Order;Information — ECLI:EU:C:2021:945
Date: 2021-11-17
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary C-79/21 – 1 
Case C-79/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 February 2021 
Referring court: 
Juzgado de Primera Instancia de Ibiza (Spain) 
Date of the decision to refer: 
5 January 2021 
Applicant: 
YB 
Defendant: 
Unión de Créditos Inmobiliarios, S. A. 
  
Subject matter of the main proceedings 
Ordinary proceedings in which a consumer seeks a declaration that a term of a 
loan agreement fixing the variable interest on the basis of the Índice de Referencia 
de Préstamos Hipotecarios (Mortgage Loan Reference Index, the ‘IRPH’) is 
invalid on the ground that it is unfair. 
Subject matter and legal basis of the request for a preliminary ruling 
Consumer protection – Interpretation of Articles 3, 4, 5, 6 and 7 of Council 
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 
1993 L 95, p. 29) – Unfair terms in consumer contracts – Loan agreements – 
Variable interest rates – Reference index for mortgage loans (IRPH) – Unilateral 
inclusion of this type of term by the seller or supplier – Review of the 
transparency requirement by the national court – Consequences of a declaration 
that the term is unfair 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/21 
 
2  
Questions referred 
1. Does Article 3 of Directive [93/13] preclude national case-law which 
establishes that the seller or supplier is not required to provide the consumer, 
at the time the loan is concluded, with information on past fluctuations in the 
reference index over at least the last two years that shows comparison with 
at least one other index in common, widespread use in the sector at the time 
the contract is concluded, such as the Euribor in this particular case? 
2. Does Article 3 of the directive preclude national case-law which establishes 
that the fact that the seller or supplier has included the term imposing the 
IRPH reference index in a non-transparent manner without first providing 
the required information on past fluctuations that shows comparison with the 
other indices commonly used in the market does not mean that there has 
been a significant imbalance in the parties’ rights and obligations to the 
detriment of the consumer? 
3. Does Article 3(2) of Directive 93/13 preclude case-law which holds that a 
term that includes the IRPH reference index in a loan agreement without 
first providing information is not unfair, in spite of the fact that national law 
specifically requires the financial institution to provide information on 
fluctuations over the previous two years, and the information in question 
was not provided? 
If not, would the failure to provide prior information amount to a lack of 
good faith on the part of the person who included the term, thus making the 
term unfair? Is national case-law which holds that there is good faith on the 
part of the financial institution, even though the institution failed to supply 
the required information and consequently included terms in the contract 
that were not transparent, therefore contrary to Article 3(1) of the directive? 
4. Does Article 3(2) of Directive 93/13 preclude national case-law which holds 
that, where the IRPH reference index is included in a contract between a 
seller or supplier and a consumer, the seller or supplier is not required to 
provide the consumer with comparative information on fluctuations over 
time in the other reference indices in most common use at the time the loan 
is concluded, on the ground that the consumer will readily understand that 
the IRPH would always be higher than the Euribor because a banking sector 
notice was published in the B.O.E. (Spanish Official Gazette) in 1994 setting 
out the method for calculating the IRPH? If not, would the seller or supplier 
be required to inform the consumer and supply the notice at the time the loan 
is concluded? 
5. Does Article 3(1) of the directive preclude national case-law which requires 
that, in order for it to be possible to review the contents of a non-transparent 
term that voluntarily includes the IRPH index in a consumer contract, there 
must be a lack of good faith on the part of the seller or supplier, and the 
UNIÓN DE CRÉDITOS INMOBILIARIOS 
 
