Opinion of the Advocate General — ECLI:EU:C:2024:64
Date: 2024-01-18
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-450/22 – 1 
Case C-450/22 
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: 
6 July 2022 
Referring Court: 
Tribunal Supremo (Spain) 
Date of the decision to refer: 
29 June 2022 
Appellants: 
Caixabank, S. A. 
Caixa Ontinyent, S. A. 
Banco Santander, S. A., sucesor de Banco Popular Español, S. A. y 
Banco Pastor, S. A. 
Targobank, S. A. 
Credifimo, S. A. U. 
Caja Rural de Teruel, S. C. C. 
Caja Rural de Navarra, S. C. C. 
Cajasiete Caja Rural, S. C. C. 
Liberbank, S. A. 
Banco Castilla La Mancha, S. A. 
Bankia, S. A., sucesor de Banco Mare Nostrum, S. A. 
Unicaja Banco, S. A. 
Caja Rural de Asturias, S. A. 
Caja de Arquitectos, S. C. C. (Arquia Bank, S. A.) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-450/22 
 
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Nueva Caja Rural de Aragón, S. A. 
Caja Rural de Granada SCC, S. A. 
Banco Sabadell, S. A. 
Banca March, S. A. 
Ibercaja 
Banca Pueyo, S. A. 
Respondents: 
ADICAE 
M.A.G.G. 
M.R.E.M. 
A.B.C. 
Óptica Claravisión, S. L. 
A. T. M. 
F. A. C. 
A. P. O. 
P. S. C. 
J. V. M. B., sucesor de C. M. R. 
  
Subject matter of the main proceedings 
Extraordinary appeals for breach of procedure and appeals on a point of law 
lodged with the Tribunal Supremo (Supreme Court, Spain), the referring court, in 
which the dispute concerns the viability of a collective action for an injunction 
brought by a consumers’ association against terms, used by all the defendant 
financial institutions, limiting the variability of the interest rate (floor clauses) in 
mortgage loans taken out by consumers, to which an action for recovery of the 
payments made under those terms was joined. 
CAIXABANK AND OTHERS 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Request for interpretation of Directive 93/13/EEC and its compatibility with the 
Spanish system of collective actions brought by a consumers’ association against 
floor clauses in mortgage loan contracts concluded with consumers, which are 
used by all the defendant banks. 
Questions referred for a preliminary ruling 
1. For the purposes of a review of transparency in the context of a collective 
action, is an abstract assessment of terms used by more than one hundred 
financial institutions in millions of banking contracts, without taking into 
account the level of pre-contractual information offered on the legal and 
financial burden of the term or the other circumstances occurring in each 
case at the time when the contract was concluded, covered by Article 4(1) of 
Directive 93/13/EEC, where it refers to the circumstances attending the 
conclusion of the contract, and by Article 7(3) of that directive, where it 
refers to similar terms? 
2. Is the possibility of conducting an abstract review of transparency from the 
perspective of the average consumer, where a number of the contracts 
offered are aimed at different specific groups of consumers or where 
numerous financial institutions having, economically and geographically, 
very different business areas were using standard terms and conditions over 
a very long period of time during which public awareness of such terms was 
developing, compatible with Articles 4(2) and 7(3) of Directive 93/13/EEC? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, recital 23, Article 4 and Article 7. 
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 
2009 on injunctions for the protection of consumers’ interests, Article 2. 
Directive (EU) 2020/1828 of the European Parliament and of the Council of 
25 November 2020 on representative actions for the protection of the collective 
interests of consumers and repealing Directive 2009/22/EC, Article 8 and 
Article 9. 
Charter of Fundamental Rights of the European Union, Article 47. 
Provisions of national law relied on 
Ley de 7/1998 sobre condiciones generales de la contratación (Law 7/1998 on 
general contractual conditions ) of 13 April 1998 
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Article 12 of Law 7/1998 provides that it is possible to bring an action for an 
injunction against the use of unlawful general conditions, which is aimed at 
obtaining judgment ordering the defendant to delete from its general conditions 
any which are held to be null and void and to refrain from using such conditions in 
the future. A related action for the recovery of any payments made under such 
general conditions may be joined to an action for an injunction. 
