Jorge Sales Sinués and Youssouf Drame Ba v Caixabank SA and Catalunya Caixa SA (Catalunya Banc S.A.).

• Jurisdiction: European Union
• Celex Number: 62014CJ0381
• ECLI: ECLI:EU:C:2016:252
• Date: 14 April 2016
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-381/14,C-385/14

JUDGMENT OF THE COURT (First Chamber)

14 April 2016 ( *1 )

[Text rectified by order of 29 November 2016]

‛Reference for a preliminary ruling — Directive 93/13/EEC — Contracts concluded between sellers or suppliers and consumers — Mortgage contracts — ‘Floor’ clause — Examination of the clause with a view to its invalidation — Collective proceedings — Action for an injunction — Stay of an individual action with the same subject matter’

In Joined Cases C‑381/14 and C‑385/14,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Mercantil No 9 de Barcelona (Commercial Court No 9, Barcelona, Spain), made by decisions of 27 June 2014, received at the Court on 11 and 12 August 2014, in the proceedings

Jorge Sales Sinués

v

Caixabank SA (C‑381/14),

and

Youssouf Drame Ba

v

Catalunya Caixa SA (Catalunya Banc SA) (C‑385/14),

THE COURT (First Chamber),

composed of A. Tizzano, Vice-President of the Court, acting as President of the Chamber, F. Biltgen, A. Borg Barthet, E. Levits (Rapporteur) and S. Rodin, Judges,

Advocate General: M. Szpunar,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 September 2015,

after considering the observations submitted on behalf of:

— Mr Sales Sinués, by D. Cirera Mora and F. Pertínez Vílchez, abogados,

— Caixabank SA, by J. Fontquerni Bas, counsel, assisted by A. Ferreres Comella, abogado,

— Catalunya Caixa SA, by J.M. Rodríguez Cárcamo and I. Fernández de Senespleda, abogados,

— the Spanish Government, by A. Gavela Llopis, acting as Agent,

— the European Commission, by J. Baquero Cruz and M. van Beek, acting as Agents,

[Text rectified by order of 29 November 2016] after hearing the Opinion of the Advocate General at the sitting on 14 January 2016,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 The requests have been made in proceedings between, in one case, Mr Sales Sinués and Caixabank SA and, in the other, Mr Drame Ba and Catalunya Caixa SA, both relating to the annulment of contractual terms in mortgage loan agreements.

Legal context

Directive 93/13

3 Article 3 of Directive 93/13 is worded as follows: ‘1. 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. 2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. …’

4 Article 4(1) of Directive 93/13 provides: ‘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.’

5 Article 6(1) of Directive 93/13 provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

6 Article 7 of Directive 93/13 states: ‘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 effective means to prevent the continued use of such terms. …’

Spanish law

7 Article 43 of the Code of Civil Procedure (Ley de enjuiciamiento civil) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575) provides: ‘Where, in order to give a ruling on the subject matter of a dispute, it is necessary to decide an issue which itself constitutes the main subject matter of other proceedings pending before the same or a different civil court, and where it is not possible for the two actions to be joined, the court may, on the application of both parties or on the application of one of them and after hearing the other party, order the proceedings to be stayed as they currently stand, until such time as the proceedings concerning the preliminary issue are concluded.’

8 Article 221 of the Code of Civil Procedure, which deals with the effects of judgments given in proceedings brought by associations of consumers and users, is worded as follows: ‘… 1a. If the claim is for pecuniary damages, or an order laying down an obligation to do or to refrain from doing something or to give a specific or general thing, the judgment upholding the claim shall identify individually which consumers and users are to be regarded as entitled to benefit from the judgment, in accordance with the laws for their protection. Where it is not possible to identify such consumers and users individually, the judgment shall set out the facts, characteristics and conditions required in order to be able to demand payment and, where appropriate, apply for execution or participate therein in the event that enforcement is sought by the claimant association. 2a. Where, as a preliminary finding or as the court’s principal or sole ruling, a given activity or particular conduct is declared unlawful or inconsistent with the law, the court shall indicate in its judgment whether, in accordance with the laws on the protection of consumers and users, that declaration has procedural consequences that are not limited to the parties to the relevant proceedings. 3a. Where particular consumers or users have participated in the proceedings, the judgment shall include an express ruling on their claims. …’

9 Under Article 222 of the Code of Civil Procedure: ‘1. The authority of res judicata attaching to final judgments, either upholding or dismissing a claim, shall exclude, in accordance with the law, any further proceedings having the same subject matter as that in which the first judgment was given. 2. The authority of res judicata shall attach to claims made in the main application and to counterclaims and to the matters referred to in Article 408(1) and (2) of this law. Facts subsequent to the expiry of the period for the lodging of pleadings in the proceedings in which such claims were made shall be regarded as new and different with respect to the basis on which such claims were made. 3. The authority of res judicata shall be binding on the parties to the proceedings in which it arises, their heirs and those deriving title from them, and on the persons who, not being parties to the proceedings, hold the rights which give them standing to bring proceedings in accordance with the provisions of Article 11 of this law. … 4. A decision that has acquired the force of res judicata in a final judgment concluding proceedings shall be binding on a court before which subsequent proceedings are brought where the decision having the force of res judicata appears, in the subsequent proceedings, to be a logical antecedent to the subject matter of the subsequent proceedings and where the parties to the two sets of proceedings are the same or where the authority of res judicata applies to them pursuant to provisions of the law.’

10 The referring court interprets those procedural provisions as imposing on it an obligation to stay the proceedings brought before it, in which an individual action for annulment of an unfair term has been brought by a consumer, pending final judgment in proceedings in which a duly authorised association has brought a collective action seeking cessation of the use of a similar clause.

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

11 On 20 October 2005, Mr Sales Sinués concluded an agreement for the novation of a mortgage loan with Caixabank SA. The ‘floor’ clause contained in that agreement consisted of a nominal annual interest rate of 2.85%, the upper ‘ceiling’ of that interest rate being fixed at 12%. On 7 February 2005 Mr Drame Ba concluded a mortgage loan agreement with Catalunya Caixa SA. The ‘floor’ clause in that agreement corresponded to a rate of 3.75%, the upper ‘ceiling’ being fixed at 12%.

12 Independently of market rate fluctuations, the interest rates of the agreements concluded by the applicants in the main proceedings could not fall below the percentage stipulated by the ‘floor’ clause.

13 Mr Sales Sinués and Mr Drame Ba, taking the view that the ‘floor’ clauses had been imposed on them by the banking institutions and that they created an imbalance to their detriment, brought individual actions seeking annulment of those clauses before the...