3 
mere fact that the IRPH index is used by governments can be interpreted as 
implying that good faith automatically exists where the index, which is 
unilaterally and voluntarily selected by the seller or supplier, is imposed in 
consumer contracts? 
6. Does Article 3(1) of the directive preclude Article 82(1) of the Ley General 
para la Defensa de los Consumidores y Usuarios (General Law for the 
Protection of Consumers and Users), which provides that, in order for a term 
to be deemed unfair, it must be contrary to the requirements of good faith? 
7. Does Article 3(1) of the directive preclude national case-law which holds 
that there is no lack of good faith on the part of a seller or supplier who 
includes a term that has not been individually negotiated imposing an IRPH 
reference index in a consumer contract, where the seller or supplier conceals 
or withholds information on past fluctuations in the IRPH reference index 
and comparative information on the other indices in most common use at the 
time the loan is concluded? 
8. Does Article 3(1) of the directive preclude national case-law which requires 
that, in order for a term establishing the IRPH index to be declared void for 
unfairness, the inclusion of the term must necessarily have been non-
transparent, there must be bad faith on the part of the person who includes 
the term, and it must also give rise to an imbalance in the parties’ rights and 
obligations to the detriment of the consumer in strictly financial terms at the 
time the loan is concluded? 
If so, what are the minimum requirements established by the directive in 
order for the term to be declared unfair? Under the directive, would a lack of 
transparency be sufficient in order for a declaration of nullity to be made in 
accordance with the spirit of the eighth final provision of Law 5/2019, which 
expressly stipulates that any term included in a non-transparent manner must 
be declared void? 
9. Does Article 3(1) of the directive preclude national case-law which holds 
that there is no lack of good faith on the part of a seller or supplier who 
includes a term that has not been individually negotiated imposing an IRPH 
reference index in a consumer contract, where the consumer has not been 
given information consistent with the duty to state that the reference index in 
question was not the usual index and that, at the time the loan was 
concluded, it had always been higher than the most commonly used index at 
the time (which in the present case was the Euribor), that the index in 
question could never be less than or equal to the most commonly used index 
because of the way in which it was calculated, and that, as a result, the 
consumer would always pay more interest as compared with a loan based on 
the Euribor or other similar index? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/21 
 
4  
10. Does Article 3(1) of the directive preclude national case-law which holds 
that the fact that the term imposing the IRPH reference index was included 
by the seller or supplier in a non-transparent manner, thus depriving the 
consumer of the right to be able to compare, analyse and evaluate before 
entering into the contract, does not cause significant damage to the parties’ 
rights and obligations to the detriment of the consumer? 
11. Does Article 3(1) of the directive preclude national case-law which holds 
that the fact that the term which resulted in the consumer paying 
considerably more interest as compared with the other indices in use at the 
time the loan was agreed was included by the seller or supplier in a non-
transparent manner does not cause significant damage to the parties’ rights 
and obligations to the detriment of the consumer? 
12. Must Article 6(1) of the directive be interpreted as meaning that, where a 
term establishing the IRPH reference index in a mortgage loan agreement 
between a seller or supplier and a consumer has been declared void, the 
contract can continue in existence with no need for the term to be replaced 
by another reference index? 
If not, would it be contrary to the deterrent effect principle in Article 7(1) of 
the directive for it to be replaced by another IRPH subtype (the IRPH for all 
institutions, IRPH for savings banks, IRPH for banks, or IRPH for the 
CECA (Confederation of Spanish Savings Banks)) which would have the 
same effect, or should it instead be replaced by the reference index that was 
most widely used in loan agreements between consumers and financial 
institutions at the time the contract was concluded (in this particular case, 
the Euribor)? 
13. Does the interpretation of Article 4(2) of the directive given by the Court of 
Justice of the European Union in its judgment of 3 March 2020 in Case 
C-125/18 preclude national case-law which holds that, in spite of the lack of 
negotiation and transparency, a term such as that at issue is not unfair 
because there is no bad faith, even if there has been a detriment to the 
consumer? 
14. Does Article 3(2) of the directive preclude Law 5/2019, Order 
EHA/2899/2011 and national case-law according to which, in the case of 
loans agreed while the legislation in question applied, the seller or supplier 
is not required to provide the consumer, at the time the loan is concluded, 
with information on past fluctuations in the reference index over at least the 
last two years that shows comparison with at least one other index in 
common, widespread use in the sector, such as the Euribor? 
15. Do Articles 3, 4, 6 and 7 of the directive preclude national case-law which 
holds that where, as in the present case, a term imposing the reference index 
in a contract between a seller or supplier and a consumer was included in a 
UNIÓN DE CRÉDITOS INMOBILIARIOS 
 
