Order — ECLI:EU:C:2017:84
Date: 2017-02-01
Language of the case: Spanish

summary, and in so far as my understanding of those judgments is correct, the Tribunal Supremo (Supreme Court) held that the ‘floor’ clauses contained in the loan agreements were terms relating to the main subject matter of the contract which were in principle excluded from the review of unfairness on the basis of Directive 93/13, provided that those terms were drafted in plain, intelligible language. The Tribunal Supremo (Supreme Court) held that ‘floor’ clauses were grammatically intelligible and therefore withstood the review of formal transparency. However, it considered that the sellers and suppliers who had introduced those clauses into the agreements at issue had not provided sufficient information to clarify their real meaning and that the requirement of substantive transparency was not satisfied. It concluded that those clauses were unfair. Next, although, in the Spanish legal system, unfair terms are void ab initio in principle, the Tribunal Supremo (Supreme Court), because of the particular circumstances which it considered to be involved, decided to give effect to the declaration that ‘floor’ clauses are unfair only from the date of publication of the first judgment to that effect, that is to say with effect from 9 May 2013. 45. If I properly understand the judgment of the Tribunal Supremo (Supreme Court), it seems the Tribunal Supremo (Supreme Court) considered that, by enhancing the review of the transparency of the terms with a requirement for substantive transparency, it was going beyond the level of protection afforded by Directive 93/13. In particular, it used the innovative nature of its judgment to justify limiting the restitutory effects of the declaration of invalidity of ‘floor’ clauses. I must confess that I am not totally convinced that this is the case, as a careful review of the case-law of the Court demonstrates. 46. Thus, in the judgment of 30 April 2014 in Kásler and Káslerné Rábai, (20) the Court was asked whether Article 4(2) of Directive 93/13 should be interpreted as meaning that the requirement that a contractual term must be drafted in plain intelligible language must be understood as requiring not only that the relevant term should be grammatically clear and intelligible to the consumer, but also that the economic reasons for using that term should be clear and intelligible to him. The Court found that that requirement that contractual terms are to be drafted in plain intelligible language also appears in Article 5 of Directive 93/13 and the 20th recital thereof, according to which the consumer should actually be given an opportunity of examining all the terms of the contract. (21) That requirement, according to the Court, ‘applies in all cases, including that in which a term falls within Article 4(2) of Directive 93/13 and therefore avoids the assessment of its unfairness referred to in Article 3(1) thereof’.(22) The Court also held that the requirement of transparency contained Article 4(2) of Directive 93/13 ‘has the same scope as that referred to in Article 5’. (23) However, concerning Article 5 of Directive 93/13, the Court recalls the scope of its judgment of 21 March 2013 in RWE Vertrieb, (24) in which it 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, since it is on that basis in particular that the consumer decides whether to be bound contractually to the seller or supplier. (25) Accordingly, ‘the requirement of transparency … cannot therefore be reduced merely to their being formally and grammatically intelligible’ (26) and must be understood in a broad sense, having regard to the system of protection introduced by Directive 93/13 being 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. (27) 47. The Court concluded that Article 4(2) of Directive 93/13 must be interpreted as meaning that ‘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 intelligible to the consumer, but also that the contract should set out transparently the specific functioning of the mechanism … 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’. (28) Therefore, the Court held that, in the specific case then before the Court, ‘it is for the referring court to determine whether, having regard to all the relevant information, including the promotional material and information provided by the lender in the negotiation of the loan agreement, the average consumer … would not only be aware of the existence of the difference, generally observed on the securities market, between the selling rate of exchange and the buying rate of exchange of a foreign currency, but also be able to assess the potentially significant economic consequences for him resulting from the application [of the term at issue] for the calculation of the repayments for which he would ultimately be liable and, therefore, the total cost of the sum borrowed’. (29) 48. In the judgment of 9 July 2015 in Bucura, (30) delivered subsequently, the Court was asked to clarify the extent to which the way certain terms of a credit agreement had been drafted and the failure to provide certain information, both at the time of concluding the contract and while it was being performed, could lead the referring court to conclude that certain terms of the agreement were unfair. After recalling the content of the 21st recital and Article 5 of Directive 93/13, the Court stated that ‘that drafting requirement [that terms should be plain and intelligible] is particularly important since a national court is required to assess whether a term drafted in infringement of it is unfair, even if that term could be regarded as falling within the exclusion provided for in Article 4(2) of Directive 93/13. It should