Summary;Judgment — ECLI:EU:C:2025:297
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

Summary C-699/23 – 1 
Case C-699/23 
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: 
16 November 2023 
Referring court: 
Juzgado de Primera Instancia n.º 8 de Donostia – San Sebastián 
(Spain) 
Date of the decision to refer: 
13 November 2023 
Applicant: 
FG 
Defendant: 
Caja Rural de Navarra, S.C.C. 
  
Subject matter of the main proceedings 
Loan agreement secured by a mortgage – Arrangement fee – Unfairness 
Subject matter and legal basis of the request 
Article 267 TFEU – Request for a preliminary ruling on interpretation – 
Compatibility of the case-law of the Tribunal Supremo (Supreme Court, Spain) on 
arrangement fees with the case-law of the Court – Criteria 
Questions referred for a preliminary ruling 
1. Is the principle of transparency infringed where an arrangement fee is charged 
for the provision of services by a seller or supplier and the latter does not specify 
what those services consist of or the time spent on them, thereby preventing 
consumers from ascertaining, first, whether the charging of the fee corresponds to 
what was agreed, what is established in the schedule of prices or, in any event, 
EN 
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what is reasonable in view of the type of service; and, secondly, that there is no 
overlap between services, that the consumer is not paying for services which are 
already remunerated as part of the contractual interest and that the seller or 
supplier is not charging twice for any other service? 
2. Is the principle of transparency infringed where the seller or supplier advertised 
the interest rate it was offering for mortgage loans aimed at consumers but did not 
also publicise the compulsory arrangement fee payable on conclusion of the 
advertised mortgage, in particular where that fee was a known, predetermined and 
invariable percentage of the loan granted, regardless of the amount of the loan? 
3. If the services remunerated by means of the arrangement fee when the loan 
application is approved and the loan is taken out include: the examination of the 
application and steps taken in relation to it; collation and analysis of information 
about the applicant’s creditworthiness and ability to pay the loan throughout its 
term; and assessment of the security submitted, but there is no charge for the same 
services where the loan application is refused, should the services in question be 
understood to be services inherent in banking activity and forming part of the 
banking safety protocol, whose cost should be borne by the institution, as was 
considered to be the case in Directive 2014/17/EU of the European Parliament and 
of the Council on credit agreements for consumers relating to residential 
immovable property? 
4. Were it to be found that the arrangement fee remunerates services that are paid 
for in addition to the compensatory interest because they are unconnected with the 
activity of the lender institution, should the lender institution therefore provide 
consumers with the relevant invoice corresponding to any supply of services 
containing a breakdown of those services and VAT? 
5. Is the principle of transparency infringed where a seller or supplier that required 
payment of an arrangement fee as the price payable for a series of very specific 
services did not have a schedule with the price per hour of each service and did 
not provide that schedule to consumers, before the agreement was concluded, so 
that consumers, first, knew in advance what the final cost of their loan agreement 
would be and secondly, could compare the price of those services with the prices 
offered by other sellers or suppliers? 
6. Is the principle of transparency upheld where a seller or supplier charged for a 
series of very specific services, which were essential to conclusion of the 
agreement that both parties wished to conclude, by deducting a percentage of the 
total amount of the loan granted, with the effect that an identical service, provided 
by the same number of people for the same period of time, was invoiced, as an 
‘arrangement fee’, at different amounts depending on the amount of the loan 
granted in each case? 
7. Is a transparency test incompatible with Article 4(2) of Directive 93/13/EEC 
where, according to that test, a term relating to an arrangement fee is considered to 
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be unfair or otherwise depending on whether its amount exceeds a specific figure 
drawn from statistics obtained online on the charging of arrangement fees? 
8. Is national case-law compatible with Articles 6(1) and 7(1) of Directive 
93/13/EEC where, according to that case-law, arrangement fees are found to be 
disproportionate or otherwise on the basis of the amounts, according to the 
statistics, of the arrangement fees then being charged in Spain, at a time when 
Spain did not review the fairness of terms containing arrangement fees? 
9. Is the principle of effectiveness infringed by the fact that, under agreements 
concluded before the Kingdom of Spain transposed Directive 2014/17/EU into its 
domestic legal order, sellers or suppliers charge arrangement fees that remunerate 
the examination of the creditworthiness of the potential lender and the viability of 
the transaction whereas, after the transposition of that directive that examination 
can no longer entail any cost to the potential borrower? 
