Order;Information — ECLI:EU:C:2021:423
Date: 2021-06-01
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-268/19 — 1 
Case C-268/19 
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: 
29 March 2019 
Referring court: 
Juzgado de Primera Instancia n.º 7 de Orense (Spain) 
Date of the decision to refer: 
15 March 2019 
Applicant: 
UP 
Defendant: 
Banco Pastor, S.A.U. 
  
Subject matter of the main proceedings 
Application in ordinary proceedings for a declaration of nullity, on grounds of 
unfairness, of the ‘floor clause’ included in the original mortgage loan contract 
and of the floor clause which replaced it, laid down in an amending agreement. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts (OJ 1993 L 95, p. 29; corrigendum in OJ 2015 L 137, p. 13) in 
order to establish the conditions for validity of a ‘floor clause’ which was inserted 
by an amending agreement and which replaced the original floor clause which the 
referring court found to be null and void on grounds of unfairness. Reference for a 
preliminary ruling under Article 271 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-268/19 
 
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Questions referred for a preliminary ruling 
1. Must the non-binding effect laid down in Article 6(1) of Directive 93/13 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? 
Provisions of EU law relied on 
Directive 93/13, Articles 3, 4, 6 and 7. 
Charter of Fundamental Rights of the European Union, Articles 38 and 47. 
Provisions of national law relied on 
Statutory provisions 
1) Código Civil (Civil Code) 
Article 1208 
A novation is void if the original obligation was also void, unless the ground 
for nullity can be relied on by the debtor alone or ratification renders valid 
acts which were void at the outset. 
Article 1303 
When an obligation has been declared void, the contracting parties must 
restore to one another those things that formed the subject matter of the 
contract, together with the profits derived therefrom, and the price together 
with interest, without prejudice to the following articles. 
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2) Ley 7/1998 sobre Condiciones Generales de la Contratación (Law 
7/1998 on General Contractual Conditions) of 13 April 1998, in the version 
applicable to the main proceedings (‘LCGC’) 
Article 5(5) 
The drafting of general terms shall comply with the criteria of transparency, 
clarity, accuracy and simplicity. 
Article 7 
The following general terms shall be deemed not to be included in the 
contract: 
(a) those of which the consumer has not had genuine opportunity to take 
full cognisance before the conclusion of the contract or that have not 
been signed, where appropriate, as provided in Article 5. [Or. 6] 
(b) terms that are illegible, ambiguous, obscure or incomprehensible, 
except, in the case of the latter, if the contracting party has expressly 
accepted them in writing and they comply with the specific rules 
concerning transparency of contractual clauses 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 they make separate 
provision for cases of breach. 
2. In particular, where a contract has been concluded with a consumer, 
general conditions which are unfair shall be void, such terms being taken in 
all cases to be those defined in Article 10a and the first additional provision 
of General Law 26/1984 of 19 July 1984 for the protection of consumers and 
users.’ 
3) Ley 26/1984, General para la Defensa de los Consumidores y Usuarios 
(General Law 26/1984 for the Protection of Consumers and Users) of 19 July 
1984, as it stood at the time when the amending novation at issue was 
concluded (subsequently replaced by the legislation introduced by 
R[eal]D[ecreto]L[egislativo]) 1/2007 por el que se aprueba el Texto 
Refundido de la Ley General para la Defensa de los Consumidores y 
Usuarios y otras leyes complementarias (Royal Legislative Decree 1/2007 
approving the Consolidated Text of the General Law for the Protection of 
Consumers and Users and other supplementary laws) of 16 November 2007 
Article 10a: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-268/19 
 
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1. All those terms not individually negotiated which, contrary to the 
requirement of good faith, cause a significant imbalance in the parties’ rights 
and obligations arising under the contract, to the detriment of the consumer, 
shall be regarded as unfair terms. In any event, the terms listed in the 
additional provision of this Law shall be regarded as unfair. 
The fact that certain aspects of a term or one specific term have been 
individually negotiated shall not exclude the application of this article to the 
rest of a contract. 
