The conclusions of the Advocate General of the CJEU in the Bondora case
11 DIC 2019 - 11:54 CET
The Conclusions of the Advocate General, Eleanor Sharpston, answer two preliminary rulings referred before the CJEU by the Courts of First Instance No. 11 of Vigo and No. 20 of Barcelona in relation to contracts concluded between consumers located in Spain and the Bondora Company, based in Estonia.
Specifically, it was raised if:
- The national judge before whom an European order for payment is requested in the context of a contract concluded between a company and a consumer can control ex officio the potentially unfair nature of the terms of the contract, as required by articles 6 and 7 of Directive 93/13, on unfair terms in consumers contracts.
- To that end, according to Article 9.1 of Regulation 1896/2006, concerning the European order for payment procedure, in relation to Article 7.2, d) and e), the judge may require the plaintiff to reproduce the content of the contractual terms in which he bases his claim or provide a copy of the contract to prove the existence of that debt.
The Advocate General stated in her conclusions that, since Regulation 1896/2006 and Directive 93/13 are rules of derivative law and that no provision of the Regulation expressly excludes or restricts the application of the Directive, these two legal instruments must be appreciated in combination to try to interpret them harmoniously.
Therefore, the judge would be entitled to request a copy of the contract with the sole purpose of verifying the existence of terms contrary to consumers’ rights. This, according to articles 6 and 7 of Council Directive 93/13 of 5 April 1993, on unfair terms in consumers contracts, in relation to article 38 of the Charter of Fundamental Rights of the European Union and to Article 6.1 of the Treaty on European Union.
Consequently, a national regulation according to which any additional documentation, such as a copy of the contract that proves the existence of the debt in a European order for payment procedure, is not admissible is contrary to the European Union law.
Picture credits: Court of Justice of the European Union. By Katarina Dzurekova. CC BY 2.0. Licence. Source: Flickr.
