62023CJ0300
JUDGMENT OF THE COURT (Ninth Chamber)
12 December 2024 (
*1
)
(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Mortgage loan agreement – Term providing for a variable interest rate – Reference index based on the annual percentage rates of charge (APRC) of mortgage loans granted by savings banks – Official index established by a published administrative act – Information contained in the preamble to that act – Check relating to the requirement of transparency – Assessment of the unfair nature of the term – Principle of effectiveness)
In Case C‑300/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de Primera Instancia no 8 de Donostia – San Sebastián (Court of First Instance No 8, San Sebastián, Spain), made by decision of 27 April 2023, received at the Court on 10 May 2023, in the proceedings
NB
v
Kutxabank SA,
intervener:
Ministerio Fiscal,
THE COURT (Ninth Chamber),
composed of S. Rodin, President of the Eighth Chamber, acting as President of the Ninth Chamber, J. Passer and O. Spineanu-Matei (Rapporteur), Judges,
Advocate General: L. Medina,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
NB, by J.M. Erausquin Vázquez and M. Ortiz Pérez, abogados,
–
Kutxabank SA, by I. Ortega Ochoa, abogado, and S. Tamés Alonso, procurador,
–
the Spanish Government, by A. Gavela Llopis and A. Pérez-Zurita Gutiérrez, acting as Agents,
–
the European Commission, by J. Baquero Cruz, P. Kienapfel and N. Ruiz García, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1
This request for a preliminary ruling concerns the interpretation of, first, Article 3(1), Article 5, Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), second, Article 7 of 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 and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) and, third, the principle of effectiveness.
2
The request has been made in proceedings between NB and Kutxabank SA concerning the validity of the term providing for periodic review of the interest rate for a mortgage loan agreement.
Legal context
European Union law
Directive 93/13
3
Article 3(1) of Directive 93/13 provides:
‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’
4
Article 4 of that directive provides:
‘1.   Without prejudice to Article 7, the unfairness of a contractual term 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.
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 supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’
5
Article 5 of that directive is worded as follows:
‘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. This rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).’
6
Article 6(1) of Directive 93/13 provides that:
‘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.’
7
Article 7(1) of that directive is worded as follows:
‘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.’
8
According to Article 8 of that directive:
‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’
Directive 2005/29
9
In accordance with Article 19 of Directive 2005/29, the Member States had to adopt and publish, by 12 June 2007, the laws, regulations and administrative provisions necessary to comply with that directive and forthwith to inform the European Commission thereof. Those provisions were to be applied by 12 December 2007.
Spanish law
Law 7/1998
10
Directive 93/13 was transposed into Spanish law by the Ley 7/1998, sobre condiciones generales de la contratación (Law 7/1998 on general contractual conditions) of 13 April 1998 (BOE No 89 of 14 April 1998, p. 12304).
11
Article 5(5) of that law, as amended by the Ley 5/2019, de regulación de los contratos de crédito inmobiliario (Law 5/2019 regulating mortgage loan agreements) of 15 March 2019 (BOE No 65 of 16 March 2019), provides that conditions inserted in a non-transparent manner into agreements to the detriment of consumers are automatically invalid.
The General Law on the protection of consumers and users
12
The Real Decreto Legislativo 1/2007, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (Royal Legislative Decree 1/2007 consolidating the General Law on protection of consumers and users and other supplementary laws) of 16 November 2007 (BOE No 287 of 30 November 2007, p. 49181), recast that law, which was amended by Law 5/2019 (‘the General Law on the protection of consumers and users’).
13
Article 8 of the General Law on the protection of consumers and users provides:
‘Consumers and users shall enjoy the following basic rights:
…
(b)
The protection of their legitimate economic and social interests, in particular against unfair commercial practices and the inclusion of unfair terms in contracts.
…
(d)
Accurate information on the various goods or services, as well as instruction and familiarisation to facilitate knowledge of the proper use, consumption or enjoyment of those goods or services.
…’
14
Article 60 of that general law, entitled ‘Pre-contractual information’, provides, in paragraph 1:
‘Before a consumer or user is bound by a contract or relevant offer, the supplier must provide him or her in a clear and intelligible form with relevant, correct and sufficient information about the main features of the contract, in particular, its legal and financial terms …’
15
Under paragraph 1 of Article 80 of that general law, entitled ‘Requirements for terms not individually negotiated’:
‘In contracts with consumers and users using terms that have not been individually negotiated, including contracts concluded by public authorities and their dependent entities and undertakings, those terms must satisfy the following requirements:
(a)
Precise, clear and simple wording, enabling immediate understanding without reference to texts or documents not supplied before, or at the time of, the conclusion of the contract and which, in any event, must be expressly referred to in the contract document.’
