JUDGMENT OF THE COURT (Grand Chamber)
17 May 2022 (*)
(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Principle of equivalence – Principle of effectiveness – Payment order and attachment proceedings against third parties – Force of res judicata implicitly covering the validity of the terms of an enforceable instrument – Power of the court hearing the enforcement proceedings to examine of its own motion the potential unfairness of a term)
In Joined Cases C‑693/19 and C‑831/19,
REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunale di Milano (District Court, Milan, Italy), made by decisions of 10 August 2019 and 31 October 2019, received at the Court on 13 September 2019 and 14 November 2019, respectively, in the proceedings
SPV Project 1503 Srl,
Banco di Desio e della Brianza SpA,
Banca di Credito Cooperativo di Carugate e Inzago sc,
Intesa Sanpaolo SpA,
Banca Popolare di Sondrio s.c.p.a,
Cerved Credit Management SpA
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, A. Arabadjiev, K. Jürimäe, C. Lycourgos, E. Regan, S. Rodin (Rapporteur) and I. Jarukaitis, Presidents of Chambers, M. Ilešič, J.-C. Bonichot, M. Safjan, F. Biltgen, P.G. Xuereb, N. Piçarra, L.S. Rossi and A. Kumin, Judges,
Advocate General: E. Tanchev,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 27 April 2021,
after considering the observations submitted on behalf of:
– Banco di Desio e della Brianza, by F.L. Monti, S. Sironi and P. Vitiello, avvocati,
– ZW, by S.M. Zigni and M. Buzzini, avvocati,
– the Italian Government, by G. Palmieri, acting as Agent, and by A. Grumetto, avvocato dello Stato,
– the German Government, by U. Kühne, J. Möller and M. Hellmann, acting as Agents,
– the Spanish Government, by S. Centeno Huerta, M.J. Ruiz Sánchez and J. Rodríguez de la Rúa Puig, acting as Agents,
– the Hungarian Government by M.Z. Fehér and K. Szíjjártó, acting as Agents,
– the European Commission, by G. Gattinara and N. Ruiz García, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 July 2021,
gives the following
1 These requests for a preliminary ruling concern the interpretation of Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The requests have been made in proceedings between (i) SPV Project 1503 Srl (‘SPV’) and Dobank SpA as agent for Unicredit SpA, and YB and (ii) Banco di Desio e della Brianza SpA (‘BDB’) and other credit institutions and YX and ZW concerning enforcement proceedings based on enforceable instruments which have acquired the force of res judicata.
European Union law
3 The 24th recital of Directive 93/13 states that ‘the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.
4 Article 2(b) of that directive provides:
‘For the purposes of this Directive:
“consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;
5 Article 6(1) of that directive provides:
‘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 Under Article 7(1) of the Directive 93/13:
‘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.’
7 Decreto legislativo n. 206, recante Codice del consumo a norma dell’articolo 7 della legge 29 luglio 2003, n. 229 (Legislative Decree No 206 on the Consumer Code under Article 7 of Law No 229 of 29 July 2003), of 6 September 2005 (Ordinary Supplement to GURI No 235 of 8 October 2005), which transposed Directive 93/13, provides in Article 33(1) and (2):
‘1. In a contract concluded between a consumer and a seller or supplier, terms shall be regarded as unfair where, even if they were agreed in good faith, they cause a significant imbalance in the rights and obligations under the contract to the detriment of the consumer.
2. Until proven otherwise, terms shall be presumed to be unfair if they have the object or effect of:
(f) requiring the consumer, in the event of non-performance or late performance, to pay a disproportionately high sum in compensation, under a penalty clause or equivalent;
8 Article 36(1) and (3) of that legislative decree provides:
‘1. Terms held to be unfair pursuant to Articles 33 and 34 shall be void, whereas the remainder of the contract shall remain valid.