5 
non-transparent manner, it cannot be declared unfair, on the ground that 
there is no bad faith or any detriment to the consumer, even though it led to 
a financial detriment that could have been foreseen by the financial 
institution, and the consumer was deprived of the right to evaluate, compare 
and analyse before making a decision, given that the consumer would not 
have agreed to it had he or she been aware of the scope and specific terms? 
16. Does Article 6(2) of the directive preclude Article 43 of the Ley de 
Enjuiciamiento Civil (Code of Civil Procedure), since requests to the Court 
of Justice of the European Union for a preliminary ruling do not have the 
effect of staying other similar or identical judicial proceedings for which the 
decision on the question referred may have significant substantive and legal 
consequences, thus depriving the consumer of protection if the proceedings 
continue? 
If so, regardless of the court in which the case is being heard and the stage of 
the proceedings, must the national court, either of its own motion or at the 
request of a party, rule that proceedings must be stayed pending the outcome 
of the preliminary ruling? 
Provisions of European Union law relied upon 
Articles 1, 3, 4, 5, 6 and 7 of Directive 93/13. 
The request for a preliminary ruling also refers to the following decisions of the 
Court of Justice. 
The position of the parties to the contract 
Judgment of 21 March 2013, RWE Vertrieb, C-92/11: the system of protection 
established by Directive 93/13 is based on the idea that the consumer is in a weak 
position vis-à-vis the seller or supplier as regards both his bargaining power and 
his level of knowledge, and it is therefore essential that, before concluding a 
contract, the consumer has information on the terms of the contract and the 
consequences of concluding it. 
The powers of the national court 
Judgment of 6 October 2009, Asturcom Telecomunicaciones, C-40/08: a national 
court must assess of its own motion whether the contract is valid and establish all 
the consequences thereby arising under national law, in order to ensure that the 
consumer is not bound by an unfair term. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/21 
 
6  
Reviewing the unfairness of a term 
Judgment of 30 April 2014, Kásler and Káslerné Rábai, C-26/13: the requirement 
that a contractual term must be drafted in plain intelligible language is to be 
understood as requiring not only that the relevant term should be grammatically 
clear and intelligible to the consumer, but also that the contract should set out 
transparently the specific functioning of the mechanism of conversion for the 
foreign currency to which the relevant term refers, so that that consumer is in a 
position to evaluate, on the basis of clear, intelligible criteria, the economic 
consequences for him which derive from it. 
Judgment of 14 March 2013, Aziz, C-415/11: in order to assess whether the 
imbalance arises ‘contrary to the requirement of good faith’, it must be determined 
whether the seller or supplier, dealing fairly and equitably with the consumer, 
could reasonably assume that the consumer would have agreed to the term 
concerned in individual contract negotiations. 
Judgment of 3 March 2020, Gómez del Moral Guasch, C-125/18: the court of a 
Member State is required to verify that a contractual term relating to the main 
subject matter of the agreement is plain and intelligible, irrespective of whether or 
not Article 4(2) of that directive was transposed into the legal order of that 
Member State; Directive 93/13, in particular Article 4(2) and Article 5 thereof, 
must be interpreted as meaning that, with a view to complying with the 
transparency requirement of a contractual term setting a variable interest rate 
under a mortgage loan agreement, that term not only must be formally and 
grammatically intelligible but also enable an average consumer, who is reasonably 
well-informed and reasonably observant and circumspect, to be in a position to 
understand the specific functioning of the method used for calculating that interest 
rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially 
significant economic consequences of such a term on his or her financial 
obligations. Information that is particularly relevant for the purposes of the 
assessment to be carried out by the national court in that regard includes (i) the 
fact that essential information relating to the calculation of that interest rate is 
easily accessible to anyone intending to take out a mortgage loan, on account of 
the publication of the method used for calculating that rate, and (ii) the provision 
of data relating to past fluctuations of the index on the basis of which that rate is 
calculated. 
The effects of a declaration of unfairness 
Judgment of 15 March 2012, Pereničová and Perenič, C-453/10: Article 6(1) of 
Directive 93/13 must be interpreted as meaning that, when assessing whether a 
contract concluded with a consumer by a trader which contains one or more unfair 
terms can continue to exist without those terms, the court hearing the case cannot 
base its decision solely on a possible advantage for one of the parties, in this case 
the consumer, of the annulment of the contract in question as a whole. That 
directive does not, however, preclude a Member State from providing, in 
UNIÓN DE CRÉDITOS INMOBILIARIOS 
 
