Changing the powers of national judges. The impact of art ... materials_CJC_EUI.pdf · Art 47 Charter and artt Articles 6 and 13 ECHR have a different substantive scope as the latter

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Changing the powers of national judges.

The impact of art. 47 CFR on national procedural laws: consumer

protection, migration and asylum.

HANDOUT MATERIALS

Prepared for the EJTN seminar “Training on Human Rights and Access to Justice in the EU”

Split, October 20th and 21st 2016

Authors:

Dr. Federica Casarosa | Research Fellow, Centre for Judicial Cooperation of the European University

Institute (“CJC-EUI”)

Dr. Madalina Moraru | Research Associate, CJC/EUI

Dr. Maria Cristina Contini | Judge, Tribunal of Torino

With the help of Geraldine Renaudiere | Research Associate, Migration Policy Centre/EUI

Under the scientific supervision of Prof. Fabrizio Cafaggi | SNA/EUI

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The material has been prepared on the basis of the collective work done in two projects led by the

Center for Judicial Cooperation at EUI in cooperation with many national schools of judiciaries. In

the first project JUDCOOP,1 the main issue was the role of judicial dialogue and the various forms

of interactions among national and European courts. In the second project ACTIONES (still

ongoing),2 the focus is on scope of the Charter, its impact on national legal systems and the role of

judicial dialogue in making the CHARTER a useful instrument to implement European citizens’

rights. The training material is composed of two sections. One focuses on art. 47 of the Charter of

fundamental rights and the use made by CJEU in different fields. The areas are consumer, migration

and asylum law. Such unusual comparison sheds light on the different impact of the same fundamental

right and in particular on the consequences of judicial empowerment and transformation of national

procedural laws. The second part is a collection of fact sheets taken from the current versions of

Actiones Handbooks that have been used in workshops and training activities. They can be fruitfully

used to examine the questions related to the different uses of article 47 CFR

1 The materials regarding the workshops and the Final Handbook are available at

http://www.eui.eu/Projects/CentreForJudicialCooperation/Publications/Index.aspx. 2 More information about the project can be found at

http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/ACTIONES/ACTIONES.aspx.

http://www.eui.eu/Projects/CentreForJudicialCooperation/Publications/Index.aspx

http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/ACTIONES/ACTIONES.aspx

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General questions

1) Does art. 47 CFR apply uniformly across policy areas? For example, in consumer protection

and migration and asylum law fields?

2) When have preliminary rulings led to the modifications of interpretations of procedural rules

in MS?

3) When have preliminary rulings led to changes of procedural rules?

4) Do these transformations change the power of judges to:

a) Propose issues and themes not addressed by the parties?

b) Collect new evidence?

c) Design remedies that are compatible with the national laws but comply with the principles

of effectiveness, proportionality and dissuasiveness?

The main aim of the training session is to show on the basis of an examination of the CJEU case law

the impressive impact of the charter provisions on the daily work of national judges and the potential

offered by judicial dialogue on fundamental rights to make individual and collective rights more

effective. We have chosen the right to be heard as one illustration that provides very interesting

comparative observations across the different areas. But, as the material suggests, many other

dimensions of art. 47 have been addressed in preliminary references by national courts and given the

CJEU the opportunity to give guidance on the interpretation of EU law and the solution of potential

divergences or tensions between EU and national rules.

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Changing the powers of national judges.

The impact of art. 47 CFR on national procedural laws: consumer protection,

migration and asylum

1. When is Article 47 CFR applicable? Identification of the connecting EU legal provision

According to Article 51(1), the EU Charter applies to the Member States only when acting within the

scope of EU law. In Fransson, the CJEU clarified that ‘the scope of EU law’3 is the same as the scope

of the EU Charter.4 Therefore, once a connecting EU law element has been identified in a case, the

EU Charter is applicable.5

Below is a list of situations, drawn from the case law of the CJEU, where the Charter was found

applicable on the basis of finding a connection with an EU law provision (trigger):

- cases concerning national measures adopted in order to enforce a EU Regulation (e.g. Case

C-5/88 Wachauf [1989] ECR 2609; Case C-292/97 Kjell Karlsson [2000] ECR I-2737) or EU

primary law (TEU/TEFU provisions);

- cases concerning national measures adopted in order to implement a Directive (e.g. Joined

Cases C-20/00 and 64/00, Booker Aquacultur and Hydro Seafood [2003] ECR I-7411; Case

C-176/12 Association de médiation sociale [2014], nyr, Case C-385/11, Elbal Moreno,

[2012], nyr.), or national measures which substantially act as implementing measures, though

not specifically adopted on that purpose (Member States do not need to pass specific measures

in order to implement a Directive if the domestic legal order is already in conformity with that

Directive), or national measures which in any event have the effect to implement an obligation

of the Member States under EU law, even if adopted before the EU provision that places the

specific obligation on Member States (e.g. the obligation to adopt sanctions aimed to ensure

the effective collection of VAT: Åkerberg Fransson, cit.);

- cases concerning national measures falling within the scope ratione materiae and personae

of a Directive, before the expiry of the transposition period (but note that this is not yet an

established case law: cf. Case C-144/04 Mangold);

- cases concerning national measures which derogate from EU law provided by EU primary or

secondary law based on reasons of public interest (e.g., Article 36 TFEU/mandatory

requirements, Article 45(3) TFEU, Article 4 of the EAW Framework Decision, limits to free

movement of EU citizens and their familiars laid down by Directive 2004/38/EC; cf. C-260/89

Elliniki Tiléorassi AE (ERT) [1991], ECR I-2925; Case C-208/09 Sayn-Wittgenstein [2010],

ECR I-13693); when the national measure seeks to derogate from EU law in order to protect

a fundamental right, then one needs to strike the balance between the EU fundamental freedom

affected and the fundamental right in question (cf. Case C-112/00 Schmidberger [2003] ECR

I-5659; Case C-36/02 Omega Spielhallen [2004] ECR I-9609);

3 For a detailed clarification of the notion of ‘acting within the scope of EU law’, please see the CharterClick!

Admissibility Checklist. 4 In its judgement of 26 February 2013 on Case C-617/10 Åkerberg Fransson, ECLI:EU:C:2013:105 , the CJEU

interpreted Article 51(1) EU Charter as meaning that “the fundamental rights granted by the Charter must (…) be

complied with where national legislation falls within the scope of European Union law” (para. 21) 5 For the detailed list of ‘connecting EU law elements’, please see the CharterClick! Admissibility checklist.

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- cases concerning national provisions of procedural law that affect or govern the exercise of

(ordinary) rights granted by EU law (such as the right to have the Member State making good

damages caused to legal or natural person by not having implemented in time a Directive: see

Case C-279/09 DEB [2010] ECR I-13849.

May art 47 CFR apply outside the scope of EU law?

It should be noted that since 2010, several courts have presented preliminary rulings addressing the

compliance of general national procedural rules with the right to effective judicial protection, i.a. the

Italian Council of State,6 the Romanian Appeal Court of Bacau,7 the Spanish Audiencia Provencial

of Balears Iles,8 the Hungarian Fovarosi Itelotabla,9 the Portuguese 5° Vara civel de Lisboa.10

Although in all cases the CJEU affirmed that the court is not competent as the procedural rules do not

fall into the scope of application of EU law, the cases are not irrelevant. They are a sign of the process

of internalisation of EU fundamental rights at national level, with the effect that national courts are

not only conscious of the existence of EU standards of fundamental rights protection, but are also

open to the possibility that those standards may be applicable also to general national legislation, in

particular in those cases where the European standards are higher than national ones. This spill-over

effect emerges also at national level, where it is not uncommon that courts include references to

Charter articles also in areas that are not covered by EU law.11

2. Which are the functions of Article 47:

Parameter of legality of eu secondary legislation

Parameter of interpretation of eu secondary legislation – see competition law cases

Parameter of legality of implementing national legislation – DEB, Abdida

Raising the standards of fundamental rights at national level - Mahdi and Abdida

As provided by Article 13 RD, any third country nationals in irregular stay is entitled to

challenge all types of decisions adopted during the return procedure through available and

effective remedies. This notably implies the right to review decisions related to return before

a competent judicial/ administrative authority or “another competent body composed of

members who are impartial and who enjoy safeguards of independence”. In Abdida12, the

CJEU required that the remedy provided in Article 13 Return Directive must be determined

in a manner that is consistent with Article 47 EUCFR, which recognises a right to an effective

judicial remedy. Since Article 13 RD does not exclusively grant a right to an effective judicial

remedy, those domestic legislations that implemented this provision by way of providing a

6 See C-520/15 7 See C-407/15 8 See C-380/15 9 See C-45/14 10 See C-258/13 11 However, in Italy the Supreme Court does not allow this extensive interpretation, as clarified in the decision n.

24823/2015. 9 December 2015. For a deeper analysis of the Italian framework see R. Conti, 2016. 12 See para. 45.

Commented [fc1]: Include in the presentation a question if any of the participants have ever presented a preliminary ruling on 47 and/ if they have ever mention art 47 in their decisions

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legal remedy only before an administrative body might be considered to be in violation of

Article 47 EUCFR.13

3. What is the relation between right to effective remedies in Charter and in the

Convention? a) Substantive scope

Art 47 Charter and artt Articles 6 and 13 ECHR have a different substantive scope as the latter apply

only to cases concerning the determination of a person’s civil rights and obligations or any criminal

charge, while the ECtHR has ruled out the application of these rights to cases concerning entry, stay

and deportation of aliens.14

b) Applicability

Article 13 ECHR does not have an independent status, it is applicable only in conjunction with one

of the substantive rights included in the ECHR. On the other hand, the substantive scope of application

of Article 47 CFR is not limited by the nature of the rights are issue, its procedural guarantees apply

to all EU derived rights. The question remains whether, with regard to Article 52(3) of the EU Charter,

Article 47 of the EU Charter can offer more or different protection to individuals in these cases.

c) Convention as a floor and not as a ceiling – cases where the one standard is higher

Although the relevant provisions of the ECHR and CFREU do not exactly overlap, art. 52 CFREU

provides that the Charter needs to be interpreted to at least the same level of protection as the relevant

right in the ECHR. This is confirmed by the explanatory notes to the Charter, which requires that its

meaning and scope shall be determined not only by reference to the text of the ECHR but also by

reference to the case law of the ECtHR.

Thus, the Convention is interpreted as a floor, leaving the possibility for the CJEU to define a higher

standard of protection. This approach was expressly adopted in DEB case where the ECtHR’s case

law was analysed in detail so as to verify if under the ECHR the grant of legal aid to legal persons

was in principle possible. This however led the CJEU to find a broader protection under the Charter

than that provided for by the ECHR. This example shows how the CJEU ensures consistency between

rights guaranteed by the Charter and the ECHR, taking the ECtHR jurisprudence either as an element

to confirm or support the CJEU findings,15 but without taking the level of protection afforded by

ECHR as a ceiling.

Opposite scenario. On the other hand, the ECtHR has on certain occasions established a higher

standard of protection than the CJEU. However, through a prolific judicial dialogue, the two European

supranational courts have reached a common agreement applying the higher standard of protection

13 CJEU, para. 45: “None the less, the characteristics of such a remedy [Article 13 Return Directive] must be determined

in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective

judicial protection (see, to that effect, judgments in Unibet, C-432/05, EU:C:2007:163, paragraph 37, and Agrokonsulting-

04, C-93/12, EU:C:2013:432, paragraph 59), and provides that everyone whose rights and freedoms guaranteed by EU

law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that

article.” See in this regard the Austrian High Administrative Court: in compliance with Art. 47 CFR, legal aid in the

return procedure is obligatory even if it is not foreseen by the European and/or national legislation (Ro 2015/21/0032, 3

September 2015). The same applies to the competent authority that needs to be impartial and independent in the meaning

of Article 47 CFR and 13 RD (Ro 2011/22/0097, 31 May 2011). 14 See Maaouia v. France, Appl. No 39652/98.

15 See Alassini, para 63, Melloni, para 50; Jaramillo, para 43, Kendrion, para 81, Abdida para 51-52.

http://euredial.eu/national-caselaw/?article=article13&n=Ro%202015/21/0032

http://euredial.eu/national-caselaw/?article=article13&n=Ro%202015/21/0032

http://euredial.eu/national-caselaw/?article=article13&n=2011/22/0097

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of fundamental rights. This is the case in asylum in the dialogue between ECtHR in M.M. and CJEU

in N.S. and following jurisprudence.16

a. Added value of Article 47 compared to Article 6 ECHR

a) Less procedural limitations for art 47 compared to art 6 ECHR

The Benkharbouche case17 showed that in the EU Charter can provide a solution for situations where

the application of the Convention is limited by statutory or constitutional provisions; in that case,

Article 47 EU Charter allowed for the disapplication of the provisions of the UK State Immunity Act

that limited access of individuals to claim damages for discriminatory practice of foreign States’

embassies

b) Wider scope for art 47

Article 47 EU Charter guarantees effective judicial protection for all rights derived from Union law,

while Article 13 ECHR guarantees effective judicial protection only for civil and criminal rights,

excluding the entire category of administrative rights.

4. What is the content of the right to effective judicial protection?

Art 47 CFREU provides that:

“1. Everyone whose rights and freedoms guaranteed by the law of the Union are violated

has the right to an effective remedy before a tribunal in compliance with the conditions

laid down in this Article.

2. Everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal previously established by law. Everyone shall have

the possibility of being advised, defended and represented.

3. Legal aid shall be made available to those who lack sufficient resources in so far as

such aid is necessary to ensure effective access to justice.”

As is clear from the wording, Art 47 CFREU does not limit its scope to a narrow interpretation of the

right to effective remedies; rather it addresses the wider concept of the right to effective judicial

protection. Within this concept the CJEU jurisprudence includes several elements that are sometimes

defined under the umbrella definition of “rights of the defence” or “fair hearing”.18 The following is

a tentative taxonomy.19

1. Fair hearing

a. General definition

i. Sweden v API C-514/07

b. Opportunity to debate and right to be heard20

16 See below Annex 2 – Casesheet n. 6. 17 [2015] EWCA Civ 3. 18 See in case C-112/13, A v B and Others, [ECLI:EU:C:2014:2195], the CJEU affirmed that “all the provisions of

Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation,

proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence enshrined

in Article 47 of the Charter are observed”, (para 51). 19 Note that the cases in the list do not include the case law of the General Court and the appeals decisions. 20 See also below.