3. Nullity operates only for the benefit of the consumer and may be raised by the court of its own motion.’
9 The Codice di procedura civile (‘Code of Civil Procedure’), in the version applicable to the disputes in the main proceedings, provides, in Article 633, concerning the conditions for admissibility:
‘At the request of the creditor of a specific sum of money or a quantity of fungible goods, or of the recipient of a delivery of a specific good, the court with jurisdiction shall issue an order for payment or delivery:
(1) If the right claimed is supported by written evidence;
10 Article 640 of the Code of Civil Procedure provides:
‘If the court considers that the request is not sufficiently substantiated, it shall order the Court Registry to inform the applicant, requesting the applicant to provide evidence.
If the applicant fails to respond to that request, does not withdraw the application or if the application cannot be granted, the court shall reject it by reasoned decision.
That decision is without prejudice to the possibility of repeating the application, including under the ordinary procedure.’
11 Article 641 of that code provides that, if the application is allowed, the court is to order the other party to pay the sum of money and inform that party of the possibility of lodging an objection within a period of 40 days.
12 Article 647 of the Code of Civil Procedure, in the version applicable to the disputes in the main proceedings, entitled ‘Enforceability where no objection is lodged or where there is failure to act on the part of the opposing party’, states:
‘If no objection has been lodged within the prescribed time limit, or if the defendant has not taken legal action, [the court] that issued the order shall, at the request, including verbal request, of the applicant, declare it enforceable. …
Where the order has been declared enforceable in accordance with this article, an objection may no longer be lodged or pursued, subject to the provisions of Article 650, and any security deposited shall be released.’
13 Under Article 650 of that code, relating to an objection being lodged out of time:
‘The defendant may lodge an objection even after the expiry of the time limit set in the order if the defendant proves that he or she did not know about the order in time due to irregularities in the notification, or due to an unforeseeable event or force majeure.
No opposition may be lodged on the expiry of a period of 10 days from the date of the first enforcement notice.’
14 Article 2909 of the Codice civile (Civil Code), relating to res judicata, provides:
‘Findings made in judgments which have acquired the force of res judicata shall be binding in all respects on the parties, their lawful successors and assignees.’
15 The referring court states that, according to the majority case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), the order for payment of a sum of money which was not subject to objection acquires the force of res judicata not only in respect of the debt the recovery of which is sought, but also in respect of the instrument relied on as the basis of that order, which thus precludes any subsequent examination of the grounds relied on as justification for the request. That case-law led to the application to an order which was not subject to any objection of the principle of ‘the implicit force of res judicata’, under which the court which has ruled on a particular question is considered to have necessarily resolved all the other preliminary questions.
The disputes in the main proceedings and the questions referred for a preliminary ruling
16 SPV and other creditors brought enforcement proceedings before the referring court for the recovery of debts under financing contracts concluded with YB. Those proceedings are based on an order for payment which had become final, YB not having lodged any objection to that order.
17 The financing contracts at issue provided, in the event that the debtor is late in the performance of his obligations, for the application of a penalty clause and default interest.
18 At the hearing, the court hearing the enforcement proceedings, taking the view that the clause relating to the calculation of default interest could be unfair, ordered SPV to produce the contracts on the basis of which the order for payment had been issued and requested YB to appear at the next hearing and to state his intention to plead that that clause was unfair.
19 At the subsequent hearing, YB stated that he wished to rely on the unfairness of that clause. Consequently, the court hearing the enforcement proceedings, relying on the judgment of 9 November 2010, VB Pénzügyi Lízing (C‑137/08, EU:C:2010:659), held that it could assess whether that clause was unfair and fixed a new hearing. By written statement, SPV claimed that the force of res judicata attaching to the order for payment precluded any examination of the terms of the contracts on the basis of which that order had been issued.
20 The referring court states that, where a creditor has obtained an enforceable instrument, he or she may bring attachment proceedings in respect of the debts which his or her own debtor has against third parties. It states that the court hearing the enforcement proceedings is required to satisfy itself that there is a valid enforceable instrument throughout the enforcement procedure. The power of that court is thus limited solely to the review of the existence of an enforceable instrument and cannot extend to review of its ‘intrinsic content’. Such a review of the court order is also precluded in the event of an objection to enforcement by the debtor.
