Order;Information — ECLI:EU:C:2021:98
Date: 2021-02-04
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-321/20 — 1 
Case C-321/20 
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:  
20 July 2020 
Referring court:  
Audiencia Provincial de Barcelona (Provincial Court, Barcelona, 
Spain) (Sixteenth Chamber, Civil Proceedings) 
Date of the decision to refer:  
30 June 2020  
Appellant:  
CDT, S.A. 
Respondent:  
MIMR 
HRMM 
  
Subject matter of the main proceedings 
Claim for settlement of repayment instalments under a loan contract in accordance 
with an accelerated maturity clause (an acceleration clause). 
Subject matter and legal basis of the request for a preliminary ruling 
Request under Article 267 TFEU for the interpretation of Directive 93/13 and the 
principles of legal certainty and the protection of legitimate expectations in 
relation to the retroactive application of case-law laid down in a judgment of the 
Court of Justice. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-321/20 
 
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Questions referred for a preliminary ruling 
1 Does a judgment [of the Court of Justice] which interprets and applies an EU 
directive and which holds that a national law is contrary to the directive 
immediately deprive the national law of effect or must that law continue to apply 
in relationships between private individuals until such time as it is amended by the 
national legislature? It is requested that the question be answered generally or in 
respect of the judgment [of the Court of Justice of 14 June 2012, Banco Español 
de Crédito, C-618/10, EU:C:2012:349] and the effects of that judgment on [the 
original wording] of Article 83 of the Consolidated Version of the General Law 
for the Protection of Consumers and Users (Texto Refundido de la Ley General 
para la Defensa de los Consumidores y Usuarios)). 
2 Does the principle of legal certainty inherent in the European Union legal order 
preclude the complete deletion of the contents of a contractual term, on the 
grounds that that term is unfair, in cases in which, at the time when the contract 
was concluded and the term was stipulated, no criterion existed for defining what 
was unfair in relation to the subject matter of the term because no legal provision 
or case-law of the courts existed in that regard? If the answer is affirmative, must 
the effect be that only the part of the term concerned which is considered to be 
unfair is deleted? 
3 Does the same principle preclude the application of case-law interpreting a 
provision of national law to contracts which preceded the establishment of that 
case-law, which were concluded when the general case-law of the courts was 
contrary to the new case-law? 
Provisions of EU law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts. Article 6(1), Article 7(1) and Article 11. 
Article 288 TFEU. 
General principle of legal certainty. 
Provisions of national law relied on 
A) Consolidated Version of the General Law for the Protection of Consumers 
and Users (Texto Refundido de la Ley General para la Defensa de los 
Consumidores y Usuarios) approved by Royal Legislative Decree (Real Decreto 
Legislativo) 1/2007 of 16 November (‘TRLGDCU’). 
A.1) The version initially in force of Article 83, on the nullity of unfair clauses 
and adjustment of the contract, as laid down by Law 7/1998 on general contractual 
conditions (Ley 7/1998 sobre condiciones generales de la contratación) of 
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13 April 1998 and subsequently incorporated into the consolidated version of the 
TRLGDCU (‘original wording of Article 83 TRLGDCU’): 
‘1. Unfair contract terms shall automatically be void and deemed not to have 
formed part of the contract. 
2.  That part of the contract deemed void shall be adjusted in accordance with 
the provisions of Article 1258 of the Civil Code and with the principle of 
objective good faith. 
To that end, the court which rules that such terms are void shall remedy the 
contract and enjoy moderating powers with regard to the rights and obligations of 
the parties, where the contract continues in existence, and to the consequences of 
its being ruled ineffective in the event of significant loss or damage to the 
consumer or user. 
Only where the remaining contract terms result in an imbalance in the respective 
positions of the parties which cannot be remedied may the court rule that the 
contract is ineffective.’ 
