Opinion of Advocate General Medina delivered on 18 January 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:64
• Date: 18 January 2024
• Celex Number: 62022CC0450
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 18 January 2024 (1)

Case C‑450/22

Caixabank, S.A., successor in law to Bankia, S.A. and Banco Mare Nostrum, S.A.,

Caixa Ontinyent, S.A.,

Banco Santander, S.A., successor in law to Banco Popular Español, SA and Banco Pastor, S.A.,

Targobank, S.A.,

Credifimo, S.A.U.,

Caja Rural de Teruel, S.C.C.,

Caja Rural de Navarra, S.C.C.,

Cajasiete Caja Rural, S.C.C.,

Caja Rural de Jaén, Barcelona and Madrid, S.C.C.,

Caja Laboral Popular, S.C.C. (Kutxa),

Caja Rural de Asturias, S.C.C.,

Arquia Bank, S.A., formerly Caja de Arquitectos, S.C.C.,

Nueva Caja Rural de Aragón, S.C.C.,

Caja Rural de Granada, S.C.C.,

Caja Rural del Sur, S.C.C.,

Caja Rural de Albacete, Ciudad Real and Cuenca, S.C.C. (Globalcaja),

Caja Rural Central, S.C.C. and Others,

Unicaja Banco, S.A., successor in law to Liberbank, S.A. and Banco Castilla la Mancha, S.A.,

Banco de Sabadell, S.A.,

Banca March, S.A.,

Ibercaja Banco, S.A.,

Banca Pueyo, S.A.

v

ADICAE,

M.A.G.G.,

M.R.E.M.,

A.B.C.,

Óptica Claravisión, S.L.,

A.T.M.,

F.A.C.,

A.P.O.,

P.S.C.,

J.V.M.B., successor in law to C.M.R.

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling – Directive 93/13/EEC – Contracts concluded between sellers or suppliers and consumers – Collective proceedings – Action for an injunction and reimbursement – Mortgage contracts concluded with a significant number of banks and consumers – ‘Floor’ clause limiting the variation of the interest rate – Abstract review of transparency – Concept of the ‘average consumer who is reasonably well informed and reasonably observant and circumspect’)

I. Introduction

1. The requirement of transparency of contractual terms plays a significant role in ensuring effective consumer protection for the purposes of Directive 93/13/EEC. (2) The assessment of transparency of contractual terms involves not only formal but also substantive criteria. The consumer must be put in a position to understand fully the contractual terms and their economic consequences. The adoption of a substantive approach in the Court’s case-law on the requirement of transparency has been described in academic literature as a ‘gradual move towards a more … welfarist approach to the issue of unfair contract terms’. (3)

2. The case in the main proceedings raises the issue whether the judicial review of transparency of contractual terms is possible in the context of collective redress proceedings and, if so, under what conditions and following which method. The Court will also have to elaborate on the concept of the ‘average consumer’ in the context of collective proceedings which bear the characteristics of large-scale litigation, involving a significant number of financial institutions and contracts.

II. Legal framework

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 supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language.’

4. Article 5 of Directive 93/13 states:

‘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).’

5. Article 7 of Directive 93/13 provides:

‘1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

2. The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

3. With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.’

Spanish law

Law 7/1998

6. Article 12 of Ley 7/1998 sobre condiciones generales de la contratación (Law 7/1998 on General Contractual Conditions) of 13 April 1998 (BOE No 89 of 14 April 1998), in the version applicable to the case in the main proceedings (‘the LCGC’), provides:

‘1. It shall be possible to bring actions for an injunction and for recovery against the use of, or the recommendation to use, general conditions which are contrary to the provisions of the present legislation or to other mandatory or prohibitive legislation.

2. The action for injunction is aimed at obtaining judgment ordering the defendant to delete from its general conditions any conditions which are held to be null and void and to refrain from using such conditions in future, determining and specifying, depending on the circumstances, the content of the contract which is to be considered valid and binding.

A related action for the recovery of any payments made under such general conditions may be joined, as an ancillary matter, to an action for an injunction, as well as an action for damages caused by the application of such conditions.’

7. Article 17 of the LCGC provides:

‘1. An action for an injunction is possible against any seller or supplier who uses general conditions which are held to be null and void.

…

4. The actions provided for in the previous paragraphs may be brought jointly against a number of sellers or suppliers operating in the same economic sector or against their associations which use or recommend the use of identical general conditions which are held to be null and void.’

Royal Legislative Decree 1/2007

8. In accordance with Article 53 of the texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (consolidated text of the General Law for the protection of consumers and users and other supplementary laws), approved by Real Decreto Legislativo 1/2007 (Royal Legislative Decree 1/2007) of 16 November 2007 (BOE No 287 of 30 November 2007), in the version applicable to the main proceedings, actions for an injunction are aimed at obtaining a judgment that orders the defendant to cease certain conduct and prohibit its future occurrence. An action may also be brought to prohibit conduct that has ended at the time the action is brought, if there is sufficient evidence pointing towards the immediate recurrence of that conduct. Provided that an application for a declaration of nullity and for annulment is made, there may be joined to any action for an injunction an action for failure to comply with obligations, an action for termination or rescission of the contract, or an action for recovery of payments made as a result of the conduct, terms or general conditions held to be unfair or non-transparent.

Law 1/2000

9. Article 72 of the Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on the Civil Procedure Code) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575), in the version applicable in the main proceedings provides that actions brought by a single party against a number of parties or by a number of parties against a single party may be joined and conducted simultaneously, provided that there is a connection between such actions by reason of the origin or cause of action. The origin or cause of action will be considered to be identical or connected where the actions are based on the same facts.

III. Succinct presentation of the facts and procedures in the main proceedings

10. The Asociación de Usuarios de Bancos, Cajas de Ahorros y Seguros de España (ADICAE) (Spanish Association of Users of Banks, Savings Banks and Insurance (ADICAE)) brought a collective action for an injunction against 44 financial institutions operating in Spain. In its application, ADICAE sought an order requiring those institutions to cease and desist from the use of the general contractual term in their variable mortgage loan agreements which consists in restricting variable interest rates from falling below a certain threshold (‘the floor clause’). Moreover, ADICAE joined to the action for an injunction an action for recovery aimed at obtaining an order for reimbursement of the payments made under that term. ADICAE applied to add further defendants to its action on two occasions, raising the total number of defendants to 101.

11. The court of first instance allowed the action to proceed. Following calls in the national media, 820 consumers entered an individual appearance in support of the forms of order sought in the collective action.

12. The judgment at first instance upheld the action in part, except in relation to three financial institutions, and ruled that the ‘floor clauses’ (‘clausulas suelo’) contained in the general conditions of the mortgage loan contracts...