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i. Banif Plus C-472/11

ii. OHIM C-530/12

c. Right to be present at trial

i. Melloni C-399/11 (the right is not deemed to be absolute)

d. Procedural equality

i. Sanchez Morcillo C-169/14

2. Right to access the court


i. Otis C-199/1121

ii. Alassini C-317/08

b. Right to legal aid

i. DEB C-279/09 (the right is not deemed to be absolute)

ii. GREP C-156/12

iii. Orizzonte Salute C-61/14 (the right is not deemed to be absolute)

3. Effectiveness of judicial review


i. Kadi C-584/10

ii. Anbouba C-630/13 and Anbouba C-605/13

iii. Mahdi C-146/14 22

b. Type of bodies that may provide it

i. East sussex Council C-71/14

ii. Belov (equality bodies) C- 394/11

c. Adversarial principle

i. Right to examine all docs and observations submitted to court

1. Unitrading C-437/1323

ii. Limits to non disclosure

1. ZZ C-300/11

4. Rights of the defence

a. Mutual recognition of foreign decisions

i. A C-112/13

ii. Meroni C-559/14

iii. Trade agency C-619/10 (refuse if foreign decision lack reasoning and not

appealable)

b. Right to be heard24

i. Sabou C-276/12 25

ii. Boudjlida C-249/13

21 “with regard, in particular, to the right of access to a tribunal, it must be made clear that, for a ‘tribunal’ to be

able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the

Charter, it must have power to consider all the questions of fact and law that are relevant to the case before it”. 22 this is a real empowerment of the national judge within the Bulgarian system of asylum. 23 “if the judicial review guaranteed by Article 47 of the Charter is to be effective, on the one hand, the person

concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by

reading the decision itself or by requesting and obtaining notification of those reasons, so as to make it possible for him

to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there

is any point in his applying to the court with jurisdiction. On the other, the court with jurisdiction must have the power

to require the authority concerned to provide that information, in order to put that court fully in a position in which it

may carry out the review of the lawfulness of the national decision in question”. 24 See more below, distinguishing between the rights of defence which are protected within the administrative

phase (e.g. Mukarubega and Boudjlida) and those during the judicial phase as part of Article 47. 25 Sopropé

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iii. Mukarubega C-166/13

iv. Kamino C-129/13

v. Radu C-396/11 (not sufficient ground to refuse EAW)

c. Remedies for violations of the right to be heard during the administrative proceedings

1. G&R C-383/13 (no absolute annulment)

d. Effective review of decision (review in fact and in law)

i. Imtech C-300/14

e. Ability to know and understand effectively and completely the action

i. Alpha Bank Cyprus C-519/13

f. Procedure in absentia

i. A v B C-112/13

ii. Hypotechni Banka C-327/10 (due diligence and good faith in finding the

defendant)

iii. G. C-292/10 (in line with Hypotechni)

5. Suspensory effect of appeal

a. Abdida C-562/13

b. Tall C-239/14

6. Interim relief

a. Kusionova C-34/13

7. Right to access to 2° level of jurisdiction

a. Sanchez Morcillo C-169/1426

b. Samba Diouf C-69/10

8. Written form of decision

a. Mahdi C-146/14

9. Right to adjudicate in a reasonable time

a. Galp C-603/13 (appeal)

10. Right of action

a. Locus standi against the decision of a regulatory authority

i. E.ON C-510/1327

11. Right to information

a. Coty C-580/13

12. Right to be advised, defended and represented

a. Peftief C-314/13

13. Reasonable time limit

a. Fastweb C-19/13

b. Ufficio Iva Piacenza C-500/10

14. Right to appeal against a decision

a. Liivimaa C-562/12

26 ““That principle is, however, an integral element of the principle of effective judicial protection of the rights that

individuals derive from EU law, such as that guaranteed by Article 47 of the Charter” and adding that “the principle of

equality of arms […] is no more than a corollary of the very concept of a fair hearing that implies an obligation to offer

each party a reasonable opportunity of presenting its case in conditions that do not place it in a clearly less advantageous

position compared with its opponent”. 27 “Article 5 of Regulation No 1775/2005, read in conjunction with the Annex to that regulation, and Article 47 of

the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation

concerning the exercise of rights of action before the court or tribunal having jurisdiction to review the lawfulness of acts

of a regulatory authority, which, in circumstances such as those at issue in the main proceedings, does not make it possible

to confer on an operator, such as E.ON Földgáz, locus standi for the purpose of bringing an action against a decision of

that regulatory authority relating to the network code”;

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b. Type of bodies providing appeal

i. H.I.D. C-175/11

15. Collective action

a. Subsidiary and secondary to individual remedies

i. Photovost v Vasuta C-470/1228

ii. Firma feryn C-54/07 (Collective remedies)

16. Effective, proportionate and dissuasive penalties

i. Texdata C-418/11

17. Procedures not prohibitively expensive

a. Edwards C-260/11

18. No obligation to provide evidence

a. X and Y C-570/10

5. Is Article 47 empowering national judges in asylum/immigration and consumer law?

Case study on right to be heard and effective remedy

Right to be heard

What is the meaning of the right to be heard?

Before the entry into force of the Charter, in Commission v Ireland case, the CJUE affirmed that

50 The rule that the parties should be heard forms part of the rights of the defence.

It applies to any procedure which may result in a decision by a Community

institution perceptibly affecting a person’s interests (see, in particular, Case

C‑ 315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑ 5281, paragraph

28 and the case-law cited, and Bertelsmann and Sony Corporation of America v

Impala, paragraph 61).

51 The Community Courts ensure that the rule that the parties should be heard is

respected in proceedings before them and that they themselves respect that rule.

52 Thus, the Court has already held that the principle that the parties should be

heard means, as a rule, that the parties have a right to a process of inspecting and

commenting on the evidence and observations submitted to the court (Case

C‑ 450/06 Varec [2008] ECR I‑ 581, paragraph 47) and, moreover, that that basic

principle of law is infringed where a judicial decision is founded on facts and

documents which the parties, or one of them, have not had an opportunity to

examine and on which they have therefore been unable to comment (Joined Cases

42/59 and 49/59 SNUPAT v High Authority [1961] ECR 53, 84; Case C‑ 480/99

P Plant and Others v Commission and South Wales Small Mines [2002] ECR

I‑ 265, paragraph 24; and Case C‑ 199/99 P Corus UK v Commission [2003] ECR

I‑ 11177, paragraph 19).

As regards the scope and content, the EU based right to be heard was further defined by the CJEU on

the occasion of several preliminary rulings presented within the migration and asylum law area:

28 See also Sales Sinues, Joined Cases C‑ 381/14 and C‑ 385/14 and ACICL C-413/12, where the CJEU does not mention

art 47 CFR but follows the same argumentation.

Commented [fc2]: Here we focus on: right to be heard,

ex officio power and right to an effective remedy; look at

ex officio both in relation to remedies and in relation to

the duty to inform- empower the judge to hear; can 47 be

used to empower the judge

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It first stated in a case concerning subsidiary protection that the right to be heard should apply as a

general principle of EU law, to be complied with in the framework of the Common European Asylum

System (1). The Court then better defined the nature and the content of the right to be heard,

emphasising that such a general principle implies for third-country nationals the possibility to express

their point of view on both the legality of their stay and the detailed arrangement for their return. (2)

Finally, it addressed the legal value of the right to be heard as a possible plea based on public policy,

leaving it though optional for Member States in accordance with their procedural autonomy.29 (3)

Is there a difference between the right to be heard as defined in art 41 CFR and in art 47

CFR?

Art. 41 and Art. 47 CFR partially overlap as, on the one side, Art. 41(2)(a) provides that the right of

good administration includes “the right of every person to be heard, before any individual measure

which would affect him or her adversely is taken”; on the other, Art. 47 includes the same right within

the right to fair trial.

However, the CJEU in Y.S. affirmed that

67 It is clear from the wording of Article 41 of the Charter that it is addressed

not to the Member States but solely to the institutions, bodies, offices and agencies

of the European Union (see, to that effect, the judgment in Cicala, C‑ 482/10,

EU:C:2011:868, paragraph 28). Consequently, an applicant for a resident permit

cannot derive from Article 41(2)(b) of the Charter a right to access the national

file relating to his application.

68 It is true that the right to good administration, enshrined in that provision,

reflects a general principle of EU law (judgment in HN, C‑ 604/12,

EU:C:2014:302, paragraph 49). However, by their questions in the present cases,

the referring courts are not seeking an interpretation of that general principle, but

ask whether Article 41 of the Charter may, in itself, apply to the Member States of

the European Union.

Following this argumentation, the CJEU decided the case affirming, in particular, that Article

41(2)(b) CFR must be interpreted as meaning that the applicant for a residence permit cannot rely on

that provision against the national authorities.

The same limitation in terms of subjective scope does not apply to art. 47 CFR, as it will be clarified

below.

Is there a difference between the right to be heard as general principle and as identified in

articles 41 and 47 CFR?

In the settled case law of the CJEU, the need to respect the right to be heard during administrative

proceedings is considered as an integral component of the ‘rights of the defence’ together with the

right to have access to the file, that are among the fundamental rights forming an integral part of the

29 See C-161/15, Abdelhafid Bensada Benallal v État belge, ECLI:EU:C:2016:175 (freedom of movement for

workers), with a detailed opinion from the AG Mengozzi, on the 13 January 2016. In this regard, see also L. Leboeuf,

Droit d’être entendu et ordre public. Le rappel du principe d’équivalence, EDEM Newsletter, March 2016.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=173480&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=493313

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European Union legal order30. As recalled in Sopropé (C-349/07)31, the authorities of the Member

States must comply with EU general principles every time they take decisions which come within the

scope of EU law. Observance of these rights is therefore required even where the applicable

legislation does not expressly provide for such a procedural requirement.

In migration law, the Return Directive32 does neither refer expressis verbis to the Member States’

obligation to respect the right to be heard of the irregular migrants before taking an individual measure

likely to affect the person concerned, nor regulates the legal consequences when this right has been

breached by the competent authorities. Yet, according to the CJEU, the legal source of the obligation

to respect the right to be heard in the course of the return procedure derives from the general principle

of the rights of the defence, and not from Article 41 of the Charter33.

In this sense, in Mukarubega case, the CJEU affirmed

44 As the Court stated in paragraph 67 of the judgment in YS and

Others (C-141/12 and C-372/12, EU:C:2014:2081), it is clear from the wording of

Article 41 of the Charter that it is addressed not to the Member States but solely to

the institutions, bodies, offices and agencies of the European Union (see, to that

effect, judgment in Cicala, C-482/10, EU:C:2011:868, paragraph 28).

Consequently, an applicant for a resident permit cannot derive from

Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his

application.

45 Such a right is however inherent in respect for the rights of the defence,

which is a general principle of EU law.

46 The right to be heard guarantees every person the opportunity to make

known his views effectively during an administrative procedure and before the

adoption of any decision liable to affect his interests adversely (see, inter alia,

judgment in M., EU:C:2012:744, paragraph 87 and case-law cited).

47 In accordance with the Court’s case-law, the purpose of the rule that the

addressee of an adverse decision must be placed in a position to submit his

observations before that decision is adopted is to enable the competent authority

effectively to take into account all relevant information. In order to ensure that the

person concerned is in fact protected, the purpose of that rule is, inter alia, to

enable that person to correct an error or submit such information relating to his or

her personal circumstances as will argue in favour of the adoption or non-adoption

of the decision, or in favour of its having a specific content (see, to that effect,

judgment in Sopropé, EU:C:2008:746, paragraph 49).

30 See Cases T-191/98 and T-212 to 214/98, Atlantic Container Line v. Commission [2003] ECR II-3275; Joined

Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi [2013] ECR I-0000, para. 98 and 99; 31 Case C-389/07, Sopropé, (post-clearance recovery of customs import duties), ECLI:EU:C:2008:746, para. 36-

38 32 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common

standards and procedures in Member States for returning illegally staying third-country nationals 33 C-383/13 PPU, M. G., N. R. v Staatssecretaris van Veiligheid en Justitie, ECLI:EU:C:2013:533, para. 32.

13

It is important to note that the status of the right to be heard was the subject of the dialogue between

European and national courts (in particular between the first instance courts and the council of state

in France).

Judicial dialogue in Mukarubega and Boudjilida cases.

Is the right to be heard only applicable to weaker parties (eg consumers or asylum seekers)?

In Biuro case, the AG clearly affirmed that

60. Le droit du professionnel, en vertu de l’article 3, paragraphe 2, troisième

alinéa, de la directive 93/13 de fournir des arguments et des preuves afin de

s’acquitter de la charge de la preuve, me semble faire partie du droit plus général

et plus large découlant de l’article 47 de la Charte, à la lumière de laquelle les

dispositions de la directive 93/13 doivent être lues (47).

61. L’article 47 de la Charte garantit à toute personne (48), dans les situations

entrant dans le champ d’application de la Charte (49), le droit d’être entendue,

tant au cours d’une procédure administrative que d’une procédure juridictionnelle

(50). Selon les termes de la Cour, ce droit inclut la possibilité de faire connaître,

de manière utile et effective, son point de vue, avant l’adoption de toute

décision susceptible d’affecter de manière défavorable ses intérêts, pour que

l’autorité compétente soit mise à même de tenir utilement compte de l’ensemble des

Commented [A3]: In the presentation clarify the dialogue among the courts and the views of the Council of State

14

éléments pertinents (51). Cela vaut, évidemment, pour une décision imposant une

sanction pécuniaire à un professionnel.”

It should be noted that the case can be interpreted as a follow up of Invitel case where the CJEU

decided a case regarding the effects an injunction procedure initiated by a consumer organisation

towards third parties (i.e. other consumers having the same clauses included in their contracts with

the same telephone operator). There the court affirmed that the recognition of unfairness' effects by

the national court shall bring about effects not only for the consumers who were represented in the

procedure by the consumer organisation but also to those who concluded a contract with the server

provider under the same standard contract terms, and who were not party to the injunction

proceedings (see par 38). Moreover, the court should apply, of its own motion, and also with regard

to the future, all consequences of unfairness which are provided by national law (par. 43).

Judicial dialogue in the Biuro case.34

What is the power of the judge as regards the right to be heard? Which are the limits to the

power of the judge?

In Banif Plus case, the CJEU affirmed that the ex officio power regarding the evaluation of the

unfairness of the consumer contract clauses should comply with art 47 CFR, and in particular with

one of the elements that is included in the wide concept of effective judicial protection, namely the

principle of audi alteram partem. The CJEU then affirmed that the national court, although they have

the duty to assess the unfairness of the consumer clause, they should present their assessment to the

parties and leave (both of) them the opportunity to react to such an evaluation:

29 However, in implementing European Union law, the national court must also

respect the requirements of effective judicial protection of the rights that

individuals derive from European Union law, as guaranteed by Article 47 of the

Charter of Fundamental Rights of the European Union. Among those requirements

is the principle of audi alteram partem, as part of the rights of defence and which

34 See below Annex 2 – casesheet n. 5.

15

is binding on that court, in particular when it decides a dispute on a ground that it

has identified of its own motion (see, to that effect, Case C‑ 89/08 PCommission v

Ireland and Others [2009] ECR I‑ 11245, paragraphs 50 and 54).

30 Thus, the Court has held that, as a general rule, the principle of audi alteram

partem does not merely confer on each party to proceedings the right to be apprised

of the documents produced and observations made to the court by the other party

and to discuss them, but it also implies a right for the parties to be apprised of pleas

in law raised by the court of its own motion, on which it intends to base its decision,

and to discuss them. The Court has pointed out that, in order to satisfy the

requirements associated with the right to a fair hearing, it is important for the

parties to be apprised of, and to be able to debate and be heard on, the matters of

fact and of law which will determine the outcome of the proceedings (see

Commission v Ireland and Others, paragraphs 55 and 56).

Which are the remedies to the breach of the right to be heard?

In G. & R. case, the CJEU affirmed clearly that in administrative proceedings the remedies available

to the national judge are limited:

32 It is settled case-law that the rights of the defence, which include the right to be

heard and the right to have access to the file, are among the fundamental rights forming

an integral part of the European Union legal order and enshrined in the Charter of

Fundamental Rights of the European Union (see, to that effect, Joined Cases C-584/10 P,

C-593/10 P and C-595/10 P Commission and Others v Kadi [2013] ECR I-0000,

paragraphs 98 and 99 and the case-law cited). It is also true that observance of those

rights is required even where the applicable legislation does not expressly provide for such

a procedural requirement (see, to that effect, Case C-277/11 M. [2012] ECR I-0000,

paragraph 86 and the case-law cited).

33 However, the Court has held that fundamental rights, such as observance of the

rights of the defence, do not constitute unfettered prerogatives and may be restricted,

provided that the restrictions in fact correspond to objectives of general interest pursued

by the measure in question and that they do not constitute, with regard to the objectives

pursued, a disproportionate and intolerable interference which infringes upon the very

substance of the rights guaranteed (Case C-28/05 Dokter and Others [2006] ECR I-5431,

paragraph 75).

34 Further, the question whether there is an infringement of the rights of the defence

must be examined in relation to the specific circumstances of each particular case (see, to

that effect, Case C-110/10 P Solvay v Commission [2011] ECR I-10439, paragraph 63),

including the nature of the act at issue, the context of its adoption and the legal rules

governing the matter in question (Commission v Kadi, paragraph 102 and the case-law

cited).

35 Thus, when they take measures which come within the scope of European Union law,

the authorities of the Member States are, as a rule, subject to the obligation to observe the

rights of the defence of addressees of decisions which significantly affect their interests.

Where, as in the main proceedings, neither the conditions under which observance of the

third-country nationals’ right to be heard is to be ensured, nor the consequences of the

infringement of that right, are laid down by European Union law, those conditions and

16

consequences are governed by national law, provided that the rules adopted to that effect

are the same as those to which individuals in comparable situations under national law

are subject (principle of equivalence) and that they do not make it impossible in practice

or excessively difficult to exercise the rights of defence conferred by the European Union

legal order (principle of effectiveness) (see, to that effect, inter alia, Case

C-349/07 Sopropé [2008] ECR I-10369, paragraph 38, and Case C-452/09 Iaia and

Others [2011] ECR I-4043, paragraph 16).

36 None the less, while the Member States may allow the exercise of the rights of the

defence of third-country nationals under the same rules as those governing internal

situations, those rules must comply with European Union law and, in particular, must not

undermine the effectiveness of Directive 2008/115.

37 The Member States must therefore take account of the case-law concerning

observance of the rights of the defence in conjunction with the scheme of Directive

2008/115 when, in the exercise of their procedural autonomy, they determine the

conditions under which observance of the right to be heard of illegally-staying third-

country nationals is to be ensured and act upon an infringement of that right.

38 As regards the questions raised by the referring court, it must be noted that,

according to European Union law, an infringement of the rights of the defence, in

particular the right to be heard, results in annulment only if, had it not been for such an

irregularity, the outcome of the procedure might have been different (see, to that effect,

inter alia, Case C-301/87 France v Commission [1990] ECR I-307, paragraph 31; Case

C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 101; Case

C-141/08 Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR

I-9147, paragraph 94; Case C-96/11 P Storck v OHIM [2012] ECR I-0000, paragraph

80).