In accordance with Article 17 of Law 7/1998, an action for an injunction is 
possible against any seller or supplier who uses general conditions which are held 
to be null and void and may be brought jointly against a number of sellers or 
suppliers in the same economic sector. 
Texto Refundido de la Ley General para la Defensa de los Consumidores y 
Usuarios (Consolidated Text of the General Law for the Protection of Consumers 
and Users ) approved by Real Decreto Legislativo (Royal Legislative Decree) 
1/2007 of 16 November 2007 
In accordance with Article 53 of that Law, actions for an injunction are aimed at 
obtaining a judgment that orders the defendant to cease from conduct and to 
prohibit the future repetition thereof. The action may also be brought to prohibit 
the practice of conduct that has concluded at the time the action is brought, if there 
is sufficient evidence pointing towards the immediate repetition of this conduct. 
Provided that an application for a declaration of nullity and for annulment is 
made, there may be joined to any action for an injunction an action for failure to 
comply with obligations, an action for termination or rescission of the contract, 
and an action for recovery of payments made as a result of the practice of conduct 
or terms or general conditions held to be unfair or non-transparent. 
Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on Civil Procedure ) of 
7 January 2000 
Article 72 of Law 1/2000 provides that actions brought by a single party against a 
number of parties or by a number of parties against a single party may be joined 
and conducted simultaneously, provided that there is a connection between such 
actions by reason of the origin or cause of action. The origin or cause of action 
will be considered to be identical or connected where the actions are based on the 
same facts. 
Article 221, under the heading ‘judgments given in proceedings brought by 
consumers’ or users’ associations’, provides that judgments given on claims 
brought by consumers’ or users’ associations are to be subject to the following 
rules: 
1. If the claim is for pecuniary damages, the judgment upholding the claim must 
identify individually which consumers and users are to be regarded as entitled to 
benefit from the judgment, in accordance with the laws for their protection. 
CAIXABANK AND OTHERS 
 
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Where it is not possible to identify such consumers and users individually, the 
judgment must set out the facts, characteristics and conditions required in order to 
be able to demand payment. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Asociación de Usuarios de Bancos, Cajas de Ahorros y Seguros de España 
(ADICAE; Spanish Association of Users of Banks, Savings Banks and Insurance) 
has sued 101 financial institutions which operate in Spain. In its application, it 
brought a collective action for an injunction ordering those institutions to cease 
and desist from the use of the general contractual condition consisting in the 
limitation of the variability of the interest rate (floor clause), which the defendant 
financial institutions were using in their variable interest mortgage loan contracts. 
An action for recovery aimed at obtaining an order to reimburse payments made 
under that term was joined to the action for an injunction. 
2 The court of first instance allowed the action to proceed and made three calls in 
the national media for consumers who may have suffered loss or damage. 
Following those calls, 820 consumers entered an individual appearance in support 
of the forms of order sought in the application. 
3 The judgment at first instance upheld the action in part, except in relation to three 
financial institutions, and ruled that the floor clauses contained in the general 
conditions of the mortgage loan contracts concluded with consumers, in which the 
other defendant financial institutions used standard terms, were null and void and 
ordered those financial institutions to delete the clauses concerned from the 
contracts and to cease and desist from using such clauses in a non-transparent 
manner. That judgment also held that the mortgage loan contracts in force 
concluded by those financial institutions would remain in existence. Lastly, it 
ordered the banks concerned to reimburse the sums wrongly paid under those 
clauses, with effect from the date of publication of the judgment of the Tribunal 
Supremo (Supreme Court) of 9 May 2013. 
4 The defendant banks appealed against the judgment at first instance. The 
Audiencia Provincial (Provincial Court) dismissed most of the appeals. Conscious 
of the fact that the case-law of the CJEU stipulates that a review of the 
transparency of contractual clauses must be conducted by means of an 
examination of the specific case in the light of the circumstances attending the 
conclusion of the contract, the Provincial Court established how the review of 
transparency should be conducted in the context of collective actions (abstract 
review), in contrast to the type of review which is conducted in individual actions. 
