Information;Order — ECLI:EU:C:2021:943
Date: 2021-11-17
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Translation C-655/20 – 1 
Case C-655/20 
Request for a preliminary ruling 
Date lodged:  
2 December 2020 
Referring court:  
Juzgado de Primera Instancia n.º 38 de Barcelona (Spain) 
Date of the decision to refer:  
2 December 2020 
Applicant:  
Marc Gómez del Moral Guasch 
Defendant:  
Bankia, S. A. 
  
Juzgado de Primera Instancia n.º 38 de Barcelona (Court of First Instance 
No 38, Barcelona, Spain) 
[…] 
Ordinary Proceedings 325/2017 […] 
[details of the referring court] 
[…] 
Applicant.― Marc Gómez del Moral Guasch Defendant.― BANKIA, S. A. 
[…] [details of the parties’ procedural representatives and lawyers] 
ORDER MAKING A FURTHER REQUEST FOR PRELIMINARY 
RULINGS 
(C-125/18) 
ADDRESSED TO THE COURT OF JUSTICE OF THE EUROPEAN UNION 
FURTHER TO ITS JUDGMENT OF 3 MARCH 2020, C-125/18, PURSUANT 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2.12.2020 – CASE C-655/20 
 
2  
TO ARTICLE 104(2) OF THE RULES OF PROCEDURE OF THE COURT OF 
JUSTICE 1 
Barcelona, 2 December 2020 
FACTS OF THE CASE 
1 On 3 March 2020 the Court of Justice of the European Union gave judgment in 
Case [Or. 2] C-125/18, in answer to the queries raised by this court on the 
application of EU law to the specific case under consideration in the proceedings. 
2 Those queries were set out in the order dated 16 February 2018, which is 
incorporated by reference herein as regards the facts, relevant EU and Spanish law 
and points of law detailed in the order. 
3 However, the judgment of 3 March 2020 in Case C-125/18 has given rise to 
different interpretations by the various national courts 2 and, recently, in various 
judgments of the Tribunal Supremo (Supreme Court, Spain), 3 and this court 
continues to have queries on the issue addressed in the judgment, on which more 
information is needed as regards the matters set out below. 
4 […] [reference to procedural matters]  
5 In order to provide sufficient information, a new request is made to the Court for a 
preliminary ruling, in the following terms. [Or. 3] 
POINTS OF LAW 
TRANSPARENCY REQUIREMENT 
6 Preliminary point.- The Índice de Referencia de Préstamos Hipotecarios 
(Mortgage Loan Reference Index, the ‘IRPH’) is an index that provides a 
reference rate which is distinctive or different from the usual interest rate (the 
Euribor) in that the method used to calculate it is not easy to understand. This is 
due to the fact that, in addition to the IRPH ― that is, the index or number that has 
officially been published electronically in the Boletín Oficial del Estado (Official 
Gazette of the Spanish State) since 2009 ― a differential is applied to reflect the 
charges and costs agreed in the loan contract; taken together, these make up the 
 
1 […] [the footnote giving the internet address for the Rules of Procedure is omitted] 
2 https://www.asutin.com/lo-ultimo-de-irph-asi-queda-el-mapa-de-sentencias/ 
3 http://www.poderjudicial.es/cRpj/es/Poder-Judicial/Noticias-Judiciales/La-Sala-Primera-del-
Tribunal-Supremo-notitica-las-sentencias-que-resuelven-cuatro-recursos-de-casacion-en-
relacion-con-el-indice-IRPH-de― las-hipotecas 
BANKIA 
 
