The Court of Justice of the European Union, by judgment ECLI:EU:C:2023:380, dated 4 May 2023, in Case C200/21 – in the context of a dispute between, on the one hand, TU and SU and, on the other, BRD Groupe Société Générale SA and Next Capital Solutions Ltd concerning an objection to the enforcement of the repayment obligation relating to a loan agreement concluded between, on the one hand, TU and SU, and, on the other, BRD, whose claim was subsequently assigned to NCS – ruled that Directive 93/13/EEC on unfair terms in consumer contracts must be interpreted as precluding a provision of national law which does not permit the court of enforcement, before which, on the expiry of the 15-day time-limit laid down in that provision of an objection to the enforcement of a contract concluded between a consumer and a seller or supplier, which constitutes an enforcement order, to assess, of its own motion or on application by the consumer, the unfairness of the terms of that contract, where that consumer has, moreover, an appeal on the merits available to him which enables him to request the court seised of that appeal to carry out such an assessment and to order a stay of enforcement until the outcome of that appeal, in accordance with another provision of that national law, if that stay is possible only on payment of a security, the amount of which is such as to deter the consumer from bringing and maintaining such an action, which is a matter for the referring court to determine. Where national legislation cannot be interpreted and applied in conformity with the provisions of that directive, the national court before which an action for enforcement of such a contract is brought is required to examine, of its own motion, whether the terms of that contract are unfair, disapplying, if necessary, any national provision which prevents such an examination.

For the text of the judgment click here

Marco Sposini

Lawyer – Studio Legale Sardo – Milan