39 It follows that not every irregularity in the exercise of the rights of the defence in an

administrative procedure extending the detention of a third-country national with a view

to his removal will constitute an infringement of those rights. Consequently, nor will every

breach of, in particular, the right to be heard systematically render the decision taken

unlawful, for the purposes of the final sub-paragraph of Article 15(2) of Directive

2008/115, and therefore not every such breach will automatically require the release of

the third-country national concerned.

40 To make such a finding of unlawfulness, the national court must – where it considers

that a procedural irregularity affecting the right to be heard has occurred – assess

whether, in the light of the factual and legal circumstances of the case, the outcome of the

administrative procedure at issue could have been different if the third-country nationals

in question had been able to put forward information which might show that their detention

should be brought to an end.

6. Ex officio powers of the national courts

What is the power of the judge and which are the limits to such power?

In consumer law area, since 2000, the CJEU allocated on national judges a relevant role in terms of

ex officio control of the unfairness of consumer clauses. In Oceano Grupo,35 the CJEU held that the

Unfair terms Directive allocate on the judges the obligation to verify if the clause may be deemed as

35 Joined Cases C-240-244/98, Océano Grupo ed. al. v. Quintero et al, [2000] ECR I-4941

17

unfair when making their preliminary assessment of the claim, on the basis of art 6 of the Directive.

The CJEU deemed such ex officio power as a means to achieve the result of preventing the individual

consumer from being bound by an unfair term. This power was not limited then by the fact that the

consumer had not requested the national court to do so, as in Cofidis36 the CJEU added that national

legislation prohibiting (or limiting with time limitations) the courts to assess the unfairness of

consumer clauses are not compliant with EU law. A step further was done with Mostaza Claro37 case

where the CJEU affirmed that national courts have the duty to assess the unfairness on their own

motion, regardless of the type of proceedings they are involved in. This duty was little tempered in

Pannon,38 where the CJEU specified that the courts are required to act “where it has available to it

the legal and factual elements necessary for the task”. This however, would not entail the obligation

to conduct additional research for relevant facts. Moreover, the CJEU affirmed that the consumer

cannot be protected against his will, thus the national court has to give the consumer a chance to make

his opinion heard, but need not wait for an initiative of the consumer.39 In Aziz,40 then, the CJEU

affirmed, on the basis of the fact that the principle of effectiveness must be assessed by reference to

the role of that provision in the procedure, its progress and its features, viewed as a whole, before the

various national bodies, the fact that in the enforcement proceedings the judge may not assess the

unfairness of the clause hinders the implementation of art 6 of the Unfair Terms Directive. Thus, such

legislation was not deemed compliant with EU law. 41

All the previous decisions, however, were not based on art 47 CFR but on the assessment of the

effectiveness of EU law, only in aforementioned Banif Plus, in the more recent cases of Sanchez

Morcillo42 and Kusionova43 cases, the CJEU referred to the Charter in its reasoning.

In particular, in the Sanchez Morcillo case the intervention of the CJEU triggered a legislative

revision of the Spanish procedural code so as to comply with EU law.

36 Case C-473/00, Cofidis v. J.-L. Frédout, [2002] ECR I-10875 37 Case C-168/05, E.M. Mostaza Claro v. Centro Movil Milenium, [2006] ECR I-10421 38 Case C-243/08, Pannon v. E. S.G., [2009] ECR I-4713, para 32 39 This approach was then confirmed in Case C-618/10, Banco espanol de Credito v. Camino, judgment of 14 June 2012. 40 Case C-415/11, Aziz v. Catalunyacaixa, judgment of 14 March 2013 41 Note that the ex officio power of national courts was not limited to unfair clauses, as also in consumer credit law and

doorstep selling law such power was allocated on courts. See cases C-429/05 Rampion and Godard and C-227/08 Eva

Martin Martin v EDP Editores. 42 Case C-169/14 Sánchez Morcillo and Abril García v Banco Bilbao, Judgment of 17 July 2014. 43 Case C-34/13, Kušionová v SMART Capital a.s., judgment of 10 September 2014

18

Judicial dialogue in Sanchez Morcillo case.44

More recently, the AG Kokott has addressed the problem of the ex officio power also in relation to a

specific jurisdiction existing in the Spanish legal system, namely the so called Secretario judicial in

the Panicello case. The AG affirmed in particular that:

“135. En effet, si l’on considère dans son ensemble la procédure d’adoption et d’exécution

de la décision prise dans le cadre de l’action en paiement d’honoraires, il apparaît

clairement qu’il n’est pas pertinent de déplacer le contrôle du caractère abusif et déloyal

au stade de l’exécution (65). En effet, cela reviendrait, dans le cadre de la procédure située

en amont, visant à l’adoption du titre exécutoire, à enjoindre à un consommateur, sous la

menace de l’exécution subséquente, de payer une créance reposant potentiellement sur des

clauses abusives ou des pratiques commerciales déloyales.

136. C’est pourquoi tant par souci d’économie procédurale que pour des motifs de mise

en œuvre effective des règles de droit de l’Union en cause, il convient de rejeter un report

du contrôle du caractère abusif ou déloyal au stade de l’exécution,. En effet, un tel report

entraînerait un risque non négligeable que le débiteur procède immédiatement au

paiement à la réception de la décision du secretario judicial, eu égard à l’autorité naturelle

de celleci, sans qu’une procédure d’exécution ultérieure soit nécessaire. L’existence

d’une décision exécutoire produit en effet à elle seule une pression non négligeable sur le

consommateur afin qu’il honore ses (prétendues) obligations de paiement, et il en va

d’autant plus ainsi lorsque la procédure de délivrance du titre exécutoire est conçue,

comme en l’espèce, comme une procédure contentieuse visant à l’adoption d’une décision

de caractère juridictionnel. En outre, ainsi que la Commission l’a souligné à juste titre à

l’occasion de l’audience, l’opposition dans le cadre de la procédure d’exécution ne peut

en aucune manière être assimilée à une possibilité de recours contre la décision du

secretario judicial. Ceci est d’autant plus vrai dans la mesure où, en l’espèce, comme

exposé cidessus (66), un tel recours n’aurait pas d’effet suspensif pour la procédure

d’exécution.

137. Le fait de prévoir un contrôle du caractère abusif et déloyal non pas dans le cadre

de la procédure devant le secretario judicial, mais dans le cadre de la procédure

d’exécution qui lui succède favoriserait donc le paiement de créances transformées en

titres exécutoires dans le cadre de l’action en paiement d’honoraires, mais potentiellement

abusives ou déloyales. Un tel résultat serait évidemment contraire à la protection du

consommateur à laquelle tend la directive 93/13 lue en combinaison avec la directive

2005/29 et l’article 47 de la Charte.”

Do national courts have an obligation to address the violation of the right to be heard (by public authorities)

on their own motion even if the complainant (third country national/consumer) did not raise it?

In the Benallal case, the CJEU addressed whether EU law requires Member States to consider the

right to be heard as a plea pertaining to public policy, thus likely to be raised by the courts ex officio,

even in appeals on a point of law. The CJEU affirmed that

31 Consequently, if a national court hearing an appeal on a point of law considers the

plea based on failure to respect the right to be heard to be a plea based on national public

policy which may be raised for the first time before it in proceedings governed by national

44 See below Annex 2 – case sheet n. 2.

19

law, the principle of equivalence requires that, in the same proceedings, a similar plea

alleging infringement of EU law may also be raised for the first time before that same court

at the stage of an appeal on a point of law.

32 In the circumstances of the present case, it is not clear from the decision to refer that

the right to be heard, as guaranteed by Belgian law, constitutes, in itself, a general

principle of Belgian law coming under the national public policy of that Member State.

However, the referring court observes in this regard that the rules of public policy are

those which are of fundamental importance in the Belgian legal system, such as the rules

relating to the powers of the administrative authorities, the jurisdiction of the courts,

respect for the rights of the defence or those concerning other fundamental rights.

33 In that regard, in order to enable the referring court to determine whether the plea

alleging infringement of the right to be heard in EU law is similar to a plea alleging

infringement of such a right in Belgian law, it should be noted, as the Court held in its

judgment in Spain vCommission (C-287/02, EU:C:2005:368, paragraph 37 and the case-

law cited), that respect for the rights of the defence is, in all proceedings initiated against

a person which are liable to culminate in a measure adversely affecting that person, a

fundamental principle of EU law which must be guaranteed even in the absence of any

rules governing the proceedings in question. That principle requires that the addressees of

decisions which significantly affect their interests should be placed in a position in which

they may effectively make known their views.

34 It is for the competent national court to examine whether the condition connected to

the principle of equivalence is satisfied in the case before it. With more specific regard to

the case in the main proceedings, it is for the national court to determine whether the right

to be heard, as guaranteed by national law, satisfies the conditions required by national

law for it to be classified as a matter of public policy.

In Finanmadrid case, the AG Szpunar affirmed that

93. Thus, in my opinion, Article 47 of the Charter does not preclude a simplified

national procedure which provides for an examination of the substance of the claims only

where the defendant has lodged objections and does not therefore allow the court to review

the contract terms of its own motion in the absence of objections. Furthermore, Article 47

does not preclude a procedural rule which prevents the court with responsibility for

enforcement from raising of its own motion an infringement of the rights of the defence

arising from improper service of documents, where the defendant has not lodged

objections.

94. I recall, in that regard, that observance of the rights of the defence is not absolute

and may be subject to restrictions. In its case-law on the interpretation of Regulation (EC)

No 44/2001, (30) the Court accepted the possibility of taking further steps in the

proceedings without the defendant’s knowledge, provided that all investigations required

by the principles of diligence and good faith have been undertaken to trace the defendant,

in the light of the fact that the defendant will be able to object to recognition of the judgment

at a later stage. (31)

95. A different approach would have to be taken if the defendant did not have access to

an effective remedy enabling him to object to the order, for example, due to the restrictive

rules on the manner in which the period prescribed for lodging objections is

calculated, (32) the prohibitive cost of the procedure or the very absence of a procedure

http://curia.europa.eu/juris/document/document.jsf?text=&docid=171301&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1449115#Footnote30



20

permitting reconsideration of an order for payment adopted without the defendant’s

knowledge. (33)

96. The order for reference does not contain enough information for the Court to be

able to answer those questions. In particular, even though the referring court appears to

be of the view that there was improper service in the order for payment procedure in this

case, it does not explain why it regards such service as improper and does not state whether

there are any remedies enabling the parties concerned to object to enforcement when they

finally become aware of the decision taken without their knowledge.

97. I therefore consider that if the Court finds it necessary to answer the third and fourth

questions, it should do so as follows: Article 47 of the Charter does not preclude national

legislation that prevents the court with responsibility for enforcement from reviewing the

enforceable instrument of its own motion and raising defects in the order for payment

procedure of its own motion, provided that the defendant has access to an effective remedy

enabling him to object to the order for payment and argue that his rights of the defence

have been infringed.

7. Effective remedies

When a remedy is effective?

In Kusionova, 45 the CJEU suggested that interim measures stopping the auction of a family home are

adequate and effective means to prevent the continued use of unfair terms and are thus in line with

the Unfair Terms Directive. Interim measures in general constitute an effective and dissuasive penalty

for businesses infringing EU law. They are furthermore a proportional penalty if the national court

deciding over the measures takes into account the fact that the property subject to the charge is

immovable property forming the consumer's family home, the right to accomodation being a

fundamental right guaranteed under the Charter of Fundamental Rights of the EU. In particular, the

CJEU affirmed that

66 With regard in particular to the consequences of the eviction of the consumer and

his family from the accommodation forming their principal family home, the Court has

already emphasised the importance, for the national court, to provide for interim measures

by which unlawful mortgage enforcement proceedings may be suspended or terminated

where the grant of such measures proves necessary in order to ensure the effectiveness of

the protection intended by Directive 93/13 (see, to that effect, the judgment in Aziz,

EU:C:2013:164, paragraph 59).

67 In the present case, the fact that it is possible for the competent national court to

adopt any interim measure, such as that described in paragraph 60 of the present

judgment, would suggest that adequate and effective means exist to prevent the continued

use of unfair terms, which is a matter for the referring court to determine.

68 It follows from the foregoing considerations that Directive 93/13 must be interpreted

as not precluding national legislation, such as that at issue in the main proceedings, which

allows the recovery of a debt that is based on potentially unfair contractual terms by the

extrajudicial enforcement of a charge on immovable property provided as security by the

consumer, in so far as that legislation does not make it excessively difficult or impossible

45 Case note 5 – Module Consumer


21

in practice to protect the rights conferred on consumers by that directive, which is a matter

for the national court to determine.

In migration law area, following the jurisprudence of the ECtHR, the CJEU established in the Abdida

case that Article 13 RD, read in conjunction with Articles 5 and 9 of the Return Directive, and Articles

19(2) and 47 EUCFR oblige the reviewing body to grant automatic suspensive effect to the

appeal/remedy in case of risk of refoulement to a country where he/she will be exposed to ill-

treatment.

On the 22 March 2016, the Supreme Court of Estonia found that in cases where there is a need to

protect a person´s private and family life, the suspension of the removal order might also be the

appropriate measure to ensure the efficiency of a legal remedy. In case of expulsion of a complainant

to a State, where he/she does not have any contacts and a place to live, his/her participation in the

proceedings is essential for ensuring respect of his private and family life.

While Abdida is a case where at issue was the violation of a non-derogeable right (risk of ill-

treatments in a medical case), in this case, at issue was the relative human right of family life.

Following a proportionality assessment, the Court found that the immediate removal of the TCN

concerned would entail a disproportionate restriction, amounting to an almost absolute denial of the

right to family life, which is precluded by the ECHR.

Other national courts did not wait for the CJEU’s judgments in Abdida and Tall; they opted

for a proactive approach and made available suspensive remedies for foreigners facing expulsion,

either as a rule or under specific circumstances.

The Czech Supreme Administrative Court grants in practice suspensive effect (even to cassation

proceedings) when, upon request, the applicant shows that (1) the decision issued would cause far

greater harm to him/her compared to other applicants placed in a similar situation, (2) that the

suspensive effect would not breach any important public interest (SAC 1 Azs 160/2014-25, 19

November 2014). According to the Czech Constitutional Court, a judicial review should be afforded

to applicants when suspensive effect of appeals in removal proceedings is denied

22

Comparative table

Rights / Areas Consumer protection Migration

Right to fair hearing

– audi alteram

partem

Banif Plus Bank, Erste Bank,

Asbeek, Radlinger

Benallal (only Opinion)

Right to fair hearing

– equality of arms

Sanchez Morcillo I

Sanchez Morcillo II

Right to be heard Biuro Mukarubega, Boudjlida, (administrative

proceedings) ZZ, (both admin and jud

proceedings); Mahdi (judicial proceedings)

Right to fair trial

Right to an effective

remedy

Kusionova Abdida

Tall

Right to defence Boudjlidia

Right to appeal Sanchez Morcillo I

Sanchez Morcillo II

Samba Diouf

Collective redress Pohotovost, ACICL, Sales

Sinues, Invitel, Burjo

Firma feryn

Out-of-court

settlement

Alassini

23

Annex 2

Case notes from the ACTIONES Handbooks

Casesheet n. 1 – Banif Plus Bank

Core issues

When the judge finds a clause to be unfair, should he/she wait for the consumer to submit a statement

requesting that the term be declared invalid?

Should he/she invite the litigants to express their views on this matter?

To what extent do these requirements limit the judicial ex officio power/duty to declare an unfair term

invalid or non-binding?

1. Timeline representation

2. Case law description

The credit agreement between Mr Csaba Csipai and Banif Plus Bank was concluded through a

standard form contract. The latter included a clause that allowed the Banif Bank Plus to claim for the

full amount of the loan as well as default interest and costs in case of breach of contract by the

borrower. As Mr Csipai paid only part of the instalments defined by the contract, the bank terminated

the agreement and presented a claim in front of the Pest Central District court in order to recover the

debt. As Pest Central District Court evaluated ex officio the clause as unfair, it allowed the parties to

comment, then decided the case on 6 July 2010 addressing the contract excluding the unfair clause.