7 
compliance with European Union law, that a contract concluded with a consumer 
by a trader which contains one or more unfair terms is to be void as a whole where 
that will ensure better protection of the consumer. 
Judgment of 14 June 2012, Banco Español de Crédito, C-618/10: Article 6(1) of 
Directive 93/13 precludes the national court, in the case where it finds that an 
unfair term in a contract concluded between a seller or supplier and a consumer is 
void, from modifying that contract by revising the content of that term. 
Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C-154/15, 
C-307/15 and C-308/15: the national court may not revise the content of unfair 
terms, lest it contribute to eliminating the dissuasive effect for sellers or suppliers 
of the straightforward non-application with regard to the consumer of those unfair 
terms. The determination by a court that such a term is unfair must, in principle, 
have the consequence of restoring the consumer to the legal and factual situation 
that he would have been in if that term had not existed. 
Judgment of 21 January 2015, Unicaja Banco and Caixabank, C-482/13, 
C-484/13, C-485/13 and C-487/13: national courts are merely required to exclude 
the application of an unfair contractual term in order that it may not produce 
binding effects with regard to the consumer, without being empowered to revise 
the content of that term. That contract must continue in existence, in principle, 
without any amendment other than that resulting from the deletion of the unfair 
terms, in so far as, in accordance with the rules of domestic law, such continuity 
of the contract is legally possible. 
Judgment of 3 March 2020, Gómez del Moral Guasch, C-125/18: Article 6(1) and 
Article 7(1) of Directive 93/13 must be interpreted as not precluding the national 
court, where an unfair contractual term setting a reference index for calculating 
the variable interest of a loan is null and void, from replacing that index with a 
statutory index applicable in the absence of an agreement to the contrary between 
the parties to the contract, in so far as the mortgage loan agreement in question is 
not capable of continuing in existence if the unfair term is removed and annulment 
of that agreement in its entirety would expose the consumer to particularly 
unfavourable consequences. 
Provisions of national law relied upon 
a) Royal Legislative Decree 1/2007 of 16 November 2007 approved the 
Consolidated Text of the General Law for the Protection of Consumers and 
Users and other supplementary laws. This consolidated text includes the following 
provisions: 
Article 80. Requirements for terms not individually negotiated 
1. In contracts with consumers and users which use terms that have not been 
individually negotiated, including those drafted by public authorities and the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/21 
 
