Information;Order — ECLI:EU:C:2021:158
Date: 2021-03-03
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Anonymised version 
Translation C-13/19 — 1 
Case C-13/19 
Request for a preliminary ruling 
Date lodged: 
9 January 2019 
Referring court: 
Audiencia Provincial de Zaragoza (Spain) 
Date of the decision to refer: 
12 December 2018 
Appellant: 
Ibercaja Banco, S.A. 
Respondent: 
TJ 
UK 
  
[…]  
[Details of the representative authorised to accept service and of counsel][…] 
O R D E R No 000584/2018 
[…] [Composition of the court] […] 
Zaragoza, 12 December 2018 
FACTS 
FIRST.– In appeal proceedings 247/2018, pending before this court of second 
instance, a request has been made that a reference for a preliminary ruling be 
submitted to the European Court of Justice[.] Similar questions have been raised 
EN 
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in [other appeal proceedings], information about which is to be found in each of 
those sets of proceedings, available to the [Court of Justice] for its due 
consideration, should it so wish.  
The appeal proceedings to have given rise to the questions to be submitted for a 
preliminary ruling which are added to those specifically raised in this case are the 
following [Or. 2] […] [information about the other appeal proceedings] […]  
I. SUBJECT MATTER OF THE DISPUTE 
1. [...] [Information contained in the statement of facts] 
II. FACTS AND FACTUAL CONTEXT 
2. The applicants (consumers) seek as against the financial institution a declaration 
as to the nullity of the ‘floor clause’ contained in a mortgage loan instrument, and, 
likewise, a declaration as to the nullity of the amendment to [the ‘floor clause’][, 
contained in a new agreement between the parties,] providing for a reduction of 
the minimum rate of interest [Or. 3] agreed under the original loan and a waiver 
of the right to take legal action against the lender. 
They also seek a refund of the sums unduly paid by them as a consequence of the 
application of the ‘floor clause’ (the minimum rate of interest in so far as this 
exceeded the ordinary interest rate agreed). 
3. The financial institution opposed the claim. It contended that: 
– the original ‘floor clause’ is valid, inasmuch as, as a standard condition of 
contract, it passes the tests of [suitability for] inclusion [in the contract] and 
transparency; 
– the ‘floor clause’ has been amended by a novation (providing for a reduction of 
the minimum rate of interest agreed under the original loan and a waiver of the 
right to take legal action against the lending financial institution). 
4. The litigation relating to this issue affects a large number of consumers, given 
that: 
– IberCaja (CAI) bank includes among its customers a sizeable proportion of the 
population of the autonomous community of Aragón (Spain). 
– it has adopted virtually the same practice in relation to all those customers. 
[…] [Or. 4] [points of procedure] 
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5. In a high percentage of the proceedings brought against the bank, the only 
evidence adduced was documentary; in others, consumers were questioned and 
testimony was taken from bank employees.  
6. The practice is not disputed. As a result of judgment 241/2013 of the Tribunal 
Supremo (Supreme Court, Spain), which declared ‘floor clauses’ similar to those 
which CAI included in its loans to be void, that financial institution took the 
initiative by drafting a document, like that forming the subject of the reference to 
the Court of Justice of the European Union, inviting consumers individually to 
sign it.  
The bank’s own employees have stated (in those cases where they were called as 
witnesses) that consumers were allowed to bring a legal adviser with them 
(although there nothing to indicate that they were made aware of this possibility), 
but they were not allowed to remove the document from the branch without first 
having signed it, on the bank’s express instructions. In fact, [the bank] described 
that document as an ‘internal document’. 
7. Thus, in some of the early cases of this practice, the consumer, after having signed 
the document and taken legal advice, decided to sue the bank, which acquiesced to 
the claim as to the nullity of the novation contract, although it asked not to have to 
pay costs.  
8. Against that background, this appeal court has been disposing of disputes 
involving similar matters of fact and law by declaring both the original ‘floor 
clause’ and the agreement providing for an amending novation and a waiver of the 
right to take legal action to be void. 