be recalled that the terms referred to in that provision, while they come within the area covered by that directive, escape the assessment as to whether they are unfair only in so far as the national court forms the view, following a case-by-case examination, that they were drafted by the seller or supplier in plain, intelligible language’. (31) However, it is apparent from the settled case-law of the Court (32) that fundamental importance is given to the information provided to the consumer prior to the conclusion of the contract. Consequently, ‘it is for the referring court to determine whether the average consumer … is able to assess from the method for calculating annual interest communicated to him, the economic consequences resulting from their application for the calculation of the repayments for which that consumer would ultimately be liable and, therefore, the total cost of the sum borrowed’. (33) According to the Court, ‘failure to mention information relating to the loan repayment terms in question and modification of those terms during the period of the loan are decisive elements in the analysis by a national court of whether a term in a loan agreement which relates to its cost and which does not contain such information is drafted in plain intelligible language within the meaning of Article 4 of Directive [93/13]’. (34) If the national court considers that this is not the case, it is required to assess whether the term is unfair. (35) 49. It is true that the judgments of 30 April 2014 in Kásler and Káslerné Rábai (36) and 9 July 2015 in Bucura (37) were delivered after the judgment of the Tribunal Supremo (Supreme Court) of 9 May 2013. However, they are nothing other than the logical continuation of a series of earlier judgments, including the judgment of 21 March 2013 in RWE Vertrieb, (38) to which the Tribunal Supremo (Supreme Court) made extensive reference in its judgment of 9 May 2013 and which highlighted the relationship between the requirement of transparency referred to in Article 5 of Directive 93/13 and the fundamental importance of information prior to concluding a contract for ensuring the consumer’s informed consent. (39) 50. Moreover, again in the judgment of 21 March 2013 in RWE Vertrieb (40), it is recalled that, ‘according to settled case-law, the interpretation which the Court, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied’. (41) The judgment of 21 March 2013 in RWE Vertrieb (42) itself already contained within it the seeds of the judgments of 30 April 2014 in Kásler andKáslerné Rábai (43) and 9 July 2015 in Bucura. (44) Accordingly, by classifying ‘floor’ clauses as unfair terms, in particular because of the lack of sufficient prior information, the Tribunal Supremo (Supreme Court) has not gone further than the law of the European Union by offering a higher level of consumer protection than that offered by Directive 93/13 but has, on the contrary, applied the requirements contained in that directive. (45) 51. This having been established, I must now carry out an analysis of Article 6(1) of Directive 93/13. 2. The scope of the obligation imposed on the Member States by Article 6(1) of Directive 93/13 52. Having established that the wording of Article 6(1) of Directive 93/13 is not without some ambiguity, I shall turn to the case-law of the Court to identify the main principles which guide its interpretation of Directive 93/13 in general and Article 6(1) of that directive in particular. Finally, I shall apply my interim conclusions to the present case. (a) An insufficiently clear literal interpretation 53. Where unfair terms are used, Directive 93/13 requires Member States, first, to provide that such terms ‘shall, as provided for under their national law, not be binding on the consumer’ (Article 6(1) of Directive 93/13) and, secondly, to ‘ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’ (Article 7(1) of Directive 93/13). 54. It is clear that the EU legislature did not go further when defining the penalties relating to unfair terms and, in particular, did not define the conditions concerning their lack of binding effect, required under Article 6(1) of Directive 93/13, to be put in place by Member States. The use, in the French version, of the present indicative (‘ne lient pas’) gives no indication as to any intention of the EU legislature to make the absence of binding effect retroactive. (46) The EU legislature clearly chose not to use a more precise legal term, such as a specific reference to invalidity, annulment or avoidance. The expression used is entirely neutral, (47) as already stated by Advocate General Trstenjak in her Opinion in Invitel. (48) 55. That neutrality is naturally explained by the express reference which is made to national law. (49) Is it sufficient to leave the Member States entirely free to determine, as they wish, the non-binding nature of unfair terms? In order to clarify the scope of that article and since its wording alone is insufficient for that purpose, it is necessary to review the case-law of the Court on Directive 93/13 in general and Article 6(1) of that directive in particular. (b) Review of the case-law 56. The Court has, on several occasions, highlighted the role which Directive 93/13 plays in the EU legal order. 