Judgment;Summary — ECLI:EU:C:2025:298
Date: 2025-04-30
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Translation C-39/24 – 1 
Case C-39/24 
Request for a preliminary ruling 
Date lodged: 
15 January 2024 
Referring court: 
Juzgado de Primera Instancia e Instrucción No 6 de Ceuta (Spain) 
Date of the decision to refer: 
2 January 2024 
Applicant: 
Justa 
Defendant: 
Banco Bilbao Vizcaya Argentaria, S. A. 
  
[…] [Referring court, procedure and parties] […] 
ORDER 
[…] 
FACTS 
1 It was decided in the specified case that the proceedings should be stayed because 
the parties and the Public Prosecutor’s Office were given the opportunity to refer a 
question to the Court of Justice of the European [Union] (‘the Court of Justice’) 
for a preliminary ruling. 
2 The period granted to the parties and the Public Prosecutor’s Office to submit 
what they consider useful as regards the relevance of the referral by this court of 
that question for a preliminary ruling – the documents in the case file having been 
lodged and their content reproduced – has elapsed. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2. 1. 2024 – CASE C-39/24 
 
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LAW 
3 […] 
4 […]. 
5 […] 
[Request for application of the urgent procedure or expedited procedure rejected 
by the referring court] 
6 […] 
[Possible request for a preliminary ruling on costs in the present proceedings 
which the referring court declines to make] 
7 […] 
8 […] 
[Article 267 TFEU and other provisions of EU law on the making of a reference 
for a preliminary ruling and recommendations of the Court of Justice to national 
courts and tribunals in relation to initiation of preliminary ruling proceedings] 
9 The following EU Directives are applicable to the present case: 
– Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, Articles 3, 5, 6 and 7. 
– Directive 2005/29/EC of the European Parliament and of the Council of 
11 May 2005 concerning unfair business-to-consumer commercial practices in the 
internal market, Article 7. 
10 The following national legislation applies to the present case: 
– Orden de 5/5/1994 sobre transparencia de las condiciones financieras de los 
préstamos hipotecarios (Order of 5 May 1994 on the transparency of financial 
conditions for mortgage loans), point 4, Annex II, and Article 5. 
– Ley 5/2019 de 15 de marzo, que regula los contratos de crédito inmobiliario 
(Law 5/2019 of 15 March 2019 regulating mortgage loan agreements), Article 14 
on transparency. 
– Real Decreto Legislativo 1/2007 de 16 de noviembre, Texto Refundido de la 
Ley General para la Defensa de Consumidores y Usuarios (Royal Legislative 
Decree 1/2007 of 16 November 2007, Recast text of the General Law for the 
Protection of Consumers and Users), Articles 8(b) and (d), 60, 80, 82 and 83. 
JUSTA 
 
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– Ley 26/88 de 29 de julio sobre disciplina e intervención de entidades de 
crédito (Law 26/88 of 29 July 1988 on discipline and intervention for credit 
institutions). 
– Ley 7/98 de 13 de abril, de condiciones generales de la contratación (Law 
7/98 of 13 April 1998 on general contractual conditions), Articles 3, 8(1), 8(2), 
5(5), 7 and 10. 
– Código Civil (Spanish Civil Code), Article 1303 and other related 
provisions. 
11 The matter at issue in the present proceedings is the contract term relating to an 
arrangement fee (‘arrangement fee term’), in the mortgage loan contract notarised 
by the notary […], in which the applicant is named as the borrower and the 
defendant as the lending party, granted on 3 November 2005. Term 4.1 of that 
contract provided for an arrangement fee of 0.25% of the borrowed capital, which 
was settled and paid in relation to the notarised mortgage loan contract by the 
borrowing party to the banking institution, by means of a debit from a current 
account. 
