ZR and PI v Banco Santander, SA.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:578
• Date: 13 July 2023
• Docket Number: C-265/22
• Celex Number: 62022CJ0265
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

13 July 2023 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Mortgage loan agreements – Term providing for a variable interest rate – Reference index based on the annual percentage rates of charge (APRC) of mortgage loans granted by credit institutions – Index established by a regulatory or administrative act – Information contained in the preamble to that act – Check relating to the requirement of transparency – Assessment of the unfair nature of the term)

In Case C‑265/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia n. 17 de Palma de Mallorca (Court of First Instance No 17, Palma de Mallorca, Spain), made by decision of 19 April 2022, received at the Court on 20 April 2022, in the proceedings

ZR,

PI

v

Banco Santander, SA,

THE COURT (Ninth Chamber),

composed of L.S. Rossi, President of the Chamber, J.-C. Bonichot and O. Spineanu-Matei (Rapporteur), Judges,

Advocate General: L. Medina,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 16 March 2023,

after considering the observations submitted on behalf of:

– PI and ZR, by F. Fuster-Fabra Toapanta and A. Rebollo Redondo, abogados,

– Banco Santander, SA, by J.M. Rodríguez Cárcamo and A.M. Rodríguez Conde, abogados,

– the Spanish Government, by A. Ballesteros Panizo, acting as Agent,

– the European Commission, by S. Pardo Quintillán and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of, first, Articles 5 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), and, secondly, Article 3(1), Article 4, Article 5 and Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 The request has been made in proceedings between ZR and PI, on the one hand, and Banco Santander, SA, on the other, concerning the validity of the clause providing for periodic review of the interest rate applicable to a mortgage loan granted to ZR and PI by Banco Santander’s predecessor in law.

Legal context

European Union law

Directive 93/13

3 Article 3(1) of Directive 93/13 provides:

‘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.’

4 Article 4 of that 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 supplied in exchange, on the other, in so far as these terms are in plain intelligible language.’

5 Article 5 of that directive is worded as follows:

‘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. The rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).’

Directive 2005/29

6 In accordance with Article 19 of Directive 2005/29, the Member States had to adopt and publish, at the latest by 12 June 2007, the laws, regulations and administrative provisions necessary to comply with that directive and forthwith to inform the European Commission thereof. Those provisions were to apply by 12 December 2007 at the latest.

Spanish law

7 Article 1258 of the Código Civil (Civil Code) provides:

‘Contracts are concluded by mere consent and thereafter bind the parties not only to compliance with what has been expressly agreed but also to all of the consequences which, depending on their nature, are consistent with good faith, custom and the law.’

8 Directive 93/13 was transposed into Spanish law by ley 7/98, sobre condiciones generales de la contratación (Law 7/98 on general conditions of contract) of 13 April 1998 (BOE No 89 of 14 April 1998, p. 12304).

9 Article 7 of that law provides:

‘The following general conditions shall be deemed not to be included in the contract:

(a) Those of which the consumer did not have a genuine opportunity to take full cognisance at the time when the contract was concluded or which were not signed, where this is necessary, in accordance with Article 5.

(b) Those that are illegible, ambiguous, obscure or incomprehensible, unless, in the case of the latter, they have been expressly accepted in writing by the contracting party and comply with the specific rules on the required transparency of contractual terms in the field concerned.’

10 Article 8 of that law provides:

‘1. General conditions which infringe the provisions of this Law or any other rule ordering or prohibiting certain conduct, to the detriment of the contracting party, shall automatically be void, unless they provide for different consequences in the event of breach.

2. In particular, where a contract has been concluded with a consumer …, general conditions which are unfair shall be void.’

11 Article 4(1) of Ley 3/1991, de Competencia Desleal (Law 3/1991 on unfair competition) of 10 January 1991 (BOE No 10 of 11 January 1991, p. 959), provides:

‘Any conduct which is objectively contrary to the requirements of good faith is deemed to be unfair.

In relations with consumers and users, any conduct on the part of a trader or professional practitioner which is contrary to professional diligence, this being understood as the standard of special skill and care which a trader may be expected to exercise in the application of honest market practices, and which materially distorts or is capable of materially distorting the economic behaviour of the average consumer, or the average member of the group forming the subject of the practice, in the case of a commercial practice directed at a specific group of consumers, shall be deemed contrary to the requirements of good faith.

For the purposes of this Law, economic behaviour of the consumer or user shall mean any decision by which the consumer or user chooses to act or to refrain from acting in relation to the:

(a) Selection of a tender or supplier.

(b) Purchase of goods or services and, where appropriate, the terms and conditions of that purchase.

(c) Payment of the price, in whole or in part, or any other form of payment.

…’

12 Article 7 of that law, entitled ‘Misleading omissions’, is worded as follows:

‘1. The omission or concealment of information necessary to enable the addressee to make or be capable of making a decision on his or her economic behaviour with due knowledge of the facts is deemed to be unfair. It is also unfair for information to be given which is unclear, unintelligible or ambiguous, for information not to be given at the proper time, and for the commercial purpose of that practice not to be disclosed, where this is not apparent from the context.

2. For the purposes of determining the misleading nature of the acts referred to in the preceding paragraph, regard shall be had to the factual context in which those acts occur, account being taken of all the characteristics and circumstances thereof and the limitations of the means of communication used.’

13 The Banco de España (Bank of Spain) adopted circular 8/1990, a entidades de crédito, sobre transparencia de las operaciones y protección de la clientela (Notice 8/1990, to credit institutions, on the transparency of transactions and the protection of customers) of 7 September 1990 (BOE No 226 of 20 September 1990, p. 27498). It was amended, inter alia, by circular 5/1994, a entidades de crédito (Notice 5/1994, to credit institutions) of 22 July 1994 (BOE No 184 of 3 August 1994, p. 25106). Following its amendment by Notice 5/1994, Notice 8/1990 established certain official indices or reference rates for mortgage loans. The latter included various average rates for mortgage loans of a term of greater than three years, for the acquisition of a residential property on the private housing market (the Índices de Referencia de Préstamos Hipotecarios (Mortgage Loan Reference Indices (‘the IRPHs’)), including the IRPH relating to loans granted by the banks (‘the IRPH of the banks’) and the IRPH relating to loans granted by all credit institutions (‘the IRPH of credit institutions’).

14 The preamble to Notice 5/1994, the amending notice referred to in the preceding paragraph, contained the following passage:

‘The average rates selected are, in the final analysis, annual percentage rates of charge [APRC]. The average rates of mortgage loans from banks and all entities for the acquisition of a residential property on the private housing market are entirely APRCs, since they also include the effect of fees. Consequently, using them simply...