57. I shall merely recall ‘that 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, which leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. (50) In view of that weak position, Article 6(1) of Directive 93/13 is a mandatory provision which aims to replace the formal balance between the rights and obligations of the parties with an effective balance which re-establishes equality between them(51) Accordingly, the Court has repeatedly held that the national court is required to assess of its own motion whether a contractual term falling within the scope of that directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier. (52) Accordingly, in order to guarantee the protection intended by Directive 93/13, the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract. (53) 58. Moreover, the Court has repeatedly pointed out that Directive 93/13 constitutes, as a whole, a measure which is essential to the accomplishment of the tasks entrusted to the European Union and, in particular, to raising the standard of living and the quality of life throughout the European Union. (54) It is on account of the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers that Directive 93/13 requires Member States to provide for adequate and effective means to ‘prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’. (55) 59. In order more specifically to determine the consequences to be drawn from the finding that a contractual term is unfair, the Court held that it is necessary to refer both to the wording of Article 6(1) of Directive 93/13 and to the objectives and overall scheme of that provision(56) With regard to the wording of Article 6(1), the Court held, ‘firstly, that the first part of the sentence in that provision, while granting the Member States a certain degree of autonomy so far as concerns the definition of the legal arrangements applicable to unfair terms, nevertheless expressly requires them to provide that those terms “shall … not be binding”’. (57) The national courts must therefore ‘draw all the consequences that follow under national law, in order that the consumer will not be bound’. (58) According to the Court’s own words, ‘it … follows from the wording of Article 6(1) [of Directive 93/13] that the national courts are required only to exclude the application of an unfair contractual term in order that it does not produce binding effects with regard to the consumer’. (59) 60. Unfair terms ‘shall … not be binding’, within the meaning of Article 6(1) of Directive 93/13, when a national court excludes their application (60) on account of the dissuasive nature of ‘straightforward non-application’. (61) The Court considers, for that purpose, that an unfair term cannot be revised by the national court but must, on the contrary, not be applied. (62) The effectiveness of the penalties relating to unfair terms is therefore assessed in relation to the objective of preventing their continued use. (63) However, the pursuit of that objective may be abandoned where a consumer has expressed his intention to remain bound by a contractual term despite its unfairness(64) 61. The Court did not go into further detail concerning how non-binding must be understood in the national legal systems. It is probably not for the Court to do so, precisely because the detailed rules of governing that matter must be decided by the Member States themselves. It is therefore logical that, in its case-law, the Court seems to have considered the invalidity of unfair terms not as the only way to satisfy the requirement under Article 6(1) of Directive 93/13 but as one possibility among others. This is particularly apparent from its judgment of 26 April 2012 in Invitel, (65) in which it held that national legislation which provides that the declaration, by a court, of the invalidity of an unfair term is to apply to any consumer who has concluded a contract with a seller or supplier which includes that term satisfies the requirements of Article 6(1), read in conjunction with Article 7(1) and (2) of Directive 93/13 (66) and that ‘the application of a penalty of invalidity of an unfair term … ensures that those consumers will not be bound by that term, but does not exclude the application of other types of adequate and effective penalties provided for by national legislation’. (67) The Court again held, some time later, that national legislation ‘providing that terms declared unfair are invalid, satisfies the requirements of Article 6(1) of Directive 93/13‘. (68) (c) Application to the present case 62. What conclusions may be drawn from that substantial body of case-law? 63. According to my reading of it, that case-law does not seem to me to have established a systematic or automatic relationship between Article 6(1) of that directive and the invalidity of unfair terms. In other words, invalidity does not seem to represent, for the Court, the only legal response to the requirement that unfair terms are non-binding. This follows from a different form of wording to be found, for example, in its judgment of 21 January 2015 in Unicaja Banco and Caixabank, in which it states that ‘the national court [must be able to] draw … all the inferences of possible unfairness — in the light of Directive 93/13 — of the term …, if necessary by annulling it’. (69) 64. The Court has not, therefore, peremptorily remedied the imprecision of Article 6(1) of Directive 93/13. It has not gone beyond that surface neutrality — and perhaps it could not do so. Indeed, if the Court were to decide in this case that that article must be interpreted as meaning that, in the case of an unfair term, the national court must declare those terms invalid and create a corresponding right to restitution in integrum, that is to say from the moment of concluding the contract, it would deprive of all practical effectiveness the express reference in that provision to national law and then with difficulty escape the criticism that harmonisation had been achieved through judicial decision. (70) 65. Next, I note that the national law as it stands is entirely consistent with the requirements of Directive 93/13. It is clear from the case file that, in the Spanish legal system, the general penalty for unfair terms is invalidity, which creates a right to full restitution. (71) This is the maximum level of civil penalty and eliminates all the effects of the unfair term. However, what is problematic in all three present cases is that the supreme court has used a procedural arrangement which allows it to limit the temporal effects of its judgments. That use has, with regard to the penalties relating to ‘floor’ clauses, resulted in the following situation. 