# C_2023164EN.01001001.xml

| 8.5.2023 | EN | Official Journal of the European Union | C 164/10 |
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8.5.2023

EN

Official Journal of the European Union

C 164/10

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Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Caixabank, S.A. v X

(Case C-565/21, (1) Caixabank (Loan arrangement fees))

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Articles 3, 4 and 5 - Consumer contracts - Mortgage loans - Unfair contract terms - Term concerning loan arrangement fees - Application seeking a declaration of invalidity of that term and reimbursement of the amount paid on that basis - Plainness and intelligibility of the terms - Existence of specific national legislation)

(2023/C 164/13)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Caixabank, S.A.

Defendant: X

Operative part of the judgment

| 1. | Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
  must be interpreted as precluding national case-law which, in the light of national legislation providing that the arrangement fee pays for services connected with the examination, granting or processing of the mortgage loan or credit or other similar services, considers that the clause establishing such a fee comes within ‘the main subject matter of the contract’, within the meaning of that provision on the ground that it represents one of the main components of the price. |
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1.

Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as precluding national case-law which, in the light of national legislation providing that the arrangement fee pays for services connected with the examination, granting or processing of the mortgage loan or credit or other similar services, considers that the clause establishing such a fee comes within ‘the main subject matter of the contract’, within the meaning of that provision on the ground that it represents one of the main components of the price.

| 2. | Article 5 of Directive 93/13
  must be interpreted as meaning that, for the purposes of assessing whether a contractual term providing for the payment by the borrower of an arrangement fee is plain and intelligible, the court having jurisdiction is required to ascertain, in the light of all the relevant facts, that the borrower has indeed been placed in a position to assess the economic consequences for him or her, to understand the nature of the services provided in return for the costs provided for by that term and to ascertain that there is no overlap between the various costs provided for in the contract or between the services for which those costs are paid. |
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2.

Article 5 of Directive 93/13

must be interpreted as meaning that, for the purposes of assessing whether a contractual term providing for the payment by the borrower of an arrangement fee is plain and intelligible, the court having jurisdiction is required to ascertain, in the light of all the relevant facts, that the borrower has indeed been placed in a position to assess the economic consequences for him or her, to understand the nature of the services provided in return for the costs provided for by that term and to ascertain that there is no overlap between the various costs provided for in the contract or between the services for which those costs are paid.

| 3. | Article 3(1) of Directive 93/13
  must be interpreted as not precluding national case-law which considers that a contractual term which, in accordance with the relevant national legislation, provides for the payment by the borrower of an arrangement fee intended to remunerate services connected with the examination, constitution and personal processing of an application for a mortgage loan or credit, may, as the case may be, not create a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, provided that the possible existence of such an imbalance is subject to effective review by the court having jurisdiction, in accordance with the criteria set out in the case-law of the Court. |
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3.

Article 3(1) of Directive 93/13

must be interpreted as not precluding national case-law which considers that a contractual term which, in accordance with the relevant national legislation, provides for the payment by the borrower of an arrangement fee intended to remunerate services connected with the examination, constitution and personal processing of an application for a mortgage loan or credit, may, as the case may be, not create a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, provided that the possible existence of such an imbalance is subject to effective review by the court having jurisdiction, in accordance with the criteria set out in the case-law of the Court.

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(1)  OJ C 51, 31.1.2022.

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