21 The referring court, recalling the Court’s case-law relating to the duties of the national court concerning consumer protection and the case-law relating to the possibility of overriding the force of res judicata in certain circumstances, questions, in the proceedings pending before it, whether the clause relating to the calculation of default interest and the penalty clause in the contracts at issue in the main proceedings may be unfair.
22 It states in that regard that the court which issued the order for payment in question did not rule on the potential unfairness of the abovementioned clauses and that, because there was no objection by YB, the order has become final. Thus, in accordance with the principle of ‘the implicit force of res judicata’, all the terms in the financing contracts at issue in the main proceedings, including the two clauses at issue, would be deemed to have been examined by that court and covered by that form of res judicata.
23 It follows that the court hearing the enforcement proceedings cannot assess the unfairness of the terms of a contract, not only because it does not review the content of the order for payment issued on the basis of that contract, but also because that order, where the debtor has not lodged an objection, has acquired the force of res judicata. According to the referring court, the lack of explicit examination of the unfairness of terms in proceedings constitutes incomplete and insufficient protection of the consumer.
24 In those circumstances, the Tribunale di Milano (District Court, Milan, Italy), decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Under what conditions, if any, do Articles 6 and 7 of [Directive 93/13] and Article 47 of [the Charter] preclude a national law, such as the one referred to, which prevents the enforcement court from performing a review of the content of a judicial enforceable instrument that has become final and, where a consumer has expressed his or her desire to rely on the unfairness of a term contained in the contract in respect of which the enforceable instrument was issued, precludes the same court from overriding the effects of the implicit force of res judicata?’
25 In 2005, BDB entered into guarantee contracts with YX and ZW in order to secure the debts of a company.
26 BDB instituted possession proceedings before the referring court in respect of the properties owned by YX and ZW. Those proceedings, in which the other creditors intervened, were based on orders for payment made by a court in 2012 and 2013 in favour of BDB and other creditors against a company, the principal debtor, and four guarantors, including YX and ZW. As those orders were not opposed, they have acquired the force of res judicata.
27 In the course of the possession proceedings, ZW relied on her status as a consumer in order to plead the potential unfairness of the terms contained in the guarantee contracts on the basis of which the orders to pay were issued.
28 BDB, like the other credit institutions that had intervened in the possession proceedings, submits that ZW cannot rely on her consumer status because of her association with the principal debtor company and her conjugal link with YX, the legal representative of that company. They also submit that, irrespective of the recognition of that status, the court hearing the enforcement proceedings cannot review a formally correct and definitive enforceable instrument, such as an order for payment which has not been challenged.
29 The referring court considers that, in the dispute before it, ZW has consumer status on the ground that, on the date on which she concluded the guarantee contracts at issue in the main proceedings, first, she had not acquired all of her shareholding in the capital of the debtor company, which amounted to 22%, secondly, it had not been proved that she had received dividends in relation to the shares held and, thirdly, it had been established that, since 1976, she had been employed by another company and that, consequently, when the guarantee contracts were concluded, she did not occupy any role in the company structure of the main debtor.
30 As regards the right of a consumer to rely on the unfairness of contractual terms on the basis of which an order for payment was issued, the referring court sets out the national rules relating to enforcement proceedings and states that, in the event of possession proceedings, the creditor, on the basis of an enforceable instrument, makes subject to enforcement the existing right in rem over immovable property belonging to the debtor. That court notes that, under the powers that may be exercised by the court hearing the enforcement proceedings when implementing the possession proceedings, that court does not review, as is apparent from paragraph 20 of the present judgment, the ‘intrinsic content’ of the enforceable instrument.
31 It also states that, under national law, the lodging of an objection to enforcement does not require any specific formal requirements and may even be done orally before the court hearing the enforcement proceedings or by lodging a response at that hearing.
32 The referring court, recalling the Court’s case-law governing the procedural autonomy of the Member States in order to ensure the full effectiveness of the substantive law of the European Union, that on the duties of the national courts in the area of consumer protection and the case-law on the obligation to override the force of res judicata in certain circumstances, is uncertain, in the dispute before it, as to whether the terms in the guarantee contracts, at issue in the main proceedings, concluded between ZW and BDB and between ZW and the other creditors, on the basis of which the orders for payment were issued, were unfair.