12 The judgment of the Court of Justice of 16 July 2020, [Caixabank and Banco 
Bilbao Vizcaya Argentaria, C-224/19 and C-259/19, EU:C:2020:578 (‘the 
judgment of 16 July 2020’)], ruled on arrangement fees, but not in the light of the 
specific legislation governing arrangement fees referred to above, and the 
judgment of the Court of Justice of 16 March 2023 [, Caixabank (Loan 
arrangement fees), C-565/21, EU:C:2023:212 (‘the judgment of 16 March 2023’)] 
also ruled on the review of the unfairness of such a contract term. The judgment of 
16 July 2020 led most of the Audiencias Provinciales (Provincial Courts, Spain) in 
our country to proceed to annulment of the arrangement fee on mortgage loans 
and to order the banks to refund the amounts paid by customers plus interest. The 
criterion applied by the aforementioned judgment of the Court of Justice in order 
to annul the arrangement fee is that banks can receive that fee only if they are able 
to furnish evidence of a service provided to the loan customer justifying that 
charge. That judgment of the Court of Justice indicates that the arrangement fee 
does not define the essence of the contractual relationship, that the fact that it is 
included in the total cost of the loan is not because it forms part of the APR and 
does not imply that it is an essential contractual obligation, and that the 
arrangement fee would, in any event, be subject to an enhanced review of 
unfairness. The Court of Justice concludes by holding that a contract term 
requiring the consumer to pay an arrangement fee may create, to the detriment of 
the consumer, contrary to the requirement of good faith, a significant imbalance in 
the parties’ rights and obligations arising under the contract, where the bank does 
not demonstrate that such a fee corresponds to services actually provided and to 
costs incurred by it. That case-law has been supported by the judgments of 
17 December 2020 of the Audiencia Provincial de Zaragoza (Provincial Court of 
Zaragoza), 5th Chamber, of 27 November 2020 of the Audiencia Provincial de 
Lérida (Provincial Court of Lérida), 2nd Chamber, and of 9 October 2020 of the 
REQUEST FOR A PRELIMINARY RULING OF 2. 1. 2024 – CASE C-39/24 
 
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Audiencia Provincial de Madrid (Provincial Court of Madrid), 11th Chamber. The 
abovementioned judgment of the Court of Justice of 16 March 2023 follows its 
earlier judgment of 16 July 2020, in not holding that the contract term of an 
arrangement fee can automatically pass the transparency test and finding that the 
following must be taken into account: (i) the wording of the term; (ii) the 
information provided by the institution to the borrower, including information that 
the institution is required to provide in accordance with sector-specific rules; (iii) 
the institution’s advertising of such loans; and (iv) ‘taking into account the level 
of attention which can be expected of an average consumer who is reasonably 
well informed and reasonably observant and circumspect’. 
13 The judgment of the Tribunal Supremo (Supreme Court, Spain) 816/2023, First 
Chamber, Case 919/2019, of 29 May 2023, stated that an absence of evidence of 
the associated services remunerated by the arrangement fee does not 
[automatically] invalidate an arrangement fee, in so far as it finds that such an 
absence of evidence is not an essential condition pertaining to validity of the 
arrangement fee according to the Court of Justice. It is, therefore, necessary to 
carry out a transparency and substance analysis, but with a clear starting point: the 
services paid for by the arrangement fee are inherent in the granting of the 
mortgage loan itself and are listed or identified in sector-specific rules. 
14 The judgment of the Supreme Court 816/2023, of 29 May 2023, analyses the 
judgment handed down by the Court of Justice and, in that regard, highlights the 
following: 
1.- That the arrangement fee forms part of the main subject matter of the contract 
must be ruled out, since the concept of an essential element in the loan contract, 
from the point of view of the borrower, must be maintained as a strict one, and 
only remunerative interest must be considered as such. 
The Supreme Court therefore holds that national case-law should be amended to 
the effect that where the arrangement fee is not one of the essential elements of 
the contract, for the purposes of Article 4(2) of Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts, it may be subject to a substantive 
review (unfairness). 
2.- An arrangement fee must remunerate the costs of examining the application 
and the granting or processing of the mortgage credit or loan. Therefore, the 
arrangement fee is not, in itself, unfair. 
3.- An arrangement fee term, in addition to being clear and intelligible as regards 
its drafting, must go beyond the review of substantive transparency in the case of 
a contract concluded with consumers or users. To that effect, in order to rule on 
the lawfulness of that term, the national court must: 
– Determine the economic consequences for the consumer of such a term, 
which will enable an understanding of the nature of the services provided in return 
for the fees established in that term. 
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– Ascertain that there is no overlap between the various costs provided for in 
the contract or between the services they remunerate. 
