What unfair terms should be reviewed ex officio by the judge?

 

clausulas abusivas

The judge must officially examine the abusiveness of clauses which relate to the subject of the dispute


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 What is the scope of the ex officio review of unfair terms required of the national court?

As he article 4, paragraph 1, such as Article 6, paragraph 1, Directive 93/13 / EEC, of 5 April 1993, on unfair terms in consumer contracts, They are interpreted that, While it is true that in order to appreciate the unfairness of a clause included in a contract between professional and consumer all the other terms of the contract have to be taken into account, It does not mean that the judge is obliged to officially examine the potential unfairness of all those other clauses that are not related to the subject of the dispute.

The 11 March 2020, the Third Chamber of the Court of Justice of the European Union, He has ruled, clarifying the scope that the ex officio examination of the national court of the unfairness of the clauses in the contract between professional and consumer, based on the interpretation of articles 4, paragraph 1 and 6, paragraph 1, Directive 93/13 / EEC, of 5 April 1993, on unfair terms in consumer contracts.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 13 December 2007, Ms.. Lintner held with UniCredit Bank (UCB, onwards), mortgage loan contract denominated in foreign currency, including certain clauses conferring UCB, the right to unilateral modification of the same.

The 18 July 2012, Ms.. Lintner appeared before the General Court of the Capital, Hungary (TG, onwards), a lawsuit seeking a declaration of invalidity, con efectos retroactivos, clauses that gave the right to unilateral modification of the mortgage loan contract, based on Directive 93/13.

First and Second Instance - Court and Superior General of Hungary

The TG was dismissed the lawsuit filed by Ms.. Lintner. This, interpuso recurso de apelación.

The Superior Court of the Capital, Hungary (TS, onwards), annulled the judgment handed down by the TG by an order made on time 1 April 2014. He returned the matter to the TG.

El TS, in the order made, He recalled that "Jurisprudence concerning Directive 93/13, the Court has consistently referred to the principle that, in matters relating to consumer contracts, the judge must examine ex officio the unfairness of clauses contained therein. He said that, according to their interpretation of the directive and the case law on the same, as well as the applicable national law, is only possible effective implementation of the Directive if the national court examines ex officio the contract at all. "

TG asked me to ask Mrs.. Lintner if he wished to invoke the unfairness of clauses of the car or other of the contract had not been their initial demand, and if they consider itself bound by contract once excluded the clauses in question.

the TG, By order dated 7 December 2015, closed the case, after considering that Dña. Lintner had not responded to the request formulated.

The 26 March 2016, TS decided a new appeal filed by Ms.. Lintner. He confirmed the order under appeal as regards the terms of the contract, but he annulled everything else. He urged the TG to issue a new resolution. The TS considered that the TG should consider other clauses of the contract.

The TG decided to stay the proceedings and refer to the ECJ for a preliminary ruling on examining the unfairness of the clauses of a contract.

Court of Justice of the European Union (TJUE)

The TG referred the following questions:

* first: asked to ascertain whether the article 6, paragraph 1, Directive 93/13"Must be interpreted as meaning that a national court hearing a lawsuit filed by a consumer and aims that the abusive nature of certain clauses be declared in a contract concluded by the latter with a professional, It is bound to examine ex officio and individually all other, although they have not been challenged by the consumer, to see if they can be considered abusive. "

* Second and third: asked to ascertain whether the article 4, paragraph 1, and Article 6, paragraph 1, Directive 93/13"Must be interpreted as meaning that, whether, in assessing the unfairness of a contractual clause that is the basis for the claims of a consumer must all the other provisions of the contract be considered that the latter has concluded with a professional, implying the obligation of the national court hearing the matter of its own motion the possible unfairness of all those clauses. "

The Court of Justice of the European Union dictated judgment date 11 March 2020, declaring, based on the three questions raised, the next:

1.- "He article 6, paragraph 1, Directive 93/13 / EEC, of 5 April 1993, on unfair terms in consumer contracts, must be interpreted as meaning that a national court hearing a lawsuit filed by a consumer requesting that the abusive nature of certain clauses be declared in a contract concluded by this with a professional is not obliged to examine ex officio and individually all other contractual clauses, which they have not been challenged by the consumer, in order to verify whether they can be considered abusive, but should examine only those clauses which are linked to the subject of the dispute as the latter has been defined by the parties, as soon as I have the facts and law necessary to effect, completed, if, by measures of inquiry.

 2.- The article 4, paragraph 1, and Article 6, paragraph 1, Directive 93/13 They are interpreted that, While it is true that to appreciate the unfairness of the contractual clause that is the basis for the claims of a consumer all other clauses of the contract between a professional and the consumer must be taken into account, it does not imply obligation of the national court hearing the matter of its own motion the possible unfairness of all those other clauses.”

Conclusion

When a consumer requests in court proceedings that the abusive nature of certain clauses stating, the national court is not obliged to examine ex officio and individually all other clauses in the contract, if they have not been challenged by the consumer. You are only required to consider those clauses which relate to the subject of the dispute.

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