The Court of Justice of the European Union, by judgment ECLI:EU:C:2023:380, dated 4 May 2023, in Case C200/21 - in proceedings between TU and SU, on the one hand, and BRD Groupe Société Générale SA and Next Capital Solutions Ltd, on the other, concerning an objection to the enforcement of the repayment obligation relating to a loan agreement concluded between TU and SU, on the one hand, and BRD, on the other, the latter’s claim subsequently being assigned to NCS - ruled that the Directive 93/13/EEC, on unfair terms in consumer contracts, must be interpreted as precluding a provision of national law that does not allow the court which is responsible for the enforcement proceedings and which hears, outside the 15-day period laid down by that provision, an objection to the enforcement of a contract that is concluded between a consumer and a seller or supplier and constitutes an enforceable instrument, to assess, of its own motion or at the request of the consumer, the unfairness of the terms of that contract, when that consumer also has an action on the merits which enables him or her to request the court hearing that action to carry out such a review and to order the suspension of the enforcement pending the outcome of that action, in accordance with another provision of that national law, where that suspension is possible only by way of payment of a security the amount of which is likely to dissuade the consumer from bringing and continuing such an action, which it is for the referring court to verify. Where it is not possible to interpret and apply the national legislation in a manner that is consistent with the requirements of that directive, the national court hearing an objection to the enforcement of such a contract is obliged to examine of its own motion whether the terms of that contract are unfair, and, where necessary, is to disapply any national provisions which preclude such an examination.
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Marco Sposini
Avvocato - Studio Legale Sardo - Milano