A.2) The version currently in force of Article 83, resulting from Law 3/2014 
amending the TRLGDCU (Ley 3/2014 por la que se modifica el TRLGDCU) of 
27 March 2014 (‘amended wording of Article 83 TRLGDCU’), applicable, 
pursuant to the transitional provision of Law 3/2014, to contracts with effect from 
13 June 2014: 
‘Unfair contractual terms shall automatically be void and deemed not to have 
formed part of the contract. For those purposes, having heard the parties, the court 
shall rule that the unfair terms included in the contract are invalid, though the 
contract shall continue to bind the parties upon those terms if it is capable of 
continuing in existence without the unfair terms.’ 
B) Civil Code (Código Civil) 
Article 1124: ‘The power to terminate obligations is deemed to be applied in 
reciprocal obligations, if one of the contracting parties should fail to do what is 
required of him. 
The injured party may choose to demand either the performance or the termination 
of the obligation …’ 
C) Law 28/1998 on the Sale of Movable Property on Deferred Terms (Ley 
28/1998 de Venta a Plazos de Bienes Muebles) of 13 July 1998 
‘Article 10. Non-compliance by the purchaser. 
1. If the purchaser defaults on the payment of two instalments or the final 
instalment, the seller, without prejudice to the provisions of the following article, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-321/20 
 
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may choose between demanding settlement of all the outstanding instalments or 
terminating the contract.’ 
D) The Catalan Código de Consumo (Consumer Code)  
Article 262-4(l)(g)(5.a), inserted by Law 20/2014 of the Autonomous Community 
of Catalonia (Ley de la Comunidad Autónoma de Cataluña 20/2014) of 
29 December 2014. That article provides that, in relation to loans secured by a 
mortgage on a dwelling, before the borrower incurs any contractual obligations, 
the lender must furnish the borrower with a warning concerning the right of the 
lender undertaking to declare the whole debt due in the event of non-payment of 
three monthly instalments or a number of instalments equivalent to three months. 
E) Law 1/2000 on Civil Procedure (Ley 1/2000 de Enjuiciamiento Civil) of 
7 January 2000 (LEC) 
Under Article 693 of the LEC, it was originally possible in mortgage loan 
contracts to agree that the maturity date would be accelerated in the event of non-
payment of a single instalment. With effect from the amendment inserted therein 
by Law 1/2013 of 14 May 2013, default on the payment of three instalments is 
required. 
Succinct presentation of the facts and procedure in the main proceedings 
4 On 1 August 2013 the parties concluded a contract for a loan not secured by a 
mortgage in the amount of EUR 5 133 to be repaid over six years. That contract 
included an acceleration clause (‘the contested clause’) pursuant to which the 
lender could call in the loan as due and payable and recover the whole of the 
outstanding debt if the borrower, who is classified as a consumer, defaulted on 
any of his monetary obligations by their due date. 
5 The borrower defaulted on repayment instalments in December 2014 and on 
several instalments which fell due in late 2015 and early 2016. By early May 
2016, the borrower had accumulated six unpaid instalments and, on 6 May 2016, 
in accordance with the contested clause, the lender declared the acceleration of the 
maturity date of the loan and demanded repayment of all outstanding instalments. 
6 The lender brought legal proceedings to recover those sums but the first-instance 
court held that the contested clause was unfair and void. Also, although that court 
considered the possibility of applying Article 1124 of the Civil Code, it held that 
the non-compliance was not of sufficient significance to rule that the contract was 
terminated. Accordingly, the court ordered the borrower only to pay the 
instalments which had fallen due but had not been paid at that time. 
7 The lender brought an appeal before  the referring court, arguing that it had not 
used the contested clause unlawfully because it did not apply the clause until the 
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borrower had defaulted on six monthly instalments. On that ground, the lender 
claims that the referring court should moderate the contested clause so that, rather 
than applying in the case of a single missed payment (as the wording stipulates), it 
may apply in a situation like that at issue in the present case, where the lender has 
waited until the missed payments are of sufficient significance. The lender has not 
relied in the appeal on Article 1124 of the Civil Code. 
