Vicente (Action en paiement d'honoraires d'avocat) (Unfair terms in consumer contracts - Unfair business-to-consumer commercial practices - Judgment) [2022] EUECJ C-335/21 (22 September 2022)

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(Reference for a preliminary ruling – Unfair terms in consumer contracts – Directive 93/13/EEC – Unfair business-to-consumer commercial practices – Principle of effectiveness – Article 47 of the Charter of Fundamental Rights of the European Union – Summary procedure for the recovery of lawyers’ fees – Potentially unfair terms contained in a fee agreement – National law not providing for the possibility of review by a court – Article 4(2) – Scope of the exception – Directive 2005/29/EC – Article 7 – Misleading commercial practice – Contract concluded between lawyer and client prohibiting the client from withdrawing, without the knowledge or against the advice of the lawyer, on pain of a financial penalty)

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia n° 10 bis de Sevilla (Court of First Instance, No 10a, Seville, Spain), made by decision of 24 May 2021, received at the Court on 27 May 2021, in the proceedings

composed of S. Rodin, President of the Chamber, J.–C. Bonichot and O. Spineanu–Matei (Rapporteur), Judges,

– the European Commission, by J. Baquero Cruz and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as amended by Directive 2011/83/EU of the European Parliament and of the Council, of 25 October 2011 (OJ 2011 L 304, p. 64) (‘Directive 93/13’), and of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

2 The request has been made in proceedings between Mr Vicente, lawyer, and Ms Delia, his client, following a failure to pay fees claimed in respect of legal services provided to the latter.

‘Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier …

Whereas 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 …’

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’

‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

‘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.’

‘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.’

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

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.’

10 Actions for the recovery of fees are governed by Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on Civil Procedure) of 7 January 2000 (BOE No 7, of 8 January 2000, p. 575, ‘the LEC’).

11 In Article 34 of the LEC relating to the ‘court agent’s account’ provides in paragraph 2:

‘After the fee-note is presented and declared admissible by the registrar, the debtor is required to pay the sum due or to object to the fee-note on the ground that the sum is not due, within 10 days, on pain of enforcement if the debtor does not pay and does not raise an objection against the fee-note.

If, within that time limit, an objection is lodged, the registrar shall accord the lawyer three days within which to submit his or her views on the objection. Next, the registrar shall examine the fee-note and the pleadings, as well as the documents produced, and deliver, within 10 days, an order determining the amount that must be paid to the court agent. Recovery of that sum shall be enforced if payment is not made within five days of notification.

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

12 The third subparagraph of Article 34(2) of the LEC has been declared unconstitutional and annulled by judgment 34/2019 of the Tribunal Constitucional (Constitutional Court, Spain) of 14 March 2019 (BOE No 90, of 15 April 2019, p. 39549, ‘judgment No 34/2019’).

‘1. Lawyers may claim from the party whom they represent payment of the fees which have accrued in the matter, by submitting an itemised bill and stating formally that those fees are due to them and have not been paid. …

2. Following submission of that claim, the registrar shall require the debtor to pay the sum concerned or to lodge an objection to the account within 10 days, on pain of enforcement if the debtor fails to pay or to lodge an objection.

Where an objection is lodged within that time limit on the ground that the fees are not due, the provisions of the second and third subparagraphs of Article 34(2) shall apply.

If an objection is lodged against fees on the grounds that they are excessive, the registrar shall accord the lawyer three days within which to submit his views on the objection. If the lawyer does not accept the reduction in fees, the registrar shall first determine those fees in accordance with Article 241 et seq., unless the lawyer establishes the existence of a written cost estimate accepted by the objecting party, and an order shall be issued setting the amount due to be paid, on pain of enforcement if payment is not made within five days of service.

That order shall not be amenable to appeal but shall be wholly without prejudice to any judgment which may be given in subsequent ordinary proceedings.

3. If the debtor owing the fees does not lodge an objection within the prescribed time limit, the fee-note will be the object of enforced recovery of the total amount stated on the invoice, plus costs.’

14 In Article 35(2), second subparagraph, of the LEC, the term ‘and third subparagraph’ has been declared unconstitutional and annulled by judgment No 34/2019. That is also the case for the fourth subparagraph of Article 35(2).

