7The annex to Directive 93/13 lists the terms referred to in Article 3(3) thereof. It includes, in particular, the following terms:

21By its two questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 7(1) of Directive 93/13, read in combination with Article 47 of the Charter, 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 first instance court, which, in its final decision, may at most award compensation in respect of the damage suffered by the consumer, in so far 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 declaring an unfair term inapplicable.

22In this regard, it should be observed, first, that according to the Court’s settled case-law, the system of protection introduced by the directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (judgments in Barclays Bank , C‑280/13, EU:C:2014:279 , paragraph 32, and Aziz , C‑415/11, EU:C:2013:164 , paragraph 44).

23As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. That is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349 , paragraph 40 and case-law cited).

24In that context, the Court has already stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary to that end ( Aziz , EU:C:2013:164 , paragraph 46, and Barclays Bank , EU:C:2014:279 , paragraph 34).

25National enforcement proceedings, such as mortgage enforcement proceedings, are subject to the requirements arising out of this case-law of the Court which seeks to ensure the effective protection of consumers.

26Thus, in connection with such proceedings, the Court has held that Directive 93/13 must be interpreted as precluding legislation of a Member State which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary for that task available to it, whether a term concerning interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection (see Banco Español de Crédito , EU:C:2012:349 , paragraph 57).

27The Court has also decided that the directive must be interpreted as precluding the legislation of a Member State which, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, does not permit the court before which declaratory proceedings have been brought, which does have jurisdiction to assess the unfairness of such a term, to grant interim relief, including, in particular, the staying of those enforcement proceedings, where the grant of such relief is necessary to guarantee the full effectiveness of its final decision (see Aziz , EU:C:2013:164 , paragraph 64).

28The Court’s case-law has also established that Directive 93/13 precludes national legislation which does not allow the court responsible for the enforcement, in mortgage enforcement proceedings, either to assess of its own motion or at the consumer’s request, the unfairness of a term contained in the contract which gives rise to the debt claimed and which constitutes the basis of the right to enforcement, or to grant interim relief, including, in particular, staying the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of the final decision of the court hearing the declaratory proceedings before which the consumer argues that that term is unfair (order in Banco Popular Español and Banco de Valencia , C‑537/12 and C‑116/13, EU:C:2013:759 , paragraph 60).

29In accordance with this case-law, and more particularly in response to the delivery of the judgment in Aziz ( EU:C:2013:164 ), Law 1/2013 amended, in particular, those articles of the LEC relating to enforcement proceedings against mortgaged or pledged assets by introducing into Article 695(1) the possibility for the party opposing the mortgage enforcement proceedings to object to those proceedings on the ground that the contractual clause upon which the enforcement was based was unfair.

30That legislative amendment has given rise to a new issue compared with that which resulted in the judgment in Aziz ( EU:C:2013:164 ) and the order in Banco Popular Español and Banco de Valencia ( EU:C:2013:759 ). That issue concerns the fact that the national legislation limits the possibility of appealing against a decision exclusively to the case in which the court at first instance has upheld an objection relying on the unfairness of the contractual clause upon which the enforcement is based, the legislation having created a difference of treatment between the consumer and the seller or supplier in their position as parties to the proceedings. In so far as an appeal is possible only when an objection is upheld, the seller or supplier may appeal against a decision which is contrary to its interests whilst, if the objection is dismissed, the consumer does not have that right.

31In this respect, it must be noted that, in the absence of harmonisation of national enforcement procedures, the detailed rules establishing the right of appeal against a decision ruling on the legality of a contractual clause, arising in the course of mortgage enforcement proceedings, are matters falling within the domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States. Nonetheless, the Court has emphasised that those detailed rules must meet the conditions that they should be no less favourable than those governing similar domestic situations (principle of equivalence) and that they should not in practice render impossible or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgments in Mostaza Claro , C‑168/05, EU:C:2006:675 , paragraph 24; Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615 , paragraph 38; Aziz , EU:C:2013:164 , paragraph 50; and Barclays Bank , EU:C:2014:279 , paragraph 37).

32As regards, first, the principle of equivalence, it must be observed that the Court does not have before it any evidence that might raise doubts as to the compatibility of the legislation at issue in the main proceedings with that principle.

33It is apparent, notably from the provisions of Article 695(1) and (4) of the LEC, that the Spanish procedural system does not provide that a consumer may bring an appeal against a decision dismissing his objection to the enforcement, not only when that objection is based on the unfairness, within the meaning of Article 6 of Directive 93/13, of a clause in the contract agreed between a seller or supplier and the consumer, but also when it is based on breach of a national rule of public policy, which it is, nevertheless, for the national court to ascertain (see Aziz , EU:C:2013:164 , paragraph 52).

34Second, as regards the principle of effectiveness, the Court has previously held that every case in which the question arises whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, to that effect, judgments in Asociación de Consumidores Independientes de Castilla y León , C‑413/12, EU:C:2013:800 , paragraph 34, and Pohotovosť , C‑470/12, EU:C:2014:101 , paragraph 51 and case-law cited).

35Thus, the obligation for the Member States to ensure the effectiveness of the rights that the parties derive from Directive 93/13 against the use of unfair clauses implies a requirement of judicial protection, also guaranteed by Article 47 of the Charter, that is binding on the national court (see, to that effect, judgment in Banif Plus Bank , C‑472/11, EU:C:2013:88 , paragraph 29). That protection must be assured both as regards the designation of courts having jurisdiction to hear and determine actions based on EU law and as regards the definition of detailed procedural rules relating to such actions (see, to that effect, the judgment in Alassini and Others , C‑317/08 to C‑320/08, EU:C:2010:146 , paragraph 49).