3 
total cost of the transaction. Moreover, in order to calculate the relevant number or 
index ― in this case, the IRPH of the Spanish savings banks ― the Banco de 
España (Bank of Spain) used a simple average of the weighted average annual 
equivalent rates of the mortgage loans repayable over a period of more than 
3 years agreed by each savings bank during the previous month for the purchase 
of a residential property on the private housing market; this underlying value thus 
represented the average total cost of the mortgage loans agreed by all savings 
banks in the reference period. In other words, the starting point was the total 
amount paid by customers, to which [the savings banks] then applied their own 
differential to reflect their own charges and costs. The figures provided by the 
savings banks were not weighted by turnover or market share. Moreover, the 
simple average supplied by the savings banks excluded loans for purchases of 
social housing and loans to savings bank employees, [Or. 4] which would have 
reduced the average. Taken together, these factors are what make the index 
distinctive or different. 
7 In its judgment in Case C-125/18, the Court of Justice rules that the transparency 
requirement must be examined on a case-by-case basis and concludes that 
information that is particularly relevant for the purposes of the assessment to be 
carried out by the national court in that regard includes (i) the fact that essential 
information relating to the calculation of that rate is easily accessible to anyone 
intending to take out a mortgage loan, on account of the publication of the method 
used for calculating that rate, and (ii) the provision of data relating to past 
fluctuations of the index on the basis of which that rate is calculated. 
8 The ruling is based on the objective requirements established in the Ministerial 
Order of 5 May 1994; 4 these specific requirements include the requirements to 
issue a binding offer (Article 5) and to give the customer who is a consumer an 
information booklet (Article 3) setting out fluctuations in the IRPH of the Spanish 
savings banks over at least the last 2 calendar years, together with the most recent 
available value (Annex 1.3), although the period was subsequently increased to 
15 years with effect from 29 April 2012 by Article 26(2) of the [Order of the 
Ministry of Economy and Finance 2899/2011] of 28 October 2011. 5 
9 The Ministerial Order of 5 May 1994 reduced the scope of application to cases 
involving mortgage loans where the borrower was a natural person, the mortgage 
was for a residential property and the amount of the loan was less than or equal to 
25 million pesetas (EUR 150 253.03), as in the case at issue (see paragraph 9 of 
the order for reference), although, as from 9 December 2007, the requirement for 
transparency in [Or. 5] residential mortgage loans has applied irrespective of the 
 
4 https://www.boe.es/buscar/doc.php?id=BOE-A-1994-10577 
5 https://www.boe.es/buscar/doc.php?id=BOE-A-2011-17015 
REQUEST FOR A PRELIMINARY RULING OF 2.12.2020 – CASE C-655/20 
 
4  
amount of the loan, by virtue of Article 48(2)(a) of Law 26/1988 of 29 July 
1988. 6 
10 Moreover, the transcription of the full definition, which is contained in 
Annex VIII.2 to Notice 5/1994 of 22 July 1994, would mean that the method of 
calculating the interest rate was set out transparently, and therefore this court’s 
understanding (see the Opinion of Advocate General Szpunar, points 125 and 126) 
is that in the specific case in question it would be sufficient to compare the 
definition in the clause [with] the definition in the administrative rule: ‘Average 
savings bank rate for mortgage loans for a term of more than 3 years: This is 
defined as the simple average of the weighted average interest rates for the 
principal amounts of loan transactions secured by mortgages with a term equal to 
or greater than 3 years for the purchase of a residential property on the private 
housing market which were granted or renewed by all savings banks in the month 
to which the index refers. The aforesaid weighted average interest rates will be the 
annual equivalent rates declared to the Bank of Spain for those periods by all 
savings banks, in accordance with Rule 2.’ 
11 The fourth paragraph of Notice 5/1994 of 22 July 1994 stated that ‘to equalise the 
AER for that transaction with the market AER a negative differential would have 
to be applied, the value of which would vary depending on the transaction charges 
and the frequency of repayments’. This was a consequence of the particular 
feature explained in paragraph 6, namely that the IRPH of the Spanish savings 
banks was calculated monthly by the Bank of Spain by taking a simple average of 
the annual equivalent rates for the relevant transactions, and those annual 
equivalent rates included the indices, differentials, charges and costs for the 
transactions [Or. 6] in question, [to] which the savings banks subsequently 
applied the agreed differential, charges and costs. This therefore resulted in a 
duplication of payments, and consequently the agreed IRPH of the Spanish 
savings banks would always be above the usual Euribor rate, which formed part of 
that index. 
12 In addition to the aforesaid objective requirement for transparency, in accordance 
with the legislation the judgment of the Court of Justice also emphasises that the 
IRPH clause must not only be formally and grammatically intelligible 
(paragraphs 46, 50, 51 and 56, and point 3 of the ruling) but must also enable an 
average consumer, who is reasonably well informed and reasonably observant and 
circumspect, 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. This raises the question of what information is required in 
order to understand that method, apart from the accurate transcription referred to 
above, on the assumption that a reading of that transcription is intelligible to the 
 
