# C_2019413EN.01002101.xml

| 9.12.2019 | EN | Official Journal of the European Union | C 413/21 |
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9.12.2019

EN

Official Journal of the European Union

C 413/21

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Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 6 de Ceuta (Spain) lodged on 9 July 2019 — HG and IH v Bankia, S.A.

(Case C-527/19)

(2019/C 413/24)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción No 6 de Ceuta

Parties to the main proceedings

Appellant: HG, IH

Respondent: Bankia, S.A.

Questions referred

| 1. | Whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) in particular Articles 6(1) and 7(1) of the directive, the following ruling is compliant with EU law in order to ensure protection for consumers and users and compliance with the relevant case-law: the ruling by the Supreme Court in judgments 44 to 49 of 23 January 2019, which establishes the unambiguous criterion that a term in a consumer mortgage loan agreement that has not been negotiated and that stipulates that all the costs of arranging the mortgage are to be borne by the borrower is unfair, and which apportions the various expenses that are involved in the unfair term found to be void between the bank that imposed the term and the borrower, in order to limit repayments of amounts wrongly paid under national legislation.
  And whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular Articles 6(1) and 7(1) of the directive, in order to ensure protection for consumers and users and compliance with the relevant case-law, it is compliant with EU law for the Supreme Court to adopt an inclusive interpretation of a term that is void for unfairness if the term can be severed and its effects abolished without affecting the continued existence of the mortgage loan agreement. |
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1.

Whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) in particular Articles 6(1) and 7(1) of the directive, the following ruling is compliant with EU law in order to ensure protection for consumers and users and compliance with the relevant case-law: the ruling by the Supreme Court in judgments 44 to 49 of 23 January 2019, which establishes the unambiguous criterion that a term in a consumer mortgage loan agreement that has not been negotiated and that stipulates that all the costs of arranging the mortgage are to be borne by the borrower is unfair, and which apportions the various expenses that are involved in the unfair term found to be void between the bank that imposed the term and the borrower, in order to limit repayments of amounts wrongly paid under national legislation.

And whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular Articles 6(1) and 7(1) of the directive, in order to ensure protection for consumers and users and compliance with the relevant case-law, it is compliant with EU law for the Supreme Court to adopt an inclusive interpretation of a term that is void for unfairness if the term can be severed and its effects abolished without affecting the continued existence of the mortgage loan agreement.

| 2. | Also, whether, as regards Article 394 of the Ley de Enjuiciamiento Civil (Law on Civil Procedure), which establishes the principle that the costs of proceedings are to be borne by the unsuccessful party, it can be held that where an unfair expenses clause is declared void but the effects of voiding the term are limited to apportioning the expenses in question, it is contrary to the EU legal principles of effectiveness and the non-binding nature of unfair terms to conclude that a claim has been upheld in part, and whether such a conclusion could be interpreted as producing an inverse deterrent effect, which thus fails to protect the legitimate interests of consumers and users. |
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2.

Also, whether, as regards Article 394 of the Ley de Enjuiciamiento Civil (Law on Civil Procedure), which establishes the principle that the costs of proceedings are to be borne by the unsuccessful party, it can be held that where an unfair expenses clause is declared void but the effects of voiding the term are limited to apportioning the expenses in question, it is contrary to the EU legal principles of effectiveness and the non-binding nature of unfair terms to conclude that a claim has been upheld in part, and whether such a conclusion could be interpreted as producing an inverse deterrent effect, which thus fails to protect the legitimate interests of consumers and users.

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(1)  OJ 1993 L 95, p. 29.

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