Termination of the restitution claim

Facts

In 1999. GP and BG (consumers) concluded with Banco Santander SA (hereinafter: Bank) a mortgage credit agreement which included a condition requiring them to cover all costs arising from the contract. In 2017, the Council adopted Decision (CFSP) 2017/849. GP and BG they brought an action for annulment of the cost condition and for reimbursement of the amounts paid on its basis.

The Spanish referring court had doubts as to the commencement of the limitation period for a claim for reimbursement of amounts paid under a unfair condition under Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L 1993 No 95, p. 29).

TS Position

Limitation period

In circumstances specified as the main proceedings, according to the TS, on the date on which the decision declaring the unfair nature of the contractual condition afraid and declaring it invalid for this reason became finalthe consumer has any cognition of the irregularity of this condition. So that's fundamentally from that date, the consumer is able to effectively exercise rights granted to him by Directive 93/13/EEC and this from that date may so begin the period of limitation of the claim for reimbursement, the main intent of which is to reconstruct the legal and factual situation of the consumer in which he would be in the absence of that condition.

The Court held that Articles 6(1) and 7(1) of Directive 93/13/EEC, as well as the rule of legal certainty, must be interpreted as meaning that they do not preclude a limitation period for a restitution claim relating to costs paid by a consumer on the basis of a contractual contractual contract concluded with an entrepreneur whose unfair nature has been established by a final judicial decision given after payment of those costs, from starting to run on the date of that judgment, subject to the anticipation for the trader to prove that that the consumer knew or could reasonably know of the unfair nature of that condition before that decision was given.

Effects of the SN judgment

The Court found that the time limit for the limitation period for the reimbursement of the costs paid on the basis of a contractual condition, the unfair nature of which was established at a later date, on the date on which the national SN issued judgments declaring unfair standard terms equivalent to that contractual conditioncannot, in principle, comply with the rule of effectiveness. In the assessment of the TS, establishing the commencement of the limitation period for the reimbursement of costs paid by the consumer on the basis of a unfair contractual condition at the date on which the national SN issued a judgement declaring the unfair nature of the standard condition corresponding to the clause in the contract in question, would in many cases let entrepreneurs to hold amounts unduly obtained to the detriment of that consumer on the basis of an unfair condition. In the view of the TS, it would be incompatible with the request that the start of the run cannot be determined in isolation from the question whether the same consumer knew or could reasonably know of the unfair nature of the second condition as the basis for the right to reimbursement, and not imposing on the trader a work of care and informing the consumer, thus highlighting its weaker position, which Directive 93/13/EEC is intended to alleviate. Furthermore, in the absence of an work on the part of the trader to inform in this respect, it cannot be assumed that the consumer may reasonably know that the condition contained in his contract is equivalent to the standard condition, the unfair nature of which has been established by the national SN.

The Court has acknowledged that the case law of a associate State may let the consumer, subject to adequate notice, to know the unfair nature of the standard condition contained in its contract with the entrepreneur. The unification of the TS pointed out that the consumer cannot be expected to be protected by Directive 93/13/EEC, given his weaker position vis-à-vis the trader, that will undertake legal analysis activities ( TS judgement of 13.7.2023. Banco Santander (Reference to the authoritative indicator), C-265/22, Legalis, paragraph 60). Moreover, the TS stressed that specified national case law does not necessarily let ipso facto to respect as unfair all specified conditions contained in all contracts concluded between the trader and the consumer. In a situation where the national SN considered the standard contractual condition to be unfair, to be established in rule in each circumstantial case, to what degree the condition contained in the contract in peculiar is equivalent to that standard condition and should, like that condition, be declared unfair. Whereas, in accordance with Articles 3(1) and 4(1) of Directive 93/13/EEC, the examination of the possible unfair nature of the contract condition concluded between the trader and the consumer, which requires the determination of whether it results in a crucial imbalance between the rights and obligations of the parties to the contract to the detriment of the consumer, should be carried out in peculiar in the light of all the circumstances relating to the conclusion of the contract.

According to the TS, it is not possible to require an average, sufficiently careful and rational consumer not only to regularly review, on his own initiative, the decisions of the national SN concerning the standard terms contained in contracts of the same kind as those which he could have concluded with traders, but besides to determine, on the basis of a national judgement of the SN, whether the conditions contained in a peculiar contract are unfair. On the another hand, as a banking institution, the entrepreneur has, in principle, a specialised legal department in this field which has drawn up the agreement at issue in this case and which is able to follow the improvement of the case law of that court and draw conclusions from it on the contracts already concluded by that institution. specified a banking institution shall also, in principle, have a client service department that has all the essential information to easy contact the client data.

The Court held that Articles 6(1) and 7(1) of Directive 93/13/EEC must be interpreted as precluding that the limitation period for a restitution claim relating to costs paid by the consumer on the basis of the condition of the contract concluded with the trader, the unfair nature of which has been established by a final judgement given after payment of those costs, should start moving earlier than the date on which the national ultimate Court issued, in separate cases, judgments declaring the unfair nature of the standard terms of the contract corresponding to that contract. Moreover, these provisions must be interpreted as meaning that they prevent the limitation period for a restitution claim relating to costs paid by the consumer on the basis of a contractual condition with the trader, the unfair nature of which has been established by a final judicial judgment, from starting to run on the date on which certain judgments of the Court confirming in rule the compliance with Union law of the limitation periods for the limitation of restitution claims, provided that they comply with the principles of equivalence and effectiveness.