Banif Plus Bank appealed against that decision before the Budapest Municipal Court, which decided

to stay the proceedings and to refer the following questions:

‘Are the procedures of a national court consistent with Article 7(1) of [the Directive] if,

where a contract term is held to be unfair, and the parties did not submit a claim to that

effect, the court informs them that it holds sentence 4 of clause 29 of the standard contract

terms of the loan agreement between the parties to the proceedings to be invalid? That

6 July 2010

Decision by Pest Central District Court

16 June 2011

Preliminary reference by Budapest Municipal

Court

21 February 2013

Decision of CJEU

C-472/11

*****

Decision by Budapest Municipal court

Area

• Consumer protection

Country

• HUNGARY

Charter provision

•art 47

Judicial dialogue technique

•preliminary reference

Actors

• CJEU

• Appeal Court

Remedy

• ex officio power of judge

• principle of audi alteram partem

24

invalidity arises from breach of the legislation, namely Paragraphs 1(1)(c) and 2(j) of

Government Decree No 18/1999 …

In the circumstances of the first question, is it permissible for the court to direct the

parties to the proceedings to make a statement in relation to the contract term in question,

so that the legal implications of any unfairness may be established and so that the aims

expressed in Article 6(1) of [the Directive] may be achieved?

In the circumstances described above, is it permissible for the court, when examining an

unfair contract term, to examine all the terms of the contract, or may it examine only the

terms on which the party concluding the contract with the consumer bases his claim?’

The CJEU decided the case on 21 February 2013. The Court addressed only the principle of

effectiveness, disregarding the principle of equivalence, starting from the assertion that the judge has

the duty to ascertain on its own motion the unfairness of contract clause, and should be able to

establish all the consequences of such a qualification under national law.46 However, the CJEU

balances effectiveness with the principle of effective judicial protection (art 47 CFREU) and in

particular with the principle of audi alteram partem, which is part of the rights of defence.

Under this principle, the CJEU acknowledged that the both parties should not only be aware of the

documents and observations made by the court but also be able to discuss them. Moreover, the court

affirmed that in order to guarantee the right to a fair hearing, the parties should be able to debate and

be heard on the matters of fact and law that are determinative.47

The CJEU then affirmed on this point that:

“Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms

in consumer contracts must be interpreted as meaning that the national court which has

found of its own motion that a contractual term is unfair is not obliged, in order to be

able to draw the consequences arising from that finding, to wait for the consumer, who

has been informed of his rights, to submit a statement requesting that that term be

declared invalid. However, the principle of audi alteram partem, as a general rule,

requires the national court which has found of its own motion that a contractual term is

unfair to inform the parties to the dispute of that fact and to invite each of them to set out

its views on that matter, with the opportunity to challenge the views of the other party, in

accordance with the formal requirements laid down in that regard by the national rules

of procedure.”

3. Analysis

a. Role of the Charter

Although not included in as a reference within the preliminary reference, the CJEU evaluated the

national provision taking into account art. 47 CFREU. The Charter article is found to contain the

principle of audi alteram partem as well as the principle of a fair hearing.

Art. 47 CFREU is then used to balance the evaluation of compliance provided by the effectiveness

test. The CJEU tempered the duty to exercise the ex officio power by the national court with the

obligation to safeguard the possibility for the parties to present their observations regarding the

evaluation of unfairness.

46 Para 27. 47 Para 30.

25

b. Judicial dialogue

The national court sought guidance from the CJEU as regards the way in which it could consistently

interpret the general procedural rule regarding the principle of petitum (or non ultra petita) and the

obligation to ex officio evaluate the contractual clause. The preliminary reference clearly sought

guidance regarding the possibility to consistently apply the national provisions in order to comply

with EU law.

The CJEU provided guidance assuming the consistent interpretation, adressing in more general way

the issue presented by the national court through the principle of audi alteram partem, thus tempering

the results of its own case law on ex officio power of the judge.48

c. Remedies

The CJEU added a specific consideration to the exercise of ex officio power of the judge: the court

clarified that national courts have the duty to evaluate the unfairness on their own motion, but their

evaluation should not overcome the preference of the consumer. First, the evaluation of the national

court should be presented to the parties, leaving sufficient time for both to present their views;

secondly, the court should take into account the possibility that the consumer would prefer to apply

the unfair clause. However, the court is not obliged to wait for the consumer to make a statement

requesting the term be declared invalid before making such a declaration.49

d. Impact of CJEU decision

i. external

Spain

Supreme Court, First Chamber n. 241/2013, 9 May 2013 - Asociación de Usuarios de los Servicios

Bancarios, Ausbanc Consumo v Banco Bilbao Vizcaya Argentaria, SA, Cajamar Caja Rural,

Sociedad Cooperativa de Crédito and Caja de Ahorros de Galicia, Vigo, Orense y Pontevedra. The

Supreme court addressed the claim presented by a consumer protection association against three

banks, asking for the floor clauses (clausulas suelo) included in several loan mortgages granted by

such entities to be declared null and void on the grounds of non-completion by the banks of the

information duties set out in the EU Directive 93/13. In the evaluation of the EU principles to be

applied to the case, the Supreme Court mentioned several CJEU judgements supporting its reasoning,

and in particular cited Banif Plus Bank paragraph 30 concerning the duty to raise ex officio the

unfairness of clauses and the obligation to give sufficient time to parties to react to such evaluation.50

The Supreme court declared null and void the floor clause on three grounds: (1) the banks did not

provide information on the inclusion of the floor clauses; (2) the banks did not provide information

on the potential consequences in the event of a sharp drop in interests rates (as eventually happened);

(3) the level of floor clauses and cap clauses imposed within the same loans were highly imbalanced.

However, the Supreme Court dismissed the claim of the plaintiffs seeking an order to pay back to

their clients the amounts unduly collected by application of the floor clauses. The justification of such

48 In particular, C‑243/08, Pannon GSM Zrt. V Erzsébet Sustikné Győrfi, ECLI:EU:C:2009:350; C-137/08, VB Pénzügyi

Lízing Zrt. v Ferenc Schneider, ECLI:EU:C:2010:659; and C-618/10, Banco Español de Crédito SA v Joaquín Calderón

Camino, ECLI:EU:C:2012:349. 49 See on this point, also the interpretation of the Italian Supreme Court following the decision in Pannon below. 50 Para 125 of the decision.

26

lack of retroactive effects was the necessity to preserve legal certainty and to avoid negative

consequences to a country’s economic stability and general interests.51

ii. Preliminary references connected to the case and pending before the ECJ

Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged

on 23 January 2014 – ERSTE Bank Hungary Zrt. v Attila Sugár. Case C-32/14

1. Does a procedure of a Member State comply with Article 7(1) of Directive 93/13/EEC if, under

that procedure, in the event of a breach by the consumer of an obligation contained in a document in

due form drawn up by a notary, the other party to the contract avoids inter partes proceedings before

a court and asserts its claim to the amount it indicates by issuing what is known as an “enforcement

clause”, without any examination being possible of the unfairness of a term of the underlying

contract?

2. In such a procedure may the consumer request the annulment of the enforcement clause already

issued, on the basis that there was no examination of the unfairness of a term of the underlying

contract, whereas, according to the judgment in Case C-472/11, in court proceedings the court must

inform the consumer if it finds that a term is unfair?

8. Casesheet n. 2 – Sanchez Morcillo I and II

Core issues

Should the consideration for the fundamental right to effective judicial protection (art. 47 CFREU)

lead a judge hearing a mortgage execution to stay the procedure and allow for interim measure if he

finds that the procedure is grounded on a title based on unfair terms?

51 Interestingly, after the decision several national lower courts did not follow the Supreme Court, allowing the possibility

for clients of banks to recover the sums paid under the application of floor clauses since the conclusion of the contracts.

The Supreme Court then intervened again with decisions n. 138/2015, of 24 March 2015 and n. 139/2015 of 25 March

2015, clarifying that when there is a declaration of invalidity of a floor clause, the restitution of the interests that would

have been paid only dates back to 9 May 2013, the date of the previous decision of the Supreme Court when the clause

was declared invalid.

Area


Country

• SPAIN

Charter provision

• art 47

• art 34


• preliminary reference

• disapplication

Actors

• CJEU

• Appeal court

• Constitutional Court

• Lower courts

• Legislator

Remedy

• Right to appeal

• ex officio power

Formatted: No bullets or numbering

27

Should the consideration for the fundamental right to effective judicial protection (art. 47 CFREU)

lead a court of appeal to assess the unfairness of the title on which the mortgage procedure is grounded

although the grounds for appeal pursuant to existing national law?

How should the judge choose between disapplication, conform interpretation or a preliminary

reference in respect of any national rule that could violate art. 47 CFREU under these respects?

To what extent is art. 47 a sufficient ground for disapplication (or conform interpretation) of national

law and to what extent is consideration for other rights or principles necessary (e.g. the right to

housing)?

How can these latter considerations influence the choice of remedies, namely between a timely

termination of the executory procedure v. compensatory measures once the family home is seized and

sold as security?

Can the judge extend these consumer protective measures based on art. 47 CFREU to cases in which

the consumer’s claim is based on grounds other than those covered by E.U. law?



On May 14th 2013 the reform of several provisions of the Spanish Code of Civil procedure and related

Laws was enacted by Ley 1/2013,52 which aimed at reinforcing the protection of mortgage debtors,

with particular attention being paid to vulnerable categories. The Law was enacted as an

implementation of the CJEU decision in Case C-415/11 Mohammed Aziz.53

52 Ley 1/2013, de 14 de mayo, de medidas para reforzar la protección a los deudores hipotecarios, reestructuración

de deuda y alquiler social. BOE 116, 15 May 2013.

53 See Case sheet n. 6.

14 May 2013

Ley 1/2013

14 November 2013

Question of constitutionality by Tribunal of Aviles

10 March 2014

Decision of inadmissibility by

Constitutional Court

2 April 2014

Preliminary reference by Audencia Provincial

de Castellon

8 April 2014

Decision of indamissibility by

Costitutional Court

17 July 2014

Decision of CJEU

C-169/13

5 September 2014

Real Decreto Lay 11/2014

21 November 2014

Preliminary reference by Audencia Provincial

de Castellon

16 July 2015

Decision by CJEU

C-539/14

3 September 2015

Decision Audencia Provincial de

Castellon

28

With the amendment, the Spanish legislator introduced a new ground of objection based on the

unfairness of the contractual terms within the foreclosure proceeding. This ground of objection leads

to an incidental and separate procedure within the executive one. The incidental procedure is an oral

one: the parties may only submit the documents that they consider pertinent, as provided by art. 695.2

CCP.54 If the judge deems the ground as well-founded, the enforcement is suspended and the

execution is terminated. If the judge deems the ground unfounded, the enforcement will continue. As

provided by art. 695.4 CCP, the order declaring the unfairness of the clause and the dismissal of the

execution or non-application of the unfair term is subject to appeal. On the contrary, the order

rejecting the objection is not subject to appeal.55

This different treatment as regards the possibility of appeal against the decision of the judge within

the foreclosure proceeding, led to a set of questions of constitutionality presented by the Tribunal of

Lower Instance of Aviles. These questions questioned if art. 695.4 CCP was compatible with the

principle of equality, and its specific procedural application, namely the principle of equality of arms,

which the Constitutional Court deemed included in the substance of Art. 24.1 SC.56

The Spanish Constitutional Court however left the question unresolved in light of procedural rules.

The amparo de constitutionalidade required that in order to deem such a request admissible, the court

should specify or justify to what extent the outcome of the decision depends on the validity of the

provision in question (the so-called juicio de relevancia). The Spanish Constitutional Court found

that the Tribunal of Aviles did not justify the connection between the specific provision and the

solution of the proceedings.57 Thus, the Constitutional Court deemed the questions inadmissible in

decisions AATC 70/2014 and 71/2014, of 10th March 2014 and AATC 111/2014, 112/2014, and

113/2014, of 8th April 2014.

In the meantime, the Audencia Provencial de Castellon received an appeal against the decision of the

Court of First Instance n. 3 of Castellon. The First Instance decision rejected the objection of a

consumer regarding the enforcement of a notarial act which allowed the Bank (in the specific case

Banca Bilbao) to demand payment of the entire loan together with ordinary and default interest and

the enforced sale of the mortgaged property. Although neither the debtor alleged as ground of

opposition the existence of unfair terms, nor the First Instance Court raised the possible existence of

unfair terms, the Audencia Provencial deemed that the relevant provisions applicable to the case,

namely the above mentioned art. 695.4 CCP (as allowing for appeal only in case of dismissal of the

execution based on the unfairness of the title) could be incompatible with the objective of consumer

protection pursued by Directive 93/13 and with the right to an effective remedy guaranteed by art. 47

CFREU.

Although not all the questions of constitutionality addressing the same provision were decided by the

Constitutional Court, on April 2nd 2014 the Audencia Provencial de Castellon made a preliminary

reference to the Court of Justice of the European Union, which addressed the same issue. In its

reference it posed the following questions:

54 Note that this ground for opposition is only available for consumers, as defined in the Royal Legislative Decree 1/2007,

approving the consolidated version of the General Law for the Protection of Consumers and Users and other

supplementary laws (hereinafter TRLGDCU). 55 However, the debtor the debtor may still exercise nullity of action for abuse of that clause in ordinary declaratory

proceedings under Art. 698 LEC, but without affecting the executive process. 56 Juzgado de Primera Instancia e Instrucción n.º 7 de Avilés, Auto 6957/2013; 6958/2013; 6959/2013; 6960/2013

and 6961/2013, of 14 November 2013. 57 See the analysis in Helena Díez García, Igualdad de Armas y Tutela Judicial Efectiva en el Art. 695.4 LEC tras el Real

Decreto-Ley 11/2014, de 5 de Septiembre: Crónica de una Reforma Legislativa Anunciada (de los AATC 70/2014,

71/2014, 111/2014, 112/2014 Y 113/2014 a la STJUE de 17 de Julio de 2014) , Derecho Privado y Constitución, 28, 2014,

201-262.

29

“Is it compatible with Article 7(1) of Directive 93/13 a procedural rule, such as that laid

down in Article 695(4) CCP, which, as regards the right to an appeal against a decision

determining the outcome of an objection to enforcement proceedings in relation to

mortgaged or pledged assets, to permit an appeal to be brought only against an order

discontinuing the proceedings or disapplying an unfair clause and to exclude an appeal

in other case?

Does the principle of the right to an effective remedy, to a fair trial and to equality of

arms, guaranteed by Article 47 of the Charter, preclude a provision of national law, such

as that laid down in Article 695(4) CCP?”

The Court of Justice of the EU decided the case on a very short time and the decision was published

on July 17th 2014. The Court addressed the case by taking the two questions together and focused its

analysis on the principle of the effectiveness of EU law.

The Court examined whether national procedural law respected the fundamental right to effective

judicial protection laid down in Article 47 CFREU. Here, the Court affirmed that EU law does not

generally require a second level of jurisdiction58 but in the specific case a right to appeal must be

granted. This was due to the fact that the foreclosure proceeding had as its object the consumer’s

family home, and it is based on an enforceable notarial instrument that is not subject to an ex ante

judicial scrutiny.

It is important to note that the Court analysed the Spanish procedural system as a whole: first it

interpreted that the judge, pursuant art 552(1) CCP, has only a discretionary power to examine of its

own motion the unfairness of contract clauses; secondly, it acknowledged that the consumer could

claim the unfairness of the clause in a separate declaratory proceeding, but these proceedings may

not affect the foreclosure proceedings in the absence of the possibility for the judge to make an order

for interim relief with suspensive effect of the latter. The result of this system is that the consumer

could only be granted a purely compensatory remedy. In the view of the Court, this resulted in a

negative assessment of the Spanish system, as such a remedy could not be deemed to provided

effective judicial protection for the consumer.59

Further in its analysis of the specific legal provision, the Court stressed that the limitation of the

consumer’s right of appeal “accentuates the imbalance existing between the parties to the

58 See para 36: “In that connection, it should be observed that, according to EU law, the principle of effective judicial

protection does not afford a right of access to a second level of jurisdiction but only to a court or tribunal (see, to that

effect, judgment in Samba Diouf, C 69/10, EU:C:2011:524, paragraph 69). Consequently, the fact that the only remedy

available to the consumer, as a debtor against whom mortgage enforcement proceedings are brought, is to bring an

action before a single jurisdictional level in order to protect the rights derived from Directive 93/13 is not, in itself,

contrary to EU law.” 59 See par. 43: “Having regard to those characteristics, if the consumer’s objection to the enforcement of the mortgage

against his property is dismissed, the Spanish procedural system, taken as a whole and in the manner applicable in the

main proceedings, exposes consumers, and possibly, as is the case in the main proceedings, their family, to the risk of

losing their dwelling in an enforced sale, while the enforcing court may have, at most, delivered a rapid assessment of

the validity of the contractual clauses upon which the seller or supplier bases his application. The protection that the

consumer, as a mortgage debtor against whom enforcement proceedings are brought, might obtain by way of a separate

judicial scrutiny undertaken in the context of substantive proceedings brought in parallel with the enforcement

proceedings, cannot offset that risk because, even if the scrutiny revealed the existence of an unfair clause, the consumer

would not be granted a remedy reflecting the damage he had suffered by restoring him to the situation he was in before

the enforcement proceedings against the mortgaged property, but, at best, an award of compensation. The purely

compensatory nature of the remedy that might be awarded to the consumer would confer on him only incomplete and

insufficient protection. It would not constitute either adequate or effective means, within the meaning of Article 7(1) of

Directive 93/13, of preventing the continued use of the clause, found to be unfair, in the instrument that contains a pledge

by way of mortgage against a property on the basis of which enforcement proceedings were brought against that property

(see, to that effect, Aziz, EU:C:2013:164, point 60).”

