# C_2022326EN.01000401.xml

| 29.8.2022 | EN | Official Journal of the European Union | C 326/4 |
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29.8.2022

EN

Official Journal of the European Union

C 326/4

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Request for a preliminary ruling from the Juzgado de Primera Instancia No 17 de Palma de Mallorca (Spain) lodged on 20 April 2022 — ZR, PI v Banco Santander, S.A.

(Case C-265/22)

(2022/C 326/06)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 17 de Palma de Mallorca

Parties to the main proceedings

Applicants: ZR, PI

Defendant: Banco Santander, S.A.

Questions referred

| 1. | Given that the calculation of the variable interest index known as the ‘average rate for mortgage loans of a term greater than three years granted by all [financial] institutions’ includes any fees and margins applied, which are incorporated into the interest rate, thus making that rate more onerous for the consumer than the other annual percentage rates of charge on the market, and given that the rules laid down in Bank of Spain Notice 5/1994 — which represents the regulatory body’s policy rule in this sphere — require such margins to be negative, a requirement which financial institutions have widely failed to disclose and fulfil, is a complete departure from the regulatory body’s policy rule contrary to Articles 5 and 7 of Directive 2005/29/EC (1)? |
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1.

Given that the calculation of the variable interest index known as the ‘average rate for mortgage loans of a term greater than three years granted by all [financial] institutions’ includes any fees and margins applied, which are incorporated into the interest rate, thus making that rate more onerous for the consumer than the other annual percentage rates of charge on the market, and given that the rules laid down in Bank of Spain Notice 5/1994 — which represents the regulatory body’s policy rule in this sphere — require such margins to be negative, a requirement which financial institutions have widely failed to disclose and fulfil, is a complete departure from the regulatory body’s policy rule contrary to Articles 5 and 7 of Directive 2005/29/EC (1)?

| 2. | If it is shown that departing from the aforementioned policy rule is contrary to Articles 5 and 7 of Directive 2005/29/EC, in accordance with the case-law of the Court of Justice of the European Union [referred to] in Case C-689/20, (2) does that unfair practice constitute an element in the evaluation and assessment of the unfairness of the clause in question and is it contrary to Articles 3 and 4 of Directive 93/13 (3)? |
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2.

If it is shown that departing from the aforementioned policy rule is contrary to Articles 5 and 7 of Directive 2005/29/EC, in accordance with the case-law of the Court of Justice of the European Union [referred to] in Case C-689/20, (2) does that unfair practice constitute an element in the evaluation and assessment of the unfairness of the clause in question and is it contrary to Articles 3 and 4 of Directive 93/13 (3)?

| 3. | If Bank of Spain Notice 5/1994, which is specific to the financial sector but not common knowledge to the general public, was not taken into account in any way, and if the fact of its not being taken into account is declared to be contrary to Article 7 of Directive 2005/29/EC, does this constitute an element in the assessment of unfairness under Article 6(1) of Directive 93/13 [and does this] warrant the application of a transparency check to the aforementioned index comprising a ‘reference rate plus margin’? |
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3.

If Bank of Spain Notice 5/1994, which is specific to the financial sector but not common knowledge to the general public, was not taken into account in any way, and if the fact of its not being taken into account is declared to be contrary to Article 7 of Directive 2005/29/EC, does this constitute an element in the assessment of unfairness under Article 6(1) of Directive 93/13 [and does this] warrant the application of a transparency check to the aforementioned index comprising a ‘reference rate plus margin’?

| 4. | Do Articles 3(1), 4 and 5 of Directive 93/13/EEC preclude national case-law, in the light of the specific rules of the IRPH, [according to which] a failure to apply a negative margin [does not] constitute an unfair practice, despite the requirement to do so laid down in the preamble to the Bank of Spain notice, and the fact that the IRPH, which is less advantageous than all the existing annual percentage rates of charge, has been marketed as if it were a product as advantageous as the EURIBOR, even though it does not take into account the requirement to add a negative margin and, [consequently], contracts may cease to be concluded because the clauses providing for its application are considered to be void, banks may in future refrain from using those clauses because marketing this service to vulnerable consumers may affect [their] economic behaviour and it may be found that these clauses must be excluded from commercial contracts because they are unfair in view of the fact that they have been included in the price of the interest, contrary to Directive 2005/29/EC? |
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4.

Do Articles 3(1), 4 and 5 of Directive 93/13/EEC preclude national case-law, in the light of the specific rules of the IRPH, [according to which] a failure to apply a negative margin [does not] constitute an unfair practice, despite the requirement to do so laid down in the preamble to the Bank of Spain notice, and the fact that the IRPH, which is less advantageous than all the existing annual percentage rates of charge, has been marketed as if it were a product as advantageous as the EURIBOR, even though it does not take into account the requirement to add a negative margin and, [consequently], contracts may cease to be concluded because the clauses providing for its application are considered to be void, banks may in future refrain from using those clauses because marketing this service to vulnerable consumers may affect [their] economic behaviour and it may be found that these clauses must be excluded from commercial contracts because they are unfair in view of the fact that they have been included in the price of the interest, contrary to Directive 2005/29/EC?

| 5. | Is it contrary to Article 6(1) of Directive 93/13/EEC for a disclosure and unfairness check not to be carried out in the case where a margin has been covertly imposed, given that, in an offer made by a bank, the margin must be negative, and for consumers not to have been made aware at the pre-contractual information stage of the economic behaviour of the interest applied to their loan, contrary to Directive 2005/29/EC? |
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5.

Is it contrary to Article 6(1) of Directive 93/13/EEC for a disclosure and unfairness check not to be carried out in the case where a margin has been covertly imposed, given that, in an offer made by a bank, the margin must be negative, and for consumers not to have been made aware at the pre-contractual information stage of the economic behaviour of the interest applied to their loan, contrary to Directive 2005/29/EC?

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(1)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

(2)  ECLI:EU:C:2021:791.

(3)  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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