Spain, Court of First Instance, Section No 2, Badajoz, 13 January 2012

Identification of the case

• Law 23/2003

• Articles 1, 2, 3, 8 of Directive 1999/44

Summary of the case

In July 2004, Ms D. H. purchased a car with a sliding roof from Autociba. The following August, the vehicle was delivered. Ms D. H. returned the vehicle due to a defect and after a number of unsuccessful attempts to repair it, she requested that the vehicle be replaced.

Following Autociba’s refusal to replace it, Ms D. H. brought an action before the Juzgado de Primera Instancia no 2 of Badajoz, seeking rescission of the contract of sale and an order that Autociba and Citroën España SA, the latter as the manufacturer of the vehicle, be held jointly and severally liable to repay the purchase price of the vehicle. The Juzgado de Primera Instancia no 2 of Badajoz found, however, that, because the lack of conformity giving rise to the dispute before it was minor, rescission of the contract of sale could not be granted under Article 3(6) of Directive 1999/44.

Against that background, even though Ms D. H. was entitled to a reduction in the sale price on the basis of Article 3(5) of Directive 1999/44, the referring court nevertheless finds that that remedy could not be provided because of the internal rules of procedure, in particular Article 218.1 of the Code of Civil Procedure, reflecting the principle that judicial decisions must be commensurate with the requests made by the parties, as no request had been made to that effect, either as a principal claim or by way of alternative claim, by the consumer. Moreover, as Ms D. H. had the possibility of claiming such a reduction in the price, even if by way of alternative claim, in the main proceedings, no such application would be admissible in later proceedings by reason of the fact that, under Spanish law, the principle of res judicata extends to all claims which might already have been made in earlier proceedings.

In those circumstances, since it has doubts as to whether Spanish law is compatible with the principles flowing from Directive 1999/44, the Juzgado de Primera Instancia no 2 of Badajoz decided to stay the proceedings and to refer to the Court the following question for a preliminary ruling.

• Civil judicial enforcement

Conform interpretation of national law in compliance with Directive 1999/44

‘If a consumer, after failing to have the product brought into conformity – because, despite repeated requests, repair has not been carried out – seeks in legal proceedings only rescission of the contract, and such rescission is not available because the lack of conformity is minor, may the court of its own motion grant the consumer an appropriate price reduction?’

When addressing the question the Court started by pointing out how the purpose of Directive 1999/44 is to ensure a high level of consumer protection and how Article 3(2) of Directive 1999/44 provides for a specific list of rights to which the consumer is entitled in case of defects regarding a product for which the seller is liable.

The Court stressed how Article 3 of Directive 1999/44, read in conjunction with Article 11(1) thereof, requires Member States to adopt such measures as are necessary to enable consumers to exercise their rights effectively. According to the Court’s case law, the principle of effectiveness is not complied with when national procedural provisions make the application of European Union law impossible or excessively difficult.

The Court noted how, according to the state of Spanish law at the time: “The Spanish system essentially obliges the consumer to anticipate the outcome of the competent court’s analysis of the legal characterisation regarding the lack of conformity in the goods, which is final, making the protection provided for the consumer under Article 3(5) of Directive 1999/44 completely uncertain in nature, and thereby rendering that protection inadequate”. Such procedural rules, therefore, effectively undermined the effectiveness of the consumer protection intended by the European Union legislature.

Therefore, the Court concluded by stating that “it is for the referring court to identify which national rules are applicable to the dispute before it and to do whatever lies within its jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that Article 3(5) of Directive 1999/44 is fully effective and to achieving an outcome which is consistent with the objective pursued by that directive”.

The case was eventually solved through an agreement of the parties, so there is no implementation decision by the referring court

Role of the Charter and role of the general principles on enforcement

• Equivalence
• Effectiveness

The Court established that the Spanish law procedural rules under scrutiny do not go against the principle of equivalence.

The principle of effectiveness is the core of the reasoning of the Court. The Court established that the Spanish national procedural rules under consideration undermined the effectiveness of the system of liability, by making it excessively difficult for consumers to exercise their rights. In order to comply with the principle of effectiveness the referring court is called to interpret its national legislation in conformity with the goals of Directive 1999/44.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

Preliminary reference

Conform interpretation with EU law as interpreted by the CJEU

Address national procedural rules that do not comply with the principle of effectiveness

Either conforming interpretation of the national law or disapplication of national law

Additional notes on the decision

A notable example of the impact of this decision of another member state's case law is the Dutch case: External Netherlands Supreme Court, 12 February 2016, n. 15/1503359, ECLI:NL:PHR:2015:2658  Supreme Court, 12 February 2016, n. 15/1503359, ECLI:NL:PHR:2015:2658.

"The Supreme Court decided on a case regarding a consumer contract which includes both a subscription to the mobile service as well as the sale of a phone. The Supreme Court affirmed that national courts have the duty to examine (ex officio) the content of the contract and apply the national legislation implementing Directive 87/102 on consumer credit. In particular, the Supreme Court affirmed that the national court, has to ensure adequate effective consumer protection, this allowed the Supreme Court to introduce a new remedy, not specified in the Dutch Civil Code.80 The wide and detailed reference to CJEU case law supported the reasoning of the Supreme Court, which ends in a higher level of consumer protection"

ACTIONES Handbook on the Techniques of Judicial Interactions in the Application of the EU Charter; Module 4 – Consumer Protection, 2017, European University Institute ;