30

agreement”60 and that remedying such an imbalance was the objective sought by the Unfair Contract

Terms Directive, in particular through judicial scrutiny of unfair contract terms.

Thus the Court decided that:

“Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer

contracts, read in conjunction with Article 47 of the Charter of Fundamental Rights of

the European Union must be interpreted as precluding a system of enforcement, such as

that at issue in the main proceedings, which provides that mortgage enforcement

proceedings may not be stayed by the court of first instance, which, in its final decision,

may at most award compensation in respect of the damage suffered by the consumer,

inasmuch as the latter, the debtor against whom mortgage enforcement proceedings are

brought, may not appeal against a decision dismissing his objection to that enforcement,

whereas the seller or supplier, the creditor seeking enforcement, may bring an appeal

against a decision terminating the proceedings or ordering an unfair term to be

disapplied.”.

The Spanish legislator reacted quickly to the decision and enacted on 5 September 2014 the Real

Decreto Ley 11/2014 (hereinafter RDL 11/2014),61 which included a provision amending art. 695.4

CCP providing for an appeal by the debtor to the decision of the judge to dismiss a complaint based

on the unfairness of the contractual clause. Thus, the article reads as follows:

“4. An appeal may lie against the order discontinuing enforcement or disapplying

an unfair term or rejecting the complaint on the ground laid down in paragraph 1(4)

of the present article.

Save in those circumstances, no appeal shall lie against orders adjudicating upon

the objection to enforcement referred to in the present article and the effects of

those orders shall be confined exclusively to the enforcement proceedings in which

they are made.”

However, the legislator limited the extension of the appeal to the specific complaint based on EU law,

without extending such a possibility to all grounds available to the debtor within a foreclosure

proceeding.

The Audencia Provencial de Castellon did not deem the legislative reform as fully implementing the

decision of the CJEU. Thus, on 10 October 2014 notified to the parties its intention to present a second

preliminary reference within the same proceeding. The Audencia Provincial affirmed that the RDL

11/2014 still did not respect the rights recognized by Directive 93/13/EEC and thus a violation of

various fundamental rights had occurred, including the right to effective judicial protection in terms

of the right to equality of arms, the right to housing and the right to private and family life.

In order to justify the connection with EU law, the Audencia Provencial pointed to the fact that the

new wording of art 695.4 CCP could be in conflict with art 1(q) of the Annex to Directive 93/13/EEC,

which states that unfair terms are those that have the purpose or effect of excluding or hindering the

exercise of legal action or resources by the consumer.

Thus the question to the CJEU was the following:

“Must Article 7(1) of [Directive 93/13], read in conjunction with Articles 47, 34(3) and

7 of the [Charter] be interpreted as precluding a procedural provision of the kind laid

60 Para. 46. 61 Spanish BOE n.º 217, 6 September 2014, pag. 69767. Note that in the Exposition of motives of the Law, the legislator

referred only to the need to implement the Sanchez Morcillo decision of the CJEU.

31

down in Article 695(4) of [the amended LEC], applicable to appeals against a decision

determining the outcome of an objection to enforcement proceedings in relation to

mortgaged or pledged goods, which allows an appeal to be brought only against an order

terminating the proceedings, disapplying an unfair term or rejecting an objection based

on an unfair term, the immediate consequence of which is that more legal remedies on

appeal are available to the seller or supplier seeking enforcement than to the consumer

against whom enforcement is sought?”

The CJEU decided the case on 16 July 2015.62 The Court acknowledged that the amended procedural

regime established by art 695.4 CCP allows the judge of the foreclosure proceeding to evaluate,

before the conclusion of the execution procedure, the unfairness of a contractual clause, with the

possibility of declaring the nullity of the proceedings. Moreover, the Court recognised that the

amended provision allows the consumer to lodge an appeal against the decision which rejected the

complaint based on the unfairness of the contractual clause;63 thus, it affirmed that art. 695.4 CCP

guarantees consumers a complete and sufficient remedy, within the meaning of art. 7(1) of Directive

93/13/EEC.

With regard to the alleged violation of fundamental rights, the Court stressed that the system does not

infringe the right to effective judicial protection. This was because the system provided not only that

the judge hearing the execution can evaluate, before the conclusion of the foreclosure proceeding, the

unfairness of the contractual term, but also that a court of appeal can verify, as part of a double

instance system, if the judge hearing the execution in the first instance made a correct analysis of such

a clause.

With regard to equality of arms, the Court stated that art. 695.4 CCP effectively gives consumers a

reasonable opportunity to exercise judicial actions based on the rights recognized in Directive

93/13/EEC upon conditions not manifestly disadvantageous in relation to the creditor (i.e. the

professional). However, the court did not assume the competence of the national court, as the fact

that under the Spanish legislation consumers do not have the right to bring an appeal against a decision

rejecting their complaint based on grounds other than the unfairness of the contractual term, does not

fall into the scope of that directive. For this reason, such legislation is not liable to jeopardise the

effectiveness of consumer protection which by the directive seeks to provide.

Finally, as regards the alleged right to housing, the Court recalled that art. 34(3) CFREU does not

guarantee the right to housing but the “right to social assistance and housing assistance” in the

framework of social policies based on art. 153 TFEU with the result that that provision was not

relevant in the present case.

Thus, the decision of the Court was the following:

“Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer

contracts, read in conjunction with Articles 47, 34(3) and 7 of the Charter of

Fundamental Rights of the European Union, must be interpreted as not precluding a

national provision of the kind at issue in the main proceedings, by which the consumer,

as a mortgage debtor against whom enforcement proceedings are brought, may bring an

62 Note that the CJEU resolves the case through the expedited procedure provided for in Article 23a of the Statute of the

Court of Justice of the European Union and in Article 105(1) of the Rules of Procedure of the Court. The request was

justified by the fact that the subject matter of the enforcement in the foreclosure proceeding was the permanent residence

of the consumers, thus with a risk that the residence may be lost and of putting the debtors and their family in a particularly

difficult position. 63 See par 39: “It is undisputed that the provision so amended does indeed give consumers the right to bring an appeal

against the decision of the court responsible for enforcement rejecting their objection to the mortgage enforcement

proceedings, if that objection is based on the unfairness of a term, within the meaning of Article 3 Directive 93/13,

contained in the contract from which the debt arises and which is the basis for the enforcement order.”

32

appeal against the decision rejecting his objection to the enforcement only when the court

of first instance has not upheld an objection based on the unfairness of the contractual

term upon which the enforcement is based even though the sellers or suppliers may, by

contrast, appeal against any decision terminating proceedings regardless of the ground

of objection on which that decision is based.”

The Audencia Provencial de Castellon then decided the case on 3 September 2015. As mentioned

above, the appeal presented by the consumer-debtor was not grounded on the unfairness of the clause;

thus it felt into the number of grounds of objection that do not entail a right of appeal for the debtor

under Spanish legislation. The Audencia Provencial was therefore dismissed the appeal as

inadmissible.

3. Analysis


Although the AG in its Opinion contested the applicability of the Charter to the case, as outside the

scope of EU law given that the latter does not govern national procedural rules, the CJEU upheld the

request of the national court and examined the principle of effectiveness in relation to art. 47 CFREU.

Thus the CJEU adopted a broad interpretation of Article 51(1) CFR as referred not only to the

situations in which Member States enforce EU rules (implementation stricto jure), but also to those

situations which fall within the scope of EU law.

The CJEU affirmed that the compensatory remedy available to the consumer, in case the executory

proceeding ending with the sale of the house given as security, would be insufficient to provide

effective judicial protection. Moreover, even though EU law does not in principle afford a right of

access to a second level of jurisdiction, the limitation of the right to appeal on the basis of procedural

law could not be justified where the enforcement proceedings relate to the consumer’s family home.


After the reform of the procedural law, the commercial courts of first instance and appeal faced

several issues with a view to improve the level of protection for consumers in case of over-

indebtedness. After the inadmissibility of the request of constitutionality before the national

constitutional court on the basis of conflict between procedural provisions and constitutionally

protected rights, the Appeal court sought guidance from the CJEU. It is important to note that the

same question was presented to the constitutional court and CJEU by the national courts,

demonstrating the interdependence between the protection of the right of appeal at national and

European level.

The decision of the CJEU triggered the modification of national legislation. As a result the legislator

limited its reform to the EU law realm, without extending the same guarantees to debtors in general.

The repetitive use of the preliminary reference was used by the appeal court to ask the CJEU to

evaluate if the national legislator correctly interpreted the guidance given in the previous decision.

c. Remedies

The case-law examined addresses the relationship between the declaratory proceedings and the

executory ones in case of mortgage loans. In particular, the analysis of the CJEU addressed whether

33

the consumer in the specific legal system is placed in a vulnerable position, and thus whether the

procedural guarantees enable him to exercise his rights.

The CJEU analysed the procedural system and acknowledged the existence of a limitation of the

consumer’s right of appeal. Although the court affirmed that EU law does not require a right to appeal,

in the legal context this limitation was deemed as an element that could worsen the existing imbalance

between consumer and professional.


i. External

No impact on foreign jurisprudence acknowledged.

ii. Preliminary references connected to the case

Request for a preliminary ruling from the Audiencia Provincial de Illes Balears

(Spain) lodged on 16 July 2015 — Francisca Garzón Ramos and José Javier Ramos

Martín v Banco de Caja España de Inversiones, Salamanca y Soria, S.A.,

Intercotrans, S.L. (Case C-380/15)

In providing that a court seized of ordinary proceedings for the annulment of an enforceable

instrument cannot under any circumstances grant interim relief staying mortgage enforcement

proceedings relating to the instrument claimed to be null and void, is Article 698(1) of the Ley de

Enjuiciamiento Civil compatible with the principle of effective judicial protection affirmed in Article

47 of the Charter of Fundamental Rights of the European Union?

In the event that the answer to the previous question is that the provision of Spanish law is not

compatible with the article of the Charter in question, is the case-law of the Court of Justice, and in

particular its judgment in Case C-169/14 Sánchez Morcillo and Abril García, therefore applicable to

this case?

Casesheet n. 3 – Kusionova

Core issues

Area


Country

• SLOVAKIA

Charter provision

• art 38

• art 47

• art 7


• preliminary reference

• proportionality

• consistent interpretation

Actors

• CJEU

• Appeal Court

• legislator (indirectly)

Remedy

• effective remedy (interim relief)

• ex officio power

34

Should a judge assessing the validity of a contract, enabling a creditor to enforce a charge by extra-

judicial means and without any review by a court, take into account E.U. law, namely the principles

of high consumer protection, effective judicial protection and the right to housing, even where the

wording of such a contract term is based on a national provision?

How should the judge assess the effectiveness of judicial protection where the right to one’s home is

involved? How can this assessment influence the choice of remedies, namely the application of

interim relief and the possibility of considering the enforcement sale null and void?

What role does the principle of proportionality play in this respect?



The consumer credit agreement between Monika Kušionová and SMART Capital was secured by a

charge on the family house of the former. Mrs Kušionová claimed in front of the District court of

Humenné that the credit contract as well as the charge agreement were invalid (and therefore to be

declared void) as the credit agreement contained an unfair clause.

The District court of Humenné, declared that the credit agreement was partially void, whereas the

charge agreement was totally annulled. Both parties lodged an appeal before the Regional court of

Prešov. The appeals concerned the terms of the charge agreement that allowed the extrajudicial

enforcement of the charge on the immovable property provided by the consumer as security. SMART

Capital affirmed that the clause was based on a statutory provision (art 151j of the Slovak Civil Code),

so as to allow the creditor to enforce the charge without any review of the underlying agreement to

be reviewed by a court.

The Regional Court of Prešov deemed the national provision to be potentially in conflict with

Directive 93/13, as it may allow the inclusion of an unfair clause within a consumer contract. Thus,

on 20 December 2012, the Slovak court decided to stay the proceedings and posed the following

questions to the CJEU by way of preliminary reference:

“Are [Directive 93/13] and [Directive 2005/29], in the light of Article 38 of [the Charter],

to be interpreted as precluding legislation of a Member State, such as Paragraph 151j(1)

of the Civil Code, in conjunction with other provisions of the legislation applicable in the

present case, which enables a creditor to recover sums on the basis of unfair contract

2012

Decision of District court of Hummenné

20 December 2012

Preliminary reference by Regional court of

Presov

1 April 2014

Law n 106/2014 Z.z.

10 September 2014

Decision by CJEU

C-470/12

*** 2014

Decision by Regional Court of

Presov

35

terms by enforcing a charge against a consumer’s immovable property without any

assessment of the contract terms by a court and despite there being a dispute as to whether

the contract term at issue is unfair?

Does the European Union legislation referred to [in question 1] preclude the application

of a national rule, such as Paragraph 151j(1) of the Civil Code, in conjunction with other

provisions of the legislation applicable in the present case, which enables a creditor to

recover sums on the basis of unfair contract terms by enforcing a charge against a

consumer’s immovable property without any assessment of the contract terms by a court

and despite there being a dispute as to whether the contract term at issue is unfair?

Must the judgment of the Court of Justice [in Simmenthal, EU:C:1978:49] be interpreted

as precluding, in the interests of meeting the objectives of the directives [referred to in

question 1] and in the light of Article 38 of the [Charter], the national court from applying

domestic provisions, such as Paragraph 151j(1) of the Civil Code, in conjunction with

other provisions of the legislation applicable in the present case, which enable a creditor

to recover sums on the basis of unfair contract terms by enforcing a charge against a

consumer’s immovable property without any assessment of the contract terms by a court

and also, despite there being a dispute, to circumvent review by a court of its own motion

of the contract terms?

Is Article 4 of [Directive 93/13] to be interpreted as meaning that a term in a contract

concluded by a consumer without representation by a lawyer which enables a creditor to

enforce a charge by extra-judicial means and without any review by a court, is a

circumvention of the important principle of EU law that contract terms are to be reviewed

by courts of their own motion and, for that reason, is unfair, even where the wording of

such a contract term is based on a national provision?”

Before the CJEU decided the case, the Slovak legislator adopted a reform on April 2014 (Law n

106/2014 Z.z.), which modified the procedural rules applicable to the enforcement of charges, so that

para. 21.2 of the Law on Voluntary Sale by Auction provided that

“Where the validity of the charge agreement is challenged or the provisions of the present

law are infringed, any person who claims that his rights have been adversely affected as

a result of that infringement may request the court to declare the sale void”.

On 10 September 2014, the CJEU decided the case. The analysis of this case sheet will only focus on

the first three questions.

A first interpretative step was to extend the evaluation of national legislation on the basis not only of

art. 38 CFREU, as requested in the preliminary ruling, but also to art. 47 CFREU. The Court – after

having affirmed the lack of provisions regarding the enforcement proceedings within the Directive

93/13, thus leaving the regulation of such elements to the procedural autonomy of Member states–

addressed the compliance of national mechanisms vis-à-vis the principles of equivalence and

effectiveness.

As the equivalence test was deemed to be met, the Court analysed the whole procedural system in

order to verify if it also met the requirements of the effectiveness test. The Court acknowledged that

the Slovak procedural system (as amended in 2014) provides for the possibility for the consumer to

contest the enforcement proceedings within three months from the day the auction took place.64 This

time limit, as well as the fact that the consumer should not be completely passive in the procedure,

was deemed by the court as compliant with its previous jurisprudence. Moreover, the fact that

64 Para 55.

36

amended legislation provided that the sale may be declared void by national courts, does not affect

the situation of the consumer as it allows him/her to return to a situation almost identical to the original

one.65

The Court went on to evaluate the proportionality of the remedy (using the terminology of penalty in

the decision). It noted that the fact that the security given by consumers may frequently be his/her

family home is a peculiar, as also stated in ECHR jurisprudence, thus such a case required that any

balancing exercise take into account also art. 7 CFREU providing for the right to accommodation.

The possibility for interim relief granted by the national court to avoid the eviction of the consumer

from the family home then was considered as sufficient to prevent the continued use of an unfair

term.