66. From 9 May 2013, ‘floor’ clauses must cease to exist in the Spanish legal order. They must be eliminated from existing contracts and sellers or suppliers can no longer include them in new contracts since any seller or supplier who introduces such clauses from that date will be ordered both to eliminate those clauses and to repay any amounts paid on the basis thereof. In other words, the full effects of invalidity — the general penalty — are guaranteed from 9 May 2013. 67. With regard to the prior period, although ‘floor’ clauses are deemed unfair and therefore void, sellers or suppliers are not required to repay the amounts paid on the basis of those clauses, on account of the exceptional circumstances which the supreme court regards as existing, essentially relating to the endemic nature of the problem. 68. Since EU law harmonises neither the penalties applicable in the event of a term being found to be unfair (72) nor the circumstances in which a supreme court decides to limit the effects of its judgments, the present situation falls within the internal legal order of the Member States by virtue of the principle of procedural autonomy. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence) and may not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (73) 69. As regards, first, the principle of equivalence, it requires that the national rule at issue be applied without distinction, whether the infringement alleged is of EU law or national law, where the purpose and cause of action are similar(74) Subject to any further verification by the national courts, it is apparent from the case file, and in particular from the written observations of the Spanish Government, that the Tribunal Supremo (Supreme Court) does not reserve the option of limiting the temporal effects of its judgments only to disputes involving EU law and that it has already made use of such an option in purely internal disputes(75) Considered from an objective point of view, the option of the Tribunal Supremo (Supreme Court) to limit the temporal effects of its judgments does not appear to me to be such as to raise doubts as to whether it is consistent with the principle of equivalence. 70. As regards, secondly, the principle of effectiveness, the Court has repeatedly held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision (76) in the procedure, its progress and its special features, viewed as a whole, before the various national bodies, and that for those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as, in particular, the principle of legal certainty. (77) Accordingly, the impact of the temporal limitation of the effects of the judgment of the Tribunal Supremo (Supreme Court) on the effectiveness of Directive 93/13 must, first, be assessed in the light of the objective pursued, while taking into account, secondly, the principles of the national legal system underlying the decision to limit those effects. 71. Having regard to the objective pursued by Directive 93/13, as was pointed out in the course of the analysis of the case-law of the Court, the penalties relating to unfair terms under Articles 6 and 7 of Directive 93/13 must have a deterrent effect on the seller or supplier and aim to restore a real balance between the seller or supplier and the consumer. As I pointed out above, from 9 May 2013 sellers or suppliers are required to stop using ‘floor’ clauses (78) and those terms must be removed from existing contracts. The deterrent effect is fully assured since any seller or supplier who, after 9 May 2013, introduces such clauses in its contracts will be ordered to eliminate those clauses and to repay any amounts paid on the basis thereof. The behaviour of sellers or suppliers will therefore necessarily have changed as of 9 May 2013 and the effectiveness of the directive is fully assured pro futuro. 72. The situation prior to 9 May 2013 remains to be examined. ‘Floor’ clauses are still regarded as unfair and declared invalid but that invalidity has its full effects only from the date of the judgment of the supreme court in which that finding was made. To justify such a postponement, the Tribunal Supremo (Supreme Court) based its decision on a series of arguments, (79) including the safeguarding of legal certainty on account of the innovative nature of its decision — an assessment with which I nevertheless disagree (80) — and the exceptional circumstances involved. On that point, the Tribunal Supremo (Supreme Court) emphasised, in particular, the endemic nature of the use of ‘floor’ clauses and then struck a balance between, on the one hand, the protection to be afforded to consumers inter alia under Directive 93/13 and, on the other hand, the macroeconomic challenges to the already weakened banking system of a Member State. 