In July 2007, Mr Aziz, a Moroccan national residing in Spain, concluded with the bank Catalunya Caixa a loan agreement to the value of €138,000 secured by a mortgage over his family home. He stopped paying his instalments with effect from June 2008. After having called upon him to pay without success, the bank initiated enforcement proceedings against him. When Mr Aziz failed to appear, execution was ordered. An auction of his immovable property was arranged, but no bid was made, with the result that, in accordance with the Spanish legislation, ownership of the property was vested in the bank at 50% of its value. On 20 January 2011, Mr Aziz was evicted from his home. Shortly beforehand, he applied for a declaration seeking annulment of a term of the mortgage loan agreement, on the ground that it was unfair and, accordingly, of the mortgage enforcement proceedings.
In that context, the Juzgado de lo Mercantil No 3 de Barcelona (Commercial Court No 3, Barcelona) before which the case was brought, decided to ask the Court of Justice, first, about the compatibility of Spanish law with the Unfair Terms in Consumer Contracts Directive1, since Spanish law makes it extremely difficult for the court to ensure effective protection of the consumer and, second, about the essential characteristics of the concept of ‘unfair term’ within the meaning of that directive.