Where any seller or supplier claims that a particular term has been 
individually negotiated, the burden of proof in this respect shall be 
incumbent on him. 
The unfairness of a contractual term shall be assessed taking into account the 
nature of the goods or services for which the contract was concluded and by 
referring to all the circumstances attending the conclusion of the contract 
and to all the other terms of the contract or of another contract on which it is 
dependent. 
2. Unfair terms, conditions and provisions shall automatically be void 
and deemed not to have formed part of the contract. That part of the contract 
deemed void shall be adjusted in accordance with the provisions of 
Article 1258 of the Civil Code. To that end, the court which rules that such 
terms are void shall remedy the contract and enjoy moderating powers with 
regard to the rights and obligations [Or. 7] of the parties, where the contract 
continues in existence, and to the consequences of its being ruled ineffective 
in the event of significant loss or damage to the consumer or user. Only 
where the remaining contract terms result in an imbalance in the respective 
positions of the parties which cannot be remedied may the court rule that the 
contract is ineffective. 
Case-law of the Tribunal Supremo (Supreme Court, Spain) (‘TS’) 
The referring court believes that it is necessary to take into account a number of 
recent judgments of the Tribunal Supremo (Supreme Court) which dealt with the 
validity of agreements amending terms which could be deemed void because they 
were considered to be unfair. As in the present case, those judgments concerned 
floor clauses in mortgage loan contracts. 
1) Judgment 205/2018 of the TS of 11 April 2018. A number of consumers 
concluded private agreements amending an earlier mortgage loan contract. In 
those agreements, the minimum threshold for variation of the original interest rate 
was reduced and the validity of the original contracts was expressly confirmed, 
with the consumers waiving the right to bring legal proceedings in relation 
thereto. 
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The courts of first and second instance held that the original floor clause was void 
because of a lack of transparency and that the subsequent amending agreements 
were not valid either, since the void clause could not be rendered valid through its 
replacement by another clause more favourable to the consumer’s interests. 
The TS set aside the second-instance judgment and held that, although the 
amending agreements had been called ‘amending novations’, they were 
settlements by nature in so far as they were agreements containing mutual 
concessions specifically aimed at bringing a dispute to an end and avoiding legal 
proceedings in a climate of uncertainty regarding the validity of the floor clauses 
originally laid down in the mortgage loan contracts. 
On that basis, the TS stated that that type of settlement is not unlawful because it 
concerns a matter in relation to which rights may be freely disposed of and the 
exercise of private autonomy is permissible. The TS observed that ‘the possibility 
that settlements may be reached in relation to consumer contracts should not be 
denied, especially when a clear will to promote out-of-court dispute resolution 
also exists in this area’; in that connection, the TS mentioned that the out-of-court 
resolution of such disputes is promoted in European Union law through the recent 
Directive 2013/11/EU of the European Parliament and of the Council of 21 May 
2013 on alternative dispute resolution for consumer disputes and amending 
Regulation (EC) No 2006/2004 and Directive 2009/22/EC. 
The TS also noted that the validity of such settlement agreements depends on 
whether the requirements of transparency have been fulfilled, that is, whether, 
from the way in which the settlement was presented to them, it was possible for 
customers/consumers to know the financial and legal consequences of 
acceptance — in other words, that the minimum interest threshold was being 
reduced and that the validity of floor clauses included in the original contract 
would not be disputed. The TS found that this is what had occurred in that case 
and, accordingly, ruled that there were no grounds for declaring the clauses at 
issue void. 
2) Judgment 361/2018 of the TS of 15 June 2018. Following the execution of 
a deed recording a mortgage loan agreement with a consumer, which provided for 
a floor or minimum threshold for variation of the interest rate, a novation 
amending the loan agreement was concluded, which amended, inter alia, the floor 
clause. 
