# C_2021382EN.01000703.xml

| 20.9.2021 | EN | Official Journal of the European Union | C 382/7 |
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20.9.2021

EN

Official Journal of the European Union

C 382/7

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Request for a preliminary ruling from the Juzgado de Primera Instancia n.o 4 de Castellón de la Plana (Spain) lodged on 12 May 2021 — Casilda v Banco Cetelem SA

(Case C-302/21)

(2021/C 382/11)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia n.o 4 de Castellón de la Plana

Parties to the main proceedings

Applicant: Casilda

Defendant: Banco Cetelem SA

Questions referred

First question referred:

| (a) | In accordance with the principle of the primacy of EU law within the sphere of its applicability, and in particular within the context of the regulation of consumer credit and agreements with consumers, must the national court assess ‘of its own motion’ the compatibility with EU law of the case-law established by the Spanish Supreme Court (being the highest court [in Spain]), with respect to the interpretation and application of the Ley de 23 de julio de 1908, sobre nulidad de los contratos de préstamos usurarios (Law of 23 July 1908 on the nullity of predatory loan agreements), being a national provision, in so far as that case-law applies not only to the invalidity of the agreement concluded, but also to the definition of the ‘main subject matter’ of the consumer credit agreement, in the form of a ‘revolving’ credit facility, and to the adequacy of the ‘quality/price’ ratio of the service provided? Or is it the case, by contrast, as the Spanish Supreme Court states, that that duty to assess compatibility with EU law and EU directives remains conditional upon, or subordinate to, the ‘relief sought’ by the applicant (principle of party disposition), with the result that if the declaration that the consumer credit agreement is void on the ground that it is ‘of a predatory nature’ is sought as the ‘sole or main action’, that action being derived from a provision of national law, the view must be taken that the primacy of EU law and its harmonising effects ‘do not come into play’, even though the case-law established by the Spanish Supreme Court with respect to the interpretation and application of the aforementioned Law on predatory lending applies to the definition of the main subject matter and the adequacy of the quality/price ratio of the consumer credit agreement forming the subject of the case that falls to be disposed of by the national court? |
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(a)

In accordance with the principle of the primacy of EU law within the sphere of its applicability, and in particular within the context of the regulation of consumer credit and agreements with consumers, must the national court assess ‘of its own motion’ the compatibility with EU law of the case-law established by the Spanish Supreme Court (being the highest court [in Spain]), with respect to the interpretation and application of the Ley de 23 de julio de 1908, sobre nulidad de los contratos de préstamos usurarios (Law of 23 July 1908 on the nullity of predatory loan agreements), being a national provision, in so far as that case-law applies not only to the invalidity of the agreement concluded, but also to the definition of the ‘main subject matter’ of the consumer credit agreement, in the form of a ‘revolving’ credit facility, and to the adequacy of the ‘quality/price’ ratio of the service provided? Or is it the case, by contrast, as the Spanish Supreme Court states, that that duty to assess compatibility with EU law and EU directives remains conditional upon, or subordinate to, the ‘relief sought’ by the applicant (principle of party disposition), with the result that if the declaration that the consumer credit agreement is void on the ground that it is ‘of a predatory nature’ is sought as the ‘sole or main action’, that action being derived from a provision of national law, the view must be taken that the primacy of EU law and its harmonising effects ‘do not come into play’, even though the case-law established by the Spanish Supreme Court with respect to the interpretation and application of the aforementioned Law on predatory lending applies to the definition of the main subject matter and the adequacy of the quality/price ratio of the consumer credit agreement forming the subject of the case that falls to be disposed of by the national court?