9. It has done so on the following basis: [Or. 5] 
– The ‘floor clause’ does not pass the tests of [suitability for] inclusion [in a 
contract] and transparency. 
– A term that is absolutely void cannot be made valid or relaxed. 
– The consumer was not free to negotiate an amendment to the original clause 
because the negotiation was not premised on the nullity of that clause. 
– Insufficient information was provided on the context of the proposed 
amendment to the original ‘floor clause’ and on the specific financial effects of 
accepting the original standard condition as valid. 
– The waiver of the right to take legal action was treated as a residual or 
secondary matter. 
10. In its recent judgment 205/2018, however, the Tribunal Supremo (Supreme Court, 
Spain) held that:  
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– [The amendment to the ‘floor clause’] was not a novation but a settlement. 
– [A settlement] between a consumer and a seller or supplier with respect to 
the validity of a standard condition of contract is [lawful]. 
– The information contained in the document offered by the bank is sufficient 
to enable the consumer to enter freely into an agreement making valid a term 
which may be void and providing for a waiver of the right to take legal action on 
the ground of its potential nullity.  
– That document satisfied the requirements of transparency laid down by the 
case-law of the Court of Justice of the European Union. 
[That] judgment contains one dissenting opinion which is at variance both with 
the outcome of the case and with the arguments on which the majority decision is 
based.  
11. The consumers parties to the cases identified at the start of this order have 
therefore asked this appeal court to refer for a preliminary ruling questions […] 
concerning whether [Or. 6] the legal novation or settlement agreement referred to 
above is in accordance with EU law. 
III. ARGUMENTS PUT FORWARD BY THE PERSONS REQUESTING 
A REFERENCE FOR A PRELIMINARY RULING 
12. These can be summarised as follows: 
(a) The principle that void terms are not binding has been infringed inasmuch as 
consumers have been prohibited from referring the matter to the courts. 
(b) Void terms cannot be relaxed or made valid. 
(c) The information on the novation or settlement agreement which the bank 
provided in a pre-formulated document before that agreement was 
concluded was defective, limited and insufficient. 
(d) The act in question is not a settlement, since the bank was not waiving any 
rights and, moreover, the [purpose of] the act was not to avoid litigation, 
since there is nothing to indicate that the consumer had litigation in mind; it 
is the bank that takes the initiative in making the offer of a novation or 
settlement. 
(e) The Directive ceases to have a deterrent effect. 
(f) The waiving by consumers of the right to take legal action is prohibited in 
cases where a standard condition of contract may [or] is likely to be void. 
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(g) The burden of proving full compliance with the obligation to provide 
information before the contract is concluded falls to the seller or supplier. 
(h) Account must be taken of the full circumstantial context in order to 
determine the nullity [Or. 7] of both the ‘floor clause’ and the novation or 
settlement agreement. 
(i) The pursuit of legal action by consumers is being prevented or obstructed. 
IV. ARGUMENTS PUT FORWARD BY THE LENDER 
13. These can be expressed as follows: 
(a) The case-law of the Court of Justice of the European Union allows 
consumers to waive the rights conferred on them in Council Directive 93/13/EEC 
of 5 April 1993 on unfair terms in consumer contracts. 
(b) The consumer was duly informed. 
(c) When [the consumer] signed the settlement document, the content and 
implications of judgment 241/2013 of the Tribunal Supremo (Supreme Court, 
Spain) of 9 May 2013 were well known. 
(d) In any event, it is sufficient that [the consumer] knew that there was some 
uncertainty. 
(e) There was no improper banking practice.  
(f) It is not essential to take legal advice in order to waive a right. 
(g) Not being able to remove the document from the branch is a routine 
precaution. 
(h) The pursuit of legal action by consumers is not being obstructed. 
