Casilda v Banco Cetelem SA.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:919
• Date: 24 November 2022
• Docket Number: C-302/21
• Celex Number: 62021CJ0302
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

24 November 2022 (*)

(Reference for a preliminary ruling – Dispute in the main proceedings which has become devoid of purpose – No need to adjudicate)

In Case C‑302/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia nº 4 de Castelló de la Plana (Court of First Instance, No 4, Castelló de la Plana, Spain), made by decision of 7 May 2021, received at the Court on 12 May 2021, in the proceedings

Casilda

v

Banco Cetelem SA,

THE COURT (Fourth Chamber),

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

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Banco Cetelem SA, by D. Sarmiento Ramírez-Escudero and C. Vendrell Cervantes, abogados,

– the Spanish Government, by M.J. Ruiz Sánchez, acting as Agent,

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

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the principles of the primacy of EU law and of legal certainty, of Article 120 TFEU and of Article 4(2) 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 Casilda, a consumer, and Banco Cetelem SA concerning a revolving credit card agreement, granted by Banco Cetelem to Casilda, the rate of interest of which is of a predatory nature.

Legal context

European Union law

Directive 93/13

3 Article 4 of Directive 93/13 provides:

‘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 supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

4 Article 8 of that directive states:

‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’

Directive 2008/48/EC

5 Article 22 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66), entitled ‘Harmonisation and imperative nature of this Directive’, provides:

‘1. In so far as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive.

2. Member States shall ensure that consumers may not waive the rights conferred on them by the provisions of national law implementing or corresponding to this Directive.

3. Member States shall further ensure that the provisions they adopt in implementation of this Directive cannot be circumvented as a result of the way in which agreements are formulated, in particular by integrating drawdowns or credit agreements falling within the scope of this Directive into credit agreements the character or purpose of which would make it possible to avoid its application.

…’

Spanish law

The Civil Code

6 According to Article 1255 of the Código civil (Civil Code), ‘the contracting parties may draw up such agreements, terms and conditions as they deem appropriate, provided that they are not contrary to law, morality or public order’.

The Law on predatory lending

7 Under the first paragraph of Article 1 of the Ley sobre nulidad de los contratos de préstamos usurarios (Law on the nullity of predatory loan agreements) of 23 July 1908 (BOE No 206 of 24 July 1908, ‘the Law on predatory lending’):

‘A loan agreement shall be null and void if it stipulates an interest rate that is significantly higher than the standard rate of interest and manifestly disproportionate to the circumstances of the case, or does so under conditions such as to make that rate unconscionable, there being reasons to believe that the latter was accepted by the borrower because of the distress in which he or she finds himself or herself or because of his or her limited mental capacity.’

The LGDCU

8 Article 80 of the recast text of the General Law on consumer and user protection, approved by Real Decreto Legislativo 1/2007, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios (Royal Legislative Decree 1/2007 approving the consolidated version of the General Law on consumer and user protection) of 16 November 2007 (BOE No 287 of 30 November 2007, ‘the LGDCU’), concerning ‘Requirements of terms not individually negotiated’, mentions as one of those requirements in point (c) ‘good faith and fair balance between the rights and obligations of the parties, which excludes, under all circumstances, the use of unfair terms’.

9 Under Article 82(1) of the LGDCU:

‘All contractual terms not individually negotiated and all practices for which express consent has not been given that, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and...