8  
entities and undertakings which depend on them, such terms must satisfy the 
following requirements: 
(a) Precise, clear and simple wording, enabling immediate understanding 
without reference to texts or documents not supplied before, or at the time 
of, the conclusion of the contract and which, in any event, must be expressly 
referred to in the contract document. 
(b) Accessibility and legibility, so that the consumer or user may know of 
their existence and content before the contract is concluded. 
(c) Good faith and fair balance between the rights and obligations of the 
parties, which, under all circumstances, excludes the use of unfair terms. 
Article 82. Definition of unfair terms 
1. All clauses not negotiated individually and all practices not expressly agreed 
which, contravening the requirements of good faith, give rise, in a manner 
detrimental to the consumer or user, to a significant imbalance in the parties’ 
rights and obligations arising under the contract, shall be regarded as unfair terms. 
2. The fact that certain aspects of a term, or one specific term, have been 
negotiated individually shall not exclude the application of the rules on unfair 
terms to the rest of the contract. 
A seller or supplier who claims that a particular term has been individually 
negotiated shall bear the burden of proof. 
3. The unfairness of a contractual term shall be assessed taking into account the 
nature of the contractual goods or services and having regard to all the 
circumstances surrounding the conclusion of the contract and to all the other terms 
of the contract or of any other contract on which it is dependent. 
4. Notwithstanding the foregoing paragraphs, terms shall always be regarded as 
unfair if, in accordance with the provisions of Articles 85 to 90, both inclusive, 
they: 
[…] 
(c) determine that there is no contractual reciprocity, 
[…] 
(e) are disproportionate in relation to the conclusion and performance of the 
contract. … 
Article 83. Nullity of unfair terms and continued existence of the contract 
UNIÓN DE CRÉDITOS INMOBILIARIOS 
 
9 
Unfair terms shall automatically be void and deemed not to have formed part of 
the contract. To that end, the court, having heard the parties, shall declare the 
invalidity of unfair terms included in the contract, which shall nevertheless 
continue to bind the parties on the same terms if it is capable of continuing in 
existence without the unfair terms. 
Terms included in a non-transparent way, to the detriment of consumers, shall 
automatically be void. 
Article 85. Terms that are unfair because they subordinate the contract to the will 
of the seller or supplier. 
Terms shall be unfair if they subordinate any aspect of the contract to the will of 
the seller or supplier. In all cases that includes the following terms: 
[…] 
3. Terms that enable the seller or supplier unilaterally to interpret or amend the 
contract, except, in the latter case, for valid reasons specified in the contract. 
In financial services contracts the above paragraph shall be deemed to be without 
prejudice to terms under which the seller or supplier reserves the right to alter the 
rate of interest payable by the consumer or due to the latter, or the amount of other 
charges for financial services, without notice, where the rates are index-linked, the 
index in question is a statutory index and the method by which rates vary is 
described, or for other valid reasons, provided that the seller or supplier is 
required to inform the other contracting party or parties thereof at the earliest 
opportunity and that the latter are free to dissolve the contract without incurring a 
penalty. 
[…] 
10. Terms that provide for the price to be determined at the time of delivery of 
the goods or service or that allow the seller or supplier to increase the final price 
above the agreed price, unless there are objective grounds for so doing and the 
consumer or user is entitled to terminate the contract if the final price is too high 
in relation to the price that was initially specified. 
The above paragraph shall be deemed to be without prejudice to adjusting the 
price in accordance with an index, provided that the index in question is a 
statutory index and the contract explicitly describes the method by which prices 
vary. 
Article 89. Unfair terms that affect the conclusion and performance of the 
contract. 
The following shall in all cases be regarded as unfair terms: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/21 
 
10  
1. Declarations of receipt or acceptance that are based on fictitious 
information, and acceptance by the consumer or user of terms of which he had not 
had an opportunity to take genuine cognisance before the conclusion of the 
contract. 
b) Código Civil (Civil Code) 
Article 1258 
Contracts are concluded by simple consent and from that point are binding not 
only as to performance of the matters expressly agreed therein, but also as to all 
consequences which, by their nature, are in accordance with good faith, custom 
and the law. 
Article 1303 
Where an obligation has been declared void, the contracting parties must restore 
to one other those things that formed the subject matter of the contract, together 
with the profits derived therefrom, and the price together with interest, subject to 
the provisions of the following articles. 
c) Ley 7/98, de 13 de abril, de Condiciones Generales de la Contratación (Law 
7/98 of 13 April 1998 on General Contractual Conditions) 
Article 7 
The following general terms shall be deemed not to be included in the contract: 
(a) terms of which the consumer has not had a genuine opportunity to take full 
cognisance before the conclusion of the contract or that have not been signed, 
where appropriate, as provided for in Article 5; 
(b) terms that are illegible, ambiguous, obscure or incomprehensible except, in 
the case of the latter, where the contracting party has expressly accepted them in 
writing and they comply with the specific rules concerning transparency of 
contractual terms in that sector. 
Article 8 
1. General conditions that infringe the provisions of this Law or any other rule 
ordering or prohibiting certain conduct, to the detriment of a party to the contract, 
shall automatically be void, save in so far as the said provisions make separate 
provision for cases of breach. 
2. In particular, where a contract has been concluded with a consumer, general 
conditions that are unfair shall be void. 
UNIÓN DE CRÉDITOS INMOBILIARIOS 
 