15 Article 206 of the LEC, entitled ‘Types of decision’, appears in Chapter VIII thereof, entitled ‘Procedural decisions’. That article provides:

2. The decisions of the registrars shall be known as ‘directions and orders’.

Orders terminating proceedings or precluding them may be subject to an application for review. That application does not have suspensory effect and in no case is it possible to act contrary to what has been decided.

It is also possible to bring a direct application for review against orders in cases for which it is expressly provided for.

2. Applications for review must be brought within five days by a statement setting out the error which vitiates the order. Where those conditions are met, the registrar, by a measure of organisation of procedure, shall declare the application to be admissible by granting the opposing parties a common time limit of five days within which to contest it, if they consider that to be appropriate.

If those conditions for admissibility are not met, the court shall declare it inadmissible by delivering an order.

On expiry of the time limit for bringing an objection, the court shall rule by order within five days, irrespective of whether written observations have been submitted or not. Decisions on the issue of admissibility or inadmissibility shall not be amenable to appeal.

3. The order deciding the application for a review is only amenable to appeal where it terminates the proceedings or prevents proceedings being brought.’

17 Following the partial annulment of Articles 34 and 35 of the LEC, referred to in paragraphs 12 and 14 of this judgment, registrar orders that were not amenable to appeal could thereafter be the subject of an application for review on the basis of Article 454a of the LEC.

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

19 Entitled ‘Objection to the enforcement of procedural or arbitral decisions or mediation agreements’, Article 556 of the LEC provides in paragraph (1):

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

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

20 Article 557 of the LEC, entitled ‘Objection to enforcement based on instruments other than judicial decisions and arbitral awards’, provides in paragraph (1):

‘Where enforcement is ordered pursuant to the instruments referred to in paragraphs 4, 5, 6 and 7 and pursuant to the other instruments referred to in point (9) of Article 517(2), the defendant to enforcement may object, within the time limit and in the form provided for by the preceding article, only if he or she relies on one of the following reasons:

The dispute in the main proceedings and the questions referred for a preliminary ruling

21 On 9 February 2017, Ms Delia, on the one hand, and Mr Augusto and Mr Vicente, in their capacity as lawyers, on the other hand, agreed a letter of engagement covering, inter alia, the examination, pre-litigation claim, and, if necessary, a court claim, and, if so, the drafting and lodging of an action for a declaration of nullity of the unfair terms contained in a loan agreement concluded on 26 November 2003 by Ms Delia, as a consumer, with a banking establishment.

22 The letter of engagement contained a clause which stipulated that ‘by signing the letter of engagement, the client undertakes to follow the firm’s instructions and, if she withdraws for any reason whatsoever before the end of the legal proceedings or if she reaches an agreement with the bank, without the knowledge or against the firm’s advice, she must pay the amount determined by application of the Seville Bar Association’s fee-scale for the fixing of costs concerning the action for annulment and the amount’ (‘the withdrawal clause’).

23 Ms Delia contacted that firm of lawyers through an advertisement on a social network site in which no mention had been made of the withdrawal clause, the person concerned being informed only of the price of the legal services. It is not established, in this case, that Ms Delia was aware of the withdrawal clause prior to signing the letter of engagement.

24 Before the action for a declaration of nullity was lodged, Mr Vicente made, on 22 February 2017, an pre-litigation claim to the banking establishment in question following which the latter offered, directly to Ms Delia, on 2 June 2017, to refund a sum of EUR 870.67 in respect of amounts unduly paid pursuant to a floor clause contained in the loan agreement. Ms Delia decided to accept that offer. There is however no proof of the exact date on which the latter informed Mr Vicente that she had received the bank’s response nor whether he advised her at that point in time not to accept the offer.

25 The action seeking the annulment of the floor clause, dated 22 May 2017 and signed by Mr Vincente and a court agent, was registered with the referring court, the Juzgado de Primera Instancia n° 10 bis de Sevilla (Court of First Instance No 10a, Seville, Spain), on 21 June 2017.

26 By fax of 13 June 2017, Mr Vicente indicated to his client that he disagreed with the offer made by the banking establishment, and stressed that an action had been lodged against the latter.

27 On 25 September 2017, the court agent informed the referring court of Ms Delia’s withdrawal of the action on the ground that she had obtained satisfaction out-of-court, while stating that that withdrawal was based on the fact that, contrary to the advice of her lawyer and after the action had been lodged, their client had accepted that transaction. Consequently, the registrar of that court delivered, on that same date, an order bringing the proceedings to an end.

