# C_2015092EN.01003101.xml

| 19.3.2015 | EN | Official Journal of the European Union | C 92/31 |
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19.3.2015

EN

Official Journal of the European Union

C 92/31

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JUDGMENT OF THE COURT

of 28 August 2014

in Case E-25/13

Gunnar V. Engilbertsson v Íslandsbanki hf.

(Article 34 SCA — Appeal against a request for an Advisory Opinion — Indexation of mortgage loans — Directive 87/102/EEC — Directive 93/13/EEC — Principles of effectiveness and equivalence)

(2015/C 92/05)

In Case E-25/13, Gunnar V. Engilbertsson v Íslandsbanki hf. — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice from the Reykjavík District Court (Héraðsdómur Reykjavíkur) concerning the interpretation of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 28 August 2014, the operative part of which is as follows:

Héraðsdómur Reykjavíkur

| 1. | Directive 93/13/EEC does not generally prohibit contractual terms on the indexation of mortgage loans in contracts between a supplier and a consumer. It is for the referring court to assess whether the term at issue is unfair. The assessment must take into account the Court’s interpretation of the concept of ‘unfair term’. |
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1.

Directive 93/13/EEC does not generally prohibit contractual terms on the indexation of mortgage loans in contracts between a supplier and a consumer. It is for the referring court to assess whether the term at issue is unfair. The assessment must take into account the Court’s interpretation of the concept of ‘unfair term’.

| 2. | Directive 93/13/EEC does not limit the discretion of an EEA State to determine, whether through legislation or by means of administrative regulation, the factors that may cause changes in a pre-determined index, such as the Icelandic consumer price index, as well as the methods for measuring those changes, provided they are explicitly described in the contract. |
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2.

Directive 93/13/EEC does not limit the discretion of an EEA State to determine, whether through legislation or by means of administrative regulation, the factors that may cause changes in a pre-determined index, such as the Icelandic consumer price index, as well as the methods for measuring those changes, provided they are explicitly described in the contract.

| 3. | It is for the competent national court to establish whether a particular contract term has been negotiated individually within the meaning of Article 3 of Directive 93/13/EEC. |
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3.

It is for the competent national court to establish whether a particular contract term has been negotiated individually within the meaning of Article 3 of Directive 93/13/EEC.

| 4. | It is for the competent national court to establish whether a contract term relating to the indexation of repayment instalments of a loan to finance real estate purchases must be regarded as having been explicitly and comprehensibly described to the consumer. Such an assessment must take into account the precise wording of the relevant contract terms and all other relevant circumstances, including the circumstances set out in points (a) and (b) of the third question posed by the national court, as well as the national legislation on price indexation. |
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4.

It is for the competent national court to establish whether a contract term relating to the indexation of repayment instalments of a loan to finance real estate purchases must be regarded as having been explicitly and comprehensibly described to the consumer. Such an assessment must take into account the precise wording of the relevant contract terms and all other relevant circumstances, including the circumstances set out in points (a) and (b) of the third question posed by the national court, as well as the national legislation on price indexation.

| 5. | Article 6(1) of Directive 93/13/EEC must be interpreted as meaning that, where a national court considers that a given term is unfair within the meaning of the Directive, that court must ensure that such a clause is not binding on the consumer provided that the contract is capable of continuing in existence without the unfair term, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible. |
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5.

Article 6(1) of Directive 93/13/EEC must be interpreted as meaning that, where a national court considers that a given term is unfair within the meaning of the Directive, that court must ensure that such a clause is not binding on the consumer provided that the contract is capable of continuing in existence without the unfair term, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible.

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