# C_2022051EN.01001701.xml

| 31.1.2022 | EN | Official Journal of the European Union | C 51/17 |
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31.1.2022

EN

Official Journal of the European Union

C 51/17

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Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 14 September 2021 — CaixaBank, S.A. v X

(Case C-565/21)

(2022/C 51/22)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: CaixaBank, S.A.

Defendant: X

Questions referred

| 1. | Do Article 3(1) and Articles 4 and 5 of Directive 93/13/EEC (1) preclude national case-law that, having regard to the specific rules of national law governing arrangement fees paid, in one instalment and generally at the time of concluding the contract, in consideration for services related to reviewing, granting or processing mortgages or loans or other similar services inherent in the lender’s activity with a view to granting the loan, deems that the contractual term providing for that fee constitutes an essential element of the contract, since it represents a principal part of the cost of the loan and cannot be assessed as unfair if it is written in clear, intelligible language, within the broad meaning established in the case-law of the CJEU? |
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1.

Do Article 3(1) and Articles 4 and 5 of Directive 93/13/EEC (1) preclude national case-law that, having regard to the specific rules of national law governing arrangement fees paid, in one instalment and generally at the time of concluding the contract, in consideration for services related to reviewing, granting or processing mortgages or loans or other similar services inherent in the lender’s activity with a view to granting the loan, deems that the contractual term providing for that fee constitutes an essential element of the contract, since it represents a principal part of the cost of the loan and cannot be assessed as unfair if it is written in clear, intelligible language, within the broad meaning established in the case-law of the CJEU?

| 2. | Does Article 4(2) of Directive 93/13/EEC preclude national case-law to the effect that, in order to assess whether the term constituting an essential element of the mortgage or loan agreement is clear and intelligible, account must be taken of issues such as consumers’ general knowledge of that term, the mandatory information that financial institutions must provide to potential borrowers under regulations on standardised information sheets, advertising by banks, the particular attention paid to it by the average consumer as being part of the cost to be paid entirely at the time of taking out the loan, and constituting a substantial part of the economic consequences to them of securing the loan, and whether the wording, placement and structure of the term make it possible to conclude that it constitutes an essential element of the contract? |
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2.

Does Article 4(2) of Directive 93/13/EEC preclude national case-law to the effect that, in order to assess whether the term constituting an essential element of the mortgage or loan agreement is clear and intelligible, account must be taken of issues such as consumers’ general knowledge of that term, the mandatory information that financial institutions must provide to potential borrowers under regulations on standardised information sheets, advertising by banks, the particular attention paid to it by the average consumer as being part of the cost to be paid entirely at the time of taking out the loan, and constituting a substantial part of the economic consequences to them of securing the loan, and whether the wording, placement and structure of the term make it possible to conclude that it constitutes an essential element of the contract?

| 3. | Does Article 3(1) of Directive 93/13/EEC preclude national case-law that deems that a contractual term such as the one at issue in the main proceedings, relating to the arrangement fee for a loan agreement, whose purpose is remuneration for services relating to the review, design and individual processing of a loan application (reviewing the viability of the loan, the debtor’s creditworthiness, the status of encumbrances on the property to be mortgaged, etc.) as prerequisites for granting the loan, which fee is expressly provided for in national legislation as constituting payment for the formalities inherent in granting the loan, does not, 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? |
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3.

Does Article 3(1) of Directive 93/13/EEC preclude national case-law that deems that a contractual term such as the one at issue in the main proceedings, relating to the arrangement fee for a loan agreement, whose purpose is remuneration for services relating to the review, design and individual processing of a loan application (reviewing the viability of the loan, the debtor’s creditworthiness, the status of encumbrances on the property to be mortgaged, etc.) as prerequisites for granting the loan, which fee is expressly provided for in national legislation as constituting payment for the formalities inherent in granting the loan, does not, 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?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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