10.Must Article 3(1) of Directive 93/13/EEC be interpreted as meaning that it 
precludes national case-law such as that laid down by the Supreme Court in its 
judgment 816/2023 of 29 May 2023, which establishes that the test of the fairness 
of a term relating to an arrangement fee does not require the term to specify what 
services are remunerated by means of the arrangement fee or the price at which 
they are invoiced, and that a review of fairness merely ascertains whether the term 
clearly sets out the amount payable by the consumer and whether that amount 
exceeds the threshold above which it would be found to be disproportionate. 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: twelfth, thirteenth, nineteenth, twentieth and twenty-fourth recitals and 
Articles 3, 4, 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 
Directive 2014/17/EU of the European Parliament and of the Council of 
4 February 2014 on credit agreements for consumers relating to residential 
immovable property: Part B of Annex II, Section 4, point 3, first sentence 
Provisions of national law relied on 
Under the rules on banking transparency in Spanish law, arrangement fees are 
afforded a specific treatment different from that of other banking fees. The Orden 
de 5 de mayo de 1994 sobre transparencia de las condiciones financieras de los 
préstamos hipotecarios (Order of 5 May 1994 on transparency in the financial 
conditions of mortgage loans) provided as follows in paragraph 4 of Annex II: 
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‘1. Arrangement fee – All expenses relating to the examination of the loan 
application, the granting or processing of the mortgage loan, or other similar 
expenses inherent in the activity of the lending entity incurred in 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 costs. – In addition to the “arrangement fee”, the 
following alone may, by agreement, be charged to the borrower: … (c) Fees 
which, having been duly notified to the Bank of Spain in accordance with the 
provisions of the Decree 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 administrative loan’. 
The differentiated treatment of arrangement fees compared with other banking 
fees was retained 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 governing the conclusion of 
mortgages or loans with consumers and intermediation services with a view to the 
conclusion of loan or credit agreements). Article 5 provided as follows as regards 
transparency obligations relating to the schedules of fees and costs: 
‘1. Undertakings shall be free to fix their schedules of fees, terms and 
conditions and costs chargeable to consumers without any restrictions other than 
those pertaining to unfair terms that are laid down in this Law, in the Law of 
23 July 1908 and in Royal Legislative Decree 1/2007 of 16 November 2007. 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 definitively and 
expressly agreed or requested by the customer. 
2. Notwithstanding the foregoing: … (b) In relation to residential mortgage 
loans and credits, the arrangement fee, which shall be payable only once, shall 
include any costs incurred in examining, granting or processing the mortgage loan 
or credit and other similar costs inherent in the undertaking’s activity that arise 
from the granting of the loan or credit. The arrangement fee for loans or credits 
denominated in foreign currency shall also include any currency exchange fees 
corresponding to the initial disbursement of the loan or credit. All other fees and 
costs chargeable to consumers that the undertaking applies to such loans must 
correspond to the provision of a specific service other than the grant or ordinary 
administration of the loan or credit.’ 
Those statutory provisions are now contained in Ley 5/2019, de 15 de marzo, 
reguladora de los contratos de crédito inmobiliario (Law 5/2019 of 15 March 2019 
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governing mortgage loan agreements), Article 14 of which, on the transparency 
rules for the marketing of mortgage loans, provides as follows: 
‘3. Costs may only be charged or fees be received for services connected with 
loans where they have been definitively requested or expressly agreed by a 
borrower or potential borrower and correspond to services actually provided or 
provable costs incurred. 
4. Where an arrangement fee is agreed, it shall be payable only once and shall 
include all the costs of examining, processing and granting the loan and other 
similar costs inherent in the activity of the lender arising from grant of the loan. 
The arrangement fee for loans denominated in foreign currency shall also include 
any currency exchange fees corresponding to the initial disbursement of the loan.’ 
The following also apply to this dispute: Real Decreto Legislativo 1/2007, de 16 
de noviembre, 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 of 16 November 2007 approving the consolidated text 
of the General Law for the protection of consumers and users and other 
supplementary laws) (Article 8(b) and (d) and Articles 60, 80, 82 and 83); 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 in relation to credit 
institutions); Ley 7/1998, de 13 de abril, sobre condiciones generales de la 
contratación (Law 7/1998 of 13 April 1998 on general conditions of contract) 
(Article 3, Articles 8(1) and (2) and 5(5) and Articles 7 and 10); and the Spanish 
Civil Code (Article 1303). 