…
(c)
good faith and fair balance between the rights and obligations of the parties, which, in any case, excludes the use of unfair terms.’
16
Article 82 of the General Law on the protection of consumers and users, entitled ‘Definition of unfair terms’, provides, in paragraph 1:
‘All contractual terms not individually negotiated and all practices for which express consent has not been given and which, 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 or user shall be regarded as unfair terms.’
17
Article 83 of that general law, entitled ‘Invalidity of unfair terms and continued existence of the contract’, provides:
‘Unfair terms shall automatically be void and deemed not to have formed part of the contract. To that end, the court, having heard the parties, shall declare the invalidity of unfair terms included in the contract, which shall nevertheless continue to bind the parties on the same terms if it is capable of continuing in existence without the unfair terms.
Conditions included in contracts in a non-transparent manner to the detriment of consumers shall automatically be invalid.’
The Civil Code
18
Article 1303 of the Código Civil (Civil Code) provides:
‘Once an obligation has been declared void, the contracting parties must restore to each other the things that formed the subject matter of the contract, together with the proceeds therefrom and the price plus interest, save as provided for in the following articles.’
19
Under Article 1306(2) of that code:
‘If the act constituting the immoral cause is not an infringement, the following rules shall be observed:
…
‘(2)
Where only one contracting party is involved, that party cannot claim what he or she has given under the contract, nor may he or she request performance of what has been offered to him or her. The other party, who is not involved in the immoral cause, may claim what he or she has given, without an obligation to perform what he or she has offered.’
Notices 8/1990 and 5/1994
20
The Banco de España (Bank of Spain) adopted the circular 8/1990, a entidades de crédito, sobre transparencia de las operaciones y protección de la clientela (Notice 8/1990 to credit institutions, on the transparency of transactions and customer protection) of 7 September 1990 (BOE No 226 of 20 September 1990, p. 27498).
21
Notice 8/1990 was amended, inter alia, by the circular 5/1994, a entidades de crédito (Notice 5/1994 to credit institutions) of 22 July 1994 (BOE No 184 of 3 August 1994, p. 25109), which added, inter alia, an Annex VIII to Notice 8/1990. The Juzgado de Primera Instancia no 8 de Donostia – San Sebastián (Court of First Instance No 8, San Sebastián, Spain), which is the referring court, states in that regard that Notice 8/1990, as amended by Notice 5/1994 (‘Notice 8/1990 as amended’), was not the subject of a consolidated version published in the Boletín Oficial del Estado.
22
Notice 8/1990 as amended established certain official reference indexes for mortgage loans. Those indexes included various average rates for mortgage loans of a duration of more than three years, for the purchase of a residential property on the private housing market (‘the IRPHs’), including the IRPH for loans granted by savings banks (‘the IRPH of savings banks’).
23
The IRPH of savings banks is defined as follows in Annex VIII to Notice 8/1990 as amended:
‘… the simple average of the weighted average interest rates of loan transactions secured by a mortgage with a duration equal to or greater than three years for the purpose of acquiring a residential property on the private housing market, which all savings banks have initiated or renewed during the reference month of the index. The aforesaid weighted average interest rates are the equivalent annual rates declared to the Bank of Spain for those periods by all savings banks …’
24
It follows from the order for reference that that definition is supplemented by the statement that the ‘weighted average interest rates’ are the annual percentage rates of charge (APRC) declared to the Bank of Spain by all savings banks for the transactions concerned.
25
It also follows from that order for reference that Notice 5/1994 contained a warning to the credit institutions to which it was addressed that the direct and simple use of the IRPHs would have the effect of placing the APRC of the mortgage transaction above the market rate, a situation which would be avoided by applying an appropriate negative margin, the value of which would vary depending on the transaction charges and the frequency of payments.
Law 14/2013
26
The Ley 14/2013, de apoyo a los emprendedores y su internacionalización (Law 14/2013 to support entrepreneurs and their internationalisation) of 27 September 2013 (BOE No 233 of 28 September 2013, p. 78787) contains a fifteenth additional provision providing for the discontinuance from 1 November 2013, of, inter alia, the IRPH of savings banks.
