Summary;Judgment — ECLI:EU:C:2023:212
Date: 2023-03-16
Language of the case: Spanish
Court formation: Fourth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-565/21-1 
Case C-565/21 
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:  
14 September 2021 
Referring court:  
Tribunal Supremo (Spain) 
Date of the decision to refer:  
10 September 2021 
Applicant: 
CaixaBank, S.A. 
Defendant: 
X 
  
Subject matter of the main proceedings 
Loans and mortgage loans for consumers – Contractual term concerning 
arrangement fees – Claim for annulment of the aforesaid term and reimbursement 
of the corresponding sum paid – Arrangement fee as part of the price – 
Remuneration for initial services inherent in the bank’s activity – Existence of 
specific national legislation 
Subject matter and legal basis of the request 
Request for a preliminary ruling concerning interpretation – Article 267 TFEU – 
Compatibility of national case-law with Directive 93/13/EEC – Unfairness of a 
contractual term – Assessment of the price and remuneration – Clear and 
intelligible contractual terms – Significant imbalance in the parties’ rights and 
obligations 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-565/21 
 
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Questions referred for a preliminary ruling 
1. Do Article 3(1) and Articles 4 and 5 of Directive 93/13/EEC preclude 
national case-law that, having regard to the specific rules of national law 
governing arrangement fees paid, in one instalment and generally at the time of 
concluding the contract, in consideration for services related to reviewing, 
granting or processing mortgages or loans or other similar services inherent in the 
lender’s activity with a view to granting the loan, deems that the contractual term 
providing for that fee constitutes an essential element of the contract, since it 
represents a principal part of the cost of the loan and cannot be assessed as unfair 
if it is written in clear, intelligible language, within the broad meaning established 
in the case-law of the CJEU? 
2. Does Article 4(2) of Directive 93/13/EEC preclude national case-law to the 
effect that, in order to assess whether the term constituting an essential element of 
the mortgage or loan agreement is clear and intelligible, account must be taken of 
issues such as consumers’ general knowledge of that term, the mandatory 
information that financial institutions must provide to potential borrowers under 
regulations on standardised information sheets, advertising by banks, the 
particular attention paid to it by the average consumer as being part of the cost to 
be paid entirely at the time of taking out the loan, and constituting a substantial 
part of the economic consequences to them of securing the loan, and whether the 
wording, placement and structure of the term make it possible to conclude that it 
constitutes an essential element of the contract?  
3. Does Article 3(1) of Directive 93/13/EEC preclude national case-law that 
deems that a contractual term such as the one at issue in the main proceedings, 
relating to the arrangement fee for a loan agreement, whose purpose is 
remuneration for services relating to the review, design and individual processing 
of a loan application (reviewing the viability of the loan, the debtor’s 
creditworthiness, the status of encumbrances on the property to be mortgaged, 
etc.) as prerequisites for granting the loan, which fee is expressly provided for in 
national legislation as constituting payment for the formalities inherent in granting 
the loan, does not, contrary to the requirement of good faith, cause a significant 
imbalance in the parties’ rights and obligations arising under the contract, to the 
detriment of the consumer? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29, Corrigendum OJ 2015 L 137, p. 13); and in 
particular Article 3, Article 4(1) and Article 5 thereof. 
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 and amending Directives 2008/48/EC and 2013/36/EU and 
CAIXABANK 
 
