Caixabank SA contra X.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Docket NumberC-565/21
Celex Number62021CJ0565
Date16 March 2023

Provisional text


16 March 2023 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Articles 3, 4 and 5 – Consumer contracts – Mortgage loans – Unfair contract terms – Term concerning loan arrangement fees – Application seeking a declaration of invalidity of that term and reimbursement of the amount paid on that basis – Plainness and intelligibility of the terms – Existence of specific national legislation)

In Case C‑565/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 10 September 2021, received at the Court on 14 September 2021, in the proceedings

CaixaBank, S.A.



THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L.S. Rossi, J.‑C. Bonichot, S. Rodin (Rapporteur) and O. Spineanu-Matei, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Caixabank SA, by J. Gutiérrez de Cabiedes Hidalgo de Caviedes, abogado,

– the Spanish Government, by A. Gavela Llopis and M.J. Ruiz Sánchez, acting as Agents,

– the European Commission, by J. Baquero Cruz and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following


1 This request for a preliminary ruling concerns the interpretation of Articles 3 to 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 The request has been made in proceedings between Caixabank SA (‘the banking institution’) and Mr X. (‘the consumer’) concerning the alleged unfairness of a term of a credit agreement secured by a mortgage relating to a loan arrangement fee.

Legal context

European Union law

3 Article 3(1) of Directive 93/13 provides:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’

4 Under Article 4 of that directive:

‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language.’

5 Article 5 of that directive provides:

‘In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. This rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).’

6 Section 4 of Part B of Annex II to Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34), states in the first sentence of point 3:

‘In the section on “other components of the [annual percentage rate of charge (APRC)]”, all the other costs contained in the APRC shall be listed, including one-off costs such as administration fees, and regular costs, such as annual administration fees.’

Spanish law

7 Paragraph 4 of Annex II to the Orden del Ministerio de la Presidencia, sobre transparencia de las condiciones financieras de los préstamos hipotecarios (Decree of the Ministry of the Presidency on the transparency of financial terms for mortgage loans) of 5 May 1994 (BOE No 112 of 11 May 1994, p. 14444), headed ‘Fees’, is worded as follows:

‘1. Arrangement fee – All expenses relating to the examination of the loan application, the granting or processing of the mortgage loan, or other similar expenses inherent in the activity of the lending entity incurred in granting the loan, must be included in a single fee, known as the arrangement fee, and shall be payable only once. The amount, form and date of payment thereof shall be specified in that term.

2. Other fees and subsequent costs – In addition to the “arrangement fee”, the following alone may, by agreement, be charged to the borrower:

(c) Fees which, having been duly notified to the Bank of Spain in accordance with the provisions of the Decree of 12 December 1989 and regulations implementing the same, correspond to the supply of a specific service by the entity other than merely the ordinary administrative loan …’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 On 21 September 2005, the consumer entered into a credit agreement secured by a mortgage with the banking institution, in the amount of EUR 130 000, which agreement provided for the payment of a sum of EUR 845 as an arrangement fee in respect of the service received.

9 On 24 April 2018, the consumer brought an action against the banking institution, seeking annulment of the term relating to the arrangement fee and reimbursement of the sum paid. That application was upheld by the Juzgado de Primera Instancia (Court of First Instance, Spain), which declared that term null and void and ordered the bank to reimburse the consumer for the amount paid.

10 The banking institution brought an appeal before the Audiencia Provincial de Palma de Mallorca (Provincial Court, Palma de Mallorca, Spain), which was dismissed on the ground that the banking institution had failed to establish that the amount of the fee corresponded to the provision of an actual service. Thereafter, the banking institution brought an appeal on a point of law before the Tribunal Supremo (Supreme Court, Spain), which is the referring court.

11 That court considers that the answer given by the Court of Justice in the judgment of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria (C‑224/19 and C‑259/19, EU:C:2020:578), to the questions referred to it in relation to the arrangement fee for mortgage loans and credits and the relevant settled case-law of the Court of Justice was determined by the fact that the referring courts presented the national legislation and case-law in a distorted manner. That led a significant number of Spanish courts to interpret that judgment of the Court of Justice as declaring the case-law of the Tribunal Supremo (Supreme Court) relating to arrangement fees contrary to EU law.

12 In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do Article 3(1) and Articles 4 and 5 of Directive [93/13] preclude national case-law that, having regard to the specific rules of national law governing arrangement fees paid, in one instalment and generally at the time of concluding the contract, in consideration for services related to reviewing, granting or processing mortgages or loans or other similar services inherent in the lender’s activity with a view to granting the loan, deems that the contractual term providing for that fee constitutes an essential element of the contract, since it represents a principal part of the cost of the loan and cannot be assessed as unfair if it is written in clear, intelligible language, within the broad meaning established in the case-law of the [Court of Justice of the European Union]?

(2) Does Article 4(2) of Directive [93/13] preclude national case-law to the effect that, in order to assess whether the term constituting an essential element of the mortgage or loan agreement is clear and intelligible, account must be taken of issues such as consumers’ general knowledge of that term, the mandatory information that financial institutions must provide to potential borrowers under regulations on standardised information sheets, advertising by banks, the particular attention paid to it by the average consumer as being part of the cost to be paid entirely at the time of taking out the loan, and constituting a substantial part of the economic consequences to them of securing the loan, and whether the wording, placement and structure of the term make it possible to conclude that it constitutes an essential element of the contract?

(3) Does Article 3(1) of Directive [93/13] preclude national case-law that deems that a contractual term such as the one at issue in the main proceedings, relating to the arrangement fee for a loan agreement, whose purpose is remuneration for services relating to the review, design and individual processing of a loan application (reviewing the viability of the loan, the debtor’s creditworthiness, the status of encumbrances on the property to be mortgaged, etc.) as prerequisites for granting the loan, which fee is expressly provided for in national legislation as constituting payment for the formalities inherent in granting the loan, does not, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer?’

Consideration of the questions referred

The first question

13 As a preliminary point, it should be noted that, inasmuch as it is apparent from the request for a preliminary ruling that the referring court...

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