27
Paragraphs 2 to 4 of that additional provision are worded as follows:
‘2. References to the rates referred to in the preceding paragraph shall be replaced, with effect from the next review of the applicable rates, by the replacement rate or reference index specified in the contract.
3. Where no rate or reference index is specified in the contract, or where that rate or index is among the indices or rates the abolition of which is planned, the rate or index in question shall be replaced by the official interest rate known as the [IRPH of the credit institutions], by applying a margin equivalent to the arithmetical average of the differences between the rate the abolition of which is planned and the abovementioned rate, calculated on the basis of the data available between the date on which the contract was concluded and the actual date on which the rate was replaced.
…
4. No remedy shall be available to the parties to require amendment, unilateral alteration or cancellation of the loan or credit by way of compensation for the application of this provision.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
28
On 11 September 2006, NB concluded a mortgage loan agreement with Caja de Ahorros y Monte de Piedad de Gipuzkoa y San Sebastián, now Kutxabank (‘the loan agreement at issue in the main proceedings’), for a duration of 35 years.
29
In accordance with Article 3a of that agreement (‘the term at issue’), the interest rate is variable and a new interest rate is to be set periodically in relation to the IRPH of savings banks.
30
The term at issue states that that index corresponds to the simple average of the weighted average interest rates for the principal amount of loan transactions secured by a mortgage, granted by savings banks, with a duration equal to or greater than three years, for the purchase of a residential property on the private housing market, without any adjustment, and that the reference value is that of the last index published by the Bank of Spain during the month preceding each interest rate review date or, in the alternative, the most recent index published by the Bank of Spain before the abovementioned preceding month.
31
It follows from the order for reference that the term at issue does not mention the final part of the definition of the IRPH of savings banks set out in Annex VIII to Notice 8/1990 as amended, which states that those ‘weighted average interest rates’ are the APRCs declared to the Bank of Spain by all savings banks for the transactions concerned.
32
On 4 March 2022, NB brought an action before the referring court, seeking, inter alia, a declaration that the term at issue is unfair.
33
The referring court states that the IRPHs are established on the basis of an average of the APRCs applied to similar transactions. Consequently, an adjustment of the interest rate of a given agreement on the basis of an IRPH leads to an increase in that interest rate incorporating what the borrowers concerned by all of the agreements which served as the basis for establishing that IRPH paid, in addition to the nominal interest rate, in respect of all charges and any fees, even though, under an agreement in respect of which the interest is thus indexed, similar costs are added, in addition to a mark-up, and a commission has already been paid. That court adds that certain factors taken into account in the APRCs which served as the basis for how the IRPH was established were the result of contractual terms which have been found to be unfair since then or subject to caution.
34
Examining, in the first place, the term at issue in the light of the requirement for transparency, the referring court raises the question of compliance with that requirement, since that term does not enable a consumer to know exactly the economic consequences which that term entails in the context of an agreement lasting 35 years.
35
First of all, the referring court has doubts as to whether an average consumer can, by himself or herself, understand the differences between the concepts of ‘interest rate’, ‘reference index’ or ‘APRC’ and, consequently, how the method for calculating reference indexes which are established on the basis of APRCs operates.
36
Furthermore, the referring court notes that the term at issue contains a definition of the IRPH of savings banks which does not include the part of that definition relating to the fact that that index is based on APRCs. It infers from this that an average consumer, who is unaware of the Notices of the Bank of Spain addressed to credit institutions and who has not been informed by the other party to the contract that the IRPH of savings banks corresponds to an APRC, or is unaware of the details in Notice 5/1994 concerning the level of IRPHs in relation to the market rate, has no reason to request information in that regard during the pre-contractual phase, thinking that the proposed agreement submitted to him or her is appealing since it provides for a margin lower than those normally provided for in agreements in which the interest rate is set in relation to the Euribor reference index (interbank rate offered in euros).
37
Those considerations are submitted in support of the first to third and fifth questions.
38
Next, the referring court sets out the case-law of the Tribunal Supremo (Supreme Court, Spain), from which it follows that the requirement for transparency concerning the composition and calculation of the IRPHs is necessarily satisfied because of the publication, in the Boletín Oficial del Estado, of Notice 8/1990 and the method of calculating those indexes, with the result that a credit institution which incorporates such an index into those contractual conditions is not obliged to include, in the loan agreement, the full definition of that index. That case-law is based exclusively on paragraphs 53 and 56 of the judgment of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138), to the exclusion of paragraphs 51, 52, 54 and 55 thereof.