V. NATIONAL LAW 
14. – 
(a) Ley 7/1998 sobre Condiciones Generales de la Contratación (Law 7/1998 
on standard conditions of contract) of 13 April 1998 (BOE No 89 of 14 April 
1998). [Or. 8] 
Article 7. Conditions not to be included 
The following standard conditions shall not be included in the contract: 
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(a) those of which the party signing up to the contract has not had a genuine 
opportunity to take full cognisance at the time when the contract is concluded or 
which have not been signed, where this is necessary, in accordance with Article 5; 
(b) those which are illegible, ambiguous or incomprehensible, except, in the 
case of the latter, where they have been expressly accepted in writing by the party 
signing up to the contract and comply with the specific rules governing the 
transparency required of contractual terms in the sector concerned. 
Article 8. Nullity 
1. Standard conditions that infringe the provisions of this Law or any other 
rule ordering or prohibiting certain conduct, to the detriment of the party signing 
up to the contract, shall automatically be void, except in so far as they make 
separate provision for cases of breach. 
2. In the particular case of a contract concluded with a consumer, standard 
conditions which are unfair shall be void, unfair standard conditions being in any 
event those defined in Article 10bis and the first additional provision to Ley 
26/1984, de 19 de julio, General para la Defensa de los Consumidores y Usuarios 
(General Law 26/1984 of 19 July 1984 on the Protection of Consumers and 
Users). 
Article 9. Rules applicable [Or. 9] 
1. A party signing up to a contract may apply to the court for a declaration 
that terms contained in standard conditions cannot be included in that contract or 
are void, in accordance with the general rules governing the nullity of contracts. 
2. A favourable judgment, obtained in proceedings commenced by means of an 
individual action for a declaration of nullity or non-inclusion in the contract, shall 
rule that the standard terms concerned are void or cannot be included in the 
contract and clarify the effectiveness of the contract in accordance with 
Article 10, or shall declare the contract itself to be void where the nullity of the 
aforementioned terms or their non-inclusion in the contract concerns one of the 
essential elements of that contract as provided for in Article 1261 of the Civil 
Code. 
b) [Consolidated text of the Ley General para la Defensa de los 
Consumidores y Usuarios y otras leyes complementarias (General Law for the 
protection of consumers and users and other supplementary laws), approved by 
Real Decreto Legislativo 1/2007 (Royal Legislative Decree 1/2007) of 
16 November 2007 (BOE No 287 of 30 November 2007)]. 
Article 82. Concept of unfair terms 
1. All stipulations not negotiated individually and all practices not expressly 
agreed which, contrary to the requirements of good faith, give rise, in a manner 
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detrimental to the consumer and user, to a significant imbalance in the rights and 
obligations of the parties under the contract, shall be regarded as unfair terms. 
2. The fact that certain elements of a term or an isolated term have been 
negotiated individually shall not preclude the application of the rules on unfair 
terms to the rest of the contract. [Or. 10] 
A seller or supplier who claims that a particular term has been individually 
negotiated shall bear the burden of proof in this respect. 
3. The unfairness of a term shall be assessed by reference to the nature of the 
goods or services forming the subject of the contract, as well as in the light of all 
the circumstances obtaining at the time when the term is concluded and all the 
other terms of the contract or of any other contract on which the latter is 
dependent. 
4. Notwithstanding the provisions of the preceding paragraphs, terms which, in 
accordance with the provisions of Articles 85 to 90 inclusive: 
• (a) make the contract contingent upon the will of the seller or supplier; 
• (b) limit the rights of the consumer and user; 
• (c) make the contract non-reciprocal; 
• (d) require the consumer and user to provide disproportionate 
guarantees or unduly impose on him the burden of proof; 
• (e) are disproportionate to the formation and performance of the 
contract; or 
• (f) infringe the rules on competition and applicable law;  
shall be unfair in any event.  
Article 83. Nullity of unfair terms and continuation in being of the contract 
Unfair terms shall automatically be void and deemed not to have formed part of 
the contract. For these purposes, the court, after hearing the parties, shall declare 
void the unfair terms included in the contract, which shall nonetheless continue to 
bind the [Or. 11] parties on the same basis, provided that it is capable of 
continuing in existence without the unfair terms. 