In that case, the situation was examined from the perspective of the requirement of 
substantive transparency in consumer contracts. The TS pointed out that, in 
accordance with its own case-law [and] that of the Court of Justice of the 
European Union ― judgments of 30 April 2014, Kásler and Káslerné Rábai, 
C-26/13, EU:C:2014:282; of 21 December 2016, Gutiérrez Naranjo and Others, 
C-154/15, C-307/15 and C-308/15, EU:C:2016:980; and of 20 September 2017, 
Andriciuc and Others, C-186/16, EU:C:2017:703 ―, the duty of transparency 
means that, before the contract is concluded, the consumer must have intelligible 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-268/19 
 
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information concerning the contractual conditions and it must be easy for the 
consumer to know what his financial and legal responsibilities are. 
The TS declared that the floor clause and its subsequent amendment by novation 
were void, on the grounds that at no point during the contractual stages which led 
to conclusion of the contract and its novation did the bank provide sufficient 
information enabling the consumer to make his decision in full knowledge of the 
existence and meaning of the floor clause. 
The later judgment of the TS 9/2019 of 11 January 2019 essentially restates that 
reasoning. 
3) Judgment 489/2018 of the TS of 13 September 2018. A consumer 
concluded a mortgage loan contract containing a floor clause and subsequently 
negotiated a reduction of the floor clause, such that he reached an agreement with 
the bank that a lower minimum threshold would apply. 
The TS explained that that case raised the question whether the nullity of the floor 
clause because of lack of transparency prevented the consumer from being able 
later, on his own initiative, with full knowledge and by means of a negotiation 
with the bank, to agree a floor lower than that originally agreed in a clause which 
was void because of lack of transparency. 
The judgment held that that amending agreement was valid. In particular, the 
Tribunal Supremo (Supreme Court) found, in short, that that type of agreement (a) 
is the result of an individual negotiation, which precludes the application of the 
rules on unfair terms laid down in Directive 93/13 in accordance with Article 3(1), 
and (b) that accepting that it is possible for a consumer, exercising private 
freedom of contract, to negotiate the replacement of the clause which is void 
because unfair with another clause is compatible with the principle of 
effectiveness in Article 6(1) of Directive 93/13. In that connection, it was argued 
that the original clause which was vitiated by a lack of transparency was deemed, 
in any event, not to form part of the contract. The only clause which could apply 
was the subsequent clause negotiated by the parties. 
Succinct presentation of the facts and the procedure in the main proceedings 
1 The applicant is a consumer and, on 15 October 2002, he concluded with the 
defendant credit institution a mortgage loan agreement recorded in a notarised 
deed. That loan agreement provided for a variable interest rate, calculated by 
applying to the Euribor a differential of 1.250 points, and it included a ‘floor 
clause’ which provided that, in any event, the minimum variable interest rate to be 
applied to the loan was 4.5%. 
2 Subsequently by a notarised deed of novation of 9 February 2006, the applicant 
agreed with the bank a number of amendments to the loan contract. It was agreed, 
inter alia, that from February 2007, a variable interest rate calculated in 
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accordance with the Euribor with a differential of 1 point would be applied to the 
loan, and the floor was also amended so that it was now set at 3.25%.  
3 The consumer brought an action against the bank seeking a declaration of nullity 
of the floor clause contained in the mortgage deed of 15 October 2002 and a 
declaration of nullity of the floor clause contained in the subsequent deed of 
amending novation of 9 February 2006. 
Essential arguments of the parties to the main proceedings 
4 The applicant submits, in relation to the loan and the subsequent novation, that he 
was not properly informed about the existence of the floor clauses or the threshold 
applicable to changes in the interest rate, or about the financial and legal 
consequences of these. The applicant therefore claims that the floor clauses should 
be declared automatically void, relying on the case-law pursuant to which floor 
clauses which do not fulfil the required criteria of transparency are deemed to be 
void (judgment of the Court of Justice of 21 December 2016, Gutiérrez Naranjo 
and Others, C-154/15, C-307/15 and C-308/15, EU:C:2016:980). 