39
The referring court considers that paragraphs 53 and 56 of that judgment are based on information which is not entirely consistent with reality. First, Notice 8/1990, the publication of which that judgment is based on, does not contain any reference to the IRPHs, since the latter were introduced by Notice 5/1994. Second, in any event, consultation of the latter notice does not make it possible to ascertain the method for calculating the IRPHs, since that method does not appear in that notice, and therefore the consumer would have to infer from the available information that the IRPHs are APRCs, already including margins, fees and charges.
40
Those considerations are submitted in support of the fourth and sixth to eighth questions.
41
Furthermore, the referring court has doubts as to whether the abovementioned case-law of the Tribunal Supremo (Supreme Court), in so far as it establishes that credit institutions are unconditionally exempted from including, in mortgage loan agreements, a complete definition of the IRPH used for the periodic adjustment of the interest rate, and are exempted from informing consumers about previous changes in that index on the basis that that index is the subject of official publications, is consistent with the case-law of the Court of Justice, in the light of paragraph 54 of the judgment of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138), and paragraph 34 of the order of 17 November 2021, Gómez del Moral Guasch (C‑655/20, EU:C:2021:943).
42
Those doubts give rise to the ninth and tenth questions.
43
Lastly, the referring court also makes reference to Directive 2005/29, which, in its view, was applicable at the time when the loan agreement at issue in the main proceedings was concluded. It considers that the absence of important elements in the definition of the IRPH of savings banks in that agreement may amount to the omission of material information, within the meaning of Article 7 of that directive, and, therefore, constitute a misleading practice. If that were the case, it asks whether such a finding is such as to rule out any good faith, within the meaning of Article 3(1) of Directive 93/13.
44
Those considerations are submitted in support of the eleventh and twelfth questions.
45
In the second place, the referring court envisages the situation where the term at issue would have to be regarded as not complying with the requirement of transparency. In such a situation, it considers that it would have to examine the possible unfairness of that term, that being a scenario which it asks the Court to confirm, since the latter’s previous decisions have related only to that requirement.
46
In that situation, first, the referring court sets out national rules which, since 2019, have provided that contractual terms inserted in a non-transparent manner to the detriment of consumers are automatically invalid. It notes that the Tribunal Supremo (Supreme Court) does not consider those rules to apply retroactively. By contrast, as regards ‘floor’ terms, under which a variable interest rate cannot fall below a certain threshold, the case-law of that supreme court states that those terms are not transparent and therefore are unfair, in that they provide for an interest rate that is ostensibly variable, but which, in reality, varies only upwards. The referring court considers that that case-law should be applied by analogy in the present case, in the light of the misleading element of the term at issue owing to the absence of any indication in the contractual definition of the IRPH that the latter is an APRC.
47
Those considerations are submitted in support of the thirteenth and fourteenth questions.
48
Second, the referring court mentions the case-law of the Tribunal Supremo (Supreme Court) according to which the use of an index that is official, and used by public authorities to finance subsidised dwellings, cannot be contrary to the requirement of good faith.
49
It observes, however, that the use of an official index is required where a mortgage loan agreement is concluded and that the public authorities which used an IRPH did so taking into account the Bank of Spain’s warning in the preamble to Notice 5/1994.
50
The referring court also observes that the assessment of unfairness concerns not the use of an IRPH, but relates to the term which provided for that use in a loan agreement. In the light of paragraph 69 of the judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164), it is therefore relevant to determine whether the lender, when dealing fairly and equitably with the borrower, could have expected the latter to accept the inclusion of the term at issue in the loan agreement at issue in the main proceedings following individual negotiation if the borrower had understood how the method for calculating the IRPH of savings banks operates, and therefore had been able to assess, on the basis of precise criteria, the potentially significant economic consequences arising from the application of that index, if that borrower had been aware of that index’s trends over the two years preceding the conclusion of the contract and if that borrower had been informed that Notice 5/1994 contained a warning as to the need to introduce, where applicable, a negative margin, a warning which the lender did not wish to take into account.
51
According to the referring court, in the context of that assessment, it is necessary, in particular, to compare the method of calculating the contractual interest rate and the actual sum resulting from that rate with the methods of calculation generally used, the statutory interest rate and the interest rates applied on the market at the date on which the relevant agreement is concluded, in respect of comparable loans, in the light of the second indent of paragraph 67 of the judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60).
52
Those considerations are submitted in support of the fifteenth to eighteenth questions.