Brief summary of the facts and procedure in the main proceedings 
1 On 22 January 2010, the applicant concluded a mortgage loan agreement with the 
defendant for a maximum sum of EUR 168 200, payable in 360 monthly 
instalments over a repayment term of 30 years. The terms of the agreement 
included Clause Four on the arrangement fee, worded as follows: ‘The loan shall 
give rise to an arrangement fee of zero point three five percent of the initial 
amount of the loan granted, payable by the borrower only once on conclusion of 
this agreement.’ The applicant accordingly paid EUR 588.70 by way of the 
arrangement fee on conclusion of the agreement. 
2 On 6 April 2022, the applicant lodged an application with the referring court 
seeking, inter alia, a declaration that the aforementioned arrangement fee was 
unfair. 
The essential arguments of the parties in the main proceedings 
3 The applicant asserts that the arrangement fee is unfair. He argues specifically that 
the case-law of the Supreme Court (contained in its judgment 816/2023 of 29 May 
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2023 (ES:TS:2023:2131) in particular) is incompatible with the case-law of the 
Court (in particular, judgments of 16 July 2020, Caixabank and Banco Bilbao 
Vizcaya Argentaria, C-224/19 and C-259/19, EU:C:2020:578, and of 16 March 
2023, Caixabank (Loan arrangement fees), C-565/21, EU:C:2023:212). 
4 The defendant submits that the arrangement fee is not unfair. Specifically, it 
contends that the aforementioned Supreme Court case-law is fully concordant 
with the above-referred case-law of the Court, and that the Court has resolved the 
uncertainty that existed in relation to arrangement fees. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 In its judgment of 16 July 2020, CaixaBank and Banco Bilbao Vizcaya Argentaria 
(C-224/19 and C-259/19, EU:C:2020:578), the Court ruled on arrangement fees in 
Spain in response to a request for a preliminary ruling from first-instance courts. 
Specifically, the Court held as follows in points 2 and 3 of the operative part: 
‘2. Articles 3, 4(2) and 5 of Directive 93/13 must be interpreted as meaning that 
contractual terms falling within the concept of “main subject matter of the 
contract” must be understood as being those that lay down the essential 
obligations of that contract and which, as such, characterise it. By contrast, terms 
ancillary to those which define the very essence of the contractual relationship 
cannot fall within that concept. The fact that an arrangement fee is included in the 
total cost of a mortgage loan does not mean that it is an essential obligation of that 
loan. In any event, a court of a Member State is required to review the clarity and 
intelligibility of a contractual term relating to the main subject matter of the 
contract whether or not Article 4(2) of that directive has been transposed into the 
legal order of that Member State. 
3. Article 3(1) of Directive 93/13 must be interpreted as meaning that a term in 
a loan agreement concluded between a consumer and a financial institution which 
requires the consumer to pay an arrangement fee may create, to the detriment of 
the consumer, a significant imbalance in the rights and obligations of the parties as 
arising from that agreement, contrary to the requirement of good faith, where the 
financial institution does not demonstrate that that fee corresponds to services 
actually provided and to costs it has incurred, which is a matter for the referring 
court to verify.’ 
6 However, according to the Supreme Court, the Court’s judgment was shaped by a 
distorted account of Spain’s national legislation and of the Supreme Court’s own 
case-law. The Supreme Court therefore decided to make a request for a 
preliminary ruling to the Court (Case C-565/21). 
7 In that request for a preliminary ruling, the Supreme Court stated, first, regarding 
the account of national legislation, that the Court had been provided only with the 
content of legislation according to which bank fees must be justified by a service 
actually provided, but that other legislation, regulating the arrangement fee and 
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establishing a regime for arrangement fees that is substantially different from that 
of other bank fees, had been omitted. Secondly, as regards the account of its case-
law, the Supreme Court stated that the Court of Justice had been informed that 
there was ‘national case-law establishing that the term referred to as the 
arrangement fee automatically satisfies the transparency test’, whereas in reality 
no such case-law existed. 
8 According to the Supreme Court, what it in fact held in judgment 44/2019 was 
that the contractual term relating to the arrangement fee is not unfair if it passes 
the transparency test, which is to say, when it is written in clear and intelligible 
language, within the broad meaning afforded by the case-law of the Court of 
Justice. 
9 As regards the test of transparency of the contractual term at issue, the Supreme 
Court pointed out that according to its judgment 44/2019 legislation regulating the 
arrangement fee was intended to ensure such transparency (grouping all charges 
that could correspond to the steps taken in granting the loan into a single fee 
payable only once, informing consumers of its existence before concluding the 
contract, and inclusion in the calculation of the APRC). 