5 The defendant bank argues in general that the clauses at issue are valid because 
they pass the tests of transparency and fairness laid down in the legislation on the 
protection of consumers and users. In particular, as regards the clause included as 
a result of the novation of 9 February 2006, the defendant submits that the 
novation involved an individual negotiation of the clause. Therefore, the clause is 
valid and satisfies the criterion of transparency because there was awareness and 
understanding of it. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
In relation to the first question referred for a preliminary ruling 
6 The referring court is uncertain about the conditions for validity of agreements 
amending an earlier term which may be regarded as unfair and, in particular, it 
asks whether the nullity of the amending agreement can be considered to be an 
automatic consequence of the unfairness of the original term which it amends, or, 
on the other hand, whether, for the purposes of determining its validity, it is 
necessary to examine whether the amending agreement is in the nature of a 
settlement (which it is not in this case), whether it is the result of an individual 
negotiation (such that the consumer’s influence on its wording means that it can 
be considered to be valid and effective, notwithstanding the nullity of the 
amended term), and/or whether it fulfils conditions relating to transparency (such 
that the finding that, when the amending agreement was concluded, the consumer 
was properly apprised of its financial and legal meaning makes it possible to 
regard that agreement as valid notwithstanding the nullity of the amended term).  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-268/19 
 
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7 In order to understand that approach, it is necessary to proceed on the basis that 
the case-law of the Court of Justice has interpreted strictly the ‘non-binding’ effect 
of terms found to be unfair, laid down in Article 6(1) of Directive 93/13. The 
judgment of the Court of Justice of 21 December 2016, Gutiérrez Naranjo and 
Others, C-154/15, C-307/15 and C-308/15, EU:C:2016:980, paragraphs 61 to 66, 
the case-law in which is repeated in the more recent judgment of 31 May 2018, 
Sziber, C-483/16, EU:C:2018:367, states that ‘Article 6(1) of Directive 93/13 must 
be interpreted as meaning that a contractual term held to be unfair must be 
regarded, in principle, as never having existed, so that it cannot have any effect 
on the consumer. Therefore, 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.’ 
The judgment goes on to state that ‘the regulation by national law of the 
protection guaranteed to consumers by Directive 93/13 may not alter the scope 
and, therefore, the substance of that protection and thus affect the strengthening 
of the effectiveness of that protection by the adoption of uniform rules of law in 
respect of unfair terms, which was the intention of the EU legislature, as stated in 
recital 10 of Directive 93/13’, and that ‘[c]onsequently, while it is for the Member 
States, by means of their national legislation, to define the detailed rules under 
which the unfairness of a contractual clause is established and the actual legal 
effects of that finding are produced, the fact remains that such a finding must 
allow the restoration of the legal and factual situation that the consumer would 
have been in if that unfair term had not existed, by inter alia, creating a right to 
restitution of advantages wrongly obtained, to the consumer’s detriment, by the 
seller or supplier on the basis of that unfair term’. 
8 Taking the non-binding nature of unfair terms to mean full compensation for the 
consumer, it is necessary to consider whether such absolute ineffectiveness must 
be applied to subsequent agreements pursuant to which the parties amend such 
terms or, alternatively, what conditions must be fulfilled for such amending 
agreements to be treated as valid and binding. 
9 The referring court believes it is reasonable to take the view that the nullity of an 
unfair term must also, as a general rule, result in the ineffectiveness of a voluntary 
amendment of that term. It is a similar principle to that which national law lays 
down for novations in Article 1208 of the Civil Code, referred to above, which the 
judgment of the TS of 13 September 2018 did not apply on the ground that the 
mere replacement of a floor clause is not a novation for the purposes of that rule.  
10 The referring court sets out a number of arguments in support of its position. First, 
if the unfair term is to be treated as non-existent, that must preclude the 
effectiveness of a subsequent agreement, the ontological premiss and basis for 
which is the prior existence of the term. Second, and in connection with the 
previous argument, it must be pointed out that, if the voluntary replacement of an 
unfair term is permitted without the consumer being aware of the possible 
ineffectiveness of the term, the original unfair term will, at the very least, have 
had a binding effect which is detrimental to the consumer and which entails 
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placing conditions on the consumer’s bargaining position in relation to the 
amending agreement, since his bargaining power is obviously weaker if the 
negotiation proceeds on the basis that the unfair term is valid. 