In that connection, the Provincial Court stated as follows: 
– The important point is that it is not possible to conclude that the bank engaged 
in conduct aimed at concealing or disguising the effect on finances and assets 
of the inclusion of the floor clause in the contracts. 
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– Such concealment or disguising of the binding effect of the clause occurs 
where the bank does not present the floor clause on an equivalent footing to 
other clauses i) to which the average consumer pays attention because he 
regards them as terms which define the costs of the contract for him and ii) 
which are based on information referred to in the promotional material 
disseminated by the bank, such as the chosen reference index, its differential 
and the repayment term. 
– Concealment of the clause occurs where, in the contract as a whole, the clause 
is treated as being of secondary importance, so that the consumer does not 
identify its implications for the price or cost of the contract. 
– Various forms of conduct exist which constitute evidence that the inclusion of 
the clause in the contract was not transparent, such as: 
a) The presentation of the clause in relation to concepts unconnected with the 
contract price (insurance, costs, taxes, default interest and the like) or to 
secondary factors with the potential to lower the price, thereby creating the 
appearance that the floor clause is subject to certain conditions or criteria 
which will make it difficult to apply. 
b) The positioning of the clause in the middle or at the end of long paragraphs 
which begin by dealing with other matters, including within the set of terms 
relating to variability of the interest rate, and where it is briefly referred to 
without any emphasis so that the average consumer’s attention is diverted. 
c) The presentation of the floor clause together with the term limiting the 
upwards adjustment of the interest rate (ceiling clause), so that the 
consumer’s attention is focused on the apparent security of having a cap on 
the hypothetical increase of the reference index, thereby diverting his or her 
attention from the importance of the minimum rate. 
5 The banks appealed to the Tribunal Supremo (Supreme Court) against the 
judgment of the Provincial Court. 
Essential arguments of the parties in the main proceedings 
6 There is an incidental reference to the submissions of the financial institutions in 
the request for a preliminary ruling, which is reproduced in paragraph 29 of this 
summary. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 The request for a preliminary ruling sets out the referring court’s uncertainties in 
relation to two issues: first, whether a collective action for an injunction in which, 
by definition, an abstract review must be conducted, is appropriate for the conduct 
CAIXABANK AND OTHERS 
 
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of a review of transparency which, by its very nature, necessitates a specific 
examination of the particular contractual relationships of which the terms at issue, 
used by the majority of Spanish banks, form part, particularly in relation to the 
pre-contractual information provided to consumers, so that consumers are aware 
of the legal and financial burden of such terms; and, second, the definition of the 
average consumer where i) there are numerous financial institutions and territorial 
and economic differences between them (from a small savings bank at local level 
to some of the big European banks established at multinational level); ii) there are 
different contractual models used by each financial institution; iii) the terms 
concerned have been inserted over a long period of time; and iv) different groups 
of customers exist who are difficult to standardise: consumers who approach the 
financial institution privately, consumers who are subrogated to loans taken out by 
developers, consumers who qualify for social housing programmes or for public 
housing access programmes based on specific age ranges (young persons, retired 
persons), consumers who obtain a loan with special treatment on the basis of their 
occupation (civil servants or employees of certain companies, for example). 
Compatibility of the abstract review in collective actions with the individual 
examination necessitated by a review of transparency 
8 The collective action for an injunction seeks the performance of a preventive 
abstract review, since that enables the conduct of the user of standard terms to be 
reviewed at the time when the general condition was drafted or adopted, including 
before its effective inclusion in the multiple contracts for which it was intended. 
Such an action views the term as if it had an autonomous normative character, 
irrespective of the concurrence of wills in which it is included, in so far as it is, as 
a general condition, intended to be general in nature. An abstract review is 
conducted independently of the specific information on the scope and content of 
the term which the person signing the contract may have received before the 
conclusion of the contract and of the outcome of its application in practice by the 
bank. 
9 That preventive, abstract nature of the action for an injunction, which differs from 
an individual review of the contracts actually concluded, has been pointed out in 
the case-law of the CJEU (for example, judgment of 28 July 2016, Verein für 
Konsumenteninformation, C-191/15, EU:C:2016:612). 