33 In that regard, the referring court states that, according to the creditors, the fact that it is not possible at that stage, because there has been no objection by ZW, to rely on the unfairness of those terms is also apparent from the judgment of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615).
34 The referring court notes, however, that, unlike the consumer in the case which gave rise to the judgment of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615), ZW, in the dispute in the main proceedings, expressed her intention to assert the unfairness of certain terms and thus put an end to the inaction demonstrated until the enforceable instruments acquired the force of res judicata.
35 That court also considers that, on the date on which the orders for payment at issue in the main proceedings were made, the Court had not laid down the conditions under which the guarantor of a legal person may be classified as a consumer, those conditions having been laid down subsequently, by the orders of 19 November 2015, Tarcău (C‑74/15, EU:C:2015:772), and of 14 September 2016, Dumitraș (C‑534/15, EU:C:2016:700). Consequently, the referring court takes the view that ZW was not able to decide, in full knowledge of the facts, whether it was necessary to invoke, in the context of an objection to the payment orders, the unfairness of terms contained in contracts concluded with sellers or suppliers, because she was unaware of her own status as a consumer.
36 Thus, the referring court asks whether the lack of certainty as to the possibility of classifying a guarantor as a consumer on the date on which the enforceable instruments in question were issued is liable to render impossible or excessively difficult the exercise of the rights conferred on consumers by the national legislation transposing Directive 93/13.
37 It also states that, in accordance with the principles of national procedural law, where there is no objection by the consumer, the force of res judicata of an order for payment encompasses the fairness of the terms of the guarantee contract even where there is no express examination, by the court which issued that order, of the unfairness of those terms. It follows from this, first, that it is impossible to rely on the unfairness of the contractual terms during the substantive proceedings and, secondly, that the objection to enforcement is inadmissible where it is based on grounds which that party should have raised when the enforceable instrument was issued.
38 In that regard, the referring court notes that, in paragraph 49 of the judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60), the Court held that Directive 93/13 does not preclude a rule of national law which prohibits a national court from examining, of its own motion, the unfairness of contractual terms which have been entered into with a seller or supplier, where a ruling has already been given on the lawfulness of the terms of the contract, taken as a whole, in the light of that directive by a decision which has the force of res judicata. It adds that the Court also held, in that judgment, that where the potential unfairness of contractual terms was not examined during an earlier judicial review of the contract at issue which was concluded by a decision having the force of res judicata, or where only some of the terms were subject to such review, the national court is nevertheless required to assess whether the terms at issue are unfair.
39 Thus, the referring court considers that the Court, by that judgment, laid down the conditions under which the explicit force of res judicata may be relied on in order to prohibit the national court from reviewing the unfairness of contractual terms. On the other hand, it considers that the Court has not yet had the opportunity to examine the compatibility of the principle of ‘the implicit force of res judicata’ with Articles 6 and 7 of Directive 93/13 and Article 47 of the Charter.
40 In those circumstances, the Tribunale di Milano (District Court, Milan) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Under what conditions, if any, do the combined provisions of Articles 6 and 7 of [Directive 93/13] and Article 47 of [the Charter] preclude a national rule, such as that under consideration, which prevents the court hearing enforcement proceedings from carrying out a review of the content of an enforceable judicial instrument that has acquired the force of res judicata, when the consumer, having become aware of his [or her] status (an awareness not previously possible under the law as applied at the relevant time), requests such a review?
(2) Under what conditions, if any, do the combined provisions of Articles 6 and 7 of [Directive 93/13] and Article 47 of [the Charter] preclude a legal system, such as the national system under consideration, which, in the light of an implicit decision that a contractual term is fair, a decision having acquired the force of res judicata, prevents the court hearing enforcement proceedings, called upon to rule on the consumer’s objection to the enforcement, from finding the term to be unfair? Moreover, can such a court be so precluded where – under the law as it was applied at the time that decision acquired the force of res judicata – it was not possible to consider whether the term was unfair because the guarantor could not be classified as a consumer?’