– Ascertain that the financial institution has provided the mandatory 
information in accordance with national law and has included that information in 
its offer or prior advertisement for the type of contract entered into; the national 
court must also determine whether it is possible for the consumer to have obtained 
sufficient knowledge, from that information or advertising, of the economic 
content and functioning of the arrangement fee term within the contract, in other 
words, to understand the reasons justifying the remuneration represented by the 
arrangement fee, even if the lender is not obliged to specify the nature of all the 
services provided in exchange for the arrangement fee in the contract. 
– Assess the particular attention paid to such a contract term by the average 
consumer, in so far as it provides for the payment in full of a substantial sum from 
the time the loan or credit is granted. 
4.- For the purposes of examining the possible unfairness of the contract term, 
[the] Supreme Court states that the Court of Justice considers that: 
– As regards good faith, it must be verified that the creditor, dealing fairly and 
equitably with the consumer, could reasonably assume that the consumer would 
have agreed to such a term in individual contract negotiations. 
– As regards significant imbalance, it cannot be asserted that a contract term 
providing for an arrangement fee in the context of a mortgage loan or credit does 
not, under any circumstances, respect the balance between the parties’ rights and 
obligations arising under the contract, but it must be determined that the cost is 
not disproportionate to the amount of the loan or that the services which are 
remunerated by that fee are not already included in other items charged to the 
consumer (paragraphs 51, 58 and 59). 
15 In relation to the national legislation applicable to the information to be provided 
to the consumer by the lender in mortgage loan or credit contracts, and 
specifically with regard to the arrangement fee, the judgment of the Supreme 
Court of 29 May 2023 states as follows: 
1.- In the rules on banking transparency, the arrangement fee is treated in a 
specific manner, different from that of other bank fees. 
The Order of 5 May 1994 on the transparency of the financial conditions for 
mortgage loans (under which the contract at issue was concluded) provides as 
follows, in point 4 of Annex II thereto: 
‘4. Fees. 
1. Arrangement fee. – All expenses relating to the examination of the loan 
application, the granting or processing of the mortgage loan, or other similar 
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expenses inherent in the activity of the lending entity caused by granting the loan, 
must be included in a single fee, known as the “arrangement fee”, and shall be 
payable only once. The amount, form and date of payment thereof shall be 
specified in that term. […] 
2. Other fees and subsequent charges.- In addition to the “arrangement fee” 
only the following may be agreed at the borrower’s expense: […] 
(c) Fees which, having been duly notified to the Bank of Spain in accordance 
with the provisions of the Orden de 12 de diciembre de 1989 y en sus normas de 
desarrollo (Order of 12 December 1989 and regulations implementing the same), 
correspond to the supply of a specific service by the entity other than merely the 
ordinary management of the loan’. 
2.- This differentiated treatment between the arrangement fee and the other bank 
fees was maintained in the original wording of Ley 2/2009, de 31 de marzo, por la 
que se regula la contratación con los consumidores de préstamos o créditos 
hipotecarios y de servicios de intermediación para la celebración de contratos de 
préstamo o crédito (Law 2/2009 of 31 March 2009 which regulates the 
contracting with consumers of mortgage loans or credits and intermediation 
services for the conclusion of loan or credit contracts). Article 5 of that Law 
provided as follows with regard to transparency obligations in relation to rates for 
fees and charges: 
‘1. Undertakings shall freely determine their schedules of fees, conditions and 
costs which may be passed on to consumers, without any restrictions other than 
those laid down in this Law, in the Ley de 23 de julio de 1908 (Law of 23 July 
1908) and in Royal Legislative Decree No 1/2007, of 16 November 2007, as 
regards unfair terms. 
The schedules of fees or remuneration and chargeable costs, including for 
consultancy, shall specify the circumstances in which, and, where appropriate, the 
frequency with which, the foregoing will be payable. Fees or remuneration and 
charged costs must correspond to services actually provided or to costs incurred. 
Under no circumstances may fees or costs be charged for services not firmly and 
expressly agreed or requested by the consumer. 
2. By way of derogation from the provisions of the preceding subparagraph: 
(a) In the case of mortgage loans or credits, the provisions on compensation for 
early repayment in the sector-specific legislation regulating the mortgage market 
shall be applicable, except in the case of mortgage loans or credits granted prior to 
9 December 2007 for which the contract specifies the early repayment fee regime 
contained in Ley 2/1994, de 30 de marzo, sobre subrogación y modificación de 
préstamos hipotecarios (Law 2/1994 of 30 March 1994 on subrogation and 
modification of mortgage loans), in which case, that shall be applicable. 