10 More specifically, the judgment of the CJEU of 9 September 2004, Commission v 
Spain C-70/03, EU:C:2004:505, held: 
‘The distinction made in Article 5 of the directive concerning the applicable rule 
of interpretation, as between actions involving an individual consumer and actions 
for cessation which involve persons or organisations representative of the 
collective interest of consumers may be accounted for by the different aims 
pursued by those actions. In the former case, the courts or competent bodies are 
required to make an assessment in concreto of the unfair character of a term 
contained in a contract which has already been concluded, while in the latter case 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-450/22 
 
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it is their task to assess in abstracto the unfair character of a term which may be 
incorporated into contracts which have not yet been concluded. In the former case, 
an interpretation favourable to the individual consumer concerned benefits him or 
her immediately. By contrast, in the latter case, in order to obtain, by way of 
prevention, the most favourable result for consumers as a whole, it is not 
necessary, where there is doubt, to interpret the term in a manner favourable to 
them. Accordingly, an objective interpretation makes it possible to prohibit more 
frequently the use of an unintelligible or ambiguous term, which results in wider 
consumer protection.’ 
11 In addition, the judgment of the CJEU of 14 April 2016 in joined Cases 
C-381/14 Sales Sinués and C-385/14 Youssouf Drame, EU:C:2016:252, drew 
attention to the difference between the purposes and legal effects of individual and 
collective actions and ruled that: 
‘26. As regards, on the other hand, actions brought by persons or organisations 
having a legitimate interest in protecting consumers as referred to in Article 7(2) 
of Directive 93/13, it must be noted that such persons or organisations are not in 
an inferior position vis-à-vis the seller or supplier … 
27. Without denying the importance of the essential role that they must be able 
to play in order to achieve a high level of consumer protection within the 
European Union, it must nevertheless be noted that an action for an injunction 
pitting such an association against a seller or supplier is not characterised by the 
same imbalance that is present in an individual action brought by a consumer 
against a seller or supplier …’ 
12 Similarly, judgment of the Spanish Tribunal Constitucional (Constitutional Court, 
Spain) 148/2016 of 19 September 2016 (ES:TC:2016:148) held that the 
application of the effects of a collective action for an injunction to a whole set of 
contracts may infringe the freely expressed wishes of a consumer who does not 
wish to obtain the annulment of the contract in the terms sought in the collective 
action. The Spanish Constitutional Court also held that a collective action may 
impede the possibility of bringing an individual challenge if the action for an 
injunction is dismissed on the grounds that a different legal line of defence was 
adopted from that which would have been put forward if an individual action had 
been brought in relation to specific circumstances known only to the consumer. 
13 The Tribunal Supremo (Supreme Court), in judgments 241/2013 of 9 May 2013 
(ES:TS:2013:1916) and 138/2015 of 24 March 2015 (ES:TS:2015:1279), agreed 
initially that it was possible to conduct the abstract review particular to collective 
actions in the case of so-called floor clauses because that abstract review of the 
validity of general contractual conditions works by taking into account the 
definition of an average consumer and the features of the standardised criteria of 
standard-form contracting. Later, in judgment 408/2020 of 7 July 2020 
(ES:TS:2020:2228), the Tribunal Supremo (Supreme Court) held that an abstract 
review was not possible in the case of complex financial contracts, subject to the 
CAIXABANK AND OTHERS 
 
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MiFID legislation, in which the client’s profile and the information which the 
investment firm is required to collect regarding the client’s knowledge and prior 
experience of purchasing similar products play a very important role. The 
Tribunal Supremo (Supreme Court) took into account the fact that a collective 
action limits what may be the subject of proof to that which it is possible to 
examine on a generalised basis. That is difficult to reconcile with the complex 
realities of contracts, the preparation and formation of which involve multiple 
individual factors (which cannot be generalised), such as the level of prior 
knowledge of the person signing the contract, that person’s financial experience 
and their intentions in relation to the assumption of risk in the investment 
14 In the judgments cited in which the Tribunal Supremo (Supreme Court) allowed a 
collective action for an infringement to proceed in respect of floor clauses in 
mortgage loans, the action was brought against a single financial institution or 
against a very small number of financial institutions, and therefore it was more 
straightforward to reduce the practices and clauses at issue to standard situations 
and it was also more feasible to carry out an assessment from the perspective of 
the average consumer. 