11 Accordingly, the referring court believes, in the light of the case-law of the TS, 
that the argument to the effect that a floor clause which replaces an earlier unfair 
floor clause is valid because the consumer has individually negotiated the 
amendment is not compatible with Article 6(1) of Directive 93/13, for, in that 
negotiation, the consumer is necessarily restricted by the fact that the unfair clause 
remains effective. Similarly, since it lays down an exception to the general rule on 
ineffectiveness, it could be argued that the valid voluntary amendment of an unfair 
term is possible provided that the consumer is aware, at least, that the term may be 
ineffective on the grounds of unfairness. Since the lawful replacement of an unfair 
term is similar to waiving the protection provided by Article 6(1) of Directive 
93/13, it is reasonable to require free and informed consent, which must include 
awareness that the term may be ineffective. In that connection, according to the 
case-law of the Court of Justice, such awareness is required for waiver to be valid 
and, in that connection, its judgment of 14 April 2016, Sales Sinués and Drame 
Ba, C-381/14 and C-385/14, EU:C:2016:252, states: ‘the right to effective 
consumer protection also includes the option not to assert one’s rights, with the 
effect that the national court must take into account, where appropriate, the 
intention expressed by the consumer when, conscious of the non-binding nature of 
an unfair term, that consumer states nevertheless that he is opposed to that term 
being disregarded, thus giving his free and informed consent to the term in 
question’.  
12 Those are the grounds for referring the first question, the reply to which is 
relevant to the outcome of the main proceedings. In the instant case, there is 
sufficient evidence for regarding the floor clause in the original mortgage loan 
contract as void on the grounds of unfairness, because it lacks substantive 
transparency in that the consumer was not properly informed about the financial 
and legal significance of it. On the other hand, there is no basis for asserting that 
the consumer was aware of the possible nullity of the original floor clause when it 
was amended by means of an amending novation agreement or that that novation 
was for the purposes of a settlement aimed at avoiding proceedings on the validity 
of the original clause.  
13 In those circumstances, if the reply to the question set out indicates that the 
ineffectiveness of the original floor clause on grounds of unfairness extends to the 
subsequent amendment, there would be no need for an analysis of the matters 
which national case-law has deemed relevant, such as knowledge of how the 
replacement clause operates and/or the individual negotiation of that clause. 
In relation to the second question referred for a preliminary ruling 
14 The second question concerns the same substantive difficulty outlined above 
concerning agreements amending terms which are later declared unfair, albeit 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-268/19 
 
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from a different perspective which focuses on the conditions for validity of the 
amending agreement itself.  
15 To be specific, the starting point here is the requirement that terms included in 
consumer contracts must be transparent, which is essentially derived from 
Article 4(2) of Directive 93/13. In relation to floor clauses like those in the present 
proceedings, in the judgment of 21 December 2016, Gutiérrez Naranjo and 
Others, C-154/15, C-307/15 and C-308/15, EU:C:2016:980, the Court of Justice 
assessed that requirement as follows: ‘… the review of the substantive 
transparency of the clauses relating to the main subject matter of the contract 
derives from what is laid down in Article 4(2) of Directive 93/13. It provides, in 
the same words as those appearing in Article 5 of that directive, that contractual 
clauses must be “drafted in plain, intelligible language”. In that regard, the Court 
has already held that information, before concluding a contract, on the terms of 
the contract and the consequences of concluding it is of fundamental importance 
for a consumer. It is on the basis of that information in particular that the 
consumer decides whether he wishes to be bound by the terms previously drawn 
up by the seller or supplier (judgment of 21 March 2013, RWE Vertrieb, C-92/11, 
EU:C:2013:180, paragraph 44). Therefore, the assessment of the unfairness, in 
accordance with Article 3(1) of Directive 93/13, of a contractual clause relating to 
the definition of the main subject matter of a contract, where the consumer did not 
have, before the conclusion of that contract, the necessary information on the 
contractual conditions and the consequences of entering into that contract, falls 
within the scope of that directive in general and of Article 6(1) of that directive, in 
particular.’ 
