Opinion of the Advocate General — ECLI:EU:C:2019:695
Date: 2019-09-10
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Request for a preliminary ruling from the Juzgado de Primera Instancia de Barcelona (Spain) lodged on 16 February 2018 — Marc Gómez del Moral Guasch v Bankia S.A. (Case C-125/18) Language of the case: Spanish Referring court Juzgado de Primera Instancia de Barcelona Parties to the main proceedings Applicant: Marc Gómez del Moral Guasch Defendant: Bankia S.A. Questions referred Must the index concerned, the IRPH 1 Cajas, be the object of judicial protection, in the sense that it must be ascertained whether it is intelligible to the consumer, without this being precluded by the fact that it is governed by regulatory or administrative provisions, this not being a case provided for in Article 1(2) of Directive 93/13 2 because it is not a mandatory provision, but instead such variable ordinary and remunerative interest is included in the contract by the seller or supplier when he so chooses? 2.1 Under Article 4(2) of Directive 93/13, which has not been transposed into Spanish law, is it contrary to Directive 93/13, and to Article 8 thereof, for a Spanish court to rely upon and apply Article 4(2) of that act when that provision has not been transposed into Spanish law at the wish of the legislature, which sought a full level of protection in relation to all the terms that a seller or supplier may insert into a consumer contract, including those which relate to the main subject-matter of the contract, even if those terms were drafted in plain, intelligible language? 2.2 At all events, must information of promotional material be provided about all or some of the following facts or data, for the purpose of the understanding of an essential term, specifically the IRPH: (i) An explanation of how the reference rate was configured, that is to say, stating that that index includes charges and other costs on top of the nominal interest rate, that it is a simple, unweighted average, that the seller or supplier had to know and notify the fact that he must apply a negative differential and that the data provided is not public, compared with the other usual index, the Euribor? (ii) An explanation of past and possible future fluctuations in the IRPH, notifying and publishing graphs that explain clearly and intelligibly to the consumer the fluctuations in that specific rate in relation to the Euribor, the usual rate on loans secured by a mortgage? 2.3 And, if the Court of Justice concludes that it is for the referring court to examine whether contractual terms are unfair and to draw the necessary inferences in accordance with its national law, the Court is asked whether failure to provide information about all those consequences does not make the term unintelligible, inasmuch as it is not clear to an average consumer (Article 4(2) of Directive 93/13), or whether that failure to provide information amounts to unfair conduct by the seller or supplier and, therefore, the consumer would not have agreed to the use of the IRPH as the reference rate for his loan if he had been properly informed? If the IRPH cajas term is declared null and void, failing agreement or if that would be more detrimental to the consumer, which of the two following consequences would be compatible with Articles 6(1) and 7(1) of Directive 93/13? 3.1 The contract is adjusted by applying the usual replacement index, the Euribor, it being a contract essentially linked to a profitable rate of interest for the benefit of the bank [which is classified as] a seller or supplier. 3.2 The interest rate ceases to be applied, and the sole obligation for the borrower or debtor is to repay the loan capital in the instalments stipulated. ____________ 1 Índice de Referencia de Préstamos Hipotecarios (Mortgage Loan Reference Index) 2 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. OJ L 95, 21.4.1993, p. 29.