28 It is clear from the request for a preliminary ruling that, on 13 November 2017, Mr Vicente lodged with the registrar of the referring court proceedings against Ms Delia for the recovery of fees in the sum of EUR 1 105.50 excluding value added tax, namely EUR 1 337.65, which was calculated as follows:

‘Charging Basis EUR 18 000.00 Result after the application of the fee-scale EUR 2 211.00:

29 To support the amount claimed, the application was accompanied by a document entitled ‘Fee agreement’, which referred to the applicable rules on the professional fees of the Seville Bar Association.

30 Ms Delia, assisted by a duty lawyer, objected to those fees on the ground that they were not due. She had not in fact been informed that there was a withdrawal clause, with the result that she was only required to pay, by way of fees, 10% of the amount received from the bank providing the loan, namely EUR 105.35, which had been paid. Ms Delia also invoked, on that occasion, the unfairness of the withdrawal clause.

31 By order of 15 October, 2020, the registrar of the referring court rejected that objection and fixed the amount due by Ms Delia by way of lawyers’ fees at EUR 1 337.65, and accorded a time limit for payment of five days, on pain of enforcement. The question as to whether the withdrawal clause was unfair was not examined by the registrar.

32 On 2 February 2021, Ms Delia brought before the referring court an application for review against that order, which was declared admissible and notified to Mr Vicente. Mr Vicente lodged a defence seeking that the application be dismissed and Ms Delia ordered to pay the costs.

33 That court is uncertain as to whether the national procedural rules governing the procedure for the payment of fees complies with the requirements under Directive 93/13, the principle of effectiveness and the right to effective judicial protection provided for in Article 47 of the Charter.

34 In that regard, that court states that, under Spanish law, lawyers have three procedural routes by which they may legally claim the payment of fees owing to them: ordinary judicial proceedings, the procedure for an order to pay, and the procedure for the recovery of fees provided for in Article 35 of the LEC, which is a summary procedure with limited safeguards. That latter procedure falls within the competence of the registrar of the court which had heard the legal proceedings giving rise to the fees whose recovery was the subject of the claim.

35 Accordingly, the procedure for the recovery of fees is within, in the first instance, the competence of a registrar, namely an authority which, according to the judgment of 16 February 2017, Margarit Panicello (C‑503/15, EU:C:2017:126), and judgment No 34/2019, does not exercise judicial functions. Under Article 35 of the LEC, an objection may be raised against fees on the ground that they are not due or that they are excessive, the decision delivered by the registrar following such an objection constituting, under Article 206 of the LEC, an ‘order’. Following judgment No 34/2019, that order may be the subject, in a second instance, of an application for review, in accordance with Article 454a of the LEC.

36 Therefore, even though the procedure for the recovery of fees under Article 35 of the LEC concerns a contract concluded between a lawyer and his or her client which, as was held in the judgment of 15 January 2015, Šiba (C‑537/13, EU:C:2015:14), falls within the scope of application of Directive 93/13, the possibility of that procedure being brought before a court is subject to an application for review being brought against the order of the registrar. Moreover, having regard to the summary nature of the application for review and the possibility of having recourse to the ordinary judicial proceedings, in accordance with Article 35(2) LEC, the court is not able ascertain of its own motion whether the terms in the contract for legal services are unfair, as the examination by that court is, in principle, limited to the scope of the order adopted by the registrar. The rules on the taking of evidence are also restricted, allowing only the documentary proof already produced before the registrar.

37 As regards, the possibility, for the consumer, of having recourse to ordinary judicial proceedings, pursuant to Article 35(2) LEC, in order to assert rights under Directive 93/13, the referring court states that it is clear from judgment No 34/2019 that those proceedings do not cure the non-judicial nature of the procedure for the recovery of fees because they do not prevent the orders of the registrar fixing the lawyers’ fees from producing their effects.

38 As regards the enforcement of registrars’ orders, that court states that, although that stage is conducted under the supervision of a court, the consumer may only raise an objection on grounds provided for in Article 556 of the LEC, which do not include the potential unfairness of the terms contained in the instrument on the basis of which that order was made.