The final decision of the CJEU on this point was then the following:

“Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as not precluding national legislation, such as that at issue in the

main proceedings, which allows the recovery of a debt that is based on potentially unfair

contractual terms by the extrajudicial enforcement of a charge on immovable property

provided as security by the consumer, in so far as that legislation does not make it

excessively difficult or impossible in practice to protect the rights conferred on consumers

by that directive, which is a matter for the national court to determine.”

The Regional court of Presov then quashed the first-instance judgment and remanded the case for

further consideration.

3. Analysis


The national court correctly linked the Charter to the secondary law provisions included in the

Directive 93/13/EC. The national court used as reference also the principle stated in art. 38 CFREU,

although the main issue addressed by the Directive provisions mentioned in the preliminary ruling

deals with the issue of remedies.

This fact was acknowledged by the CJEU, which affirmed that, although the preliminary ruling

included an explicit reference only to art. 38 CFREU, its assessment will also take into account art.

47 CFREU.66 However, the CJEU in its later analysis does mentions neither art. 38 nor art. 47

CFREU. As a matter of fact, the CJEU examined whether the possibility of an order for interim relief

could ensure the protection of art. 7 CFREU, on the fundamental right to accommodation. Although

the reference to such a fundamental right expressly acknowledged a relationship between the former

and consumer protection, it did not clarify whether this relationship should include also the right to

housing assistance (Art. 34(3) CFREU).

An important additional element is the fact that the proportionality of the measures should also be

included in the art. 7 CFREU analysis.


65 Compared to the case in Sanchez Morcillo, where only a compensatory remedy was allowed. 66 See para. 45.

37

The Slovak regional court in effect reproduced the question presented (and withdrawn) by the District

court of Presov in Case C482/12, Peter Macinský and Eva Macinská v Getfin s.r.o. Financreal- s.r.o.67

As in the previous case, the national court sought to overcome the problems in the mortgage sector

created by the financial crisis. The national court then faced the choice between a direct disapplication

of the national provision upon the basis of the conflict with EU law and the possibility of making a

preliminary reference to the CJEU. Given the existence of several judgements of the CJEU in which

the latter acknowledged a high level of protection for the consumer, the national court made a

preliminary reference in order to receive guidance from the CJEU.

The CJEU in its decision took into account those legislative developments that had occurred after the

making of th preliminary reference and interpreted the national legislation consistently with EU law

and fundamental rights. Additionally, it highlighted the consistency between the EU and ECHR

standard of protection, making reference to the ECtHR jurisprudence on the same issue.

c. Remedies

The CJEU based its analysis on the principle of sincere cooperation (art 4(3) TEU) and on its previous

case law relating to the assessment of effectiveness, proportionality and dissuasiveness of remedies.68

The requirements of effectiveness and dissuasiveness are analysed together, and focus on the one

hand, on the availability of an interim relief to prevent the enforcement proceedings, and on the other,

on the reform of the Slovak procedural law that allows the judges to declare the auction sale void.

The analysis of the requirement of proportionality then also brings the protection of the right to

accommodation as provided by art 7 CFREU into the balancing exercise. The availability for national

courts to adopt interim measures to avoid the immediate risk of the consumer (and his/her family)

being evicted from their home is seen as an adequate and effective remedy. One could question

whether the protection of the consumer as an individual may conflict with the need to protect other

rights (i.e. creditor and bona fide purchaser). Could this consideration change the balance brought

about by the application of the proportionality test?


i. External



No preliminary ruling connected.

67 See the preliminary ruling presented: “Is Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer

contracts to be interpreted as precluding legislation of a Member State, such as Paragraph 151j(1) of the Občianský

zákonník (Civil Code) in conjunction with the other provisions of legislation at issue in the present case, which enables a

creditor to enforce the fulfilment of unfair contract terms by enforcing a lien by the sale of immovable property despite

the objections of the consumer and a dispute regarding the matter and without an assessment of the contract terms by a

court or other independent tribunal ?”. 68 In particular, LCL Le Crédit Lyonnais, C 565/12, EU:C:2014:190, paragraph 44 and case-law cited.

38

Case sheet n. 4 – Sales Sinues

Core issues

When national legislation provides for forms of coordination of individual and collective redress

should the former prevail over the latter?

Can the individual action be suspended until the decision in the collective action is decided?

1. Timeline presentation


Mr Sales Sinués concluded an agreement for the novation of a mortgage loan with a Spanish bank,

the agreement included a ‘floor’ clause. The latter allowed the bank to set an interest rate that

remained stable regardless the market rate fluctuations. As the floor clauses were interpreted as unfair

by Mr Sinués, he brought an individual action seeking the annulment of the clause before the Juzgado

de lo Mercantil No 9, Barcelona.

As the defendants were also involved in a claim previously brought in a different court by a consumer

protection association – seeking an injunction prohibiting further use of floor clauses in loan

agreements, they asked the judge to suspend the individual proceedings until the final judgement of

the collective action was delivered.

As the Juzgado deemed the national provision imposing the suspension of the individual action in

conflict with EU law, it decided to stay the proceedings and to refer the following questions:

“Can it be considered [that the Spanish legal system provides for] an effective means or

mechanism pursuant to Article 7(1) of Directive 93/13?

To what extent does the suspensory effect of a stay of proceedings preclude a consumer

from complaining that unfair terms included in a contract concluded with him are void,

and, therefore, infringe Article 7(1) of Directive 93/13?

Does the fact that a consumer is unable to dissociate himself from collective proceedings

constitute an infringement of Article 7(3) of Directive 93/13?

27 June 2014

Preliminary reference by Juzgado de lo

Mercantil of Barcelona

11 April 2014 Decision by CJEU C-

381/14 andC-385/14

Area


Country

• SPAIN

Charter provisionJudicial dialogue

technique

•preliminary ruling

Actors

• CJEU

•Lower court

Remedy

•collective redress

39

Or, on the other hand, is the suspensory effect of a stay of proceedings provided for in

Article 43 of the Code of Civil Procedure compatible with Article 7 of Directive 93/13 in

that the rights of consumers are fully safeguarded by collective actions, the Spanish legal

system providing for other equally effective procedural mechanisms for the protection of

consumers’ rights, and by the principle of legal certainty?”

The CJEU on 14 April 2016 decided the case. The CJEU joined all the questions presented by the

national court and addressed the protection afforded by the Directive 93/13 under art. 7, affirming

that the imbalance existing between individual consumer and sellers cannot be found neither in the

relation between consumer associations and sellers, nor in the proceedings involving them.69 Another

distinction put forward by the CJEU is the fact that the objectives of individual and collective redress

may be different, as the latter may also be brought for deterrent and dissuasive objective. The analysis

moved then on the procedural provisions applied by the Spanish legislator to the relationship between

individual and collective redress.

Under the principle of effectiveness, the CJEU assessed the effects of the suspension of the individual

action and acknowledged that, on the one hand, the decision of collective action could be binding for

the individual consumer, even if he has not decided to participate into it; and on the other hand, it

may prevent the national court to evaluate the individual negotiation of alleged unfair clauses. Both

elements were deemed by the CJEU as able to hamper the achievement of the objectives of the

Directive 93/13.

In this case, then the CJEU took into account the proportionality of national measures aimed at

achieving objective of general interest, but it affirmed that neither the consistency between judicial

decisions, nor the need to avoid the overburdening of courts could justify such measures.70

Then, the CJEU affirmed that:

“Article 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer

contracts must be interpreted as precluding a provision of national law, such as that at

issue in the main proceedings, which requires a court, before which an individual action

has been brought by a consumer seeking a declaration that a contractual term binding

him to a seller or supplier is unfair, automatically to suspend such an action pending a

final judgment concerning an ongoing collective action brought by a consumer

association on the basis of Article 7(2) of Directive 93/13 seeking to prevent the continued

use, in contracts of the same type, of terms similar to those at issue in that individual

action, without the relevance of such a suspension from the point of view of the protection

of the consumer who brought the individual action before the court being able to be taken

into consideration and without that consumer being able to decide to dissociate himself

from the collective action.”

The decision of the national court is to be decided.

3. Analysis


No reference to the Charter.

69 Para 26-27. 70 Compare with the reasoning in Alassini.

40


The national court sought guidance from the CJEU in a situation where the case law at national level

was not unanimous. A similar issue was already a matter of dialogue between Spanish courts and

CJEU as the latter evaluated the unfairness of jurisdiction clauses to be applied to collective claims

in C-413/12 (Asociación de Consumidores Independientes de Castilla y León v Anuntis Segundamano

España SL). Thus, the national court seems to rely on the use of preliminary reference in order to

trigger the intervention of the CJEU in favour of the interest of individual consumers. The preliminary

reference is structured as a request to indicate the means to solve the conflict.

c. Remedies dimension

The individual and collective redress mechanisms, although included in the same article within the

Directive 93/13, serve different purpose and different objectives. The CJEU clarified that the

contractual imbalance between consumers and sellers cannot be transposed on the relationship

between consumer protection associations and sellers. This implicitly allocated a relatively equal role

to consumer associations and sellers, which is not always the case in practice. The fact that the

consumer cannot dissociate its claim ex ante and is bound to the effect of the collective redress ex

post hampers the effective exercise of consumers rights.


i. External



No preliminary reference so far.

Case sheet n. 5 – Biuro

Core issues

When national legislation provides for mechanisms of a declaration of the unfairness of terms in

abstracto, should the effects of the judgment extend to contracts where the same term is used by the

same enterprise or other enterprises?

How should the right to effective judicial protection be balanced with the right to a fair trial, if ever?

Area


Country

• POLAND

Charter provision

•art 47


•consistent interpretation

Actors

• Supreme court

• Appeal Court

Remedy

• right to fair trial

41

1. Timeline presentation


On 26 April 2012, the CJEU decided the Invitel case. The decision was the following

“It is for the national court, ruling on an action for an injunction, brought in the public

interest and on behalf of consumers by a body appointed by national law, to assess, with

regard to Article 3(1) and (3) of Council Directive 93/13/EEC of 5 April 1993 on unfair

terms in consumer contracts, the unfair nature of a term included in the general business

conditions of consumer contracts by which a seller or supplier provides for a unilateral

amendment of fees connected with the service to be provided, without setting out clearly

the method of fixing those fees or specifying a valid reason for that amendment. As part

of this assessment, the national court must determine, inter alia, whether, in light of all

the terms appearing in the general business conditions of consumer contracts which

include the contested term, and in the light of the national legislation setting out rights

and obligations which could supplement those provided by the general business

conditions at issue, the reasons for, or the method of, the amendment of the fees connected

with the service to be provided are set out in plain, intelligible language and, as the case

may be, whether consumers have a right to terminate the contract.

Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) and (2) thereof, must

be interpreted as meaning that:

– it does not preclude the declaration of invalidity of an unfair term included in the

standard terms of consumer contracts in an action for an injunction, provided for in

Article 7 of that directive, brought against a seller or supplier in the public interest, and

on behalf of consumers, by a body appointed by national legislation from producing, in

accordance with that legislation, effects with regard to all consumers who concluded with

the seller or supplier concerned a contract to which the same general business conditions

apply, including with regard to those consumers who were not party to the injunction

proceedings;

– where the unfair nature of a term in the general business conditions has been

acknowledged in such proceedings, national courts are required, of their own motion,

and also with regard to the future, to take such action thereon as is provided for by

national law in order to ensure that consumers who have concluded a contract with the

seller or supplier to which those general business conditions apply will not be bound by

that term.”

A couple of years later, the Polish Supreme court was addressed by a tightly linked issue, and used

the CJEU decision in Invitel as a point of reference and extended the analysis as regards the effects

of in abstracto judgements.

Under art. 479(43) of the Polish Code of Civil Procedure a judgment declaring (abstract) abusiveness

of a clause is “effective towards third persons”, from the day of listing this clause in the public register

administered by the President of the Office of Protection of Competition and Consumers. The Court

of Protection of Competition and Consumers may review (on demand of the specified set of persons

and entities) the fairness of standard contract terms used on the market through an in abstracto

26 April 2012

Decision of CJEU

C-472/10

19 November 2014

Preliminary reference by Warsaw

Appeal Court

16 February 2015 Preliminary question by First president of

Supreme Court

20 November 2015Decision of the

Supreme Court III CZP 17/15

42

evaluation – i.e. regardless of integrating them into any actually concluded contract.71 A final

judgement granting the action has an effect for third parties when a provision of the model agreement

considered to be prohibited is included in the public register.

Article 24.2.1 of the Polish Act on the Protection of Competition and Consumers of 16 February 2007

prohibits application of any practice infringing consumers' collective interests, consisting of an

application of the provisions of a model agreement to be entered into the register of the provisions of

model agreements considered to be prohibited.72

The jurisprudence regarding the objective limits of extended validity of an in abstracto judgements

is not settled, as the Supreme Court has interpreted the limits in some cases in a narrow way,73 whereas

in other cases a broad interpretation has been adopted.74 Similarly, subjective limits of extended

validity have also been interpreted in a narrow75 and broad way.76

In a motion of 16 February 2015, BSA I-4110-1/15, the First President of the Supreme Court made

the following preliminary reference to the Supreme Court issue:

“Does an entry of a provision of a model agreement, which provision is considered to be

prohibited into the register referred to in Article 479.24 of the Code of Civil Procedure

lead to such result that extended efficiency of the final judgement provided for in Article

47943 of the Code of Civil Procedure being the basis for such entry comes into conflict

with the proceedings into the subject of the control of the provision of the same content,

contained in a different model agreement used by the entrepreneur against whom such

judgement has been issued or any other entrepreneur?

On 20 November 2015 (case file No. III CZP 17/18), the Supreme Court, consisting of seven justices,

made the following judgment:77

71 This specific procedure has been introduced to implement Art. 7 of 93/13/EC directive. Standardised in Article 47936-

45 of the Code of Civil Procedure the proceedings in question are designed for a purpose of abstract control of contractual

models and to protect the collective consumers' interest. The introduction of these proceedings is an part of the

transposition of Directive 93/13 on abusive clauses in the consumer agreements. If an action for acknowledgement that a

provision of the model agreement is prohibited is granted, the court cites the content of the provisions of the model

agreement in an operative part of the judgement and prohibits their use. A copy of the final judgement, with the cause of

action granted, is sent to the President of the Office of Competition and Consumer Protection [Prezes Urzędu Ochrony

Konkurencji i Konsumentów], who maintains a public register of the provisions of model agreements considered to be

prohibited. 72 This regulation is designed to transpose Directive 98/27/EC on injunctions for the protection of the consumers' interests

replaced by Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of

consumers' interests. 73 Decisions of 7 October 2008 (III CZP 80/08) and of 13 May 2010 (III SK 29/09). 74 Resolution of 13 July 2006 (III SZP 3/06) or a judgement of 5 June 2007 (I CSK 117/07). 75 Only for the benefit of all third parties (the Supreme Court's resolution of 7 October 2008, III CZP 80/08, a resolution

of 13 December 2013, III CZP 73/13) 76 Also against all third parties, including all entrepreneurs other than the entrepreneur who was a defendant in a given

case (the Supreme Court's resolution of 13 July 2006 r., III SZP 3/06, a judgement of 20 June 2006, III SK 7/06). 77 The decision of the Supreme Court of 20 November 2015 was taken in a form of resolution (of a board of seven judges)

– i.e. a particular type of judgment not settling any particular dispute, but resolving a problem of interpretation (i.e.

expressing the Court’s opinion on how the particular provision of domestic law should be understood). Resolutions are

taken upon a question, which can be referred to the Supreme Court both by a court of a lower instance, regarding a

particular case, as well as by a limited number of authorised bodies (including the Frist President of the Supreme Court)

can refer to the Court with the general problem to be resolved. Dependable on the way of making the question and the

decision of the Court, the resolution can be made by various compositions of judges (from a board of three to the complete

set of the Supreme Court), which is reflected in the various binding power of the interpretation given in the resolution. In

principle, in the case of preliminary questions of ordinary courts, the resolution is formally binding only upon the Court

that made the inquiry. However, due to the authority of the Supreme Court and its competence to review other courts’

decisions, the standpoint adopted in the resolution is usually followed de facto by the entire judiciary. Therefore, the

43

“1. Substantive validity of the judgement considering a provision of the model agreement

to be prohibited excludes an action for considering the provisions of the same normative

content to be prohibited, used by the entrepreneur who is a defendant in the case in which

this judgement was issued (Article 365 and 366 of the Code of Civil Procedure).

2. Substantive validity of the judgement considering a provision of the model agreement

to be prohibited - also after entering such provision into the register (Article 4794.2 of

the Code of Civil Procedure) does not exclude an action for considering the provisions

of the same normative content to be prohibited, used by the entrepreneur who is not a

defendant in the case in which the judgement was issued (Article 365 and 366 in

conjunction with Article 47943 of the Code of Civil Procedure)”.