(c) Código Civil (Civil Code) [published by] Real Decreto de 24 de julio de 
1889 (Royal Decree of 24 June 1889) (BOE No 206 of 25 July 1889). 
Article 1208 
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A novation shall be void if the original obligation was also void, unless the 
ground for nullity may be relied on only by the debtor or acts that are originally 
void are made valid by ratification. 
Article 1255 
Contracting parties may establish any covenants, clauses and conditions they 
consider appropriate, provided that these are not contrary to legislation, morality 
or public policy. 
Article 1303 
Once an obligation has been declared void, the contracting parties must restore to 
each other the things that formed the subject of the contract, together with the 
proceeds therefrom, together with the price plus interest, without prejudice to the 
following articles. 
Civil Code, Articles 355, 451, 1108(2) and 1308. 
Article 1809 
A settlement is a contract whereby each party, by giving, promising or 
withholding something, avoids the instigation of legal proceedings or puts an end 
to legal proceedings which have already commenced.  
(d) National case-law 
Judgment 241/2013 of the Tribunal Supremo (Supreme Court, Spain) of 
9 May 2013. 
Judgment 558/17 of the Tribunal Supremo (Supreme Court, Spain) of 
16 October 2017. [Or. 12] 
Judgment 393/18 of the Tribunal Supremo (Supreme Court, Spain) of 
26 June 2018. 
Principles which those judgments establish: 
–  a twofold test ([suitability for] inclusion [in the contract]; and transparency 
or comprehensibility of the financial burden) must be met. 
–  information must be provided before the contract is concluded (basic 
understanding of the effects of the standard condition of contract). 
–  a standard condition of contract must not be treated as a secondary or 
irrelevant matter. 
In judgment 558/17, the Tribunal Supremo (Supreme Court, Spain) held that the 
lack of transparency of a ‘floor clause’ renders that clause absolutely void because 
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it is unfair. It could not be validated by a subsequent agreement whereby the 
borrowers sought to reduce [the minimum rate provided for in] that clause to the 
same level as that which was available to other purchasers of the same offer. 
In judgment 205/2018, the Tribunal Supremo (Supreme Court, Spain) stated that it 
was not contradicting the findings of the previous judgment in holding that, 
although a ‘floor clause’ cannot be made valid by novation, it is possible for the 
seller or supplier offering the contract and the consumer signing up to it to 
conclude a settlement where there is uncertainty as to the validity of the ‘floor 
clause’. 
V. — EU LAW 
15.– 
(a) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts 
Article 3 
1. A contractual term which has not been individually negotiated shall be 
regarded as unfair if, contrary to the requirement of good faith, it causes [Or. 13] 
a significant imbalance in the parties’ rights and obligations arising under the 
contract, to the detriment of the consumer. 
2. A term shall always be regarded as not individually negotiated where it has 
been drafted in advance and the consumer has therefore not been able to 
influence the substance of that term, particularly in the context of a pre-
formulated standard contract. 
The fact that certain aspects of a term or one specific term have been individually 
negotiated shall not exclude the application of this Article to the rest of the 
contract if an overall assessment of the contract indicates that it is nevertheless a 
pre-formulated standard contract. 
Where any seller or supplier claims that a standard term has been individually 
negotiated, the burden of proof in this respect shall be incumbent on him. 
3. The annex shall contain an indicative and non-exhaustive list of the terms 
which may be regarded as unfair. 
Article 4 
1. Without prejudice to Article 7, the unfairness of a contract shall be assessed, 
taking into account the nature of the goods or services for which the contract was 
concluded and by referring, at the time of conclusion of the contract, to all the 
circumstances attending the conclusion of the contract and to all the other terms 
of the contract or of another contract on which it is dependent. 
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2. Assessment of the unfair nature of the terms shall relate neither to the 
definition of the main subject matter of the contract nor to the adequacy of the 
price and remuneration, on the one hand, as against the services or goods 
supplie[d] in exchange, on the other, in so far as these terms are in plain 
intelligible language. 
