Francisco Gutiérrez Naranjo v Cajasur Banco SAU, Ana María Palacios Martínez v Banco Bilbao Vizcaya Argentaria SA (BBVA), Banco Popular Español SA v Emilio Irles López and Teresa Torres Andreu.

• Jurisdiction: European Union
• Celex Number: 62015CJ0154
• ECLI: ECLI:EU:C:2016:980
• Docket Number: C-307/15,C-154/15
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 21 December 2016

JUDGMENT OF THE COURT (Grand Chamber)

21 December 2016 (*1 )

‛References for a preliminary ruling — Directive 93/13/EEC — Consumer contracts — Mortgage loans — Unfair terms — Article 4(2) — Article 6(1) — Declaration of nullity — Limitation by the national court of the temporal effects of the declaration of nullity of an unfair term’

In Joined Cases C‑154/15, C‑307/15 and C‑308/15,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Mercantil No 1 de Granada (Commercial Court No 1, Granada, Spain) (C‑154/15), made by decision of 25 March 2015, received at the Court on 1 April 2015, and from the Audiencia Provincial de Alicante (Provincial Court, Alicante, Spain) (C‑307/15 and C‑308/15), made by decisions of 15 June 2015, received at the Court on 1 July 2015, in the proceedings

Francisco Gutiérrez Naranjo

v

Cajasur Banco SAU (C‑154/15),

Ana María Palacios Martínez

v

Banco Bilbao Vizcaya Argentaria SA (BBVA) (C‑307/15),

Banco Popular Español, SA

v

Emilio Irles López

Teresa Torres Andreu (C‑308/15),

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Tizzano, Vice-President, R. Silva de Lapuerta and M. Ilešič, Presidents of Chambers, J. Malenovský, E. Levits (Rapporteur), J.-C. Bonichot, A. Arabadjiev, C.G. Fernlund, C. Vajda, S. Rodin, F. Biltgen and K. Jürimäe, Judges,

Advocate General: P. Mengozzi,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 26 April 2016,

after considering the observations submitted on behalf of:

— Mr Gutiérrez Naranjo, by A. Navarro Vidal, A. Martínez Muriel, D. Pineda Cuadrado and L. Pineda Salido, abogados,

— Ms Palacios Martínez, by F.J. Zambudio Nicolas, abogado, and R. López Coloma, procuradora,

— Banco Popular Español SA, by C. Fernández Vicién, I. Moreno-Tapia Rivas and J. Capell, abogados,

— Cajasur Banco SAU, by J. Remón Peñalver and D. Sarmiento Ramirez-Escudero, abogados,

— Banco Bilbao Vizcaya Argentaria SA (BBVA), by J. Rodríguez Cárcamo and A. Rodríguez Conde, abogados,

— Mr Irles López and Ms Torres Andreu, by Y. Sánchez Orts, procuradora and F. García Cerrillo, abogado,

— the Spanish Government, by A. Gavela Llopis and M. Sampol Pucurull, acting as Agents,

— the Czech Government, by S. Šindelková and by M. Smolek and J. Vláčil, acting as Agents,

— the Polish Government, by B. Majczyna, acting as Agent,

— the United Kingdom Government, by S. Simmons and L. Christie, acting as Agents, and by S. Ford, Barrister, K. Smith and B. Kennelly, QC,

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

after hearing the Opinion of the Advocate General at the sitting on 13 July 2016,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of, in particular, Article 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 These requests have been made in proceedings between persons having taken out mortgage loans and credit institutions, concerning the right to repayment of amounts paid on the basis of contractual clauses that have been held by a court to be unfair.

Legal context

EU law

3 Recital 10 of Directive 93/13 provides: ‘… more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms ...’

4 Recital 12 of that directive states: ‘… Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive.’

5 Under Recital 24 of Directive 93/13: ‘… the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts.’

6 According to Article 3(1) of Directive 93/13: ‘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.’

7 Under the first subparagraph of Article 3(2) of that directive: ‘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.’

8 Article 4 of that directive reads as follows: ‘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.’

9 Article 5 of the directive 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. ...’

10 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.’

11 Under Article 7(1) of that Directive: ‘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.’

The relevant provisions of Spanish law

Legislation

12 Article 1303 of the Código Civil (Civil Code) provides that: ‘When an obligation has been declared void, the contracting parties must restore to one another those things that formed the subject-matter of the contract, together with the profits derived therefrom, and the price together with interest, without prejudice to the following articles.’

13 Article 82(1) of the texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (recast text of the General Law for the protection of consumers and users and other supplementary laws), approved by the 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 (‘the LGDCU’), provides: ‘All stipulations not negotiated individually and all practices not expressly allowed that, contravening the requirements of good faith, give rise, in a manner detrimental to the consumer and user, to a significant imbalance of the rights and obligations of the parties under the contract, shall be regarded as unfair terms.’

14 Article 83 of the LGDCU provides: ‘Unfair contractual terms shall automatically be void and deemed not to have formed part of the contract. For those purposes, having heard the parties, the court shall rule that the unfair terms included in the contract are invalid, though the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

15 Article 5(5) 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 cases in the main proceedings (‘the LCGC’), provides: ‘The drafting of general terms shall comply with the criteria of clarity, accuracy and simplicity.’

16 Article 7 of the LCGC provides: ‘The following general terms shall be deemed not to be included in the contract: (a) those of which the consumer has not had genuine opportunity to take full cognisance before the conclusion of the contract or that have not been signed, where appropriate, as provided in Article 5; (b) terms that are illegible, ambiguous, obscure or incomprehensible, except in the case of the latter, if the contracting party has expressly accepted them in writing and they comply with the specific rules concerning transparency of contractual clauses in that sector.’

17 Pursuant to Article 8 of the LCGC: ‘1. General conditions that infringe the provisions of this Law or any other rule ordering or prohibiting certain conduct, to the detriment of a party to the contract, shall automatically be void, save in so far as they make separate provision for cases of breach. 2. In particular, where a contract has been concluded with a consumer, general conditions that are unfair shall be void ...’

The case-law of the Tribunal Supremo (Supreme Court, Spain)

– Judgment No 241/2013 of 9 May 2013

18 Hearing a...