6 https://www.boe.es/buscar/doc.php?id=BOE-A-1988-18845 
BANKIA 
 
5 
average consumer who is reasonably well informed and reasonably observant and 
circumspect. 
13 However, this court considers it necessary to ask the Court of Justice of the 
European Union again whether, once the term has been deemed not to be 
transparent for the purposes of Article 4(2) and Article 5 of Directive 93/13/EEC 
― whether from an objective standpoint, on the grounds that it does not comply 
with banking regulations, or from a subjective standpoint, in that the legal and 
financial consequences were not made clear to the consumer when the contract 
was entered into ― it is also appropriate, necessary, or obligatory to assess 
whether the term is unfair pursuant to Article 3 of Directive 93/13, following the 
finding that it is not transparent, 7 or whether a lack of [Or. 7] transparency that 
directly affects an essential feature of the transaction, [such as] the price, is in 
itself sufficient grounds to declare the term to be unfair[, in which case the] 
consequences as regards the nullity of the term [will have to be determined]. If 
that is the case ― that is, if a judgement or assessment of unfairness is required ― 
the court would find it relevant and helpful to know on what basis a term such as 
the one under examination here may be classed as unfair. It is in this context that 
the following section is most relevant. 
CONSEQUENCES OF NULLITY 
14 According to the binding, mandatory case-law of the Court of Justice, the power 
to determine whether or not the index at issue is an essential feature is a matter of 
domestic, or national, law, since the function of harmonising the interpretation of 
national law in the interests of legal certainty has been entrusted to the Supreme 
Court, to enable it to achieve those objectives (Joined Cases C-70/17 and 
C-179/17, paragraphs 62 and 68). 
15 However, questions arise over the scope of its consequences under EU law and, 
thus, [over the scope] for declaring the mortgage loan void in its entirety. 
16 The most important question concerns the possibility of giving the consumer a 
choice between annulling the contract in its entirety and replacing the unfair term 
with a valid term to enable the contract to continue in existence ― paragraphs 54, 
55 and 56 of the judgment in Case C-260/18 ― since, depending on the 
circumstances or the actual scope, this option may benefit the consumer. In other 
words, when a contract has been declared void ― as the case may be, prior to the 
 
7 Judgments of the Court of Justice of 30 April 2014, C-26/13; of 26 February 2015, C-143/13; of 
26 January 2017, C-421/14; of 20 September 2017, C-186/16; and of 14 March 2019, C-118/17; 
this is on the understanding that these judgments do not entail a subsequent assessment of 
unfairness once an essential feature has been deemed not to be transparent, having regard to the 
transparency requirement and to the need to apply a broad interpretation of Article 4(2) and 
Article 5 of Directive 93/13/EEC, which require this type of term be drafted in plain, intelligible 
language (see judgments of the Court of Justice of 3 March 2020, C-125/18 and of 9 July 2020, 
C-452/18). 
REQUEST FOR A PRELIMINARY RULING OF 2.12.2020 – CASE C-655/20 
 
6  
[Or. 8] parties reaching agreement ― whether, in order for the contract to be 
declared void, the consumer must first be given the option of having the contract 
annulled before enabling the contract to remain in existence by substituting a legal 
index, such as the Euribor or a replacement [index], the IRPH of the institutions. 
17 The second [query] concerns this latter index referred to in the judgment as a 
possible replacement index by virtue of the 15th additional provision of the Ley 
14/2013 [de 27 de septiembre, de apoyo a los emprendedores y su 
internacionalización] (Law 14/2013 [of 27 September 2013 to support 
entrepreneurs and their internationalisation]). 8 However, the objective of the 
legislature in introducing this substitute index, which replaced the IRPH of the 
Spanish savings banks, the IRPH of the banks, and the CECA (Spanish 
Confederation of Savings Banks) rate, was to preserve the balance that existed 
between the obligations on the parties at the time of the substitution, so as not to 
alter that position; [this is not the case where] the term is declared unfair. 9 Having 
regard to the EU principle of the dissuasive effect ― see Case C-26/13, 
paragraphs 83 and 84, and Cases C-70/17 and C-179/17, paragraph 58 ― and, as 
noted by the Court of Justice of the European Union in its judgment, [having 
regard to] the objective of re-establishing a fair balance in the obligations on the 
parties which was destroyed from the outset by the unfair term, this court needs to 
ask again whether that substitute index, which is configured in the same way as 
the index that was declared void, satisfies EU consumer protection objectives. 
18 This court also needs to know the scope of the consequences in order to determine 
whether a finding that a term is unfair has effect from the outset [or] from the 
point when the term is substituted in order to prevent the contract being annulled 
in its entirety: if the replacement clause is incorporated into the contract solely in 
order to prevent the contract being declared void, under Article 6(1) of Directive 
93/13 the seller or supplier would be required to repay all monies received under 
the unfair term up to the point when [Or. 9] the term is replaced, whereas if the 
substitution is effective as from the commencement of the contract, the seller or 
supplier would have to repay only the difference between the sum arrived at by 
applying the original index and the sum that would have been payable under the 
substitute index. 
EXPEDITED PROCEDURE FOR THE REPEAT QUESTIONS  
19 Article 105(1) of the Rules of Procedure of the Court of Justice provides that at 
the request of the referring court or tribunal or, exceptionally, of his own motion, 
 