ANNEX 
TERMS REFERRED TO IN ARTICLE 3(3). Terms which have the object or effect 
of: 
[…] 
(q) excluding or hindering the consumer’s right to take legal action or exercise 
any other legal remedy, particularly by requiring the consumer to take disputes 
exclusively to arbitration not covered by legal provisions, unduly restricting the 
evidence available to him or imposing on him a burden of proof which, according 
to the applicable law, should lie with another party to the contract. 
Article 5 
In the case of contracts where all or certain terms offered to the consumer are in 
writing, these terms must always be drafted in plain, intelligible language. Where 
there is doubt about the meaning of a term, the interpretation most favourable to 
the consumer shall prevail. The rule on interpretation shall not apply in the 
context of the procedures laid down in Article 7(2). 
Article 6 
1. Member States shall lay down that unfair terms used in a contract concluded 
with a consumer by a seller or supplier shall, as provided for under their national 
law, not be binding on the consumer and that the contract shall continue to bind 
the parties upon those terms if it is capable of continuing in existence without the 
unfair terms. 
2. Member States shall take the necessary measures to ensure that the 
consumer does not lose the protection granted by this Directive by virtue of the 
choice of the law of a non-Member country as the law applicable to the contract if 
the latter has a close connection with the territory of the Member States. 
Article 7 
1. Member States shall 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. 
2. The means referred to in paragraph 1 shall include provisions whereby 
persons or organisations, having a legitimate interest under national law in 
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protecting consumers, may take action according to the national law concerned 
before the courts or before competent administrative bodies for a decision as to 
whether contractual terms drawn up for general use are unfair, so that they can 
apply appropriate and effective means to prevent the continued use of such terms. 
3. With due regard for national laws, the legal remedies referred to in 
paragraph 2 may be directed separately or jointly against a number of sellers or 
suppliers from the same economic sector or their associations which use or 
recommend the use of the same general contractual terms or similar terms. 
(b) 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 6 
Misleading actions 
1. A commercial practice shall be regarded as misleading if it contains false 
information and is therefore untruthful or in any way, including overall 
presentation, deceives or is likely to deceive the average consumer, even if the 
information is factually correct, in relation to one or more of the following 
elements, and in either case causes or is likely to cause him to take a transactional 
decision that he would not have taken otherwise: 
(a) the existence or nature of the product; 
(b) the main characteristics of the product, such as its availability, benefits, 
risks, execution, composition, accessories, after-sale customer assistance and 
complaint handling, method and date of manufacture or provision, delivery, 
fitness for purpose, usage, quantity, specification, geographical or commercial 
origin or the results to be expected from [Or. 17] its use, or the results and 
material features of tests or checks carried out on the product; 
(c) the extent of the trader’s commitments, the motives for the commercial 
practice and the nature of the sales process, any statement or symbol in relation 
to direct or indirect sponsorship or approval of the trader or the product; 
(d) the price or the manner in which the price is calculated, or the existence of a 
specific price advantage; 
(e) the need for a service, part, replacement or repair; 
(f) the nature, attributes and rights of the trader or his agent, such as his 
identity and assets, his qualifications, status, approval, affiliation or connection 
and ownership of industrial, commercial or intellectual property rights or his 
awards and distinctions; 
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(g) the consumer's rights, including the right to replacement or reimbursement 
under Directive 1999/44/EC of the European Parliament and of the Council of 
25 May 1999 on certain aspects of the sale of consumer goods and […], or the 
risks he may face. 
2. A commercial practice shall also be regarded as misleading if, in its factual 
context, taking account of all its features and circumstances, it causes or is likely 
to cause the average consumer to take a transactional decision that he would not 
have taken otherwise, and it involves: [Or. 18] 
(a) any marketing of a product, including comparative advertising, which 
creates confusion with any products, trade marks, trade names or other 
distinguishing marks of a competitor; 
(b) non-compliance by the trader with commitments contained in codes of 
conduct by which the trader has undertaken to be bound, where: 
(i) the commitment is not aspirational but is firm and is capable of being 
verified; and  
(ii) the trader indicates in a commercial practice that he is bound by the code. 