36In 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.

37However, taking into consideration the role of Article 695(1) of the LEC within the context of the procedure as a whole, the following findings must be made.

38First, it is apparent from the case-file submitted to the Court that, according to the Spanish procedural rules, mortgage enforcement proceedings relating to an asset that meets an essential need of the consumer, namely, provision of a dwelling, may be initiated by a seller or supplier on the basis of an enforceable notarial instrument, without the contents of that instrument having been subject to judicial scrutiny in order to determine whether one of more of the clauses is unfair. Such a right, afforded to a seller or supplier, renders it all the more necessary that the consumer, in the position of a debtor against whom mortgage enforcement proceedings are brought, can avail himself of effective judicial protection.

39As regards the scrutiny exercised by the enforcing court, it should be observed, on the one hand, that as the Spanish Government confirmed at the hearing, notwithstanding the legislative amendments to the LEC made after the judgment in Aziz ( EU:C:2013:164 ) introduced by Law 1/2013, Article 552(1) of the LEC does not oblige the enforcing court to examine of its own motion whether the contractual clauses upon which the request is based are unfair, but only a discretionary power to do so.

40On the other hand, pursuant to Article 695(1) of the LEC, as amended by Law 1/2013, the party against whom mortgage enforcement proceedings are brought may raise an objection when founded, in particular, on the unfairness of a contractual clause upon which the enforcement is based or which allowed the sum due to be determined.

41In that respect, however, it must be emphasised that, under the terms of Article 552(1) of the LEC, the assessment by the court of an objection based on the unfairness of the contractual clause is subject to time constraints, such as that of hearing the parties within 15 days and giving a ruling within 5 days.

42Furthermore, it is apparent from the information provided to the Court that the Spanish procedural system in relation to mortgage enforcement is characterised by the fact that, once the procedure has been initiated, any other legal claim that the consumer might bring, including claims contesting the validity of the instrument enforced, enforceability, certainty, or extinction or the amount of the debt, is dealt with in separate proceedings and by a separate decision, without either one or the other having the effect of staying or terminating the pending enforcement proceedings, except in the residual circumstances in which a consumer has lodged a preliminary application for annulment of the mortgage before the marginal note regarding issue of the security certificate (see, to that effect, Aziz , EU:C:2013:164 , paragraphs 55 to 59).

43Having 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).

44In the second place, having regard once again to the role played by Article 695(4) of the LEC within the scheme of mortgage enforcement proceedings as a whole under Spanish law, it should be noted that that provision gives the seller or supplier, as a creditor seeking enforcement, the right to bring an appeal against a decision ordering a stay of enforcement or declaring an unfair clause inapplicable, but does not permit, by contrast, the consumer to exercise a right of appeal against a decision dismissing an objection to enforcement.

45Therefore, it is clear that the procedure for objecting to enforcement, laid down by Article 695 of the LEC, before the national court places the consumer, as a debtor against whom mortgage enforcement proceedings are brought, in a weaker position compared with the seller or supplier, as a creditor bringing mortgage enforcement proceedings, as regards the judicial protection of the rights that he is entitled to rely on by virtue of Directive 93/13 against the use of unfair clauses.

46In those circumstances, it must be stated that the procedural system at issue in the main proceedings places at risk the attainment of the objective pursued by Directive 93/13. The imbalance between the procedural rights available to the consumer, on the one hand, and to the seller or supplier on the other hand, simply accentuates the imbalance existing between the parties to the agreement, already mentioned at paragraph 22 of this judgment, and which is also echoed in the context of an individual action involving a consumer and the seller or supplier who is his co-contractor (see, by way of analogy, Asociación de Consumidores Independientes de Castilla y León , EU:C:2013:800 , paragraph 50).

47Furthermore, such a procedural system proves to be contrary to the Court’s case-law according to which the specific characteristics of court proceedings, which take place under national law between sellers or suppliers and consumers, cannot constitute a factor liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13 (see, to that effect, Aziz , EU:C:2013:164 , paragraph 62).

48It also follows that, in Spanish Law, if a consumer and a seller or supplier are parties to mortgage enforcement proceedings, the way in which the proceedings before the national court hearing an objection to the enforcement of the mortgage progress, under Article 695 of the LEC, is contrary to the principle of equality of arms or procedural equality. 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 (see, to that effect, judgments in Otis and Others , C‑199/11, EU:C:2012:684 , paragraph 48, and Banif Plus Bank , EU:C:2013:88 , paragraph 29).

49It is settled case-law that the principle of equality of arms, together with, among others, the principle audi alteram partem , 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 (see the judgment in Sweden v API and Commission , C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541 , paragraph 88).

50In those circumstances, it must be held that a national procedure for mortgage enforcement, such as that at issue in the main proceedings, is liable to jeopardise the effectiveness of consumer protection intended by Directive 93/13, read in conjunction with Article 47 of the Charter, in that the procedural system reinforces the inequality of arms between sellers or suppliers, as creditors in mortgage enforcement proceedings, on the one hand, and consumers, as debtors subject to mortgage enforcement proceedings, on the other hand, in the exercise of legal claims based on the rights that the latter derive from Directive 93/13, all the more so because the detailed procedural rules giving effect to such claims are incomplete and inadequate for preventing the continued application of an unfair clause contained in the instrument establishing the mortgage on the basis of which the seller or supplier brings enforcement proceedings against the property pledged as security.

51In the light of these considerations, the answer to the questions referred is that Article 7(1) of Directive 93/13, read in conjunction with Article 47 of the Charter, 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.