39 According to the referring court, on an application for the review of a registrar’s order, such as that before it, it is required, having regard to the summary nature of proceedings under Article 35 of the LEC, either to confirm or to revoke the registrar’s order. It does not have the power, in that context, to examine whether the terms of the contract agreed between the lawyer and his or her client are unfair.

40 Consequently, that court has doubts, first, as to whether that procedural system complies with the case-law of the Court relating to the obligation, for the court, to carry out such a verification, if necessary of its own motion. First, under the procedure for the recovery of fees, the registrar does not exercise judicial functions and is not competent to carry out that verification. Second, in the case of an application for review of a registrar’s order, there is also no provision for the court to carry out that examination. The referring court wonders, therefore, whether it is itself required, notwithstanding those procedural rules, to carry out that verification of its own motion, bearing in mind that it cannot merely annul the order and refer the case back to the registrar to carry out that verification since the registrar does not have competence to do so.

41 To the extent that, in the present case, it is required to examine of its own motion whether the withdrawal clause is unfair, the referring court wonders, next, whether that clause is covered by the exception laid down in Article 4(2) of Directive 93/13 or whether it is rather in the nature of an indemnifying clause or a penalty clause whose possible unfairness is subject to the court’s supervision. However, even if a clause such as the withdrawal clause must be regarded as being part of the main subject matter of the contract or the adequacy of the price in relation to the services supplied in exchange, it is necessary to examine whether it meets the requirements for transparency. In that regard, the referring court observes that the withdrawal clause does not provide for a specified amount or a means of calculating the fees claimed, but merely refers to the indicative fee-scale established by the Seville Bar Association. The scope of the national rules relating to professional associations and the interpretation of some of their provisions is not self-evident.

42 In addition, there is nothing to indicate, according to the referring court, that the indicative fee-scale that was used in the calculation of the fees claimed by Mr Vicente is public, nor has it been established that Ms Delia was informed of their content.

43 Lastly, the referring court has doubts as to whether the insertion of a clause in a contract between a lawyer and his or her client, such as the withdrawal clause, which refers to a bar association’s fee-scale, which is not referred to in the advertisement, nor in the information given prior to the conclusion of that contract, may be classified as a misleading commercial practice, within the meaning of Directive 2005/29.

44 In those circumstances, the Juzgado de Primera Instancia n° 10 bis de Sevilla (Court of First Instance No 10a, Seville) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is a summary procedure for the recovery of a lawyer’s fees, in which the court is unable to examine of its own motion whether the terms in the consumer contract are unfair, since the procedure does not provide for the court to intervene at any point unless the client challenges the claim and one of the parties subsequently applies to the court for a review of the final decision of the registrar, compliant with Directive 93/13 and the principle of the effectiveness of the directive, in conjunction with the right to an effective remedy in Article 47 of the Charter?

(2) Is the fact that, in this type of summary procedure, any consideration of the unfairness of terms by the courts, whether of their own motion or on the application of a party, takes place in the context of an application for review of the decision of a non-judicial body such as the registrar, and that the courts must in principle restrict their consideration solely to the subject matter of the decision and may not examine any evidence other than the documentary evidence already submitted by the parties, compliant with Directive 93/13 and the principle of the effectiveness of the directive, in conjunction with the right to an effective remedy in Article 47 of the Charter?

(3) Must a term in a contract between a lawyer and a consumer such as the term at issue, which provides specifically for payment of fees in the event that the client discontinues proceedings before the case is concluded or reaches an agreement with the entity either without his or her legal team’s knowledge or against its advice, be deemed to fall within the terms of Article 4(2) of Directive 93/13, on the grounds that it is a main contract term that concerns the subject matter of the contract, in this case, the price?

(4) If the answer to the previous question is in the affirmative, can that term, which fixes the fees by reference to a fee-scale set by a bar association which establishes different rules depending on the specific circumstances and which was not mentioned in the prior information, be considered plain and intelligible in accordance with the terms of the aforesaid Article 4(2) of Directive 93/13?

(5) If the answer to the previous question is in the negative, can the inclusion in a contract between a lawyer and a consumer of a term such as the one at issue, which fixes the lawyer’s fees purely by reference to a fee-scale set by a bar association which establishes different rules depending on the specific circumstances and which was not mentioned in the quotation for services or in the prior information, be deemed an unfair business practice under the terms of Directive 2005/29?’