73. Provided that it remains quite exceptional, such an approach also appears permissible in the light of the principle of effectiveness. The Court has already recognised that consumer protection is not absolute. (81) Above all, it does not appear obvious that, in order to re-establish the balance between the consumer and the seller or supplier, it was necessary, or even possible, (82) in each case, to return all the amounts paid on the basis of a ‘floor’ clause. Achieving the balance so eagerly sought by the directive is not the same as favouring the consumer. Depending on the date of the conclusion of the loan agreements, the lack of full retroactive effect has not necessarily resulted in a failure to restore the balance. That finding is, in my view, supported by two essential considerations in the assessment carried out by the Tribunal Supremo (Supreme Court), namely that, first, a consumer who had concluded a loan agreement containing a ‘floor’ clause could easily repay one loan with another from a different banking institution and, secondly, application of the ‘floor’ clause would not have led to a substantial change in the monthly amounts payable by consumers. 74. In the light of the need to take account of the principles of the national legal system underlying the decision to limit the temporal effects of the judgment of the Tribunal Supremo (Supreme Court), the legal security advanced by that court — less on account of the innovative nature of its decision, I would recall, than on account of the many legal situations which are potentially affected and which could undermine the stability of an economic sector — is a concern shared by the EU legal order. 75. Accordingly, in those circumstances, neither the effectiveness of the rights recognised by Directive 93/13 nor the objectives pursued by the latter are, in my view, adversely affected by the decision of the Tribunal Supremo (Supreme Court) to limit the temporal effects of the declaration of invalidity of unfair terms. 76. It follows from the foregoing that Article 6(1) of Directive 93/13, read in the light of the principles of equivalence and effectiveness, must be interpreted as meaning that, in the circumstances specific to the disputes in the main proceedings, it does not preclude a supreme court decision which finds that ‘floor’ clauses are unfair, orders the cessation of their use and their removal from existing contracts and declares them invalid, while restricting, on the basis of exceptional circumstances, the effects — in particular the restitutory effects — of that invalidity to the date of its first judgment to that effect. B – The other questions referred 77. I consider that the answer which I propose that the Court give to the questions raised in Case C‑154/15 and the first question common to Cases C‑307/15 and C‑308/15 is sufficient to allow the referring courts to resolve the disputes in the main proceedings. Accordingly, I am of the view that it is not necessary to answer the other questions raised. 78. I nevertheless wish to make a number of concluding remarks to avoid any ambiguity, in view of the systemic challenges involved in these cases. 79. I reiterate that the proposed solution is limited to the circumstances specific to these cases and that such a limitation, established by a supreme court, must remain exceptional. 80. Moreover, the solution which I propose must in no way be seen as a validation of the view that national courts may or must apply the criteria used by the Court itself when it is asked to limit the effects of its own judgments. The arrangements governing the circumstances in which a supreme court of a Member State may limit the effects of its own judgments fall, at first sight, within the scope of the procedural autonomy of the Member States subject to the principles of equivalence and effectiveness of EU law. That is why a more in-depth analysis of the requirements of good faith and risk of serious difficulties, within the meaning of the judgment of 21 March 2013 in RWE Vertrieb, (83) to which the Tribunal Supremo (Supreme Court) referred on several occasions, appears to me, in any event, ineffective. However, it is important to note that the Court retains, on the basis of the primacy and uniform application of EU law, fundamental jurisdiction to assess the compliance with EU law of nationally defined conditions relating to limitation of the temporal effects of judgments of supreme courts delivered in their capacity as ordinary courts applying EU law. 81. Finally, it is clear from the wording of the eighth question referred in Case C‑308/15 that the referring court starts from the premiss that there is an obligation to extend the limitation of the restitutory effects resulting from the invalidity of a ‘floor’ clause, as determined in a collective action before the Tribunal Supremo (Supreme Court), to individual actions brought against sellers or suppliers who were not parties to that collective action before the Tribunal Supremo (Supreme Court). The Spanish Government, both in its written observations and at the hearing, stated that such a rule supporting automatic extension was unknown to the Spanish legal system. (84) Although it is true that the case-law of the Tribunal Supremo (Supreme Court) operates as a complement to the Spanish legal system, (85) this is without prejudice to the power of any court hearing an action seeking a declaration that a ‘floor’ clause is unfair to carry out its own analysis of the circumstances and to determine whether, in the specific case before it, those circumstances are identical and, if so, should lead it to apply the case-law of the Tribunal Supremo (Supreme Court). In those circumstances, the eighth question raised in Case C‑308/15 does not require further analysis on the part of the Court. In any event, since the solution adopted by the Tribunal Supremo (Supreme Court) does not appear to me incompatible with EU law, its implementation by the ordinary courts is likely to safeguard the principle of equality and the principle of economy of procedure. V – Conclusion 82. In view of the foregoing considerations, I suggest that the Court give the following answer to the questions referred by the Juzgado de lo Mercantil No 1 de Granada (Commercial Court No 1, Granada) and by the Audiencia Provincial de Alicante (Provincial Court, Alicante): Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of the principles of equivalence and effectiveness, must be interpreted as meaning that, in the circumstances specific to the disputes in the main proceedings, it does not preclude a supreme court decision which finds that ‘floor’ clauses are unfair, orders the cessation of their use and their removal from existing contracts and declares them invalid, while restricting, on the basis of exceptional circumstances, the effects — in particular the restitutory effects — of that invalidity to the date of its first judgment to that effect. 