11 
d) Bank of Spain Notice 8/1990 of 7 September 1990 to credit institutions on 
transparency of transactions and protection of customers, and Notice 5/1994 of 
22 July 1994 to credit institutions on amendments to Notice 8/1990 on 
transparency of transactions and protection of customers 
e) The referring court also refers to various judgments of the Tribunal Supremo 
(Supreme Court): 
Judgment 449/2017 of 4 July 2017, which applies the principle that unfair terms 
are not binding and ensures a deterrent effect by declaring an unfair term in a 
mortgage loan agreement null and void. The award of costs is part of the deterrent 
effect on the seller or supplier. 
Judgment 699/2017 of 14 December 2017, with a dissenting opinion. The 
judgment holds that the IRPH is valid, since the fact that it is an official index 
automatically makes it transparent. It also states that Directive 93/13 expressly 
prohibits courts from examining the main subject matter of the contract. 
According to the dissenting opinion, there has been a breach of EU law and the 
tests concerning transparency and content of the term have not been satisfied; it 
argues that the term should be declared void and the IRPH should be replaced by 
the Euribor, giving rise to repayments. 
Judgments 595, 596, 597, 598 and 599 of 12 November 2020, with a dissenting 
opinion. The judgment holds that, while the IRPH is not transparent, nor is it 
unfair, because it is not contrary to good faith and does not cause a significant 
imbalance for the consumer. 
Brief statement of the facts and the main proceedings 
1 YB, who is classed as a consumer, entered into a mortgage loan agreement with 
the defendant institution under which the interest was calculated as follows: 
a) during the initial months a fixed interest rate applied, 
b) subsequently, interest was calculated at a variable rate consisting of the 
applicable IRPH rate plus a positive differential. 
The same term (the ‘disputed term’) provided for the applicable IRPH to be 
replaced by a substitute index. 
2 YB filed a claim with the referring court requesting that the disputed term be 
declared void for unfairness, on the grounds that the financial institution had not 
given him sufficient information, the institution was in breach of good faith, there 
was an imbalance to the detriment of the consumer, and the requirements for 
transparency and acceptance of the contract had not been met. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/21 
 