45 The Spanish Government raises a plea of inadmissibility against the first to third and fifth questions referred. According to that government, the first question is hypothetical in so far as it concerns a situation in which an application for review had not been brought. As regards the second question, that government raises the lack of sufficient detail as to the nature of the restrictions laid down in the national legislation relating to the scope of the examination which the court in principle carries out during an application for review. That government considers that a response to the third and fifth questions is neither necessary nor relevant for the resolution of the case in the main proceedings.

46 In that regard, it should be borne in mind that it is settled case-law that questions referred for a preliminary ruling enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court, are not satisfied or where it is quite obvious that the interpretation of a provision of EU law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 50 and the case-law cited).

47 As regards the hypothetical nature of the first question and the lack of explanations provided by the referring court in support of the second question, it must be observed, first, that the first question is not of that nature as it must be understood in a broad sense, namely as seeking to assess, in essence, the compatibility with Directive 93/13 in the absence of the power for the court to verify of its own motion whether a term contained in a contract concluded between a supplier and a consumer is unfair. Second, the information provided by the referring court relating to the second question permits the matters it covers to be sufficiently determined.

48 As regards the third and fifth questions, it is not obvious that the interpretation of EU law that is sought is unrelated to subject matter of the main action.

49 First, as regards the third question, if the reply to be given is that the referring court is required to examine whether the withdrawal clause is unfair, it will be necessary for it to assess whether such a clause falls within the exception laid down in Article 4(2) of Directive 93/13. Secondly, as regards the interpretation of Directive 2005/29, which is the subject of the fifth question, it is stated in the order for reference that interpretation is necessary ‘in order to decide the present case’. That question therefore concerns the examination of whether the withdrawal clause is unfair, under Article 4(1) of Directive 93/13, which the referring court will be required to carry out in the event of a reply to that effect to the first to third questions.

51 By the first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 93/13, read in the light of the principle of effectiveness and Article 47 of the Charter, must be interpreted as precluding a national law relating to a summary procedure for the recovery of lawyers’ fees under which the claim brought against the consumer client is the object of a decision delivered by a non-judicial authority, the intervention of a court being provided for only at the stage of a possible application for review of that decision, without the court seised on that occasion being able to ascertain, if necessary of its own motion, whether the terms contained in the contract giving rise to the fees claimed are unfair or to allow the production, by the parties, of evidence other than the documentary evidence already produced before the non-judicial authority.

52 It should be recalled at the outset that, as is clear from the Court’s case-law, the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract, the national court being required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair as soon as it has the legal and factual elements necessary for that task available to it (see, to that effect, judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 41 to 43 and the case-law cited).

53 While the Court has already defined, in a number of respects and taking account of the requirements of Articles 6(1) and 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 (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 45). That is so in the case in the main proceedings as regards the procedural rules under Spanish law governing the procedure for recovery of lawyers’ fees which, in the absence of harmonisation, is a matter for the legal order of that Member State.

54 However, in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 22 and the case-law cited).

55 As regards the principle of effectiveness, which alone is the subject of the referring court’s questions, it is the Court’s settled case‑law that every case in which the question arises as to whether a national procedural provision makes the application of European Union 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, before the various national bodies (judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 53 and the case‑law cited).

56 It should be noted that, although the need to comply with that principle cannot be stretched so far as to make up fully for the total inertia on the part of the consumer (see, to that effect, judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 56 and the case-law cited), it is nevertheless necessary to analyse whether there is, having regard to the specific characteristics of the national procedure concerned, a non-negligible risk that, in procedures brought by suppliers and to which consumers are defendants, the latter are deterred from asserting rights conferred on them by Directive 93/13 (see, to that effect, judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 54 and 56).

57 Where the intervention by a court and the examination of whether the terms of a contract concluded between a supplier and a consumer are unfair is not provided for, under the national law in question, until an advanced procedural stage, for example that of the objection to an order that has already been made or, as in the case in the main proceedings, at the stage of the application for review lodged against the registrar’s order, that intervention is only likely to protect the effectiveness of Directive 93/13 if the consumer is not dissuaded from asserting his or her rights, whether as a claimant or a defendant, at that procedural stage (see, by analogy, judgment of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraphs 46 and 51).