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Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34; Corrigendum OJ 2015 
L 246, p. 11), and in particular Annex II B, Section 4, point 3. 
The following case-law of the Court of Justice is also relied upon: 
Judgment of the Court of Justice of 3 September 2020, Profi Credit Polska, joined 
cases C-84/19, C-222/19 and C-252/19, EU:C:2020:631 
Judgment of the Court of Justice of 16 July 2020, CaixaBank and Banco Bilbao 
Vizcaya Argentaria, joined cases C-224/19 and C-259/19, EU:C:2020:578 
Judgment of the Court of Justice of 3 October 2019, Kiss and CIB Bank, 
C-621/17, EU:C:2019:820 
Judgment of the Court of Justice of 14 March 2019, Dunai, C-118/17, 
EU:C:2019:207 
Judgment of the Court of Justice of 7 August 2018, Banco de Santander, joined 
cases C-96/16 and C-94/17, EU:C:2018:643 
Provisions of national law relied on 
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 (BOE [Official State Gazette] No 112 of 11 May 
1994, p. 14444); and in particular paragraph 4 of Annex II thereto. 
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, in its original version (BOE No 79 of 1 April 2009, p. 30843), 
and in particular Article 5 thereof. 
Ley 5/2019, de 15 de marzo, reguladora de los contratos de crédito inmobiliario 
(Law 5/2019 of 15 March 2019 governing mortgage loan agreements (BOE No 65 
of 16 March 2019, p. 26329), in its consolidated version, and in particular 
Article 14 thereof. 
Sentencia del Pleno de la Sala de lo Civil del Tribunal Supremo 44/2019, de 23 de 
enero (recurso de casación n.º 2982/2018) (Judgment of the civil chamber of the 
Supreme Court sitting in full court in ruling 44/2019 of 23 January 2019 (appeal 
No 2982/2018)). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-565/21 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1. On 21 September 2005 Mr X (‘the defendant’), whose legal status was that 
of a consumer, signed a credit agreement backed by mortgage guarantee with the 
bank CaixaBank, S.A. (‘the applicant’), which included, inter alia, a contractual 
term concerning arrangement fees. 
2. Under that contractual term, upon being granted the loan funds, the 
defendant was to pay the applicant a fee calculated according to the amount 
loaned. 
3. Since the defendant had, at the time of signing the credit agreement, been 
granted the first instalment of the loan, under that term they were required to pay 
the sum of 800 and forty-five euros (EUR 845). 
4. On 24 April 2018, the defendant brought an action against the applicant, in 
which it claimed, inter alia, that the arrangement fee clause should be annulled on 
the ground that it was unfair, and that the sum paid as a result of its application 
should be refunded. 
5. The judgment at first instance annulled the contractual term at issue and 
ordered the applicant to reimburse the sum paid to the defendant. 
6. The Audiencia Provincial (Provincial Court) dismissed the appeal brought 
by the applicant on the ground that it had not been proven that the fee at issue 
corresponded to any service actually provided. 
7. The applicant brought a further appeal against the judgment before the 
referring court. 
The essential arguments of the parties in the main proceedings 
8. The applicant disputes the merits of the request for a preliminary ruling. It 
relies upon the Judgment of the Court of Justice of 16 July 2020, CaixaBank and 
Banco Bilbao Vizcaya Argentaria, in joined cases C-224/19 and C-259/19, 
EU:C:2020:578, which analyses, in the light of Directive 93/13, a term relating to 
arrangement fees referred by a Spanish court in the context of a mortgage loan 
concluded with consumers. 
9. According to the defendant, the Court of Justice has therefore already 
notified the national court that the term at issue should be assessed in accordance 
with its national legislation. 
10. The defendant is seeking a reference for a preliminary ruling to clarify the 
effect of national legislation on judging the unfairness of the term at issue. It takes 
the view that there may be a contradiction between national case-law and that of 
the Court of Justice. 
CAIXABANK 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
11. The reasoning focuses on the judgment of the Court of Justice in joined 
cases C-224/19 and C-259/19, referred to above. 
12. According to paragraph 3 of the operative part of the aforesaid ruling, ‘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 such a fee corresponds to services actually provided and to costs it has 
incurred’. 
13. However, in the opinion of the referring court, the aforesaid decision of the 
Court of Justice was shaped by the requests for a preliminary ruling that gave rise 
to it. This is because, in those requests, a distorted account was given of Spain’s 
national legislation and of the case-law of the referring court. 
14. Firstly, regarding the account of national legislation, the aforesaid requests 
only communicated the content of legislation that states that bank fees must be 
justified by a service actually provided, and omitted Spanish legislation on 
banking transparency, which has specifically regulated the arrangement fee, and 
for which it has established a regime that is substantially different from that of 
other bank fees. 
15. Regarding the arrangement fee, specific reference is made to the Order of 
5 May 1994 and to Law 2/2009 and Law 5/2019, which have established that the 
fee, when agreed, will be used to remunerate all costs involved in reviewing, 
granting and processing the loan or credit agreement, or other similar costs 
inherent in the financial entity’s activity as a result of granting the loan, and which 
is payable only once. Under that legislation, the amount, format and date of 
payment of that fee are set out in the corresponding term. 
16. In particular, in so far as the arrangement fee corresponds to such costs 
‘inherent’ in the formalities related to granting the loan, it does not include any 
other type of cost. 
17. Regarding other bank fees, under national legislation, unlike the 
arrangement fee, these must correspond to a specific service provided by the 
credit institution. The service must be able to be justified and must be distinct 
from the mere ordinary administration of the loan. 
18. Secondly, regarding the account of the case-law of the referring court, the 
latter explained what, in its view, constituted the distortion in the requests for a 
preliminary ruling that gave rise to the judgment handed down by the Court of 
Justice in joined cases C-224/19 and C-259/19. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-565/21 
 