15 However, in judgment 408/2020 of 7 July 2020 (ES:TS:2020:2228), the Tribunal 
Supremo (Supreme Court) stated that the assessment particular to collective 
actions is very readily adaptable to reviews of inclusion and also of content. In 
that connection, that judgment stated that the fact that a term has been included 
incorrectly, because it is not clear and intelligible due to the way it is worded, or 
the unfairness of a general condition which, as a result of its content, contrary to 
the requirements of good faith, creates an unjustified imbalance to the detriment 
of the consumer, can be easily assessed by means of a collective action, since 
what determines in each case whether a term has been wrongly included or is 
unfair is applicable in general to all contracts in which such terms have been 
included. It is unlikely that, in the case of individual contracts, special 
circumstances will arise which will mean that a general assessment conducted by 
means of a collective action cannot be applied to that particular contract, apart 
from individual negotiation which, by itself, would lead to non-application of the 
review of unfairness. In that judgment, the Tribunal Supremo (Supreme Court) 
also held that the same does not occur where the collective action seeks a review 
of transparency. The insistence of the CJEU (judgments of 30 April 2014, Kásler 
and Káslerné Rabai, C-26/13; of 21 December 2016, Gutiérrez Naranjo, 
C-154/15; of 20 September 2017, Andriciuc, C-186/16; and of 7 November 2019, 
Credit Polska, C-419/18) on the need to have regard to the specific circumstances 
of the case, including both the objective circumstances and the subjective 
circumstances of the person concluding the contract, which may have a bearing on 
the substantive intelligibility of the term, and, more importantly, the implications 
of the pre-contractual information, significantly reduces the situations in which a 
lack of transparency can be identified in a collective action. It cannot be denied 
that it is possible to conduct a review of transparency in the context of a collective 
action but it must be noted that, in the light of the case-law of the CJEU, the 
admissibility of such a review is limited to the presence of very clear standard 
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marketing practices which, by themselves, make clear the lack of transparency 
and leave little discretion for concluding that the requirements relating to prior 
information may have been breached. 
16 However, in this case, the collective action has been brought against almost all the 
financial institutions in Spain which use or have used floor clauses over a long 
period in millions of contracts and with multiple different wordings and 
formulations. That means that it is difficult to rely on the concept of the average 
consumer, since, due to the large number of customers at whom such clauses are 
targeted, the consumers affected are liable to be very different. 
17 Furthermore, it must be borne in mind that floor clauses were provided for and 
permitted in law for a very long time (from December 1989 to June 2019), and 
therefore their formulation, for the purposes of adaptation to administrative 
banking legislation, was subject to different legislative provisions: 
– Orden Ministerial sobre tipos de interés, comisiones, normas de actuación, 
información a clientes y publicidad de las entidades de crédito (Ministerial 
Order on interest rates, commission, rules of conduct, information to be 
provided to customers and promotional material of credit institutions ) of 
12 December 1989, as amended by Orden Ministerial de regulación y control 
de la publicidad de los servicios y productos bancarios (Ministerial Order on 
the regulation and control of promotional material for banking products and 
services ) of 12 June 2010, adopted in implementation of Ley 26/1988 de 
Disciplina e Intervención de Entidades de Crédito (Law 26/1988 on the 
supervision and control of credit institutions ) of 29 July 1988 and under the 
powers laid down therein. 
– Orden Ministerial sobre transparencia de las condiciones financieras de los 
préstamos hipotecarios (Ministerial Order on the transparency of the financial 
conditions of mortgage loans ) of 5 May 1994, as amended by Ministerial 
Orders of 27 October 1995, of 1 December 1999 and of 28 October 2011. 
– Ley 2/2009 de Contratación de Préstamos Hipotecarios con Particulares (Law 
2/2009 on the granting of mortgage loans to individuals ) of 31 March 2009. 