8 The maturity date of the loan, which had to be repaid over six years starting on 
1 August 2013, has already passed. Nevertheless, there can be no order to repay 
the outstanding capital in its entirety because account must be taken of the 
situation existing at the time when the action was brought, meaning that it is only 
possible to order the borrower to pay the instalments due at the time when the 
action was brought, unless application of the acceleration clause, as sought by the 
appellant, is permitted. 
Essential arguments of the parties to the main proceedings 
9 The lender does not dispute that the contested clause may be regarded as unfair 
under consumer legislation but, since the lender did not use that clause unfairly 
because it waited until there had been a number of missed payments, the court 
should be able to moderate the clause, allowing it to take effect, if that is justified 
by the extent of the borrower’s non-compliance, and remain valid. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
Timeline of legislation and case-law 
10 The questions referred for a preliminary ruling concern the (possibly retroactive) 
effect to be attributed to changes in legislation and the criteria laid down in 
national case-law as a result of rulings of the Court of Justice. Therefore, it is 
helpful to set out a timeline of the legislative and case-law situation applicable to 
this case, dividing it into two different questions: (i) when is a contractual term 
unfair? and (ii) what effects should result from a declaration of unfairness?  
i) Classification of a contractual term as unfair 
a) On the date when the contract was concluded, no uniform legislative or 
case-law criteria existed on the matter of when an accelerated repayment 
term in a contract for a loan not secured by a mortgage should be regarded 
as unfair, since the number of missed payments enabling a lender to declare 
the accelerated repayment of a loan was not quantified. As regards mortgage 
loan contracts, the original wording of Article 693 LEC applied. 
b) The Court of Justice held in the judgment of 14 March 2013, Aziz 
(C-415/11, EU:C:2013:164, paragraph 73), that sufficiently serious non-
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-321/20 
 
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compliance was necessary before the acceleration of a mortgage loan 
contract could take place. In practice, that meant that the stipulation laid 
down in Article 693 of the LEC, allowing accelerated maturity in the event 
of a single missed instalment, was deprived of effect. It was also deprived of 
effect in relation to contracts concluded under Article 693 of the LEC before 
that judgment was given, as the Court of Justice held in the judgment of 
26 March 2019, Abanca Corporación Bancaria and Bankia (C-70/17 and 
C-179/17, EU:C:2019:250, paragraph 51). 
c) According to judgment of the Tribunal Supremo (Supreme Court, Spain) 
101/2020 of 12 February 2020, in the case of personal loans, a clause like 
the contested clause (which permits acceleration where a single monthly 
repayment is missed) is considered to be null and void because it allows 
acceleration even where the borrower’s non-compliance is not sufficiently 
serious. Judgment of the Tribunal Supremo (Supreme Court) 107/2020 of 
19 February 2020 found that a clause providing for acceleration in the event 
of non-payment of a single instalment, in respect of a loan of EUR 3 114 to 
be repaid within three years, was void. However, the case-law has yet to 
define in general terms what non-compliance is necessary for an acceleration 
clause to be admissible in a case involving a personal loan. The appeal 
courts have adopted conflicting approaches (the referring court considers 
that accelerated maturity is possible in respect of a single missed payment 
where the loan is for a modest sum, is unsecured and has a short repayment 
term). Nor is there any law or lower-ranking provision which lays down 
such a rule, unlike the situation in respect of loans secured by a mortgage for 
which specific provisions exist (LEC and Catalan Consumer Code). 
ii) Effects of a declaration of unfairness 
a) The loan contract at issue in the main proceedings was concluded while the 
original wording of Article 83 TRLGDCU was in force. Pursuant to that 
provision, where a term (for example, governing default interest) was held to 
be unfair, a court would moderate that term by reducing the interest rate and 
would not completely delete the term. Where an acceleration clause was 
classified as unfair, a court could moderate the clause by stipulating a higher 
and sufficient number of payment defaults which would trigger the lender’s 
right to terminate the contract prematurely. 
b) Following the judgment of 14 June 2012, Banco Español de Crédito 
(C-618/10, EU:C:2012:349), there was a sea change in Spanish judicial 
practice, since, if a default interest term was considered to be unfair, the 
Spanish courts were unable to moderate that term and would delete it 
completely; continuing with the example of default interest, this meant that 
such interest was not payable. The Spanish courts also applied that rule to 
contracts concluded while the original wording of Article 83 TRLGDCU 
was in force. 
