Opinion of the Advocate General — ECLI:EU:C:2014:2299
Date: 2014-10-16
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (First Chamber), 21 January 2015 1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 —Finding that a clause is unfair — Scope — National legislation allowing the national court to restrict itself to moderating the amount of the penalty imposed on the consumer — Unlawful (Council Directive 93/13, Art. 6(1)) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a clause is unfair — Scope — Revision by the national court of the content of an unfair term — Unlawful — Substitution by the national court of a supplementary provision of national law for an unfair term — Lawfulness — Conditions (Council Directive 93/13, Recital 24 and Arts 6(1) and 7(1)) 3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Assessment of unfair nature by the national court — Criteria (Council Directive 93/13, Arts 3(1) and 4(1)) 4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a clause is unfair — Scope — Mortgage enforcement proceedings — National legislation requiring the national court to adjust the amount due under a term providing for default interest at a rate higher than the statutory rate — Lawfulness — Conditions (Council Directive 93/13, Arts 3(1) and 6(1)) 1. See the text of the decision. (see paras 28, 29) 2. See the text of the decision. (see paras 30-33) 3. See the text of the decision. (see paras 37, 38) 4. Article 6(1) of Council Directive 93/13 on unfair terms in consumer contracts must be interpreted as not precluding a national provision under which the national court hearing mortgage enforcement proceedings is required to adjust the amounts due under a term in a mortgage-loan contract providing for default interest at a rate more than three times greater than the statutory rate in order that the amount of that interest may not exceed that threshold, provided that the application of that national provision: – is without prejudice to the assessment by that national court of the unfairness of such a term and – does not prevent that court removing that term if it were to find the latter to be ‘unfair’, within the meaning of Article 3(1) of that directive. When the national court is faced with a contractual term relating to default interest at a rate less than that provided by national law, the setting of that legislative ceiling does not prevent that court from assessing the possible unfairness of that clause, within the meaning of Article 3 of Directive 93/13. Accordingly, a default interest rate less than three times the statutory rate is not necessarily to be considered to be fair within the meaning of that directive. In contrast, when the default interest rate laid down in a term in a mortgage-loan contract is higher than that provided by national law and must, in accordance with that law, be subject to a limitation, such a fact must not preclude the national court from, above and beyond that measure of moderation, drawing all the inferences of possible unfairness — in the light of Directive 93/13 — of the term which contains that rate, if necessary by annulling it. (see paras 40-42, operative part)