1 Original language: French. 2 OJ 1993 L 95, p. 29. 3 As evidenced by the stream of requests for a preliminary ruling on this issue made to the Court recently. See, to that effect, the judgment of 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252) and the pending Cases C‑349/15, C‑381/15, C‑431/15, C‑525/15, C‑554/14, C‑1/16 and C‑34/16. 4 The consolidated text of which was approved by Real Decreto Legislativo 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 version of General Law for the protection of consumers and users and other supplementary laws of 26 November 2007 (BOE No 287 of 30 November 2007). 5 Judgment No 241/12 (ES:TS:2013:1916). 6 C‑484/08, EU:C:2010:309. 7 C‑484/08, EU:C:2010:309. 8 Which specifies the qualities required by a term for it to be deemed transparent. 9 It is clear from the case file that that second review is presented as being a new requirement by the Tribunal Supremo (Supreme Court). That court considered that, for ‘floor’ clauses to satisfy that further review, it would have been necessary, at the time of concluding the contract, for the consumer to have been aware of simulations of various scenarios related to reasonably foreseeable changes in interest rates or information concerning the cost as compared with other loan arrangemtents offered by the same institution. I shall return later in my analysis to the allegedly innovative position of the Tribunal Supremo (Supreme Court). 10 Concerning those two criteria, the Tribunal Supremo (Supreme Court) referred to the judgment of 21 March 2013 in RWE Vertrieb(C‑92/11, EU:C:2013:180). 11 The Tribunal Supremo (Supreme Court) considered that (i) ‘floor’ clauses were lawful; (ii) they were incorporated into contracts with variable interest rates for objective reasons; (iii) they were not unusual or extravagant clauses; (iv) their use had long been tolerated by the market; (v) they were declared unfair not because of the intrinsically unlawful nature of their effects, but because of their lack of transparency; (vi) the absence of transparency resulted from insufficient information; (vii) the national provisions were complied with; (viii) the purpose of determining the minimum interest rate meets the need to maintain a minimum return on mortgage loan assets and the clauses were calculated so that they would not lead to significant changes in the amounts to be paid; (ix) subrogation of the creditor is made possible by law, so that a dissatisfied consumer could easily change credit institution; and (x) it was common knowledge that restitutio in integrum from the date of concluding the contract would have caused serious economic disruption. 12 Respectively, judgment No 139/2015 (ES:TS:2015:1280) and judgment No 222/2015 (ES:TS:2015:2207). 13 See, in particular, judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349). 14 The Juzgado de lo Mercantil No 1 de Alicante (Commercial Court No 1, Alicante) held that since the Tribunal Supremo (Supreme Court) had declared an identical clause invalid in its judgment of 9 May 2013, the declaration of invalidity of the clause in question in the case pending before it was unnecessary given that BBVA was one of three financial institutions party to proceedings before the Tribunal Supremo (Supreme Court). 15 Banco Popular Español was not among the three credit institutions party to the proceedings before the Tribunal Supremo (Supreme Court) which gave rise to the judgment of 9 May 2013. 16 The Audiencia Provincial de Alicante (Provincial Court, Alicante) bases its decision in that case, in particular, on the judgments of 26 April 2012 in Invitel(C‑472/10, EU:C:2012:242) and 30 May 2013 Jőrös(C‑397/11, EU:C:2013:340). 17 C‑92/11, EU:C:2013:180. 18 See Article 8 of Directive 93/13. However, I note that that article refers to the possibility for Member States to retain or adopt more stringent ‘provisions’ and question the extent to which the judgment of a national court, even a supreme court, can be regarded as a ‘provision’ within the meaning of Article 8 of Directive 93/13. I would also point out that Directive 2011/83/EU of the Parliament and of the Council of 25 October 2011 on consumer rights (OJ 2011 L 304, p. 64) introduced a new Article 8a into Directive 93/13, which requires Member States, where they adopt provisions in accordance with Article 8 of Directive 93/13, to inform the Commission thereof. 