Marc Gómez del Moral Guasch v Bankia SA.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:138
• Date: 03 March 2020
• Docket Number: C-125/18

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

3 March 2020 (*)

(Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Mortgage loan agreement — Variable interest rate — Reference index based on mortgage loans granted by savings banks — Index arising from a regulatory or administrative provision — Unilateral introduction of the term by the seller or supplier — Review of the transparency requirement by the national court — Consequences of a finding that the term is unfair)

In Case C‑125/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia No 38 de Barcelona (Court of First Instance No 38, Barcelona, Spain), made by decision of 16 February 2018, received at the Court on the same day, in the proceedings

Marc Gómez del Moral Guasch

v

Bankia SA,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.–C. Bonichot, A. Arabadjiev, E. Regan, M. Safjan and S. Rodin (Rapporteur), Presidents of Chambers, L. Bay Larsen, T. von Danwitz, D. Šváby, F. Biltgen, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: M. Szpunar,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 25 February 2019,

after considering the observations submitted on behalf of:

– M. Gómez del Moral Guasch, by J.M. Erausquin Vázquez, A. Benavente Antolín, M. Ortiz Pérez and S. Moreno de Lamo, abogados,

– Bankia SA, by R. Fernández-Aceytuno Sáenz de Santamaría, F. Manzanedo González, M. Muñoz García-Liñán, V. Rodríguez de Vera Casado, L. Briones Bori and A. Fernández García, abogados,

– the Spanish Government, by M.J. García-Valdecasas Dorrego and J. Rodríguez de la Rúa Puig, acting as Agents,

– the United Kingdom Government, by S. Brandon, acting as Agent, and A. Howard, Barrister,

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

after hearing the Opinion of the Advocate General at the sitting on 10 September 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), in particular Article 1(2), Article 4(2), Article 6(1), Article 7(1) and Article 8 thereof.

2 The request has been made in proceedings between Marc Gómez del Moral Guasch and Bankia SA concerning the contractual term governing the variable ordinary and remunerative interest rate in the mortgage loan agreement concluded between those two parties.

Legal context

EU law

3 The 24th recital of Directive 93/13 states that ‘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’.

4 Article 1(2) of the directive states:

‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the [European Union] are party, particularly in the transport area, shall not be subject to the provisions of this directive.’

5 Article 4 of the directive 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.’

6 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. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. …’

7 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.’

8 As provided in 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.’

9 Article 8 of the 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.’

10 The Annex to Directive 93/13, which contains an indicative list of the terms which may be regarded unfair, is worded as follows:

‘1. Terms which have the object or effect of:

…

(l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;

…

2. Scope of subparagraphs (g), (j) and (l)

…

(c) Subparagraphs (g), (j) and (l) do not apply to:

– transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control;

…

(d) Subparagraph (l) is without hindrance to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.’

Spanish law

11 Article 1303 of the Código Civil (Civil Code) provides:

‘Once an obligation has been declared void, the contracting parties must restore to each other the things that formed the subject matter of the contract, together with the proceeds therefrom and the price plus interest, without prejudice to the following articles.’

12 The second additional provision of the Orden del Ministerio de la Presidencia, sobre transparencia de las condiciones financieras de los préstamos hipotecarios (Order of the Ministry for the Presidency concerning the transparency of the financial terms of mortgage loans) of 5 May 1994 (BOE No 112 of 11 May 1994, p. 14444), as amended by the Ministerial Order of 27 October 1995 (BOE No 261 of 1 November 1995, p. 31794) (‘the Order of 5 May 1994’), provided:

‘The Bank of Spain, on receiving a report from the [Dirección General del Tesoro y Política Financiera (Directorate-General of the Treasury and Financial Policy, Spain)], shall define by means of a notice a set of indices or official reference rates that may be applied by the entities referred to in Article 1.1 to variable-interest-rate mortgage loans and shall publish their value at regular intervals.’

13 The 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 y otras leyes complementarias (Royal Legislative Decree 1/2007 approving the consolidated text of the General Law for the Protection of Consumers and Users and other supplementary laws) of 16 November 2007 (BOE No 287 of 30 November 2007, p. 49181; ‘Royal Legislative Decree 1/2007’), provides, in Article 8 thereof, entitled ‘Basic rights of consumers and users’:

‘The following are basic rights of consumers and users:

…

(b) The protection of their legitimate economic and social interests, in particular against unfair commercial practices and the inclusion of unfair terms in contracts.

…’

14 Article 60 of Royal Legislative Decree 1/2007, entitled ‘Information prior to the conclusion of the contract’, states:

‘1. Before a consumer or user is bound by a contract or relevant offer, the supplier must, unless it is clear from the context, provide him in a clear and intelligible form with relevant, correct and sufficient information about the main features of the contract, in particular, its legal and financial terms.

…’

15 As provided in Article 80 of Royal Legislative Decree 1/2007, entitled ‘Requirements for terms not individually negotiated’:

‘1. In contracts with consumers and users using terms that have not been individually negotiated, including contracts concluded by the public administration and their dependent entities and undertakings, those terms must satisfy the following requirements:

…

(c) good faith and fair balance between the rights and obligations of the parties, which, in any case, excludes the use of unfair terms.

…’

16 Article 82 of Royal Legislative Decree 1/2007, entitled ‘Definition of unfair terms’, provides:

‘1. 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 obligations arising under the contract to the detriment of the consumer or user shall be regarded as unfair terms.

…’

17 Article 27(1)(a) of the Orden EHA/2899/2011 de transparencia y protección del cliente de servicios bancarios (Ministerial Order EHA/2899/2011 on transparency and the protection of banking services customers) of 28 October 2011 (BOE No 261 of 29 October 2011, p. 113242), that article being entitled ‘Official interest rates’, states:

‘1. With a view to their...