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c) The amended version of Article 83 TRLGDCU was adopted in 2014 to bring 
that provision into line with the position of the Court of Justice, although the 
transitional provisions stipulated that the changes would apply only to 
contracts concluded on or after 13 June 2014 (and not to the contract at issue 
in the proceedings, which was concluded on 1 August 2013). For its part, the 
Tribunal Supremo (Supreme Court), in judgment 265/2015 of 22 April 2015, 
stated that clauses found to be null and void because unfair should not be 
adjusted and moderated as a general rule but only when that was necessary 
in order to ensure that the contract continued in existence for the benefit of 
the consumer. 
Article 1124 of the Civil Code 
11 The lender has not sought the application of Article 1124 of the Civil Code. 
However, the referring court mentions that there is currently a debate in Spanish 
courts about whether that article is applicable when a contract contains an 
acceleration clause which has been held in case-law to be unfair and void. The 
possibility of applying Article 1124 of the Civil Code is under consideration 
because, in fact, that article contains a rule equivalent to clauses which are 
regarded as void or supplementary. The appeal refers to Article 1124 of the Civil 
Code only for the purpose of pointing out that the contested clause is an 
expression of the rights granted in that article. 
The first question referred for a preliminary ruling 
12 The referring court seeks to ascertain whether, in general, a judgment of the Court 
of Justice which declares a national law to be contrary to a directive:  
a) deprives that national law of effect before it is amended by the national 
legislature (and, in particular, whether that was the consequence of the 
judgment of 14 June 2012, Banco Español de Crédito, C-618/10, 
EU:C:2012:349, concerning Article 83 TRLGDCU, prior to its amendment 
by a 2014 law),  
b) or whether, on the contrary, the national law must continue to apply with full 
effect as between private individuals, and with the straightforward 
application of the transitional provision referred to. 
13 The referring court takes the view that, if the judgment of the Court of Justice 
directly deprives the national provision of effect, it is possible that, generally and 
in the main proceedings, rights acquired under the law considered to be contrary 
to the directive may be lost. 
14 The deprivation of effect of national laws as a result of a judgment which 
interprets and applies a directive has significantly affected acceleration clauses in 
loan contracts, as occurred in the judgments in Aziz and Abanca Corporación 
Bancaria and Bankia, cited above. 
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15 According to the referring court, the judgment of 14 June 2012, Banco Español de 
Crédito (C-618/10, EU:C:2012:349), did not stipulate that it should have an effect 
of the kind it had in the Spanish courts but nor did it specify its effects on 
Article 83 TRLGDCU, which that judgment held to be incompatible with the 
Directive on unfair terms in consumer contracts. 
16 In the referring court’s view, an interpretation to the effect that a judgment which 
interprets and applies a directive directly amends the legislation of a Member 
State implies that a judgment has greater effect and greater legal significance than 
the directive which it interprets and applies, because, as is clear from Article 288 
TFEU, a directive does not amend the national legal systems of the Member 
States. That interpretation, which is being applied in Spain, conveys an 
extraordinarily harmful message: even if an undertaking concludes a contract 
today in accordance with an existing law, if, in the future, that law is held to be 
contrary to an EU directive, the undertaking may sustain substantial financial 
damage. 
The second question referred for a preliminary ruling 
17 The referring court observes that the aim of the prohibition on the moderation of 
unfair clauses in contracts is the attainment in the long term of the aim pursued by 
Article 7 of Directive 93/13. That was indicated in paragraph 69 of the judgment 
of 14 June 2012, Banco Español de Crédito (C-618/10, EU:C:2012:349) and in 
other later judgments. The complete deprivation of effect of a term considered to 
be unfair is in fact a penalty which can have significant economic effects. In the 
case of early termination, it may compel lenders to defer recovery of the capital 
until the final date of the loan as originally provided for, even though the borrower 
has repeatedly defaulted. 
