# C_2019238EN.01000601.xml

| 15.7.2019 | EN | Official Journal of the European Union | C 238/6 |
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15.7.2019

EN

Official Journal of the European Union

C 238/6

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Request for a preliminary ruling from the Juzgado de Primera Instancia n.o 7 de Orense (Spain) lodged on 29 March 2019 — UP v Banco Pastor, S.A.U.

(Case C-268/19)

(2019/C 238/08)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia n.o 7 de Orense

Parties to the main proceedings

Applicant: UP

Defendant: Banco Pastor, S.A.U.

Questions referred

| 1. | Must the non-binding effect laid down in Article 6(1) of Directive 93/13 (1) be interpreted as precluding the validity of an agreement amending an unfair term concluded between a consumer and a seller or supplier in circumstances in which (a) the unfair term had not been declared null and void when that amending agreement was concluded, nor had its lack of validity been identified and nor had the consumer been advised of the possibility that that term might be declared unfair, and (b) the amending agreement is not in the nature of a settlement? In that situation, is it material to the validity of that agreement that the consumer has negotiated the wording of the amendment? |
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1.

Must the non-binding effect laid down in Article 6(1) of Directive 93/13 (1) be interpreted as precluding the validity of an agreement amending an unfair term concluded between a consumer and a seller or supplier in circumstances in which (a) the unfair term had not been declared null and void when that amending agreement was concluded, nor had its lack of validity been identified and nor had the consumer been advised of the possibility that that term might be declared unfair, and (b) the amending agreement is not in the nature of a settlement? In that situation, is it material to the validity of that agreement that the consumer has negotiated the wording of the amendment?

| 2. | Must Articles 3(1) and 4 of Directive 93/13 be interpreted as meaning that, for a term laid down by an agreement concluded between a consumer and a seller or supplier, which amends an earlier unfair term, to be considered transparent, the consumer must have been informed, when concluding the amending agreement, that the original term was unfair or, as the case may be, that there is a possibility that that term might be declared unfair? In that connection, does the fact that the new term was individually negotiated preclude, in any event, a review of whether that term is unfair? |
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2.

Must Articles 3(1) and 4 of Directive 93/13 be interpreted as meaning that, for a term laid down by an agreement concluded between a consumer and a seller or supplier, which amends an earlier unfair term, to be considered transparent, the consumer must have been informed, when concluding the amending agreement, that the original term was unfair or, as the case may be, that there is a possibility that that term might be declared unfair? In that connection, does the fact that the new term was individually negotiated preclude, in any event, a review of whether that term is unfair?

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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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