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19. The referring court notes, in this regard, that on the matter of verifying the 
unfairness of the contractual terms concerning the arrangement fee, its Pleno de su 
Sala de lo Civil (civil chamber sitting in full court) handed down ruling 44/2019 
of 23 January 2019 (appeal No 2982/2018). 
20. One of the two requests for a preliminary ruling that gave rise to the Court 
of Justice’s judgment in joined cases C-224/19 and C-259/19 referred to ‘national 
case-law establishing that the term referred to as the arrangement fee 
automatically satisfies the transparency test’. The referring court categorically 
states that there is no such case-law. 
21. What it stated in its ruling 44/2019 was, in fact, 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. 
22. Its ruling 44/2019 took account of the differentiated treatment of the 
arrangement fee in domestic legislation, which defines it as remuneration for the 
costs ‘inherent’ in the formalities related to granting the loan (reviewing the 
viability of the loan, the debtor’s creditworthiness, the status of encumbrances on 
the property to be mortgaged, etc.), generally paid when the agreement is 
concluded. It therefore took the view that the fee, together with remunerative 
interest, forms part of the contract price and is consequently an essential element 
of the contract. 
23. It follows therefrom that, since it forms part of the price, pursuant to 
Article 4(2) of Directive 93/13, the term concerning the arrangement fee cannot be 
subject to content checks where it is transparent. 
24. On the basis of the foregoing, the ruling in case 44/2019 concluded that, in 
order to justify charging the fee at issue, the banking institution could not be 
required to prove, for each loan, the existence and cost of such formalities, most 
of which are required both by legislation on banking solvency and by legislation 
protecting consumers from overindebtedness and which are indispensable 
(‘inherent’, to use the term in national law) to granting it. The requirement of 
proof of equivalence between the arrangement fee and the cost of the formalities 
inherent in granting the loan would have involved reviewing the adequacy of the 
price or the remuneration as against the services supplied in exchange. 
25. The fee at issue does not therefore correspond to any formalities or services, 
and strictly speaking this is not a case of passing on a cost. If the arrangement fee 
was to be regarded as the passing on of a cost, this would lead to the absurd 
situation where, in order for the bank to be able to charge for such formalities, this 
would have to be outsourced to a third-party entity, and only then would the bank 
be able to pass on to the customer the cost charged by that third-party entity, 
which could quite possibly belong to the same corporate group. 
CAIXABANK 
 
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26. It should be noted that at no point in the ruling in case 44/2019, or in any 
other ruling it has handed down, has the referring court relied upon the argument 
that the fee in question is included in the calculation of the loan’s total cost 
(annual percentage rate of charge, or ‘APRC’) to assert that the arrangement fee 
corresponds to the contract price. 
27. As regards the transparency test of the contractual term at issue, the ruling 
in case 44/2019 stated that 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). 
28. The ruling in case 44/2019 lists 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. 
29. Several decisions delivered by the Court of Justice can also be invoked 
in support of all of these arguments. Firstly, 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. 
30. In this regard, reference may be made to the Opinion of Advocate General 
Hogan in Kiss and CIB Bank, C-621/17, EU:C:2019:411, as regards what is 
referred to as a ‘disbursement commission’ (points 16, 37 and 38); judgment of 
the Court of Justice 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 of Justice in joined cases C-224/19 and C-259/19 (paragraph 68), and the 
judgment of the Court of Justice of 3 September 2020 in Profi Credit Polska, 
joined cases C-84/19, C-222/19 and C-252/19, EU:C:2020:631 (paragraph 75). 
31. Secondly, where the services provided were carried out as part of the 
services provided in connection with the management or disbursement of the loan, 
terms providing for this type of fee or commission do not adversely affect the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-565/21 
 
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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. 
32. In that regard, the judgment of the Court of Justice of 3 October 2019, Kiss 
and CIB Bank, C-621/17, EU:C:2019:820 (paragraphs 54 to 56) can once again be 
relied on. 
33. In the latter regard, returning to the main proceedings, it must be emphasised 
that the arrangement fee at issue was not disproportionate to the total amount of 
the loan, since it was fixed at 0.85% of the total amount. Furthermore, unlike in 
Hungarian law in case C-621/17, where the concepts referring to commission 
were not defined, in Spanish law, the rules on banking transparency do indeed 
define the arrangement fee. 
34. Finally, the Court of Justice is requested to take account of the fact that, 
following its judgment in joined cases C-224/19 and C-259/19, a significant 
number of the Spanish courts have continued to apply the case-law of the referring 
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 
have interpreted that judgment as declaring that the case-law of the referring court 
was contrary to European Union law on this matter. 
35. This legal uncertainty severely impedes the referring court in performing the 
role assigned to it as an appellate court, while the case-law of the Court of Justice 
itself has recognised that the supreme courts of the Member States may play a 
harmonising role in that area (judgments of 7 August 2018, Banco de Santander, 
joined cases C-96/16 and C-94/17, EU:C:2018:643, paragraph 68, and of 
14 March 2019, Dunai, C-118/17, EU:C:2019:207, paragraph 63).