12  
3 In terms of the effects of the requested declaration of nullity, the applicant’s 
primary claim was for repayment of the sums that had wrongly been paid under 
the term in question, together with appropriate interest. His claim is based on 
Article 1303 of the Civil Code, which governs the nullity of obligations, and on 
the principle established in Article 6(1) of Directive 13/93 that unfair terms are 
not binding. 
4 In the alternative, he asked for the IRPH to be replaced by the Euribor with 
retrospective effect from the start of the contract, and for repayment of the excess 
amounts paid, together with appropriate interest. 
Main arguments of the parties to the main proceedings 
5 The referring court does not set out the arguments put forward by the applicant. 
However, the applicant’s position can be inferred from the content of the 
questions referred, since the referring court has reproduced the applicant’s 
proposed questions verbatim. 
6 The financial institution defended the application, arguing that the IRPH clause 
was valid in that it addressed the controls on content, consent and transparency. 
Brief statement of the reasons for the request for a preliminary ruling 
The validity of the contested term 
7 The referring court notes that, even after the judgment of the Court of Justice of 
the European Union of 3 March 2020, Gómez del Moral Guasch, C-125/18, there 
was disagreement among the Spanish courts over whether the disputed term is 
valid, giving rise to legal uncertainty and serious material damage to the affected 
consumers. In 2020 the Supreme Court handed down the five judgments cited 
above which ruled that the disputed term was valid. Following those judgments, 
the Supreme Court is refusing leave to appeal in all cases concerning this type of 
term, on the basis that there are no grounds for such an appeal, in spite of the 
dissenting opinion in the judgments, and regardless of the position set out in the 
judgment by the Court of Justice cited above. 
8 The referring court disagrees with the legal position set out in the latest judgments 
by the Supreme Court. Moreover, the referring court does not believe it is 
acceptable to conclude that the seller or supplier has not acted in bad faith and was 
not required to inform the consumer that the IRPH would always be more 
expensive than the Euribor because the IRPH was based, among other elements, 
on the Euribor plus positive differentials and charges. Had this been explained, the 
consumer would not have agreed to it. The referring court notes that this is in 
direct conflict with the duty on the seller or supplier who imposed the non-
negotiated term to provide information, and points to a possible lack of good faith 
on the part of a seller or supplier who fails to supply this information. 
UNIÓN DE CRÉDITOS INMOBILIARIOS 
 
13 
9 However, the Supreme Court takes the view that, while the term is not transparent, 
in order to be able to declare it unfair or to review its contents there must 
necessarily be bad faith on the part of the seller or supplier, whereas the referring 
court considers that, in actual fact, Article 3(1) of Directive 93/13 establishes that 
a term may be declared unfair where, contrary to the requirement of good faith, it 
causes a significant imbalance; therefore a good faith test cannot be a requirement 
in order for a national court to examine the unfairness or to review the content of a 
term that was included in the contract in a way that was not transparent. 
10 In any event, the referring court considers that there is clearly bad faith on the part 
of the seller or supplier given that it was aware of past fluctuations in the IRPH, it 
knew that this index was notably more expensive for the consumer than other 
more frequently used and better-known indices, such as the Euribor (which, in 
most cases, was the index to which the consumer thought he was agreeing), and it 
could be sure that the IRPH would never fall below the Euribor, and yet it still 
failed to inform the consumer of these points. 
The effects of a declaration that the disputed term is void 
11 In terms of the possible effects of a declaration that the disputed term is void, 
national legislation (Article 83 of the General Law for the Protection of 
Consumers and Users), EU law (Article 6(1) of Directive 93/13) and also the 
various interpretations from the Court of Justice favour the continued existence of 
the contract without the unfair term that has been declared void. It is possible for 
the contract to continue in existence, first, because it can be ordered that the 
interest should be calculated using the original fixed rate that applied during the 
first months of the loan or applying the differential stipulated in the contract and, 
secondly, because this would respect the deterrent effect and the principle that 
unfair terms are not binding, as provided for in Articles 6 and 7 of the directive. 
12 If it is concluded that the contract cannot continue in existence without the 
disputed term, the IRPH should be replaced with retrospective effect by another 
reference index that is completely different from the IRPH and its subtypes, such 
as the Euribor (the most commonly used index at the time the loan was agreed), in 
order to provide a deterrent effect for the seller or supplier, since there would be 
no point, for example, in declaring a term that imposes the IRPH for savings 
banks void, purely in order for it to be replaced by a term that imposes the IRPH 
for all institutions, when there is virtually no difference between the two. 
Procedural rules governing decisions on preliminary issues  
13 The referring court considers that there is a need to know whether Article 43 of 
the Code of Civil Procedure is contrary to EU law, in that national case-law 
interprets it as meaning that the provision to stay proceedings pending the 
resolution of preliminary issues does not apply in the case of requests to the Court 
of Justice of the European Union for a preliminary ruling in a separate case.