# C_2022037EN.01000301.xml

| 24.1.2022 | EN | Official Journal of the European Union | C 37/3 |
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24.1.2022

EN

Official Journal of the European Union

C 37/3

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Order of the Court (Ninth Chamber) of 17 November 2021 (request for a preliminary ruling from the Juzgado de Primera Instancia No 2 de Ibiza — Spain) — YB v Unión de Créditos Inmobiliarios SA

(Case C-79/21) (1)

(Reference for a preliminary ruling - Articles 53 and 99 of the Rules of Procedure of the Court - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Mortgage loan agreement - Variable interest rate - Mortgage loan reference index (IRPH) - Review of transparency by the national court - Duty to provide information - Assessment of the unfair nature of contractual terms - Requirements of good faith, balance and transparency - Consequences of a declaration of nullity)

(2022/C 37/03)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 2 de Ibiza

Parties to the main proceedings

Applicant: YB

Defendant: Unión de Créditos Inmobiliarios SA

Operative part of the order

| 1. | Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and the requirement of transparency of contractual terms in the context of a mortgage loan must be interpreted as not precluding national legislation and case-law which exempt the seller or supplier from providing to the consumer, at the time of conclusion of a mortgage loan agreement, information related to the previous fluctuations of the reference index over at least the previous two years by means of a comparison with at least one different index such as the Euribor index, provided that that national legislation and case-law nevertheless enable the court to satisfy itself that the average consumer who is reasonably well informed and reasonably observant and circumspect was able, in the light of the publicly available and accessible information and, where appropriate, the information provided by the seller or supplier, to understand the specific functioning of the method used for calculating the reference index and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations. |
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1.

Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and the requirement of transparency of contractual terms in the context of a mortgage loan must be interpreted as not precluding national legislation and case-law which exempt the seller or supplier from providing to the consumer, at the time of conclusion of a mortgage loan agreement, information related to the previous fluctuations of the reference index over at least the previous two years by means of a comparison with at least one different index such as the Euribor index, provided that that national legislation and case-law nevertheless enable the court to satisfy itself that the average consumer who is reasonably well informed and reasonably observant and circumspect was able, in the light of the publicly available and accessible information and, where appropriate, the information provided by the seller or supplier, to understand the specific functioning of the method used for calculating the reference index and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations.

| 2. | Article 3(1) of Directive 93/13 must be interpreted as precluding national legislation and case-law which consider an absence of good faith on the part of the seller or supplier to be a necessary precondition for any review of the content of a non-transparent clause in a consumer contract. It is for the national court to determine whether, in the light of all the relevant circumstances of the main proceedings, the seller or supplier must be regarded as having acted in good faith by selecting an index provided for by law, and whether the term incorporating such an index is such as to create a significant imbalance, to the detriment of the consumer, between the rights and obligations of the parties arising under the contract. |
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2.

Article 3(1) of Directive 93/13 must be interpreted as precluding national legislation and case-law which consider an absence of good faith on the part of the seller or supplier to be a necessary precondition for any review of the content of a non-transparent clause in a consumer contract. It is for the national court to determine whether, in the light of all the relevant circumstances of the main proceedings, the seller or supplier must be regarded as having acted in good faith by selecting an index provided for by law, and whether the term incorporating such an index is such as to create a significant imbalance, to the detriment of the consumer, between the rights and obligations of the parties arising under the contract.

| 3. | Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding the national court, where an unfair term setting a reference index for calculating the variable interest of a loan is null and void, from replacing that index with a statutory index applicable in the absence of an agreement to the contrary between the parties to the contract, where those two indices produce the same effects, provided that the conditions laid down in paragraph 67 of the judgment of 3 March 2020, Gómez del Moral Guasch (C-125/18, EU:C:2020:138) are met. |
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3.

Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding the national court, where an unfair term setting a reference index for calculating the variable interest of a loan is null and void, from replacing that index with a statutory index applicable in the absence of an agreement to the contrary between the parties to the contract, where those two indices produce the same effects, provided that the conditions laid down in paragraph 67 of the judgment of 3 March 2020, Gómez del Moral Guasch (C-125/18, EU:C:2020:138) are met.

| 4. | The sixteenth question referred for a preliminary ruling by the Juzgado de Primera Instancia No 2 de Ibiza (Court of First Instance No 2, Ibiza, Spain) is manifestly inadmissible. |
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4.

The sixteenth question referred for a preliminary ruling by the Juzgado de Primera Instancia No 2 de Ibiza (Court of First Instance No 2, Ibiza, Spain) is manifestly inadmissible.

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(1)  Date of filing: 9/2/2021.

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