41 By decision of the President of the Court of Justice of 23 February 2021, Cases C‑693/19 and C‑831/19 were joined for the purposes of the oral procedure and the judgment.
Admissibility of the request for a preliminary ruling in Case C‑831/19
42 BDB contends that the request for a preliminary ruling is inadmissible on the ground that ZW is not a consumer and that, consequently, Directive 93/13 is not applicable to her.
43 In that regard, it is necessary to state that, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 76 and the case-law cited).
44 Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 77 and the case-law cited).
45 That is not the case here.
46 It is apparent from the order for reference and from the documents before the Court that, unlike her spouse YX, ZW must be classified as a consumer, since, at the date of conclusion of the guarantee contracts with BDB and the other creditors, ZW acted outside her trade or profession and had no functional links with the company concerned, the principal debtor. According to the referring court, ZW was, since 1976, employed by another company and had no managerial position within the company in question. The referring court observed, for that purpose, that, in the light of the documents produced by ZW during the enforcement proceedings, ZW acquired a 22% holding in the capital of that company on 31 January 2013, whereas the guarantee contracts between ZW and the creditors were all concluded before that date, and the order for payment obtained by BDB also pre-dated the acquisition of those shares by ZW.
47 As the Advocate General noted in point 51 of his Opinion, it is apparent from the judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, (C‑488/11, EU:C:2013:341, paragraph 29) that Directive 93/13 applies to ‘all contracts’ concluded between a consumer and a seller or supplier, since Article 2(b) of that directive defines a consumer as any natural person who, in contracts covered by that directive, is acting for purposes which are outside his or her trade, business or profession.
48 Consequently, since ZW did not conclude the guarantee contract at issue in the course of her trade or profession, that contract must be regarded as having been concluded between a seller or supplier and a consumer and therefore falls within the scope of Directive 93/13.
49 The reference for a preliminary ruling must therefore be held to be admissible.
Consideration of the questions referred
50 By its questions in Case C‑693/19 and in Case C‑831/19, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation which provides that, where an order for payment made by a court at the request of a creditor has not been the subject of an objection lodged by the debtor, the court hearing the enforcement proceedings cannot, on the ground that the force of res judicata of that order applies by implication to the validity of those terms, thus excluding any examination of their validity, subsequently review the potential unfairness of the contractual terms on which that order is based. In Case C‑831/19, it also asks whether the fact that, on the date on which the order became final, the debtor was unaware that he or she could be classified as a ‘consumer’, within the meaning of that directive, has any bearing in that regard.
51 According to settled case-law of the Court, the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge (see, in particular, judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 40 and the case-law cited).
52 As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on consumers. It is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see, in particular, judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 53 and 55, and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 41).
53 In that context, the Court has held on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task (judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 46 and the case-law cited; of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 58; and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 43).
54 In addition, Directive 93/13, as is apparent from Article 7(1) in conjunction with the 24th recital of that directive, obliges the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 44 and the case-law cited).
55 While the Court has already defined, on several occasions and taking account of the requirements of Article 6(1) and Article 7(1) of Directive 93/13, the way in which national courts must ensure that the rights which consumers derive from that directive are protected, the fact remains that, in principle, EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair and that those procedures accordingly fall within the domestic legal system of the Member States, by virtue of the principle of procedural autonomy of those States; nevertheless, those procedures must be no less favourable than those governing similar domestic actions (principle of equivalence) and not make it impossible in practice or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, in particular, judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraphs 45 and 46 and the case-law cited).
56 In those circumstances, it must be determined whether those provisions require the court responsible for enforcement to review the potential unfairness of contractual terms notwithstanding the national procedural rules applying the principle of res judicata with regard to a judicial decision that does not expressly reflect any examination on that point.
57 In that connection, attention should be drawn to the importance, both for the EU legal order and for the national legal systems, of the principle of res judicata. Indeed, the Court has already had occasion to observe that, in order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive, after all rights of appeal have been exhausted or after expiry of the time limits provided to exercise those rights, can no longer be called into question (see, in particular, judgments of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraphs 35 and 36, and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 46).