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(b) In the case of residential mortgage loans or credits, the arrangement fee, 
which shall be payable only once, shall include all costs of examining the 
application, granting or processing the mortgage loan or credit or other similar 
costs inherent in the undertaking’s activity caused by granting the loan or credit. 
In the case of loans or credits denominated in foreign currencies, the arrangement 
fee shall also include any foreign exchange fee corresponding to the initial payout 
of the loan or credit. 
Other fees and charges payable by the consumer, which the undertaking charges 
in respect of those loans or credits, must correspond to the provision of a 
particular service other than the granting, or ordinary management, of the loan or 
credit.’ 
3.- At present, that legal regime is contained in Law 5/2019 of 15 March 2019 
regulating mortgage loan agreements, Article 14 of which, relating to the rules on 
transparency in the marketing of real estate loans, provides as follows: 
‘3. Fees or costs may only be charged for services related to loans that have 
been firmly requested or expressly accepted by a borrower or potential borrower 
and provided that they relate to services actually provided or costs incurred that 
can be substantiated. 
4. If an arrangement fee is agreed, it shall be payable only once and shall 
include all the costs of examining the application, processing or granting the loan 
or other similar costs inherent in the creditor’s activity caused by granting the 
loan. In the case of loans denominated in foreign currency, the arrangement fee 
shall also include any foreign exchange fee corresponding to the initial payout of 
the loan. 
In addition to the fact that, under the new legal regime, the different treatment of 
arrangement fees as compared with other fees applicable to mortgage loans or 
credits remains, it should be noted that this arrangement fee corresponds to 
expenses ‘inherent’ to the activity caused by the granting of the loan or credit, and 
therefore does not include any other type of expenses that are not inherent to the 
granting of the loan or credit’. 
The Supreme Court states very clearly in its judgment of 29 May 2023 that an 
unequivocal solution on the validity or invalidity of the term establishing an 
arrangement fee is not possible, as it depends on a case-by-case examination, on 
the basis of the evidence adduced. 
16 In judgment 816/23, cited above, the Supreme Court held that the arrangement fee 
was valid on the basis of the following reasoning: 
The financial institution complied fully with the Order of 5 May 1994 (legislation 
applicable ratione temporis). More specifically: (i) the fee comprises all the costs 
of examining the application, granting or processing the loan, inherent in the 
activity caused by granting the loan; (ii) it is presented under the title of 
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‘arrangement fee’ and not with names likely to cause confusion; (iii) the fee is 
payable only once, at the outset; (iv) its amount, form and date of settlement are 
specifically set out in the contract term. The amount charged is not 
disproportionate, as the fee consisted of 0.65% of the capital of the loan; with the 
average cost fluctuating generally between 0.25% and 1.5%. 
17 It is, therefore, the courts and tribunals which will have to analyse, in accordance 
with the rules set out by the Supreme Court in judgment 816/23, whether each of 
the contract terms at issue passes the transparency and substance analysis, as the 
arrangement fee does not form part of the remuneration of the contract. 
OPERATIVE PART 
THIS COURT DECIDES: 
18 To stay the proceedings. 
19 To refer a question of jurisdiction to the Court of Justice of the European Union, 
seeking an answer to the following questions: 
20 One. Does European legislation preclude the interpretation by the Supreme Court 
in relation to the arrangement fee, according to which the simple mention of the 
amount of the contract term in the mortgage instrument, and that the amount does 
not exceed the ceiling laid down, is sufficient for it to be held that the term is not 
unfair, in the light of Article 4(2) of Directive 93/13/EEC, on the ground of a lack 
of transparency, even though that term contains no indication of content or time? 
21 Two. If the consumer is previously informed of the contract term in question and 
if that term is not understood to be included in the activity of bank lending, as 
indicated in Directive 2014/17/EU of the European Parliament and of the 
Council, and if it is considered to be unrelated to the remunerative interest, should 
invoices not be drawn up and should the services in question not be definitively 
specified before the charge is passed on to the consumer, and would such 
omission to do so not be contrary to European legislation by affecting the 
transparency of the contract term in question in a material sense? 
[…][Closing procedural formulae]