Article 7 
Misleading omissions 
1. A commercial practice shall be regarded as misleading if, in its factual 
context, taking account of all its features and circumstances and the limitations of 
the communication medium, it omits material information that the average 
consumer needs, according to the context, to take an informed transactional 
decision and thereby causes or is likely to cause the average consumer to take a 
transactional decision that he would not have taken otherwise. 
(c) Case-law of the Court of Justice of the European Union 
Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C-154/15, 
C-307/15 y C-308/15, EU:C:2016:980). 
Judgment of 30 May 2013, Asbeek Brusse and de Man Garabito (C-488/11, 
EU:C:2013:341). [Or. 19] 
Judgment of 26 January 2017, Banco Primus (C-421/14, EU:C:2017:60). 
Principles which those judgments establish: 
The judgment of 21 December 2016, Gutiérrez Naranjo and Others (C-154/15): 
– National legislation must be interpreted in accordance with EU law; 
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– Unfair terms are not binding on consumers; 
– An unfair term cannot be made valid or relaxed (Judgment of 30 May 2013, 
Asbeek Brusse and de Man Garabito, C-488/11); 
– It must be assessed on a case-by-case basis whether, in a fair and balanced 
negotiation, the consumer signing up to the contract would have accepted the 
proposal made by the seller or supplier offering the contract; 
– Information on the terms and specific consequences of the contract must be 
provided before the contract is concluded. 
The judgment of 26 January 2017, Banco Primus (C-421/14): 
– The assessment of whether a term is unfair must take into account all the 
circumstances attending its conclusion. 
VI. REASONS FOR THE REFERENCE FOR A PRELIMINARY 
RULING 
16. Pursuant to the principles in accordance with which the national courts and the 
Court of Justice of the European Union have interpreted Directive 93/13, this 
appeal court (and other Spanish courts) had been declaring void novations and 
waivers of the right to take legal action such as those described in paragraphs 2 to 
9 of the statement of facts. 
17. In its recent judgment 205/2018 of 11 April 2018, the Tribunal Supremo 
(Supreme Court, Spain) considered and held by majority decision that the 
interpretation repeatedly applied by this appeal court [Or. 20] was incorrect 
(paragraph 10 of the statement of grounds). 
18. In the view of this court and ― obviously ― of all those seeking a reference for a 
preliminary ruling, that decision of the Tribunal Supremo (Supreme Court, Spain) 
departs from the legal principles of consumer protection set out in the relevant 
Community legislation. 
19. As that judgment makes a legal assessment of a document (novation or settlement) 
which, in most cases, is the only evidence available for assessment, this appeal 
court could not depart from that case-law by way of a different evidential 
assessment (other than in cases where more evidence has been furnished, such as 
the testimony of witnesses or the evidence obtained by questioning parties to the 
proceedings). 
20. The large number of consumers in this situation and the serious financial 
consequences of the case-law established by the Tribunal Supremo (Supreme 
Court, Spain) [are the reason for making the reference for a preliminary ruling]. In 
many cases, ‘floor clauses’ had ceased to be enforced (usually by a decision 
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granting injunctive relief). [The new case-law] means not only that the ‘floor 
clause’ and its relaxation will be valid but also that any sums not paid because 
liability for their payment had been suspended, together with statutory interest, 
will have to be refunded to the bank. It also means that consumers will be ordered 
to pay the costs of the proceedings at first instance. 
21. These are the reasons that make it necessary to refer for a preliminary ruling the 
questions listed below. 
In the light of the foregoing, 
The [Audiencia Provincial] de Zaragoza (Provincial Court, Zaragoza) hereby 
makes an order for a reference to the Court of Justice of the European 
Union, pursuant to Article 267 [Or. 21] TFEU, for a preliminary ruling on the 
interpretation of Articles 3,4, 5, 6 and 7 of Directive 93/13 and Annex 1(q) 
thereto, and of Articles 6 and 7 of Directive 2005/29. 