| (b) | In accordance with the aforementioned primacy and harmonising effects of EU law in the context of the regulation of consumer credit and credit agreements with consumers, given that the Spanish Supreme Court has itself reiterated in numerous judgments in its case-law that, since the ‘exclusion’ provided for in the harmonising provision Article 4(2) of Directive 93/13/EC has been fully transposed into the Spanish legal system, (1) it is not appropriate for the national court to conduct a judicial review of prices, and given that no legislation within the Spanish legal system — not even the 1908 Law on predatory lending itself — affords permission or provides a basis in general terms for such a judicial review of prices, and given further that there has been no assessment of whether the provision determining the price of the consumer credit lacks transparency, is it contrary to Article 4(2) of Directive 93/13/EEC for the national court, acting pursuant to a provision of national law in the form of the aforementioned 1908 Law against predatory lending, and operating outside its natural jurisdiction in the context of a declaration as to the nullity of the agreement concluded, to exercise, under a ‘newly created’ power, a ‘judicial review’ of the main subject matter of the agreement whereby it determines in general terms either the price of the consumer credit, understood as being a reference to the remunerative interest (Nominal Interest Rate) applied to it, or the cost of the consumer credit, understood as being a reference to the Annual Percentage Rate (APR) applied to it? |
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(b)

In accordance with the aforementioned primacy and harmonising effects of EU law in the context of the regulation of consumer credit and credit agreements with consumers, given that the Spanish Supreme Court has itself reiterated in numerous judgments in its case-law that, since the ‘exclusion’ provided for in the harmonising provision Article 4(2) of Directive 93/13/EC has been fully transposed into the Spanish legal system, (1) it is not appropriate for the national court to conduct a judicial review of prices, and given that no legislation within the Spanish legal system — not even the 1908 Law on predatory lending itself — affords permission or provides a basis in general terms for such a judicial review of prices, and given further that there has been no assessment of whether the provision determining the price of the consumer credit lacks transparency, is it contrary to Article 4(2) of Directive 93/13/EEC for the national court, acting pursuant to a provision of national law in the form of the aforementioned 1908 Law against predatory lending, and operating outside its natural jurisdiction in the context of a declaration as to the nullity of the agreement concluded, to exercise, under a ‘newly created’ power, a ‘judicial review’ of the main subject matter of the agreement whereby it determines in general terms either the price of the consumer credit, understood as being a reference to the remunerative interest (Nominal Interest Rate) applied to it, or the cost of the consumer credit, understood as being a reference to the Annual Percentage Rate (APR) applied to it?

| (c) | In accordance with the foregoing and having regard to the framework of regulation and harmonisation laid down in the Treaty on the Functioning of the European Union, in particular as regards the European Union’s competence in relation to the functioning of the internal market, is the review exercised by the national court with a view to setting, in general terms, the price or cost of the consumer credit, in the absence of a prior provision of national law expressly establishing a legal basis for doing so, ‘compatible’ with Article 120 TFEU, in the context of an open market economy and in the light of the principle of the freedom of contract enjoyed by the parties? |
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(c)

In accordance with the foregoing and having regard to the framework of regulation and harmonisation laid down in the Treaty on the Functioning of the European Union, in particular as regards the European Union’s competence in relation to the functioning of the internal market, is the review exercised by the national court with a view to setting, in general terms, the price or cost of the consumer credit, in the absence of a prior provision of national law expressly establishing a legal basis for doing so, ‘compatible’ with Article 120 TFEU, in the context of an open market economy and in the light of the principle of the freedom of contract enjoyed by the parties?

Second question referred:

In accordance with the principle of the primacy of EU law within the sphere of the harmonisation of the matters to which it applies, in particular in the context of the directives regulating consumer credit and agreements with consumers, given that the principle of legal certainty constitutes a condition precedent to the proper and effective functioning of the internal market in consumer credit, is it contrary to that principle of legal certainty (being a condition of the proper functioning of the internal market in consumer credit) to place a limit on the APR which may be imposed, in general terms, on the consumer in a consumer credit agreement with a view to combating predatory lending, such as the limit established by the Spanish Supreme Court, not on the basis of objective and precise parameters but merely by reference to an approximate criterion, with the result that it is left to the discretion of each national court to determine the specific value of that limit in order to dispose of the dispute pending before it?

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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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