58 Finally, the Court has also held that the obligation resulting from Article 7(1) of Directive 93/13 to lay down detailed procedural rules that ensure observance of the rights which individuals derive from that directive combating the use of unfair terms implies a requirement that there be a right to an effective remedy, a requirement also enshrined in Article 47 of the Charter (judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 59 and the case-law cited)

59 It is in the light of that case-law that the first two questions must be answered.

60 In the present case, as is clear from paragraphs 34 to 36 of this judgment, if he or she considers that the fees claimed by his or her lawyer are not due or are excessive, the consumer may contest those fees before the registrar of the national court which had been seised of the legal proceedings that gave rise to those fees. The registrar delivers an order which fixes the amount due, on pain of enforcement. While the registrar carries out certain checks regarding those fees, it is clear from the order for reference that, as a non-judicial authority, the registrar is not competent to assess whether a term in a contract from which those fees flow is unfair having regard to Directive 93/13.

61 While it is the consumer who decides to bring an application for review against the registrar’s order, it is clear from Article 454a of the LEC that the application must be lodged within five days, and does not have suspensory effect. It is also clear from the order for reference that the court seised of that application does not have the possibility of examining whether the terms contained in the contract that gave rise to the fees claimed are unfair, its review being limited to the object of the registrar’s order. Moreover, the rules on evidence are also restricted, allowing only the documentary proof already produced before the registrar.

62 In its written observations, the Spanish Government contests the referring court’s interpretation of the LEC. According to that government, that law does not establish any limitation on the possibility for the court to examine whether the terms are unfair or as regards the taking of evidence in the context of an application for review.

63 In that regard, it is sufficient to recall that, in accordance with the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, although it is for the Court to interpret the provisions of EU law, it falls exclusively to the referring court to interpret national legislation. The Court must therefore base itself on the interpretation of national law as described to it by that court (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 52 and the case-law cited).

64 Therefore, having regard to the characteristics of the application for review provided for by the LEC, as they are set out in the order for reference, in particular the limited nature of the review of the registrar’s order which is carried out by the court, the prohibition on that court examining, of its own motion or on the application of a party, whether the terms contained in the contract on the basis of which the fees are claimed are unfair, and the rules on evidence which appear to prevent a party from producing evidence other than that already produced before the registrar in order to assert their rights derived from Directive 93/113, it can be concluded that there is a non-negligible risk that the consumer may be dissuaded from asserting those rights in the context of an application for review.

65 The referring court states however that, in the context of ordinary judicial proceedings or the enforcement procedure, the consumer has the possibility of asserting the possible unfairness of a term contained in a contract concluded with his or her lawyer on the basis of which the payment of fees is claimed from him or her.

66 As regards, in the first place, the ordinary judicial proceedings referred to in Article 34(2) and Article 35(2) of the LEC, it is not clear from the order for reference that the institution of those proceedings by the consumer would have the effect of suspending the enforcement of an order made by the registrar or of a court decision on an application for review which confirmed it, such as to permit the court seised of those proceedings to examine, prior to the enforcement of those decisions, whether the terms of the contract concerned were unfair.

67 As regards, in the second place, the intervention of a court at the enforcement stage, it should be observed, in relation to the enforcement of the order of the registrar, that the referring court considers that those decisions must be classified as ‘procedural decisions’ with the result that, at the stage of their enforcement under the rules of Article 556 of the LEC, the consumer cannot plead the possible unfair nature of certain terms contained in the enforcement instrument.

68 As to the enforcement of the decision made in the context of an application for review, that seems to be subject to the grounds for objection that are provided for in Article 556 of the LEC, having regard to its judicial nature, the defendant to enforcement being able, when raising an objection without suspensory effect, to rely only on the grounds that he or she has discharged the obligation, that enforcement is time-barred or that a non-enforcement agreement or transaction was concluded between the parties.

69 It follows from the foregoing, subject to the verifications which it is for the referring court to make as regards the interpretation of national law, that neither ordinary court proceedings nor the enforcement procedure appear to make it possible to remedy the risk that the consumer is not able to assert his or her rights derived from Directive 93/13 in the context of an application for review.