18 The case-law of the CJEU has gradually provided further detail about the review 
of transparency in relation to the examination of whether the pre-contractual 
information provided to the consumer is sufficient, since that is the stage when the 
decision to enter into the contract is taken. In that connection, in relation to the 
review of transparency, the judgment of the CJEU of 21 March 2013, RWE 
Vertrieb, C-92/11, EU:C:2013:180, held at paragraph 44: 
‘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 he decides whether he wishes to 
be bound by the terms previously drawn up by the seller or supplier.’ 
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19 That case-law was consolidated by the CJEU in, inter alia, the judgments of 
26 February 2015, Matei, C-143/13, EU:C:2015:127, paragraph 75; of 23 April 
2015, Van Hove, C-96/14, EU:C:2015:262, paragraph 47; of 21 December 2016, 
Gutiérrez Naranjo, C-154/15, C-307/15 and C-308/15, EU:C:2016:980, 
paragraph 50; and of 9 July 2020, Ibercaja Banco, C-452/18, EU:C:2020:536, 
paragraphs 46 and 47. In accordance with that case-law, it is the pre-contractual 
information which really makes it possible to compare offers and take the decision 
to enter into the contract. 
20 The advocate general’s Opinion of 2 June 2016 in Biuro podrózy Partner, 
C-119/15, EU:C:2016:387, stated, at point 49, that a scheme providing as a 
general rule that a finding as to the unfairness of terms contained in standard 
conditions of business which is reached in the course of in abstracto judicial 
proceedings must be definitive is difficult if not impossible to reconcile with 
Article 4(1) of Directive 93/13, which requires that the assessment of unfairness 
be specific and made on the basis of the particular circumstances involved. In 
addition, under Article 4(1) of Directive 93/13, the unfairness of a contractual 
term is to be assessed by reference to the time of conclusion of the contract (see, 
for example, judgments of the CJEU of 20 September 2017, Andriciuc, C-186/16, 
EU:C:2017:703, paragraph 54, and of 9 July 2020, Ibercaja Banco, C-452/18, 
EU:C:2020:536, paragraphs 48 and 49). The collective action that is the subject of 
these proceedings involves contracts concluded many years apart, a factor which 
is important since the general public’s level of knowledge of floor clauses altered 
over time. 
21 In summary, since the abstract review must be conducted in relation to thousands 
of standard terms included over a long period of time by dozens of different 
financial institutions, where those terms were subject to legislative amendments as 
regards their formulation and without any possibility of checking in each case the 
pre-contractual information offered to consumers, it is extremely difficult to 
conclude that it is possible to carry out an unequivocal review of the transparency 
of similar terms, as referred to in Article 7(4) of Directive 93/13. 
22 Lastly, it must be borne in mind that, in the case at issue, in addition to the 
collective action for an injunction, an action for recovery was also brought, aimed 
at obtaining an order to reimburse payments made under the terms the annulment 
of which was sought. However, the abstract review particular to a collective action 
for an injunction is not intended to determine the specific financial consequences 
that the declaration that a term is null and void or that conduct is abusive may 
have for each consumer and user affected by the term or conduct concerned. The 
latter assessment comes within the scope of the protection of individual financial 
interests and, as a general rule, is more suited to individual actions which may be 
commenced by consumers and to which, in addition to the claim seeking a 
declaration of nullity of the general condition or conduct concerned, the relevant 
action for recovery or damages may be joined. 
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Difficulty characterising the average consumer 
23 There are numerous rulings in the case-law of the CJEU on the term ‘average 
consumer’; the first judgment on the subject is usually identified as that of 
20 February 1979 (Cassis de Dijon, 120/78, EU:C:1979:42). However, the term 
did not appear in legislation until 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. 
24 The judgments of 16 July 1998 (Gut Springenheide, C-210/96, EU:C:1998:369) 
and 13 January 2000 (Estée Lauder Cosmetics, C-220/98, EU:C:2000:8) coined 
the phrase ‘average consumer who is reasonably well informed and reasonably 
observant and circumspect’. A definition was thus established of the average 
consumer as a person capable of understanding the commercial information 
provided to them and of taking a conscious decision based on that information. 