58 Moreover, the Court has recognised that consumer protection is not absolute. In particular, it has held that EU law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13 (see, in particular, judgments of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 37, and of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 68), subject, however, in accordance with the case-law recalled in paragraph 55 above, to compliance with the principles of equivalence and effectiveness.
59 As regards the principle of equivalence, it should be noted that there is no evidence before the Court that calls into question whether the national legislation at issue in the main proceedings complies with that principle. It appears that, as indicated by the Italian Government, national law does not allow the enforcing court to re-examine an order for payment having the force of res judicata, even where this concerns possible infringement of domestic rules of public policy.
60 As regards the principle of effectiveness, the Court has held that every case in which the question arises whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, and, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 22 April 2021, Profi Credit Slovakia, C‑485/19, EU:C:2021:313, paragraph 53). The Court has held that the need to comply with the principle of effectiveness cannot, however, be stretched so far as to make up fully for the complete inaction on the part of the consumer concerned (judgment of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 62).
61 In addition, the Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, reaffirmed in Article 7(1) of that directive and also guaranteed in Article 47 of the Charter, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (see, to that effect, judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 29 and the case-law cited).
62 In this respect, the Court has ruled that, 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 (judgment of 4 June 2020, Kancelaria Medius, C‑495/19, EU:C:2020:431, paragraph 35 and the case-law cited).
63 It follows that the conditions laid down in the national laws, to which Article 6(1) of Directive 93/13 refers, may not adversely affect the substance of the right that consumers acquire under that provision, as interpreted by the Court’s case-law as referred to, inter alia, in paragraph 53 above, not to be bound by a term deemed to be unfair (judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 71, and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 51).
64 In the cases in the main proceedings, the national legislation provides that, in the context of proceedings for the enforcement of uncontested orders for payment, the enforcing court may not conduct a review of the substance of the order for payment or review, of its own motion or at the request of the consumer, the unfairness of the contractual terms on which that order is based, on account of the force of res judicata which that order has acquired.
65 However, national legislation under which an examination of the court’s own motion of the unfairness of contractual terms is deemed to have taken place and to have the force of res judicata, even where there is no statement of reasons to that effect in a decision, such as a decision making an order for payment, is liable, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, to render meaningless the national court’s obligation to examine of its own motion the potential unfairness of contractual terms.
66 It follows that, in such a case, the requirement of effective judicial protection necessitates that the court hearing the enforcement proceedings is able to assess, including for the first time, whether the contractual terms which served as the basis for an order for payment issued by a court at the request of a creditor, and against which the debtor did not lodge an objection, are unfair.
67 As the Advocate General observed in points 56 and 57 of his Opinion, the fact that the debtor was unaware, at the time when that earlier judicial decision became final, of his or her status as a consumer, within the meaning of Directive 93/13, is irrelevant, since, as has been pointed out in paragraph 53 of the present judgment, the national court is required to assess of its own motion whether a contractual term falling within the scope of that directive is unfair.
68 It follows from the foregoing that the answer to the questions referred in Cases C‑693/19 and C‑831/19 is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation which provides that, where an order for payment issued by a court on application by a creditor has not been the subject of an objection lodged by the debtor, the court hearing the enforcement proceedings may not, on the ground that the force of res judicata of that order applies by implication to the validity of those terms, thus excluding any examination of their validity, subsequently review the potential unfairness of the contractual terms on which that order is based. The fact that, at the time when the order became final, the debtor was unaware that he or she could be classified as a ‘consumer’, within the meaning of that directive, is irrelevant in that regard.
69 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
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 precluding national legislation which provides that, where an order for payment issued by a court on application by a creditor has not been the subject of an objection lodged by the debtor, the court hearing the enforcement proceedings may not, on the ground that the force of res judicata of that order applies by implication to the validity of those terms, thus excluding any examination of their validity, subsequently review the potential unfairness of the contractual terms on which that order is based. The fact that, at the time when the order became final, the debtor was unaware that he or she could be classified as a ‘consumer’, within the meaning of that directive, is irrelevant in that regard.
* Language of the case: Italian.