8 https://www.boe.es/diario_boe/txt.php?id=BOE-A-2013-10074 
9 This is the stance adopted by Francisco Javier Arroyo Fiestas in his dissenting opinion in 
Supreme Court judgment No 585, 595, 596, 597 and 598/20 of 12 November 2020 — 
http://www.poderjudicial.es/cgpj/es/Poder-Judicial/Noticias-Judiciales/La-Sala-Primera-del-
Tribunal-Supremo-notifica-las-sentencias-que-resuelven-cuatro-recursos-de-casacion-en-
relacion-con-el-indice-IRPH-de-las-hipotecas 
BANKIA 
 
7 
the President of the Court may ‘where the nature of the case requires that it be 
dealt with within a short time, … decide that a reference for a preliminary ruling is 
to be determined pursuant to an expedited procedure derogating from the 
provisions of these Rules’. 
20 This court believes that the reference should be determined pursuant to the 
expedited procedure. Alongside the reasons set out in the order for reference in 
Case C-125/18, there are the additional reasons arising from the current state of 
the case, the present context and the doubts over the interpretation of the judgment 
of the Court of Justice of the European Union of 3 March 2020. 
This court orders that a further request be made to the Court of Justice of the 
European Union for a preliminary ruling, as a consequence of the judgment of the 
Court of Justice (Grand Chamber) of 3 March 2020 providing an interpretation of 
EU law to enable a decision to be made in the case pending before this court. 
Specifically, the following questions are to be referred: 
1. Where a seller or supplier imposes a less common index such as 
the Índice de Referencia de Préstamos Hipotecarios (Mortgage Loan 
Reference Index, ‘the IRPH’) in a contract with a consumer, is it 
contrary to Article 5 of Directive 93/13/EEC [Or. 10] for the seller or 
supplier not to include in the contract the full definition of the index as 
set out in the applicable legislation, or for the consumer not to be given 
an information booklet setting out previous fluctuations in the index 
prior to signature of the contract? 
2.  Are the transparency requirements regarding the composition 
and calculation of the IRPH of the Spanish savings banks, including the 
requirement for the seller or supplier to provide the consumer with 
information on concepts such as ‘interest rate’, ‘reference index’ or 
‘annual equivalent rate’, satisfied in all cases by publication of the 
IRPH of the Spanish savings banks in the Boletín Oficial del Estado 
(Official Gazette of the Spanish State)? 
3.  Once the term concerning the IRPH of the Spanish savings 
banks has been found not to satisfy the necessary transparency 
requirements, is it contrary to Article 3, Article 4(2) and Articles 5 and 
6 of Directive 93/13/EEC and the case-law of the Court of Justice of the 
European Union [and] dissuasive effect subsequently to perform an 
assessment of unfairness in order to declare the term void? Does failure 
to provide objective information on fluctuations in the index over the 
last 2 years in itself render the term unfair and mean that this conduct 
is contrary to the requirements of good faith, on grounds of failure to 
provide a comparison with other indices? Does failure to apply a 
negative differential, as stipulated by the Bank of Spain, amount to an 
imbalance in the parties’ rights and obligations within the meaning of 
Article 3(1) of Directive 93/13/EEC? 
REQUEST FOR A PRELIMINARY RULING OF 2.12.2020 – CASE C-655/20 
 
8  
4.  Where a national court concludes that the [Or. 11] contract at 
issue cannot continue in existence without the interest rate clause which 
has been found to be unfair, is it contrary to Articles 6(1) and 7(1) of 
Directive 93/13/EEC and the case-law of the Court of Justice of the 
European Union stemming from Case C-260/18 for the court not to 
offer the consumer a choice between annulling the contract and 
replacing the unfair term with a valid term to enable the contract to 
continue in existence? 
5.  Where the term which incorporates the IRPH of the Spanish 
savings banks into a contract between a seller or supplier and a 
consumer has been found to be unfair, is it contrary to Articles 6(1) and 
7(1) of Directive 93/13/EEC and the EU principle of dissuasive effect for 
the national court to replace that term with another term which 
incorporates the IRPH of the institutions into the contract, given that 
the financial impact of the substitution would be insignificant, bearing 
in mind that both indices are determined by the same complex 
calculation method and that national law provides for this substitution 
to be made where there is no dispute and the objective is to preserve the 
balance in the parties’ obligations? 
6.  Where, in accordance with domestic law, a national court 
substitutes a term in order to prevent the annulment of the entire 
contract, must Articles 6(1) and 7(1) of Directive 93/13/EEC be 
interpreted as meaning that the court must order the seller or supplier 
to repay the consumer the entire amount charged under the unfair term 
up to the point of substitution or, alternatively, as meaning that the 
seller or supplier must be ordered to repay the consumer the difference 
between the amount charged under the unfair term and the amount 
that would have been charged had the substitute rate been applied? [Or. 
12] 
[…] [Or. 13] [procedural formalities]