19 The Court has repeatedly pointed out that its jurisdiction ‘extends to the interpretation of the concept of “unfair term” … and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of … Directive [93/13], bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case’ [judgments of 26 April 2012 in Invitel(C‑472/10, EU:C:2012:242, paragraph 22 and the case-law cited) and 21 March 2013 in RWE Vertrieb(C‑92/11, EU:C:2013:180, paragraph 48). To the same effect, see judgments of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 45); 23 April 2015 in Van Hove(C‑96/14, EU:C:2015:262, paragraph 28) and 9 July 2015 in Bucura(C‑348/14, not published, EU:C:2015:447, paragraph 46)]. Since the Tribunal Supremo (Supreme Court) in particular based its reasoning on Article 4(2) of Directive 93/13, it would have been desirable, on the basis of the judicial cooperation characteristic of the European legal order, for the Tribunal Supremo (Supreme Court) to refer a question to the Court not only on issues relating to the review of the transparency of the terms determining the main subject matter of the contract but also on whether it is consistent with EU law to limit the temporal effects of its seminal judgment in this area. 20 C‑26/13, EU:C:2014:282. 21 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 67). 22 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 68). 23 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 69). 24 C‑92/11, EU:C:2013:180, paragraph 44. 25 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 70). 26 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 71). 27 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 72). 28 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 75). 29 Judgment of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 74). 30 C‑348/14, not published, EU:C:2015:447. 31 Judgment of 9 July 2015 in Bucura(C‑348/14, not published, EU:C:2015:447, paragraph 50). 32 Judgment of 9 July 2015 in Bucura(C‑348/14, not published, EU:C:2015:447, paragraph 51). 33 Judgment of 9 July 2015 in Bucura(C‑348/14, not published, EU:C:2015:447, paragraph 56). 34 Judgment of 9 July 2015 in Bucura(C‑348/14, not published, EU:C:2015:447, paragraph 61). 35 Judgment of 9 July 2015 in Bucura(C‑348/14, not published, EU:C:2015:447, paragraph 62). 36 C‑26/13, EU:C:2014:282. 37 C‑348/14, not published, EU:C:2015:447. 38 C‑92/11, EU:C:2013:180. 39 The judgment of 21 March 2013 in RWE Vertrieb(C‑92/11, EU:C:2013:180, paragraphs 43 and 44). The Court has always paid particular attention to the provision of information to consumers. See, to that effect, inter alia, judgment of 27 June 2000 in Océano Grupo Editorial and Salvat Editores (C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 25). Moreover, it cannot be said that any ambiguity arose from the judgment of 3 June 2010 in Caja de Ahorros y Monte de Piedad de Madrid(C‑484/08, EU:C:2010:309). In the latter judgment, it is true that the Court recognised that the Spanish legislation at issue in the main proceedings, which authorised a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, made it possible to afford consumers a higher level of protection than that established by Directive 93/13. However, that legislation allowed such a review including when those terms were drafted in plain, intelligible language (see judgment of 3 June 2010 in Caja de Ahorros y Monte de Piedad de Madrid(C‑484/08, EU:C:2010:309, paragraphs 24 and 42)). 40 C‑92/11, EU:C:2013:180. 41 Judgment of 21 March 2013 in RWE Vertrieb(C‑92/11, EU:C:2013:180, paragraph 58 and the case-law cited). 42 C‑92/11, EU:C:2013:180. 43 C‑26/13, EU:C:2014:282. 44 C‑348/14, EU:C:2015:447. 45 It is clear from the wording of Article 4(2) of Directive 93/13 that a term relating to the main subject matter of the contract, when it does not meet the requirements of clarity and comprehensibility, may be subject to an assessment of whether or not it is unfair as provided for in Article 3(1) of Directive 93/13. 46 It appears that the 21st recital of Directive 93/13 even places that non-binding effect in the future (‘will not bind’). 47 A quick comparison of the various language versions available is scarcely more illuminating. Accordingly, Article 6(1) of Directive 93/13 provides that unfair terms, in Spanish, ‘no vincularán’, in German, ‘unverbindlich sind’, in English, ‘shall … not be binding’, in Italian, ‘non vincolano’ and, in Portuguese, ‘não vinculem’. 48 Opinion of Advocate General Trstenjak in Invitel (C‑472/10, EU:C:2011:806, point 48). 49 See, also, footnote 70 of this Opinion. 50 See, among many, judgments of 21 March 2013 in RWE Vertrieb(C‑92/11, EU:C:2013:180, paragraph 41 and the case-law cited) and 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 22), and order of 16 July 2015 in Sánchez Morcillo and Abril García (C‑539/14, EU:C:2015:508, paragraph 24). See, also, Opinion of Advocate General Szpunar in Joined Cases Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:15, footnote 21). 51 See, among many, judgment of 26 April 2012 in Invitel(C‑472/10, EU:C:2012:242, paragraph 34) and order of 16 July 2015 in Sánchez Morcillo and Abril García(C‑539/14, EU:C:2015:508, paragraph 25 and the case-law cited). 52 See order of 16 July 2015 in Sánchez Morcillo and Abril García(C‑539/14, EU:C:2015:508, paragraph 27). 53 See, among many, judgments of 6 October 2009 in Asturcom Telecomunicaciones(C‑40/08, EU:C:2009:615, paragraph 31 and the case-law cited) and 14 June 2012 Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 41 and the case-law cited). 54 See, in particular, judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 67 and the case-law cited). 55 See, in particular, judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 68, citing Article 7 of Directive 93/13). 56 See, in particular, judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 61 and the case-law cited). 57 Judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 62). 58 See judgments of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 63); 30 May 2013 in Jőrös(C‑397/11, EU:C:2013:340, paragraph 41) and 30 May 2013 in Asbeek Brusse and de Man Garabito(C‑488/11, EU:C:2013:341, paragraph 49). See, also, orders of 3 April 2014 in Sebestyén(C‑342/13, EU:C:2014:1857, paragraph 35) and 17 March 2016 in Ibercaja Banco(C‑613/15, EU:C:2016:195, paragraph 35). 