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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Asturcom Telecomunicaciones (Environment and consumers) [2009] EUECJ C-40/08 (06 October 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/C4008.html Cite as: [2010] CEC 284, ECLI:EU:C:2009:615, [2010] 1 CMLR 29, [2009] EUECJ C-40/08, EU:C:2009:615, [2012] 1 CMLR 34, [2009] EUECJ C-40/8, [2009] ECR I-9579 |
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(Directive 93/13/EEC Consumer contracts Unfair arbitration clause Measure void Arbitration award which has become final Enforcement Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void Principles of equivalence and effectiveness)
In Case C-40/08,
REFERENCE for a preliminary ruling under Article 234 EC from the Juzgado de Primera Instancia No 4 de Bilbao (Spain), made by decision of 29 January 2008, received at the Court on 5 February 2008, in the proceedings
Asturcom Telecomunicaciones SL
Maria Cristina Rodríguez Nogueira,
composed of P. Jann, President of the Chamber, M. Ilešič, A. Tizzano (Rapporteur), E. Levits and J.-J. Kasel, Judges,
Advocate General: V. Trstenjak,
Registrar: R. Grass,
having regard to the written procedure,
after considering the observations submitted on behalf of:
Asturcom Telecomunicaciones SL, by P. Calderón Plaza and P. García Ibaceta, abogados,
the Spanish Government, by J. López-Medel Bascones, acting as Agent,
the Hungarian Government, by K. Veres, R. Somssich and M. Z. Fehér, acting as Agents,
the Commission of the European Communities, by W. Wils and R. Vidal Puig, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 14 May 2009,
gives the following
Legal context
Community legislation
'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.'
National legislation
'1. General conditions which infringe the provisions of this Law or any other rule ordering or prohibiting certain conduct, to the detriment of a party to the contract, shall automatically be void, save in so far as they make separate provision for cases of breach.
2. In particular, general terms which are unfair, where the contract has been concluded with a consumer as defined in any event in Article 10a and the first additional provision of Law 26/1984 ... shall be void.'
'4. The court of first instance of the place in which the award was made shall have jurisdiction to hear an action for enforcement of the award in accordance with Article 545(2) of the Code of Civil Procedure ...
5. An action for annulment of the arbitration award shall be brought before the Audiencia Provincial [Provincial Court] of the place in which the award was made.'
'1. Arbitrators shall have jurisdiction to rule on matters falling within their own competence, including pleas relating to the existence or validity of arbitration agreements or any plea which, if upheld, would preclude an examination of the substance of the dispute. For that purpose, an arbitration agreement in a contract shall be regarded as a separate agreement, distinct from the other terms and conditions of the contract. Where it is decided by the arbitrators that the contract is void, the arbitration agreement shall not automatically be void.
2. The pleas referred to in paragraph 1 must be raised no later than in the statement of defence and the fact that a party has appointed or participated in the appointment of the arbitrators shall not preclude it from raising such pleas. A plea alleging that the arbitrators do not have competence to adjudicate on the question at issue must be raised as soon as the question which is alleged to be beyond their competence is raised in the arbitration proceedings.
The arbitrators shall admit pleas raised subsequently only if the delay in raising them is justified.'
'A final award can be challenged in an action for annulment in accordance with the provisions laid down in this title.'
'An award may be annulled only where the party seeking annulment claims and proves that:
...
(f) the award is contrary to public policy.
...'
'A final award shall have the effect of res judicata and any appeal against that award shall lie only on a point of law, in accordance with the provisions of the Code of Civil Procedure applicable to final decisions.'
'Enforcement of awards shall be governed by the provision laid down in the Code of Civil Procedure and in this title.'
'The party against whom enforcement is sought shall also have the right to resist enforcement on the ground of the following procedural irregularities:
1. The party against whom enforcement is sought does not have the legal character or representation referred to in the application;
2 the party seeking enforcement lacks the capacity or representation or it is not established that he has the capacity or representation referred to in the application;
3 the enforcement order is null and void because it does not set out the arbitration award or decision requiring performance of the contract, the document submitted does not satisfy the statutory requirements necessary for it to be enforceable or because the provisions in Article 520 of this law are infringed when execution is being carried out;
4 where the measure to be enforced is an arbitration award which has not been duly processed by a notary, the fact that it is not been authenticated.'
The dispute in the main proceedings and the question referred for a preliminary ruling
'In order that the protection given to consumers by [Directive 93/13] should be guaranteed, is it necessary for the court hearing an action for enforcement of a final arbitration award, made in the absence of the consumer, to determine of its own motion whether the arbitration agreement is void and, accordingly, to annul the award if it finds that the arbitration agreement contains an unfair arbitration clause that is to the detriment of the consumer?'
The question referred for a preliminary ruling
Costs
On those grounds, the Court (First Chamber) hereby rules:
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.
[Signatures]
* Language of the case: Spanish.