18 As pointed out in the abovementioned timeline, when the contract at issue in the 
main proceedings was concluded (and also now), undertakings did not know what 
degree of non-compliance was necessary in order for accelerated maturity to be 
permitted. However, a posteriori, the case-law stipulated that an acceleration 
clause of the kind included in that contract is unfair and void. As a result of that 
classification, which happened after the contract was concluded, undertakings are 
faced with a substantial penalty. That situation has also arisen in relation to default 
interest: no statutory rule existed and appeal courts adopted widely varying 
approaches. Nevertheless, when the Tribunal Supremo (Supreme Court) 
established a rule in its judgment of 22 April 2015, the penalty imposed on all 
undertakings was to deprive them of all default interest relating to contracts 
concluded prior to that judgment. 
19 The referring court believes that that approach infringes the principles of legal 
certainty and the protection of legitimate expectations which form part of the 
European Union legal order, according to the settled case-law of the Court of 
Justice. It could be said that, in order to achieve the long-term aim, the principle of 
legal certainty and the requirement of clear definition in relation to contracts, 
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which, in the opinion of the referring court, are very important for society and the 
economy, are being destroyed. A penalty (the loss of the entire financial content 
of a contractual term) is imposed as a result of conduct which was not defined as 
unlawful before it was carried out. Moreover, a message is conveyed which the 
referring court believes to be as extraordinarily harmful as that stated above: 
although it is presently unknown whether or not something is lawful, if, in the 
near future, it is defined as unlawful, a penalty will be imposed on a person who, 
when they acted, could not have known that their actions were not permitted in 
law. 
The third question referred for a preliminary ruling 
20 The third question also concerns the principle of legal certainty and asks whether, 
in accordance with that principle, European Union law places restrictions on the 
retroactive application of rules laid down in case-law. 
21 As stated, the original wording of Article 83 TRLGDCU was interpreted as 
meaning that it permitted, or required, that the wording of terms considered to be 
unfair be amended through the moderation of those terms so that the unfair part 
alone was removed from them. Although it is true that it is for national courts of 
Member States to interpret national law, the judgment of the Court of Justice of 
14 June 2012, Banco Español de Crédito (C-618/10, EU:C:2012:349) was also 
based on that interpretation. 
22 That was the widespread interpretation applied by appeal courts. The Tribunal 
Supremo (Supreme Court) did not address the issue until judgment 265/2015 of 
22 April 2015, cited above, which set out the new rule already referred to. 
23 The principle of legal certainty forms part of EU law and the referring court asks 
whether that principle precludes the application of a rule derived from case-law to 
contracts which were concluded before the creation of that rule and when the 
widespread interpretation of the highest-ranking courts seised of the issue was 
substantially different. The retroactive application of changes in case-law raises 
serious difficulties. Those difficulties do not relate to the interpretation of a 
provision, for the Court of Justice has held that the interpretation of a provision of 
EU law is applicable from the time of entry into force of the provision interpreted 
(judgment of 19 April 2016, DI, C-441/14, EU:C:2016:278, paragraph 40), but 
rather to the issue of a change in the case-law relating to the interpretation of a 
provision and the application of the new rule to contracts concluded when the 
previous rule was still in force; that is, the retroactive effect of a change in the 
position adopted by the courts. 
24 That retroactive effect was rejected by the European Court of Human Rights in 
relation to criminal proceedings (judgment of 21 October 2013). Obviously, that is 
a different area and it is quite clear that no individual can lose their liberty as a 
result of changes in case-law occurring after an offence was committed. This case 
concerns the determination of whether an individual or an undertaking may 
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sustain financial losses as a result of the alteration by the courts of their position 
with respect to the position in force at the time when the legal instrument in 
question was concluded; in other words, whether a change in case-law can be 
permitted to take effect retroactively or whether that is contrary to the principle of 
legal certainty which underpins European Union law, and with what 
consequences.