In the reasoning of the judgment, the Supreme Court balanced the effectiveness of consumer

protection from abusive clauses and the right to fair trial, in order to determine the scope of res

iudicata in the “abstract” review of contract clauses. As regards the first aspect, the Supreme Court

based its reasoning on Directive 93/13/EU, as well as the Invitel case. As regards the right to fair trial,

the Supreme Court based its reasoning on art. 45 of the Constitution of the Republic of Poland, art. 6

section 1 of the ECHR and the art. 47(2) of the CFREU.

As determined by the Supreme Court, the “effectiveness of the judgment in question in favour of

anyone, but with respect to the particular entrepreneur, being a defendant in the proceedings, is

proportionate, as it maintains a balance between the need to guarantee the effectiveness of an abstract

control [of contract clauses] and the need to respect the right to be heard, as a fundamental element

of the right to fair trial, arising from the right to due process.”

In its judgment, the Supreme Court interpreted the notion of “effectiveness towards third persons”

(art. 47943 of the Code of Civil Proceedings) as referring only to the particular entrepreneur (who took

part in the abstract review proceedings) – at the same time, however, it may be invoked by every

consumer (including a consumer who did not participate in the trial). Moreover, the Supreme Court

found this outcome proportionate and therefore compliant therefore with the requirement of

proportionality of remedies set forth in Directive 93/13/EU.

It is important to note that on 19 November 2014, before the preliminary reference of the First

President, the Court of Appeal in Warsaw made the following preliminary reference:78

“In the light of Articles 6(1) and 7 of Council Directive 93/13/EEC of 5 April 1993 on

unfair terms in consumer contracts (1), in conjunction with Articles 1 and 2 of Directive

2009/22/EC of the European Parliament and of the Council of 23 April 2009 on

injunctions for the protection of consumers’ interests (2), can the use of standard contract

terms with content identical to that of terms which have been declared unlawful by a

judicial decision having the force of law and which have been entered in the register of

unlawful standard contract terms be regarded, in relation to another undertaking which

was not a party to the proceedings culminating in the entry in the register of unlawful

standard contract terms, as an unlawful act which, under national law, constitutes a

practice which harms the collective interests of consumers and for that reason forms the

basis for imposing a fine in national administrative proceedings?

In the light of the third paragraph of Article 267 of the Treaty on the Functioning of the

European Union, is a court of second instance, against the judgment of which on appeal

resolution of 20.11.2015 involved only interpretation of legal provisions in abstracto, without making a reference to any

factual circumstances. 78 Request for preliminary ruling by the Court of Appeal of Warsaw, Biuro podróży ‘Partner’ Sp. z o.o., Sp. komandytowa

w Dąbrowie Górniczej v Prezes Urzędu Ochrony Konkurencji i Konsumentów, Case C-119/15.

44

it is possible to bring an appeal on a point of law, as provided for in the Polish Code of

Civil Procedure, a court or tribunal against whose decisions there is no judicial remedy

under national law, or is the Sąd Najwyższy (Polish Supreme Court), which has

jurisdiction to hear appeals on a point of law, such a court?”

Although no decision by the CJEU was adopted so far, it is useful to point to the Opinion of the AG

to evaluate the potential effects of the forthcoming decision.

The AG reformulate the questions on the national court focusing only on the first one, and adding to

its scope also the consistency of national procedural law with Art. 47 CFREU. In this framework the

AG evaluates negatively the compatibility of the polish in abstracto review with the directive 93/13.79

Moreover, such system was deemed as questionable vis-á-vis its compliance with art. 47 CFREU as,

in the opinion, it disproportionately restricts the traders' right to be heard.80

3. Analysis


The Supreme Court explicitly addressed the balancing exercise that involved effectiveness of

consumer protection (declared explicitly in the Invitel decision) and the fundamental right to a fair

trial, underpinning the issues of the binding nature and res iudicata of judicial decisions in civil

matters. The Supreme Court derived this right from fundamental rights located at various levels of

the legal system – the Constitution of the Republic of Poland (art. 45), the ECHR (art. 6 section 1)

and the CFREU (art. 47 section 2).

The judgment therefore referred to the Charter as one of the (parallel) sources of the right to a fair

trial. The Court expanded upon this right in order to clarify the meaning of the domestic provision

implementing the Directive 93/13/EU. The Court thereby supplemented the conclusions made by the

ECJ in the Invitel case. The fundamental right to a fair trial was used by the Court as a key element

of its reasoning.

The case did not involve any direct constitutionality review. The Supreme Court applied, however,

the “pro-constitutional” interpretation of the domestic provision, thereby its compliance with the

Polish Constitution. This effect was achieved by applying the reasoning related to fundamental rights

– based upon the constitutional right to fair trial.

Interestingly, the AG Opinion in Biuro reformulated the national courts decision in the same manner,

including in the analysis the compliance of the Polish system regarding in abstracto review with art

47 CFREU.


The Appeal court in Warsaw sought the guidance of the CJEU in order to solve an interpretative

doubt that emerged from the unsettled national jurisprudence as regards the effects of in abstracto

decisions.

79 See paras 41-42 of the Opinion.

80 See paras 64-69.

45

The Supreme Court thus initiated a discourse with the Invitel case, using it for two main purposes.

First of all, it expanded the point made by CJEU (which ascertained the scope of effectiveness “in

favour” of the consumers). Secondly, it identified a lacuna in the CJEU conclusions (lack of

determining the issue in terms of effectiveness “against” entrepreneurs) – supplementing it with an

obligation to respect the constitutional right to a fair trial. Therefore, the Supreme Court’s reasoning

is both adopting the CJEU opinion and building on it with respect to the questions not discussed in

the Invitel judgment.

The AG Opinion in case Biuro explicitly distinguished this case from Invitel, as it pointed to the fact

that the latter referred to the case of effectiveness of decisions on behalf of third parties. The results

of the opinion, then, are the same adopted by the Supreme Court.

c. Remedies dimension

The Court referred to the Invitel case as one of the main points of reference in the resolution,

concluding that the CJEU explicitly found that a judgment declaring a clause abusive should be

effective “in favour” of every consumer. At the same time, however, as has been pointed out in the

judgment, the effects of this judgment “against” the entrepreneurs needed to be addressed. As has

been pointed out in the Invitel case, a judicial declaration of abusiveness may be effective erga omnes

with respect to consumers (allowing every consumer to benefit from a finding of abusiveness even if

they did not participate in the original proceedings). It remains to be addressed whether the same

erga omnes effect is also applicable to entrepreneurs – i.e. whether all entrepreneurs, regardless of

whether they took part in the original court proceedings, should be legally prohibited from using the

same term (or a term with a similar meaning). In light of this background, the Supreme Court

supplemented the findings made in Invitel, defining the effects of an “abstract” declaration of

abusiveness with respect to entrepreneurs – basing its conclusions upon a fundamental right

(guaranteed simultaneously by the national Constitution, the ECHR and the CFREU).


i. external



No preliminary reference available.

Casesheet n. 6 – M.S.S. and N.S.

Limits to Dublin transfers based on prohibition of torture and inhuman and degrading treatment

Article 4 CFR and 3 ECHR – vertical direct and indirect judicial dialogue; horizontal judicial

46

dialogue (CJEU and ECtHR different thresholds of violations of ill treatments as limitation for Dublin

transfers); horizontal judicial dialogue among national courts

CJEU and ECtHR - Judicial dialogue?

European and National courts – reaching an equilibrium?

Firstly, the prohibition of inhumane and degrading treatment lies at the heart of the controversy

surrounding the operation of the Dublin System for determining the responsible Member State for

asylum applications and for transferring individuals accordingly. Prompted by the ECtHR’s decision

in MSS v Belgium and Greece, the Court of Justice adopted the ‘systemic deficiencies’ test in NS

finding that under Article 4 CFR a Member State is obliged to suspend a transfer to a Member State

under the Dublin System if ‘it cannot be unaware that systemic deficiencies in the asylum procedure

and in the reception conditions of asylum seekers in [the receiving] Member State amount to

substantial grounds for believing that the asylum seeker would face a real risk of being subjected to

inhumane or degrading treatment within Article 4 of the Charter.’ The CJEU confirmed the ‘systemic

deficiencies’ test for suspension of Dublin transfers of asylum seekers in subsequent jurisprudence

on Dublin transfers to Greece (Puid81, Abdullahi82). Whether this obligation corresponded to the

ECHR’s jurisprudence under Article 3 ECHR was open to question and there was a tension between

the two Courts on this issue. For instance, the 2014 Tarakhel judgment of the ECtHR clarified that

‘in the case of “Dublin” transfers, the presumption that a Contracting State which is also the

81 See Case C-4/11, Puid, EU:C:2013:740. 82 Case C-394/12, Shamso Abdullahi v Bundesasylamt, ECLI:EU:C:2013:813.

47

“receiving” country will comply with Article 3 of the Convention can therefore validly be rebutted

where “substantial grounds have been shown for believing” that the person whose return is being

ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving

country.’ (para. 104). The ECtHR requires that the N.S. ‘systemic deficiencies’ test should not be the

sole test to establish violations of Article 3 ECHR, but also an individual examination of the case, in

particular a “thorough and individualised examination of the situation of the person concerned" in the

state of destination83 might also lead to find a violation of Article 3 ECHR. 84

National courts faced with the practical challenge of reconciling the two potentially conflicting tests

attempted an interpretation that would reconcile the two judicial approaches, while preserving the

highest human rights standards..

An example of constructive judicial dialogue comes from the UK Supreme Court in EM(Eritrea)85

and R (ZAT and Others). In the first case, the UK Court of Appeal and Supreme Court had to assess

whether the sole ground for refusing a Dublin II transfer to Italy is the existence of “systemic

deficiencies in the asylum procedure and in the reception conditions of asylum seekers [...] [which]

amount to substantial grounds for believing that the asylum seeker would face a real risk of being

subjected to inhuman or degrading treatment [...]” or individual violations of fundamental rights,

other than prohibition of ill-treatments can also be a legitimate ground.

The UK Court of Appeal first identified a potential conflict between the obligations established by

the ECtHR and CJEU in Dublin transfers and decided to solve the conflict of judicial interpretation

by giving preference to the CJEU ‘systemic deficiencies’ test. The Court of Appeal interpreted the

N.S. and others preliminary ruling as raising the threshold for the limitation of the principle of mutual

trust to existence of systemic deficiencies in the reception and procedural asylum systems, where

“proof of individual risk, however grave, and whether or not arising from operational problems in the

state's system, cannot prevent return under Dublin II.”

On the other hand, the UK Supreme Court had a different view, aiming to reconcile the potentially

conflictual interpretation of the two European supranational courts, by interpreting the N.S. and others

preliminary ruling in light of established jurisprudence of the ECtHR, such as the landmark Soering

v UK case. The UK Supreme Court held that, should it follow the Court of Appeal’s interpretation of

N.S., it would give rise “to an inevitable tension with the Home Secretary’s obligation to abide by EU

law” since under EU law, the Member States have to comply with the ECHR, and also the 1998

Human Rights Act which requires the Home Secretary to conform to the ECHR. In EM (Eritrea), the

UK Supreme Court established that the legal test to be followed when determining whether particular

violations of human rights amount to legitimate grounds for limiting mutual trust should be the

ECtHR Soering test coupled with the M.S.S and N.S. thresholds. Thereby, the UK Supreme Court

endorsed a two prong test: 1) operational, systemic failures in the national asylum systems and 2)

individual risks of being exposed to treatment contrary to Article 3 ECHR and Article 4 EU Charter

should be considered as legitimate thresholds for the limitation of the principle of mutual trust. The

approach of the UK Supreme Court was endorsed by the ECtHR in Tarakhel v Switzerland case.

83 Tarakhel v Switzerland, paras. 101 and 121. 84 In the case of “Dublin” returns, the presumption that a Contracting State which is also the “receiving” country

will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been

shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment

contrary to that provision in the receiving country.

The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the

Convention obligations of the State ordering the person’s removal. It does not exempt that State from carrying out a

thorough and individualised examination of the situation of the person concerned and from suspending enforcement of

the removal order should the risk of inhuman or degrading treatment be established.

The Court also notes that this approach was followed by the United Kingdom Supreme Court in its judgment of

19 February 2014 (see paragraph 52 above). 85 R (on the application of EM (Eritrea)) (Appellant) v Secretary of State for the Home Department [2014] UKSC 12

48

The UK Supreme Court approach was echoed by other national judgments on Dublin transfers,

including under the revised Dublin III Regulation transfers. As regards Dublin transfers to Italy, the

Administrative Court of Nantes quashed a decision of a Dublin transfer to Italy based on the

administration failure to carry out “a full and rigorous examination of the consequences of the

applicant’s transfer in Italy”, and in particular of the existence of the N.S. conditions of “substantial

grounds for believing that there are systemic flaws in the [Italian] asylum procedure and in the

reception conditions”. Although the Court admitted that the level of systemic deficiencies found to

exist in the Greek asylum reception and procedure system, as set out in the N.S. judgment, was not

reached in Italy, it nevertheless, required the administration to give solid proof, instead of general

motivations, of adequate assessment of the situation in Italy. The individual assessment obligation,

as resulting from the ECtHR jurisprudence, requires in light of “the delicate and evolving situation in

Italy, regarding migrants’ reception that every transfer decision under the Dublin Regulation, should

be cautiously taken, after a full and rigorous examination of the consequences for the applicant upon

transfer.”

Similarly, the Supreme Administrative Court of Slovenia required the administration to carry out

a rigorous examination of the circumstances regarding accommodation in Italy when an applicant for

international protection claimed a threat of ill treatment and provided supporting evidence and

reports. The Supreme Court held that the reports submitted by the administration pre-dating the

ECtHR judgment in Tarakhel v Switzerland were outdated, while the fact that the ECtHR did not stop

the transfer but only required that special procedures for families with small children or extremely

vulnerable applicants be ensured, does not exonerate the administration of the obligation to provide

updated and concrete proof that there will be no risk of ill treatments should the asylum seeker be

transferred. Such an assessment is not a sufficient reason not to investigate the circumstances or not

to respond to allegations of the flaws. The Supreme Administrative Court held that the fact that Italy

is implementing EU funded programme on securing adequate accommodation to asylum seekers does

not mean the accommodation will actually be ensured.

The Prague Regional Court quashed the administrative decision of returning an asylum seeker in

Bulgaria based on the absence of an assessment run by the administration of whether the Bulgarian

asylum system enables an adequate health and other necessary measures. The Court held that such a

report is needed in light of flaws indicated in recent UNHCR Reports regarding reception conditions

but also procedural rights, in particular their right to a personal interview under Dublin III Regulation.

The Regional Court did not argue that these violations amounted to systemic deficiencies in the

Member State of transfer, therefore sharing the approach of the individual violation of fundamental

rights as threshold for the limitation of the principle of mutual trust.

In Aranyosi and Căldăraru (C‑ 404/15 and C‑ 659/15 PPU, ECLI:EU:C:2016:198), the CJEU

reconciled, to a certain extent, its approach to limitation of principle of mutual trust with the ECtHR

approach. The CJEU admitted, similarly to the ECtHR, that not only systemic deficiencies in the

procedural domestic systemic, but also existence of a real risk of inhuman and degrading treatment

in a specific case can be legitimate limitations to the execution of a European Arrest Warrant: ‘’Article

1(3), Article 5 and Article 6(1) of the Framework Decision must be interpreted as meaning that where

there is objective, reliable, specific and properly updated evidence with respect to detention

conditions in the issuing Member State that demonstrates that there are deficiencies, which may be

systemic or generalised, or which may affect certain groups of people, or which may affect certain

places of detention, the executing judicial authority must determine, specifically and precisely,

whether there are substantial grounds to believe that the individual concerned by a European arrest

warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial

sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to

a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the

event of his surrender to that Member State. To that end, the executing judicial authority must request

that supplementary information be provided by the issuing judicial authority, which, after seeking, if

49

necessary, the assistance of the central authority or one of the central authorities of the issuing

Member State, under Article 7 of the Framework Decision, must send that information within the

time limit specified in the request. The executing judicial authority must postpone its decision on the

surrender of the individual concerned until it obtains the supplementary information that allows it to

discount the existence of such a risk. If the existence of that risk cannot be discounted within a

reasonable time, the executing judicial authority must decide whether the surrender procedure should

be brought to an end.’’