1. —  In the light of Article 3 of Directive 93/13, can the ‘floor clause’ amendment 
in the form established under the agreement, as described in the statement of facts, 
be classified as a standard condition of contract? 
2. — In the same circumstances, can the waiver of the right to take legal action 
against the bank be classified as a standard condition of contract, that is to say, 
can a contractual condition which the seller or supplier draws up for general 
purposes and the content of which is not demonstrably explained to the consumer 
signing up to the contract be classified as a standard condition of contract? 
3. — In such circumstances, are the requirements for clarity, transparency, true 
comprehensibility of the financial burden, pre-contractual information and 
individual negotiation laid down in Articles 3 and 4 of Directive 93/13 satisfied in 
the case where the consequences of that condition have a significant bearing on 
the consumer?  
4. — Must the requirement for pre-contractual information as a criterion for 
determining whether a contractual term is unfair (Articles 4 and 5 of Directive 
[93/13]) apply to an equal or even greater extent in the case of an agreement for 
the relaxation of a term that is likely to be void (specific financial consequences of 
relaxation; reference to [Or. 22] the relevant case-law and its specific effects, 
etc.)? 
5. — For the purposes of relaxing a term that is likely to be void, is the 
consumer’s manuscript copy of the relaxation of the potentially void term 
sufficient to comply with the requirements for pre-contractual information and 
clarity laid down in Articles 4 and 5 of Directive [93/13]? 
6. — Are (i) the fact that the initiative to effect a relaxation or settlement comes 
from the banking institution and (ii) the prohibition against removing the 
document from the branch unless it has been signed by the consumer particularly 
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relevant when it comes to assessing whether the relaxation clause is unfair 
(Articles 4 and 5 of Directive [93/13])? 
7. —Can a term that is likely to be void because it is unfair be relaxed (principle 
that unfair terms are non-binding)? 
8. — Can a term that is likely to be void because it is unfair to the consumer be 
the subject of a waiver of the right to take legal action by the consumer 
(Article 3 of Directive [93/13] in conjunction with point 1(q) of the Annex to 
Directive 93/13 and the principle that unfair terms are not to be binding, laid down 
in Article 6 of the Directive)? 
9. — In the event of a reply in the affirmative, must the requirement for pre-
contractual information be equal to or greater than that applicable at the time of 
the original agreement? 
10. — In the light of the requirement for pre-contractual information (Articles 4 
and 5 of Directive [93/13]), is the term providing for a waiver of the right to take 
legal action not to be treated as a secondary and ancillary matter from the point 
of view of its documentation (Articles 3, 4 and 5 of Directive [93/13])? 
11. — Do the validity of the relaxation of terms that are likely to be void and the 
waiver of the right to take legal action to obtain a declaration that those terms are 
void and ineffective run [Or. 23] counter to the deterrent effect vis-à-vis the seller 
or supplier making the offer (Article 7 of Directive [93/13] and judgment of 
21 December 2016, Gutiérrez Naranjo and Others, C-154/15)? 
12. — Can a contractual term that is likely to be void because it is unfair under 
Articles 3 and 4 of Directive 93/13 bind the consumer to whom it applies when 
the banking institution uses a procedure whereby it agrees with the customer, after 
the contract containing the term in question has been concluded, that the seller or 
supplier will refrain from applying the unfair term in return for some other 
consideration from the consumer? In other words, is the void term rendered 
effective by the agreement with the consumer to replace it with another term 
which is more favourable to him? Could an agreement of this kind be contrary to 
Article 6(1) of Directive [93/13]? 
13. — Is conduct on the part of a banking institution such as that described in the 
statement of facts caught by the prohibition of unfair behaviour and unfair 
commercial practices in dealings with consumers which is contained in recital 14 
and Articles 6 and 7 of Directive 2005/29? 
[…] [procedural formalities] [Or. 25]