# C_2014024EN.01000202.xml

| 25.1.2014 | EN | Official Journal of the European Union | C 24/2 |
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25.1.2014

EN

Official Journal of the European Union

C 24/2

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Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción no 2 de Marchena (Spain) lodged on 24 October 2013 — Caixabank SA v Francisco Javier Brenes Jiménez and Andrea Jiménez Jiménez

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(Case C-548/13)

2014/C 24/03

Language of the case: Spanish

Referring court

Referring court

Juzgado de Primera Instancia e Instrucción no 2 de Marchena

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Parties to the main proceedings

Parties to the main proceedings

Applicant: Caixabank SA

Applicant:

Defendants: Francisco Javier Brenes Jiménez and Andrea Jiménez Jiménez

Defendants:

Questions referred

Questions referred

| 1. | Under Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, and in particular Article 6(1) thereof, and in order to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, must a national court, when it finds there to be an unfair default-interest clause in mortgage loans, declare the clause void and not binding or, on the contrary, must it moderate the interest clause, referring the matter back to the party seeking enforcement or lender for recalculation of the interest? |
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1.

Under Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, and in particular Article 6(1) thereof, and in order to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, must a national court, when it finds there to be an unfair default-interest clause in mortgage loans, declare the clause void and not binding or, on the contrary, must it moderate the interest clause, referring the matter back to the party seeking enforcement or lender for recalculation of the interest?

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| 2. | Is the Second Transitional Provision of Law 1/2013 of 14 May 2013 nothing more than a clear limitation on the protection of consumer interests, by implicitly imposing upon the court the obligation to moderate a default-interest clause which is tainted by unfairness, recalculating the stipulated interest and maintaining in force a stipulation which was unfair, instead of declaring the clause to be void and not binding upon the consumer? |
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2.

Is the Second Transitional Provision of Law 1/2013 of 14 May 2013 nothing more than a clear limitation on the protection of consumer interests, by implicitly imposing upon the court the obligation to moderate a default-interest clause which is tainted by unfairness, recalculating the stipulated interest and maintaining in force a stipulation which was unfair, instead of declaring the clause to be void and not binding upon the consumer?

| 3. | Does the Second Transitional Provision of Law 1/2013 of 14 May 2013 contravene Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and in particular Article 6(1) thereof, by preventing application of the principles of equivalence and effectiveness in relation to consumer protection and avoiding application of the penalty of nullity and lack of binding force in respect of default-interest clauses tainted by unfairness and stipulated in mortgage loans entered into prior to the entry into force of Law 1/2013 of 14 May 2013? |
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3.

Does the Second Transitional Provision of Law 1/2013 of 14 May 2013 contravene Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and in particular Article 6(1) thereof, by preventing application of the principles of equivalence and effectiveness in relation to consumer protection and avoiding application of the penalty of nullity and lack of binding force in respect of default-interest clauses tainted by unfairness and stipulated in mortgage loans entered into prior to the entry into force of Law 1/2013 of 14 May 2013?

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

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