It can be concluded that, once domestic public authorities have probative updated evidence (e.g.

judgments of the ECtHR, reports of independent human rights bodies) of individual or systemic

violations of Article 4 EU Charter rights, than they have an obligation to ask for assurances that such

violations will not take place, and if assurances are not given than they are obliged to suspend the

enforcement of the transfer (whether under EU secondary legislation in the field of the Area of

Freedom Security and Justice)

Casesheet n. 7 – Italian Supreme Court of Appeal

Italian Supreme Court of appeal (Corte di Cassazione), Section VI civil, March 25, 2015, Ordinance

No. 592686

Legal issues: Public authorities failure to provide information about the possibility of the irregular

migrant to request international protection at the borders – the notion of ‘borders’ include also the

maritime border – direct application of the Asylum Procedure Directive before the expiry of the

transposition period – legal source of public authorities’ duty of information - effects and remedy for

the public authorities violation of the duty of informing irregular migrants of their possibility to lodge

a claim for international protection

Facts: A Nigerian national was saved while on the sea by the Italian Marine army, and placed in

detention at the Centre for Identification and Expulsion of Rome and issued an expulsion order due

to being without any identification document. It has to be noted that asylum seekers are lodged in a

different reception centre, namely, (C.A.R.A.). The Magistrate court in Rome confirmed the

expulsion order. The migrant lodged an appeal against the decision of the Magistrate court before the

Supreme Court, claiming that he did not receive any information about the possibility to request

international protection and that his fundamental rights were thus violated (in particular those

protected by Articles 5, 6 (1) and 13 of ECHR).

Reasoning of the Court:

In assessing the applicant’s claim that he was not informed about the possibility to lodge an asylum

application, the Supreme Court relied directly on Article 8 of the Recast Directive 2013/32, and the

jurisprudence of the ECtHR. The Court held that, such a duty to inform migrants at the borders of

their possibility (in this case the Court referred to a right) to lodge an application for international

protection, although not expressly set out by the Italian legislation, has to be deduced directly from

the Recast Asylum Procedure Directive. The Supreme Court held that national judges have a duty of

86 M. Flamini and F. Casarosa, ACTIONES Case note, Italian Supreme Court of appeal (Corte di Cassazione),

Section VI civil, March 25, 2015, Ordinance No. 5926.

50

conform interpretation of national legislation (in casu, Art. 3, comma 2, 6, comma 1, e 26, comma 1,

d.lgs. n. 25 del 2008, o nell'art. 2, comma 1, d.P.R. n. 303 del 2004) with EU Directives during their

transposition period (at the moment when the expulsion decree was issued the transposition period of

the Directive had not expired).

In addition to the Recast Asylum Procedure Directive as legal source for the public authorities’ duty

to inform irregular migrants of their right to lodge an application for international protection at the

borders, including maritime borders, the Supreme Court invoked also the jurisprudence of the ECtHR.

From Hirsi Jamaa c. Italy, the Court recalled para. 204, where the ECtHR notes that ‘lack of

information is one of the main barriers to access to asylum procedures’ (similarly M.S.S. v Belgium

and Greece, para. 304). The Supreme Court added that these judgments stress the importance of

ensuring the right of persons affected by an expulsion measure, whose effects are potentially

irreversible, to obtain sufficient information to enable them to have effective access to procedures

and to support their actions. The Court reminded that according to the Strasbourg Court, the lack of

access to information concerning the procedures to be followed is clearly a major obstacle in

accessing those procedures. " (M.S.S v Belgium and Greece) The Supreme Court underlined that

public authorities have not just a duty to inform, but this duty has to fulfil certain requirements,

namely to ensure a timely exercise of the right to apply for international protection.

Therefore, the Supreme Court concluded that there is settled jurisprudence of the ECtHR (citing paras

from Hirsi v Italy and M.S.S v. Belgium and Greece) establishing a duty of information, which

requires consistent interpretation of national legislation in compliance with European standards

affirming that: “Having regard to the terms of the present case and in accordance with the European

directive mentioned above, the following principle of law may be affirmed: if there are indications

that foreign nationals or stateless persons, present at national country borders, wish to submit an

application for international protection, the competent authorities have a duty to provide them with

information on the possibility to do so, and ensuring interpretation services to the extent necessary

to facilitate access to the asylum procedure, under penalty of nullity of the relevant decrees of

refoulement and detention”.

After having established the violation of the duty of information by the Italian authorities, the

Supreme Court continued its reasoning with assessing the effects of this violation on the expulsion

order and detention measure.

The Supreme Court affirmed the obligation of ensuring coordination between national jurisprudence

(Cass. 12609/2014) with ECtHR decisions, namely Seferovic v. Italy and Hokic and Hrustic v. Italy.

There the court affirmed that the judge in charge of validating the detention or expulsion measure “is

also invested with the power to detect incidentally, for the decision within its competence, the

"obvious" unlawfulness of the measure”.

Consequently the Supreme Court quashed the Magistrate court decision as he did not checked if the

claimant was informed about the possibility to request international protection and declared unlawful

also the detention measure of the applicant in expulsion centre.

Role of the Charter: The Charter is not mentioned, but only the Recast Asylum Procedure Directive

and the ECtHR jurisprudence., in particular the M.S.S. v Belgium and Greece and Hirsi v Italy as

regards the existence of a duty of information incumbent upon public authorities, and Seferovic v.

Italy and Hokic and Hrustic v. Italy as regards the effects and remedies of violation of this duty of

information on detention measures.

Judicial dialogue: Unlike the first instance court, the Supreme Court used the duty of conform

interpretation of national legislation with Recast Asylum Procedure Directive, whose transposition

period had not ended at the moment the contested administrative measure was issued, and with the

jurisprudence of the ECtHR for the purpose of establishing whether a duty to inform migrants at the

51

borders of their possibility to lodge an application for international protection exists and its effects

and remedies in the Italian system. The Court found as legal sources for the duty to inform Article 8

Recast Asylum Procedure Directive and M.S.S v Belgium and Greece and Hirsi v Italy. The Supreme

Court established that national judges have a proactive duty to investigate whether the public

authorities have fulfilled this duty. The effects and remedies of violation of the duty to inform were

deduced from Seferovic v. Italy and Hokic and Hrustic v. Italy. Furthermore the Supreme Court

aligned its previous jurisprudence with these judgments of the ECtHR and found that annulment of

the administrative decision based on violation of duty to inform is the adequate remedy, in casu:

annulment of the expulsion order and immigration detention.

Casesheet n. 8 – Abdida

Judicial dialogue (Belgian Courts – CJEU; CJEU – ECtHR) leading to automatic suspensive effect

of appeal in return proceedings and safeguards pending appeal

Timeline

Abdida (Case C-562/13, judgment of 18 December 2014)87 – refusal of subsidiary protection on

medical grounds; interaction between asylum and return proceedings; right to an appeal with

suspensive effect on the enforcement of removal; safeguards pending appeal: right to social benefits

and emergency medical assistance pending removal; non-refoulement in medical cases; fruitful

judicial dialogue between CJEU and ECtHR

Initially, Mr Abdida was recognised a right of residence based on medical grounds and received social

assistance. Subsequently, his application for leave to reside was rejected on the ground that his

country of origin has adequate medical infrastructure, he was granted emergency medical care, but

withdraw social assistance.

The Brussels Labor Court asked the CJEU whether the asylum related directives or the Charter require

the Member State to provide for a ‘remedy with suspensive effect in respect of the administrative

decision refusing leave to remain and/or subsidiary protection, and ordering the person concerned to

leave the territory of that State’, and medical and social assistance pending the examination of the

87 ECLI:EU:C:2014:2453. Formatted: French (France)

52

appeal against a refusal of a permit to stay for medical reasons.

In the light of the interpretation already given to the Qualification Directive in a judgment delivered

that same day, case M'Bodj88, the CJEU excluded the applicability to of the Qualification Directive,

Asylum Procedure and Reception Conditions Directives procedures, holding that neither refugee, nor

subsidiary protection can be recognised on medical grounds. However, the CJEU did not dismiss the

preliminary questions as inadmissible, but it reformulated the questions addressed by the national

court as related to the application of the Return Directive and the EU Charter. The CJEU held that

the challengeable act can be characterised as be classified as a ‘return decision’ within the meaning

of Article 3(4) of Directive 2008/115. The CJEU continued that setting out the requirements that a

remedy to an appeal against a return decision needs to fulfill under Article 13 Return Directive.

First of all, ‘a third country national must be afforded an effective remedy to appeal against or seek

review of a decision ordering his return.’ (para. 43)

Secondly, there has to be an ‘authority or body with power to adjudicate on such an appeal’ which

‘may temporarily suspend enforcement of the return decision that is being challenged, unless a

temporary suspension is already applicable under national legislation.’

Although the CJEU interpreted that Article 13 of the Return Directive does not require that an appeal

against a return decision has automatic suspensive appeal, it also held that these provisions need to

be interpreted ‘in a manner that is consistent with Article 47 of the Charter, which constitutes a

reaffirmation of the principle of effective judicial protection (see, to that effect, judgments in Unibet,

C-432/05, EU:C:2007:163, paragraph 37, and Agrokonsulting, C-93/12, EU:C:2013:432, paragraph

59)’ (para. 45) Additionally Article 13 of the Return Directive needs to be interpreted in a manner

consistent also with Article 19(2) of the Charter. According to Article 52(3) CFR, the requirements

set out under Article 19(2) CFR were interpreted by the CJEU in light of the jurisprudence developed

by the ECtHR regarding prohibition of expulsion under Article 3 ECHR in medical cases (N. v. the

United Kingdom [GC], no. 26565/05, § 42, ECHR 2008). The CJEU found that the ECtHR recognised

an ‘entitlement to remain in the territory of a State in order to continue to benefit from medical, social

or other forms of assistance and services provided by that State, [when] a decision to remove a foreign

national suffering from a serious physical or mental illness to a country where the facilities for the

treatment of the illness are inferior to those available in that State.’ (para. 47)

These ECtHR derived requirements would translate under the EU legal order in an obligation of

refusing enforcement of a return decision entailing the removal of a third country national suffering

from a serious illness to a country in which appropriate treatment is not available’(Article 5 of

Directive 2008/115).

After interpreting the requirements under Article 19(2) CFR in light of requirements under Article 3

ECHR, the CJEU interpreted the requirements under Article 47 CFR in light of Article 13 ECHR and

the jurisprudence of the ECtHR interpreting the effective remedies requirements in such cases (paras.

50-53).

‘The European Court of Human Rights has held that, when a State decides to return a

foreign national to a country where, there are substantial grounds for believing, he will

be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an

effective remedy provided for in Article 13 ECHR requires that a remedy enabling

suspension of enforcement of the measure authorising removal should, ipso jure, be

available to the persons concerned (see, inter alia, European Court of Human Rights,

88 C-542/13, ECLI:EU:C:2014:2452. Formatted: French (France)

53

judgments in Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 67, ECHR 2007-

II, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012). 53 It

follows from the foregoing that Articles 5 and 13 of Directive 2008/115, taken in

conjunction with Articles 19(2) and 47 of the Charter, must be interpreted as precluding

national legislation which does not make provision for a remedy with suspensive effect in

respect of a return decision whose enforcement may expose the third country national

concerned to a serious risk of grave and irreversible deterioration in his state of health.

The CJEU judgment sets thus three main requirements:

1. An obligation of refusing enforcement of a return decision entailing the removal of a third country

national suffering from a serious illness to a country in which appropriate treatment is not available

(Article 5 Return Directive)

2. Recognising an automatic suspensive effect to an appeal against a decision ordering a third-country

citizen, suffering from a serious illness, to leave their territory when the execution of the decision

may expose that person to a real risk of serious deterioration and irreversible for his health (Article

13 Return Directive) and

3. Provide the concerned third-country national, in order to ensure that emergency health care and

essential treatment of illnesses can indeed be provided pending the appeal. (Article 14 Return

Directive)

All there rights were recognised to irregular migrants based on Articles 19(2) and 47 CFR as

interpreted in light of the requirements set by the ECtHR under Articles 3 and 13 ECHR.

Impact of Abdida on Belgian jurisprudence and legislation89

Following the positive answer of the CJEU, various cases emanating from Labor Tribunals held that

seriously ill foreigners keep their right to social assistance pending the examination of their appeal.

Additionally, the Belgian Council of Alien Law Litigation recognised that an automatic suspensive

effect should also be available to appeals against order to leave the territory when the applicant’s

illness is that serious that a removal might amount to a refoulement prohibited by Article 3 ECHR

(CALL, 156.951, November 2015)90. Suspensive effect, however, is not available against decisions

refusing the right or authorization to stay in Belgium91 (CALL, 159.427, 28 December 2015). The

automatic suspensive effect was initially recognised in the absence of national legislation, and directly

on the basis of the CJEU Abdida preliminary ruling. Whilst the Constitutional Court (1/2014, 16

January 2014) welcomed this judicial practice, it also stressed the need for a legislative amendment

introducing the guarantees under the right to an effective remedy. On 10 of April 2014, a legislative

amendment was brought to the Aliens Law, whereby an automatic suspensive effect is recognised to

the request for suspension, which need to be introduced within the 10 days of the notification of the

order to leave the territory.92

After the adoption of ‘Law of 10 April 2014’, but before its entry into force of 21st of May 2014,

another Belgian Labour Court addressed preliminary questions to the CJEU on the effectiveness of

the remedy of the appeal in multiple asylum application proceedings – Tall case

89 Based on European Synthesis Report on the Judicial Implementation of Chapter III of the Return Directive –

Procedural safeguards. 90 The cases are available in the REDIAL Database. 91 Here for humanitarian and medical reasons, according to Article 9ter of the Aliens Law. 92 Loi du 10 avril 2014 portant des dispositions diverses concernant la procédure devant le Conseil du Contentieux

des étrangers et devant le Conseil d’État, Mon. B., 21 mai 2014

http://euredial.eu/national-caselaw/?article=ARTICLE12&n=AS662-839/2014

54

Tall (C-239/14, 17 December 2015)93

After final rejection of his first asylum application, Mr Tall introduced a second asylum application

which was not taken into consideration by the Belgian immigration authorities and the Commissariat

général aux réfugiés et aux apatrides (Council of Aliens Law Litigation – CALL). Following this

refusal, his access to social assistance was terminated. He was then ordered to leave the territory.

Several days after, Mr Tall lodged two appeals: one before the CALL against the decision refusing to

take into consideration his second application for asylum; and another appeal before the Labour

Tribunal concerning withdrawal of his social assistance. Similarly to the Abdida case, only the Labour

Tribunal addressed preliminary questions to the CJEU.

The referring court asked the CJEU whether the Asylum Procedure Directive in conjunction with

Article 47 CFR prohibits Belgian law (the one existing before the entry into force of Law 10 April

2014) which limits the examination national courts can undertake under an appeal in subsequent

asylum application, deprives the appeal of suspensive effects, and the individual of access to social

benefits pending the appeal.

The Belgian Government and the European Commission argued the preliminary question should be

dismissed as inadmissible since the recent legislative amendment solved this issue by recognising

equal procedural treatment between the first application of asylum and subsequent asylum

applications.94 In support of their claim they argued that the Belgian Constitutional Court recognised

retroactive application of the Law, at least in regard to pending subsequent asylum application, as

was the case of Mr Tall.95

The CJEU held the preliminary reference admissible on the ground that it does not have competence

to pronounce on the transitional application of the national law and secondly on the presumption of

relevance of the preliminary reference of which national courts benefit under Article 267 TFEU, but

also under the duty of sincere cooperation (Article 4(3) TEU).

At issue is, in essence the conformity of a fast-track or accelerated asylum proceeding with the

requirements of Article 47 CFR. In particular, the CJEU was asked to assess whether Article 47 CFR

requires within the fast track asylum procedure a suspensory effect of the appeal, regardless of the

number of asylum application made; unlimited jurisdiction of the court hearing the appeal, and access

to social benefits pending the appeal. It was thus an opportunity for the CJEU to clarify the Diouf

judgment which dealt with similar issues.

Although the CJUE upheld the discretion recognised to the Member States in Diouf, whereby they

are not required to confer a full examination and suspensive appeal in accelerated procedure, where

the applicant submits new asylum application without presenting new evidence, it enhance the

protection of the right to an effective remedy by restating the conclusions reached in the Abdida

preliminary ruling delivered a year before the Tall judgment.

In conclusion, regardless of the type and number of asylum applications submitted, the follow-up

return proceedings need to offer an appeal with suspensory effect, ‘when it is brought against a return

decision whose enforcement may expose the third-country national concerned to a serious risk of

being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment,

thereby ensuring that the requirements of Articles 19(2) and 47 of the Charter are met in respect of

93 94 See paras 30-34. 95 Constitutional Court of Belgium, Judgment No 56/2015 of 7 May 2015.

55

that third-country national (see, to that effect, judgment in Abdida, C-562/13, EU:C:2014:2453,

paragraphs 52 and 53).’ (para. 58)

Documents

Changing the powers of national judges. The impact of art ... materials_CJC_EUI.pdf · Art 47 Charter and artt Articles 6 and 13 ECHR have a different substantive scope as the latter