59 Judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 65). Emphasis added. 60 See judgments of 30 May 2013 in Jőrös(C‑397/11, EU:C:2013:340, paragraph 41); 30 May 2013 in Asbeek Brusse and de Man Garabito(C‑488/11, EU:C:2013:341, paragraphs 49 and 57); and 21 April 2016 in Radlinger and Radlingerová(C‑377/14, EU:C:2016:283, paragraph 98). 61 See judgments of 30 May 2013 in Asbeek Brusse and de Man Garabito(C‑488/11, EU:C:2013:341, paragraph 58) and 21 January 2015 in Unicaja Banco and Caixabank(C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 31). 62 Judgment of 14 June 2012 in Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraphs 69 and 70). 63 See judgments of 30 April 2014 in Kásler and Káslerné Rábai(C‑26/13, EU:C:2014:282, paragraph 78) and 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraphs 21 and 39). 64 See judgments of 3 December 2015 in Banif Plus Bank(C‑312/14, EU:C:2015:794, paragraph 27) and 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 25). 65 C‑472/10, EU:C:2012:242. 66 See judgment of 26 April 2012 in Invitel(C‑472/10, EU:C:2012:242, paragraph 39). 67 Judgment of 26 April 2012 in Invitel(C‑472/10, EU:C:2012:242, paragraph 40). 68 Judgment of 30 May 2013 in Jőrös(C‑397/11, EU:C:2013:340, paragraph 43). 69 C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 41. Emphasis added. See, also, order of 17 March 2016 in Ibercaja Banco(C‑613/15, EU:C:2016:195, paragraph 37). 70 It is also necessary to recall that the Report from the Commission on the implementation of Directive 93/13 [COM(2000) 248 final of 27 April 2000] had already noted that ‘because of the diversity of legal traditions, [Article 6(1) of Directive 93/13] has been transposed in different ways (the civil penalties include non-existence, nullity, revocability, voidability and unenforceability of such unfair terms). … Besides, any court judgment that finds a term to be unfair must provide that the judgment take effect from the time of conclusion of the contract (ex tunc). … It is somewhat difficult to gauge to what extent the different national legal orders meet these requirements, but it seems they do not always do so’ (pp. 19 and 20). The attention of the EU legislature was already drawn to that issue. However, I note that Directive 93/13 was last amended by Directive 2011/83 and that none of the amendments made related to Article 6(1) of Directive 93/13. 71 See Article 1303 of the Civil Code read in conjunction with Article 83 of the LGDCU. 72 See, most recently, judgment of 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 31). 73 See, by analogy, judgments of 6 October 2009 in Asturcom Telecomunicaciones(C‑40/08, EU:C:2009:615, paragraph 38); 14 June 2012 Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 46); 3 December 2015 in Banif Plus Bank(C‑472/11, EU:C:2013:88, paragraph 26); Aziz(C‑415/11, EU:C:2013:164, paragraph 50); 30 May 2013 in Jőrös(C‑397/11, EU:C:2013:340, paragraph 29); 30 May 2013 in Asbeek Brusse and de Man Garabito(C‑488/11, EU:C:2013:341, paragraph 42); 5 December 2013 in Asociación de Consumidores Independientes de Castilla y León(C‑413/12, EU:C:2013:800, paragraph 30); 27 February 2014 in Pohotovosť(C‑470/12, EU:C:2014:101, paragraph 46); 10 September 2014 in Kušionová(C‑34/13, EU:C:2014:2189, paragraph 50); 18 February 2016 in Finanmadrid EFC(C‑49/14, EU:C:2016:98, paragraph 40); 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 32); and 21 April 2016 in Radlinger and Radlingerová(C‑377/14, EU:C:2016:283, paragraph 48). 74 See, in particular, judgment of 27 February 2014 in in Pohotovosť(C‑470/12, EU:C:2014:101, paragraph 47). 75 See paragraph 95 of the written observations of the Spanish Government in Joined Cases C‑307/15 and C‑308/15. 76 Here, rather than a provision, it is more a practice of the courts which is not actually codified. In response to a question posed by the Court at the hearing, the Spanish Government representative asserted that the Tribunal Supremo (Supreme Court) based the prerogative to limit the restitutory effects of invalidity on its interpretation of Article 1303 of the Civil Code. 77 See judgments of 6 October 2009 in Asturcom Telecomunicaciones(C‑40/08, EU:C:2009:615, paragraph 39 and the case-law cited); 14 June 2012 Banco Español de Crédito(C‑618/10, EU:C:2012:349, paragraph 49); 3 December 2015 in Banif Plus Bank(C‑472/11, EU:C:2013:88, paragraph 33); Aziz(C‑415/11, EU:C:2013:164, paragraph 53); 30 May 2013 in Jőrös(C‑397/11, EU:C:2013:340, paragraph 32); 5 December 2013 in Asociación de Consumidores Independientes de Castilla y León (C‑413/12, EU:C:2013:800, paragraph 34); 27 February 2014 in Pohotovosť(C‑470/12, EU:C:2014:101, paragraph 51); 10 September 2014 in Kušionová(C‑34/13, EU:C:2014:2189, paragraph 52); 18 February 2016 in Finanmadrid EFC(C‑49/14, EU:C:2016:98, paragraphs 43 and 44); 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 34); and 21 April 2016 in Radlinger and Radlingerová(C‑377/14, EU:C:2016:283, paragraph 50). 78 Unless, of course, it is ensured that sufficient information is provided to the consumer. 79 See footnote 11 of this Opinion. 80 See point 44 et seq. of this Opinion. 81 See judgment of 6 October 2009 in Asturcom Telecomunicaciones(C‑40/08, EU:C:2009:615). 82 Indeed, the principle of restitutio in integrum may, at the time of its application, conflict with rules on limitation periods for claims. 83 C‑92/11, EU:C:2013:180. 84 The absence of a clearly identifiable rule thus renders impossible an analysis of the type which the Court carried out in the judgment of 14 April 2016 in Sales Sinués and Drame Ba(C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 32 et seq.). 85 According to Article 1(6) of the Civil Code.