Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2009:682
• Date: 29 October 2009
• Docket Number: C-484/08
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 29 October 2009 ¹(1)

Case C‑484/08

Caja de Ahorros y Monte de Piedad de Madrid

v

Asociación de Usuarios de Servicios Bancarios (Ausbanc)

(Reference for a preliminary ruling from the Tribunal Supremo (Spain))

(Consumer protection – Directive 93/13 /EEC – Unfair terms in consumer contracts – Article 4(2) – Assessment of unfairness of terms relating to the main subject-matter of the contract – Article 8 – Minimum harmonisation – More stringent national provisions designed to ensure a higher level of consumer protection – Differences in approach to full harmonisation)

Table of contents

I – Introduction

II – Legal context

A – Community law

B – National law

III – Facts, main proceedings and questions referred

IV – Proceedings before the Court

V – Main arguments of the parties

VI – Legal assessment

A – Introductory observations

B – Admissibility of the reference

C – Examination of the questions referred

1. First and second questions

a) Applicability of Article 8 of Directive 93/13

i) Existence of a more stringent national provision

ii) Outline of the scope of Directive 93/13

– Scope ratione personae and ratione materiae

– Interpretation of Article 4(2) of Directive 93/13

b) Extent of the power conferred by Article 8 of Directive 93/13

i) Non-mandatory nature of Article 4(2)

ii) Minimum harmonisation

c) Conclusion

2. Third question

a) Legal assessment in the light of the Community objectives

b) Legal assessment by reference to implementation provisions

i) Competition rules

ii) Fundamental freedoms

c) Conclusion

VII – Conclusion

I – Introduction

1. This reference for a preliminary ruling from the Spanish Tribunal Supremo (Supreme Court) (‘the referring court’) lays before the Court three questions concerning the interpretation of Article 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (2) in conjunction with Article 4(2) of that directive and Articles 2 EC, 3(1)(g) EC and 4(1) EC.

2. From the legal perspective, the basic question arising in this case is whether the Member States of the Community can rely on Article 8 of Directive 93/13 in order, by way of derogation from Article 4(2) thereof, to extend the assessment as to whether contractual terms are unfair to contractual terms which relate either to ‘the main subject-matter of the contract’ or to ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods [to be supplied] in exchange’.

3. This reference has been made in the context of proceedings initiated by the Asociación de Usuarios de Servicios Bancarios (the respondent on a point of law, ‘the respondent’), a legal person the object of which, as stated in its articles of association, is ‘to protect the legitimate interests of users of the services provided by credit institutions and financial credit companies’, against the credit institution Caja de Ahorros y Monte de Piedad de Madrid (the appellant on a point of law; ‘the appellant’). The respondent seeks the annulment, and an injunction restraining the use, of a so-called ‘rounding-up term’ which the appellant includes in the form of a standard contractual condition, drawn up in advance, in every loan agreement entered into with its customers for the purchase of residential property.

II – Legal context

A – Community law

4. The 12^th, 17^th and 19^th recitals in the preamble to Directive 93/13 are worded as follows:

‘… however, as they now stand, national laws allow only partial harmonisation to be envisaged; … in particular, only contractual terms which have not been individually negotiated are covered by this Directive; … 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;

…

… for the purposes of this Directive, the annexed list of terms can be of indicative value only and, because of the cause of the minimal character of the Directive, the scope of these terms may be the subject of amplification or more restrictive editing by the Member States in their national laws;

…

… for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject-matter of the contract nor the quality/price ratio of the goods or services supplied; … the main subject-matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; … it follows, inter alia, that in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer’s liability shall not be subject to such assessment since these restrictions are taken into account in calculating the premium paid by the consumer’.

5. Article 3 of Directive 93/13 provides 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.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

(3) The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’

6. Article 4(2) of Directive 93/13 provides as follows:

‘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 or remuneration, on the one hand, as against the services or goods [to be supplied] in exchange, on the other, in so far as these terms are in plain intelligible language.’

7. Article 8 of Directive 93/13 reads as follows:

‘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.’

B – National law

8. Article 10a(1) of General Law 26/1994 of 19 July 1984 for the protection of consumers and users (Ley 26/1994 general para la defensa de consumidores y usuarios), which was added by Law 7/1998 of 13 April 1998 on general contractual conditions, provides as follows in relation to the definition of unfair terms:

‘All those terms not individually negotiated which, 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, shall be regarded as unfair terms. In any event, the terms listed in the additional provision of this Law shall be regarded as unfair.’

9. Article 8(2) of Law 7/1998 of 13 April 1998 on general contractual conditions requires the setting-aside of general terms which are unfair:

‘In particular, where a contract has been concluded with a consumer, general terms which are unfair shall be void, such terms being taken in all cases to be those defined in Article 10a and the first additional provision of General Law 26/1984 of 19 July 1984 for the protection of consumers and users.’

10. Article 4(2) of Directive 93/13 has not been implemented in the Spanish legal system.

III – Facts, main proceedings and questions referred

11. The appellant concluded loan agreements with its customers for the purchase of residential properties which were secured by way of mortgages on those properties. In particular, the loan agreements provided for a nominal interest rate which was variable and adjustable periodically in accordance with the agreed reference interest rate. In addition, the loan agreements contained a standard contractual condition whereby the interest rate payable by the borrower was, from the first adjustment, to be rounded up to the next higher fraction whenever a fraction of 0.25% was exceeded in the event of variations.

12. In the respondent’s opinion, such a term, which is known in banking practice as a ‘rounding-up term’, was not negotiated individually with borrowers and was therefore void under Article 8(2), in conjunction with Articles 1, 2 and 10a(1), of Spanish General Law 26/1984 of 19 July 1984 for the protection of consumers and users. On that basis, the respondent brought an action seeking annulment of the term and cessation of the conclusion of loan agreements containing the disputed term.

13. The appellant sought the dismissal of the action. It contended that rounding up the interest rate is a rule for determining an essential element of the loan agreement. The nominal interest is the consideration which the borrower must pay for the capital which is made available. For that reason, it submitted, an assessment as to unfairness under Spanish law was contrary to Article 4(2) of Directive 93/13 inasmuch as such an assessment could not be made if the terms in question were drafted in plain, intelligible language.

14. By decision of 11 September 2001, the Spanish court of first instance found that the ‘rounding-up term’ was incompatible with the Spanish Law on general contractual conditions. That decision was upheld on appeal by a ruling of the Audiencia Provincial (Provincial Court) Madrid of 10 October 2002. The appellant appealed on a point of law to the referring court.

15. The...