The average consumer is a person having a minimum level of skill to interpret the 
situation that they perceive or the information supplied to them, but the average 
consumer’s perception must be assessed not only by reference to the person but 
also in relation to the product or service offered to them, since the need to be 
observant and circumspect when it comes to purchasing a financial product is not 
the same as the need to be observant and circumspect when it comes to purchasing 
food or booking a package trip. 
25 In the context of Directive 93/13, the order of the CJEU of 10 June 2021 
(C-198/20, EU:C:2021:481) held that the protection afforded by that directive 
benefits all consumers, not only the average consumer who is reasonably well 
informed and reasonably observant and circumspect. However, the fact that the 
directive benefits all consumers does not mean that, for the purposes of assessing 
whether a term is unfair in a collective action, the concept of the average 
consumer should not be used as standard. 
26 In the specific case of clauses governing mortgage loan interest, the judgment of 
the CJEU of 3 March 2020 (Gómez del Moral, C-125/18, EU:C:2020:138), in an 
examination of the requirement of transparency in paragraph 51, referred to ‘an 
average consumer, who is reasonably well-informed and reasonably observant and 
circumspect, [who] is in a position to understand the specific functioning of the 
method used for calculating that rate and thus evaluate, on the basis of clear, 
intelligible criteria, the potentially significant economic consequences of such a 
term on his or her financial obligations …’ 
27 In addition, the case-law of the CJEU acknowledges that the notion of average 
consumer may differ depending on certain conditions, since account must be taken 
of social, cultural or linguistic factors. Therefore, the Court has, on occasion, 
referred in more general terms to the average European consumer (judgment of 
the CJEU of 2 May 2019, Queso Manchego, C-614/17, EU:C:2019:344). A 
consumer’s level of attention and acumen may vary depending on legal 
information, national or sectoral advertising requirements or even elements of the 
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language used in the commercial information supplied, which may create a 
different requirement on the part of the consumer for care in the provision of 
information and warnings. 
28 The validity of terms aimed at different groups of consumers is called into 
question in the main proceedings, since there have been cases in which the general 
conditions at issue were aimed at persons included in a particular age range (in 
general, young persons) or persons who were buying social housing subject to 
administrative legislation, or consumers who had previously entered into contracts 
under a similar condition and wished to novate it, to give just a few examples. The 
Tribunal Supremo (Supreme Court) has examined all those situations and many 
others for the purpose of reviewing the transparency of a floor clause but has done 
from an individual perspective, in the context of which the relevant information 
was assessed in the case in hand (awareness on the part of the consumer of the 
legal and financial burden of the floor clause). That is why the grouping together 
of all the cases into a single collective action makes the adoption of a position 
based on the concept of ‘average consumer’ much more difficult. 
29 Furthermore, since the collective action for an injunction has been joined to an 
action for the recovery of payments made but not due, Article 221(1)(1) of the 
Spanish Law on Civil Procedure provides that where it is not possible to identify 
the affected consumers individually, the judgment is to set out the facts, 
characteristics and conditions required in order to be able to demand payment and, 
where appropriate, apply for execution or participate therein in the event that 
enforcement is sought by the claimant association. That general determination is 
also extremely difficult and that difficulty was made clear by some of the 
defendant banks, which, in their defences, claimed that, under Article 221(1)(1) of 
the Law on Civil Procedure, certain parties should be excluded from the 
judgment: i) those who, as a result of their special qualifications or experience 
(lawyers, financial specialists, bank employees, property promotors and the like), 
were aware of or would have been able to ascertain, in a straightforward way, the 
scope and effects of the floor clause; ii) those who have taken over the position of 
borrower in loans granted to a promotor with a pre-existing floor clause or the 
position of the bank in mortgage loans granted by other financial institutions to 
consumers with a pre-existing floor clause; and iii) loans granted after 2009, when 
the use of floor clauses had become widespread throughout the mortgage market 
and floor clauses had generated a huge debate in society, with consumers’ 
awareness of such clauses being, according to the defendants, a public and well 
known fact.