70 Consequently, Directive 93/13, read in the light of the principle of effectiveness and Article 47 of the Charter, precludes a national procedural regime, such as that at issue in the main proceedings, in so far as that regime does not make it possible to ascertain whether the terms contained in a contract concluded between a lawyer and his or her client are unfair either at the stage of the objection to the fees claimed in the context of the first stage of the proceedings, which takes place before the registrar of the court which had been seised of the court proceedings giving rise to the fees in question, or during an application for review which could thereafter be lodged before a court against the registrar’s order.

71 Nevertheless, the Spanish Government and the Commission submit that an interpretation consistent with the national procedural regime, which permits the court hearing an application for review to assess, of its own motion or on the consumer’s request, whether a term of the contract on the basis of which the fees are claimed is unfair is possible, which the referring court also does not exclude.

72 The principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 26 June 2019, Addiko Bank, C‑407/18, C‑72/18, EU:C:2019:537, paragraph 65 and the case-law cited).

73 In that regard, the Commission suggests, in its written observations, that fees flowing from an unfair term may be regarded as not being ‘due’, within the meaning of Article 35(2) of the LEC. In any event, while the referring court must consider whether a consistent interpretation of the national law is possible and allows it of its own motion to verify whether the withdrawal clause is unfair, it must also have the correlative possibility of taking investigating measures of its own motion for that purpose (see, to that effect, judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 44 and the case-law cited).

74 It is therefore for that court to examine the extent to which the national procedural regime may be the object of a consistent interpretation with Directive 93/13 and to establish the consequences therefrom, disapplying, where necessary, any provisions of national law or case-law which precludes the obligation for the court, flowing from the requirements under that directive, to examine of its own motion whether the provisions agreed between the parties are unfair (see, to that effect, judgment of 7 November 2019, Profi Credit Slovakia, C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 76 and the case-law cited).

75 Having regard to those considerations, the answer to the first and second questions is that Directive 93/13, read in the light of the principle of effectiveness and Article 47 of the Charter, must be interpreted as precluding a national law relating to a summary procedure for the recovery of lawyers’ fees pursuant to which the claim brought against the consumer client is the object of a decision delivered by a non-judicial authority, the intervention of a court being provided for only at the stage of a possible objection being raised against that decision, without the court seised on that occasion being able to ascertain, if necessary of its own motion, whether the terms contained in the contract which gave rise to the fees claimed, are unfair or to allow the production, by the parties, of evidence other than the documentary evidence already produced before the non-judicial authority.

76 By its third question, the referring court asks, in essence, whether Article 4(2) of Directive 93/13 must be interpreted as meaning that the exception laid down in that provision covers a term of a contract concluded between a lawyer and his or her client pursuant to which the client undertakes to follow the instructions of that lawyer, not to act without the knowledge or against the advice of that lawyer and not to withdraw himself or herself from the legal proceedings the conduct of which he or she had entrusted to that lawyer, on pain of a financial penalty

77 As a preliminary observation, it should be recalled that, to the extent that Article 4(2) of Directive 93/13 lays down an exception to the mechanism for reviewing the substance of unfair terms, that provision must be strictly interpreted. That exception covers, in the first place, the terms defining the main subject matter of the contract and, in the second place, the terms defining the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand.

78 As regards the category of contractual terms which fall within the concept of ‘main subject matter of the contract’, the Court has held that those terms must be understood as being those that lay down the essential obligations of the contract, to the exclusion of terms which are ancillary to those that define the very essence of the contractual relationship (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C-186/16, EU:C:2017:703, paragraphs 35 and 36 and the case-law cited). In the present case, the main supplies are those listed in paragraph 21 of this judgment, the purpose of the withdrawal clause being rather to penalise the behaviour of a client who acts against the advice of his or her lawyer. That term does not therefore fall within that category.

79 As regards the category of terms which relate to the adequacy of the price in relation to the service provided, that category also does not include the withdrawal clause, in so far as that clause does not provide for the remuneration for a service provided, but merely penalises the breach of a contractual obligation (see, by analogy, judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 58).

80 Consequently, the answer to the third question is that Article 4(2) of Directive 93/13 must be interpreted as meaning that the exception provided for in that provision does not cover a term of a contract concluded between a lawyer and his or her client pursuant to which the client undertakes to follow the instructions of that lawyer, not to act without the knowledge or against the advice of that lawyer and not to withdraw himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, on pain of a financial penalty

81 In the light of the answer to the third question, it is not necessary to answer the fourth question.

82 By its fifth question, the referring court asks, in essence, whether Directive 2005/29 must be interpreted as meaning that the insertion, into the contract concluded between a lawyer and his or her client, of a clause which provides for a financial penalty to be borne by the latter if he or she withdraws himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, that clause referring to the fee-scale of a professional association and not having been referred to in the advertisement or in the information given prior to the conclusion of the contract, may be regarded as an unfair commercial practice, within the meaning of that directive.