10 The Supreme Court also stated that its judgment 44/2019 listed other reasons that 
support the transparency of the term at issue: first, consumers interested in taking 
out a loan or mortgage generally know that, in the vast majority of cases, the bank 
charges an arrangement fee in addition to remunerative interest; secondly, in 
accordance with regulations on standardised information sheets, the bank is 
required to inform the potential customer about the existence of that contractual 
term, and this is often in fact one of the points covered by the banks’ advertising; 
thirdly, it is a fee to be paid in full when first taking out the loan, which means 
that the average consumer pays special attention to it as a substantial part of the 
financial outlay involved in securing the loan; fourthly, based on the wording, 
placement and structure of the term, it can be concluded that it represents an 
essential element of the contract. 
11 According to the Supreme Court, several decisions delivered by the Court of 
Justice could also be invoked in support of all of those arguments. First, it is 
settled case-law of the Court of Justice that, where the arrangement fee is known 
beforehand and where its amount or method of calculation is determined precisely 
along with the time at which it is payable, so as to make it possible to evaluate the 
economic consequences for the customer, and the existence of that fee is made 
clear, the transparency test must be deemed to have been satisfied, even if the 
services or formalities undertaken are not detailed, provided the nature of the 
services actually provided can be reasonably understood or inferred from the 
contract considered as a whole. 
12 In that regard, in the view of the Supreme Court, reference could be made to the 
Opinion of Advocate General Hogan in Case C-621/17, Kiss and CIB Bank, 
EU:C:2019:411 (points 16, 37 and 38), as regards what is referred to as a 
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‘disbursement commission’; judgment of the Court of 3 October 2019, Kiss and 
CIB Bank, C-621/17, EU:C:2019:820 (paragraphs 38, 39 and 45); the judgment 
handed down by the Court in Cases C-224/19 and C-259/19 (paragraph 68); and 
the judgment of the Court of 3 September 2020 in Profi Credit Polska, Cases 
C-84/19, C-222/19 and C-252/19, EU:C:2020:631 (paragraph 75). 
13 Secondly, according to the Supreme Court, where the services provided in return 
were carried out as part of the services provided in connection with the 
management or disbursement of the loan and the amount charged for them is not 
disproportionate, terms providing for this type of fee or commission do not 
adversely affect the consumer’s legal position, nor do they cause, contrary to the 
requirement of good faith, a significant imbalance in the parties’ rights and 
obligations to the detriment of the consumer. In that regard, the judgment of the 
Court of 3 October 2019, Kiss and CIB Bank, C-621/17, EU:C:2019:820 
(paragraphs 54 to 56) could once again be relied on. 
14 Finally, the Supreme Court requested the Court to take account of the fact that, 
following its judgment in Cases C-224/19 and C-259/19, a significant number of 
the Spanish courts had continued to apply the case-law of the Supreme Court 
concerning arrangement fees, taking the view that the premiss on which that 
judgment was based did not reflect Spanish law, whereas other Spanish courts had 
interpreted that judgment as declaring that the case-law of the Supreme Court was 
contrary to EU law on this matter. 
15 On 16 March 2023, the Court delivered its judgment in Case C-565/21, Caixabank 
(Loan arrangement fees), EU:C:2023:212. 
16 On 29 May 2023, in judgment 816/2023 (ES:TS:2023:2131), disposing of the 
proceedings in which it had itself made the request for a preliminary ruling that 
gave rise to Case C-565/21, the Supreme Court laid down the criteria to be 
followed in order to determine, not in general terms but on a case-by-case basis, 
whether arrangement fees are valid. 
17 The referring court in the present case considers that, in judgment 816/2023, the 
Supreme Court failed to take into account all the paragraphs of the judgment of 
16 March 2023, Caixabank (Loan arrangement fees), C-565/21, EU:C:2023:212, 
that address how the unfairness of arrangement fee terms should be reviewed. The 
referring court specifically criticises the Supreme Court judgment in so far as that 
court, taking as its premiss the self-evident truth that arrangement fees are not 
inherently unfair, focuses on only two aspects when it finds that the arrangement 
fee was not unfair in the case under analysis, namely: 
– the fact that the services remunerated by means of that fee are not already 
included in other charges payable by the consumer; and 
– the fact that the amount charged (EUR 845) is not disproportionate to a capital 
sum of EUR 130 000, since it represents 0.65% of the capital and, according to 
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statistics available on the Internet on the average amount of arrangement fees in 
Spain, that amount varies from 0.25% to 1.50%.