barring of the right to assert the possible unfairness of the contractual terms; see judgment of 29 February 2024, Investcapital (C‑724/22, EU:C:2024:182, paragraph 45).

23As indeed follows from the Court’s case-law; see the judgments in Asturcom Telecomunicaciones, paragraph 47; in Unicaja Banco, paragraph 28 and the case-law cited; and in Getin Noble Bank, paragraph 45.

24Opinions of Advocate General Mengozzi in Joined Cases Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:552, points 72 and 74) and of Advocate General Tanchev in Unicaja Banco (C‑869/19, EU:C:2021:617, point 19).

25I recall that there is no general obligation under EU law on the part of the national courts to raise, of their own motion, an infringement of EU law, irrespective of the importance of the provision concerned to the EU legal order, where the parties are given a genuine opportunity to raise such a plea before a national court. See, in particular, judgments of 14 December 1995, van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 16 to 22); of 7 June 2007, van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 41). See also; more recently, of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498, paragraph 53).

26See, for example, the judgments in Asturcom Telecomunicaciones, paragraph 36 and the case-law cited; of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 46); in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraphs 36 to 38; in Getin Noble Bank, paragraph 56 and the case-law cited; and of 29 February 2024, Investcapital (C‑724/22, EU:C:2024:182, paragraph 39 and the case-law cited).

27See, for example, judgments of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 52 and the case-law cited), or in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 37 and the case-law cited.

28See my Opinion in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2023:674, points 37 and 38 and the case-law cited).

29Judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 46). See also ECtHR, 13 June 1979, Marckx v. Belgium (ECLI:CE:ECHR:1979:0613JUD000683374, § 58), and ECtHR, 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, § 238).

30The principle of res judicata is listed as one of the benchmarks for the assessment of the rule of law in Council of Europe, European Commission for Democracy through Law (Venice Commission) – Rule of Law Checklist, 2016, p. 28.

31ECtHR, 19 May 2020, Redquest Limited v. Slovakia (ECLI:CE:ECHR:2020:0519JUD000274917, § 29).

32See, for instance, ECtHR, 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, § 238). See also ECtHR, 23 November 2023, Wałęsa v. Poland (ECLI:CE:ECHR:2023:1123JUD005084921, § 224).

33Judgment of 9 July 2020, Ibercaja Banco (C‑452/18, EU:C:2020:536, paragraphs 26 and 30).

34Judgment of 11 March 2020, Lintner (C‑511/17, EU:C:2020:188, paragraph 40).

35See, for instance, the judgment in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 72 and the case-law cited.

36See, for instance, the judgment in SPV Project 1503, paragraph 58 and the case-law cited. The fact that the above protection is not absolute is well illustrated by the possibility for the consumer not to rely on the unfairness of a contractual term, as explained in point 68 above.

37See also, more generally, Opinion of Advocate General Jacobs in Joined Cases van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:185, point 35).

38Providing that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. […]’

ECtHR, 19 May 2020, Redquest Limited v. Slovakia (ECLI:CE:ECHR:2020:0519JUD000274917, § 50 and the case-law cited).

40Ibid., § 51. I note that the fact that a legal person is engaged in litigation may of course affect the value of the business assets.

41See judgment of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraphs 59 to 66).

42Judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraphs 50 to 53).

43The judgments in Ibercaja Banco, paragraph 46; in Unicaja Banco, paragraph 30; and in SPV Project 1503, paragraph 62.

44Judgment of 4 June 2020, Kancelaria Medius (C‑495/19, EU:C:2020:431, paragraph 35 and the case-law cited).

45The judgment in Asturcom Telecomunicaciones, paragraphs 42 to 46.

46Judgment of 18 February 2016 (C‑49/14, EU:C:2016:98, in particular paragraphs 45, 46 and 52).

47Judgment of 26 January 2017 (C‑421/14, EU:C:2017:60, paragraph 54 in fine).

48That comment applies also to the observation in paragraph 81 of that judgment (discussed in particular at the hearing) according to which, for the conclusion that the force of res judicata had to be disregarded, it was irrelevant whether the lack of prior examination of contractual terms resulted from the lack of competence to carry out that examination or from a failure to proceed to do it. That observation was made after the Court concluded that the disregard of the force of res judicata was in casu necessary due to the restrictive procedural context, as just explained. The statement in that paragraph thus cannot be read in isolation from that previous broader specification. See also paragraphs 71 and 77 to 83 of the same judgment.

49The judgment in Getin Noble Bank, paragraphs 53 to 61.