16 Subsequently, the judgment of the Court of Justice of 20 September 2017, 
Andriciuc and Others, C-186/16, EU:C:2017:703 ― cited in the judgment of 
20 September 2018, OTP Bank and OTP Faktoring (C-51/17, EU:C:2018:750) ― 
explained that the requirement of transparency of contractual terms, as is clear 
from Article 4(2) of Directive 93/13, ‘cannot be reduced merely to their being 
formally and grammatically intelligible, but that, to the contrary, since the system 
of protection introduced by Directive 93/13 is based on the idea that the consumer 
is in a position of weakness vis-à-vis the seller or supplier, in particular as 
regards his level of knowledge, that requirement of plain and intelligible drafting 
of contractual terms and, therefore, the requirement of transparency laid down by 
the directive must be understood in a broad sense …’. The Court went on to state 
that [the requirement of transparency of contractual terms] ‘is to be understood as 
requiring also that the contract should set out transparently the specific 
functioning of the mechanism to which the relevant term relates and the 
relationship between that mechanism and that provided for by other contractual 
terms, 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.’ 
17 On that basis, it is necessary to consider whether, in a situation in which the 
specific function of a contractual term is to replace another term — and, in this 
case, such terms relate to the main subject matter of the contract — the required 
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conditions of transparency which enable the consumer to enter into the contract in 
a free and informed manner not only entail making it clear that the function of that 
term is to replace another term but also, where the term to be replaced is possibly 
unfair, knowledge of that fact on the part of the consumer. Otherwise, there would 
be a risk that, in the event of any doubts surrounding the validity of a term, credit 
institutions would encourage the substitution of the unfair terms, benefitting in the 
negotiation from the advantageous position afforded to them by the fact that the 
consumer is unaware of the potential ineffectiveness of the terms initially agreed 
and making it difficult for the consumer to bring an action for annulment of those 
terms. 
18 In addition, the question should also cover the conflict with the case-law flowing 
from judgment 489/2018 of the TS of 13 September 2018, that is, the question 
whether negotiation of the new term precludes, in any event, a review of 
unfairness. 
19 The relevance of the question in this instance is similar to that resulting from the 
previous question. If the consumer’s knowledge of the possible ineffectiveness, on 
grounds of unfairness, of the floor clause in the original mortgage loan agreement 
is necessary in order to find that the replacement clause is valid, no evidence in 
the main proceedings shows that such knowledge existed or that that information 
was provided to the consumer, from which it follows that the term replacing the 
floor clause should be found to be unfair straightaway on the grounds of its lack of 
substantive transparency, without the need to examine whether the consumer 
understood how the floor clause itself operated or influenced its new wording. 
Connection between the present reference and other previous references for a 
preliminary ruling  
20 Other Spanish courts have made requests for a preliminary ruling which have a 
certain connection with the questions of interpretation raised here. Those are, 
specifically, the references for a preliminary ruling in Cases C-452/18, C-617/18 
and C-13/19. The cases leading to those requests for a preliminary ruling also 
concern novation documents amending unfair terms. However, it is necessary to 
emphasise that there is an important difference between the facts analysed in those 
cases and the facts in the present case. Those cases concerned situations in which 
unfair terms were amended by an agreement that was possibly in the nature of a 
settlement which was intended to avoid proceedings concerning the validity of the 
floor clauses (and which usually includes waiver of the right to bring legal action). 
However, in the situation referred to herein, the subsequent novation of the 
original contract was clearly not in the nature of a settlement, which precludes the 
application of the case-law laid down in judgment 205/2018 of the TS of 11 April 
2018.