83 In order to answer that question, it must first be recalled that Article 2(d) of Directive 2005/29, using a particularly wide formulation, defines the term ‘commercial practice’ as ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 38 and the case-law cited).

84 Next, in accordance with Article 3(1) of Directive 2005/29, read in conjunction with Article 2(c) thereof, the directive applies to unfair business‑to‑consumer commercial practices before, during or after a commercial transaction relating to any goods or service. Under Article 5(4) of the directive, misleading practices in particular are unfair, within the meaning of Articles 6 and 7 thereof.

85 Lastly, as stated in Article 7(1) and (2) of Directive 2005/29, a commercial practice is to be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits, hides or provides unclear material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

86 In the present case, the inclusion in a contract concluded between a lawyer and his or her client of a term such as the withdrawal clause, without it having been mentioned in the advertisement or in the information given prior to the conclusion of the contract, constitutes a priori an omission of communication of material information, or the hiding of that information, of such a nature as to influence the decision taken by the consumer to enter into that contractual relationship. It is clear from the case file submitted to the Court that that term refers, for the calculation of the contractual penalty that that term provides, to the Seville Bar Association’s fee-scale, the content of which would be difficult to access and comprehend and that, in the event that the term applies, the consumer would be required to pay a contractual penalty likely to reach an amount that is significant, or even disproportionate in relation to the price of the services provided on the basis of that contract. It is however for the national court to ascertain whether that is the case.

87 In the light of the foregoing considerations, the answer to the fifth question is that Directive 2005/29 must be interpreted as meaning that the insertion, into the contract concluded between a lawyer and his or her client, of a term which provides for a financial penalty to be borne by the latter if he or she withdraws himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, that term referring to the fee-scale of a professional association and not having been referred to in the advertisement or in the information given prior to the conclusion of the contract, must be regarded as being a ‘misleading’ commercial practice, within the meaning of Article 7 of that directive, provided that it causes the consumer, or is likely to cause the consumer, to take a transactional decision that he or she would not otherwise have taken, which it is for the national court to ascertain.

88 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.

1. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, read in the light of the principle of effectiveness and Article 47 of the Charter of the Fundamental Rights of the European Union,

precluding a national law relating to a summary procedure for the recovery of lawyers’ fees pursuant to which the claim brought against the consumer client is the object of a decision delivered by a non-judicial authority, the intervention of a court being provided for only at the stage of a possible objection being raised against that decision, without the court seised on that occasion being able to ascertain, if necessary of its own motion, whether the terms contained in the contract giving rise to the fees claimed are unfair or to allow the production, by the parties, of evidence other than the documentary evidence already produced before the non-judicial authority.

the exception provided for in that provision does not cover a term of a contract concluded between a lawyer and his or her client pursuant to which the client undertakes to follow the instructions of that lawyer, not to act without the knowledge or against the advice of that lawyer and not to withdraw himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, on pain of a financial penalty.

3. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council,

the insertion, into the contract concluded between a lawyer and his or her client, of a term which provides for a financial penalty to be borne by the latter if he or she withdraws himself or herself from the legal proceedings the conduct of which he or she has entrusted to that lawyer, that term referring to the fee-scale of a professional association and not having been referred to in the advertisement or in the information given prior to the conclusion of the contract, must be regarded as being a ‘misleading’ commercial practice, within the meaning of Article 7 of that directive, provided that it causes the consumer, or is likely to cause the consumer, to take a transactional decision that he or she would not otherwise have taken, which it is for the national court to ascertain.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Vicente (Action en paiement d'honoraires d'avocat) (Unfair terms in consumer contracts - Unfair business-to-consumer commercial practices - Judgment) [2022] EUECJ C-335/21 (22 September 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C33521.html Cite as: [2022] EUECJ C-335/21, ECLI:EU:C:2022:720, EU:C:2022:720

Court of Justice of the European Communities (including Court of First Instance Decisions)