# C_2020287EN.01000201.xml

| 31.8.2020 | EN | Official Journal of the European Union | C 287/2 |
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31.8.2020

EN

Official Journal of the European Union

C 287/2

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Judgment of the Court (Fourth Chamber) of 9 July 2020 (request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 3 de Teruel — Spain) — XZ v Ibercaja Banco SA

(Case C-452/18) (1)

(Reference for a preliminary ruling - Consumer Protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Mortgage loan agreement - Term limiting the variability of the interest rate (‘floor’ term) - Novation agreement - Waiver of the right to bring an action contesting the terms of a contract - Non-binding)

(2020/C 287/02)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción No 3 de Teruel

Parties to the main proceedings

Applicant: XZ

Defendant: Ibercaja Banco SA

Operative part of the judgment

| 1. | Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a term in a contract concluded between a seller or supplier and a consumer, which might be found by a court to be unfair, from being the subject of a novation agreement between that seller or supplier and that consumer, whereby the consumer waives the effects that would result from that term being found to be unfair, provided that that waiver is the result of the consumer’s free and informed consent, which it is for the national court to verify; |
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1.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a term in a contract concluded between a seller or supplier and a consumer, which might be found by a court to be unfair, from being the subject of a novation agreement between that seller or supplier and that consumer, whereby the consumer waives the effects that would result from that term being found to be unfair, provided that that waiver is the result of the consumer’s free and informed consent, which it is for the national court to verify;

| 2. | Article 3(2) of Directive 93/13 must be interpreted as meaning that a term in a contract concluded between a seller or supplier and a consumer for the purpose of amending a potentially unfair term in a previous contract concluded between them or for the purpose of dealing with the consequences of that other term being unfair may itself be regarded as not having been individually negotiated and, where appropriate, be found to be unfair; |
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2.

Article 3(2) of Directive 93/13 must be interpreted as meaning that a term in a contract concluded between a seller or supplier and a consumer for the purpose of amending a potentially unfair term in a previous contract concluded between them or for the purpose of dealing with the consequences of that other term being unfair may itself be regarded as not having been individually negotiated and, where appropriate, be found to be unfair;

| 3. | Articles 3(1), 4(2) and 5 of Directive 93/13 must be interpreted as meaning that the requirement of transparency incumbent on a seller or supplier under those provisions means that, when concluding a mortgage loan agreement subject to a variable interest rate that contains a ‘floor’ term, the consumer must be placed in a position to understand the economic consequences that the mechanism initiated by such a term will cause for him or her, in particular by means of being provided with information on past changes in the index on the basis of which the interest rate is calculated; |
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3.

Articles 3(1), 4(2) and 5 of Directive 93/13 must be interpreted as meaning that the requirement of transparency incumbent on a seller or supplier under those provisions means that, when concluding a mortgage loan agreement subject to a variable interest rate that contains a ‘floor’ term, the consumer must be placed in a position to understand the economic consequences that the mechanism initiated by such a term will cause for him or her, in particular by means of being provided with information on past changes in the index on the basis of which the interest rate is calculated;

| 4. | Article 3(1) of Directive 93/13, read in conjunction with paragraph 1(q) of the Annex thereto and Article 6(1) of that directive, must be interpreted as meaning that:






  — | a term included in a contract concluded between a seller or supplier and a consumer with a view to resolving an existing dispute, whereby the consumer waives the right to submit to a national court claims that he or she could have submitted in the absence of that term, may be regarded as ‘unfair’, in particular where the consumer was not provided with the relevant information enabling him or her to understand the legal consequences for him or her; |
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4.

Article 3(1) of Directive 93/13, read in conjunction with paragraph 1(q) of the Annex thereto and Article 6(1) of that directive, must be interpreted as meaning that:

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a term included in a contract concluded between a seller or supplier and a consumer with a view to resolving an existing dispute, whereby the consumer waives the right to submit to a national court claims that he or she could have submitted in the absence of that term, may be regarded as ‘unfair’, in particular where the consumer was not provided with the relevant information enabling him or her to understand the legal consequences for him or her;

| — | a term whereby the same consumer waives, in respect of future disputes, the right to take legal action based on his or her rights under Directive 93/13 is not binding on the consumer. |
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a term whereby the same consumer waives, in respect of future disputes, the right to take legal action based on his or her rights under Directive 93/13 is not binding on the consumer.

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(1)  OJ C 381, 22.10.2018.

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