53
In the third and last place, in the event that it is found that the term at issue is unfair and that, in principle, the loan agreement at issue in the main proceedings could not continue to exist without that term, the referring court considers that it would have to consider allowing the consumer to choose between the annulment of that contract or its continuation by replacing the term at issue with a reference to an index provided for by law on a supplementary basis, in the light, in particular, of paragraph 52 of the order of 17 November 2021, Gómez del Moral Guasch (C‑655/20, EU:C:2021:943).
54
First, in the event that the consumer opts for maintaining the agreement, the referring court observes that the supplementary provision which it identifies, which sought to ensure the continuity of agreements following the non-contentious discontinuance of the IRPH of savings banks and the IRPH of banks, was aimed, in its view, at maintaining the balance between what the parties have provided in their performance of the agreement, whereas recognition of the unfairness of the term at issue would mean that it creates a situation of imbalance which would have to be remedied. In those circumstances, that court is of the opinion that re-establishing the balance between the parties’ performance of the agreement would lead to a negative margin being applied to the reference index designated by the term at issue, in accordance with what the Bank of Spain recommended in the preamble to Notice 5/1994.
55
Second, in the event that the consumer chooses to annul the agreement, the referring court considers that the application of Article 1303 of the Civil Code, which would involve the reciprocal restitution of what the parties have provided in their performance of the agreement, plus interest, would favour the financial institution, even though, by definition, that institution would be responsible for the annulment of that agreement. If that article were applied, the financial institution would be entitled to interest at the statutory rate, which is higher than the contractual interest rate, on the entire capital lent since the date on which that agreement was concluded. That would ostensibly not be the case if it were necessary to use Article 1306(2) of that code, which seems possible, provided that it is found that the loan agreement at issue in the main proceedings must be annulled on account of its ‘immoral cause’, within the meaning of the latter provision, and provided that it is found that that immoral cause is attributable exclusively to that financial institution, since it is a pre-formulated standard agreement imposed on the borrower.
56
Those considerations are submitted in support of the nineteenth to twenty-second questions.
57
In those circumstances, the Juzgado de Primera Instancia no 8 de Donostia – San Sebastián (Court of First Instance No 8, San Sebastián) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Whether, given that, in Notice 5/1994 …, by which it incorporated the IRPH rates into the Spanish mortgage [lending] market, the Bank of Spain also warned that using the rates simply as they stood meant setting an APRC for the transaction above the market APRC and that to avoid that outcome, it was necessary to include the appropriate negative differential, the fact that the warning is disregarded and that no negative differential is included may be regarded as a means of giving rise to [an] imbalance contrary to the requirement of good faith referred to in Article 3(1) of Directive [93/13]?
(2)
Whether the fact that financial institutions apply negative differentials, correction coefficients or IRPH percentages, as the Bank of Spain envisages, only where mortgage loan agreements are for the purchase of officially protected housing and are supervised by the public administration, but do not apply those negative differentials, correction coefficients or IRPH percentages where the mortgage loan taken out is for the purchase of residential property on the open market and is not supervised by the public administration, may amount to a means of giving rise to the imbalance contrary to the requirement of good faith referred to in Article 3(1) of Directive [93/13]?
(3)
Whether, since component elements of the APRCs of the mortgage loan transactions used on a monthly basis to determine the IRPH for savings banks rate, such as the commitment fee and certain costs which should have been paid by the seller or supplier, have been found to be unfair, Article 6(1) of Directive [93/13] is infringed by the continued validity of a term which includes in an agreement the IRPH for savings banks rate which has been determined, on a monthly basis, using data obtained from transactions applying terms which have been declared unfair?
(4)
Whether national case-law, such as that established by the Tribunal Supremo (Supreme Court), according to which the national court must find that a term by which the IRPH mortgage rate is included in an agreement concluded by a consumer and a seller or supplier passes the transparency test, in all circumstances and with no requirement to carry out the checks and ascertain the information required by paragraphs 51, 52, 54 and 55 of the judgment [of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138),] on the grounds that the mortgage rate in question is defined … in Notice 5/1994, published in the [Boletín Oficial del Estado (BOE No 184 of 3 August 1994)], even though the consumer is unaware of that information, is contrary to those paragraphs?
(5)
Whether, with a view to complying with the transparency requirement of a term in a mortgage loan agreement with a variable interest rate, where the remunerative interest is referenced to an official index such as the IRPH which, as a result of how it is calculated, does not reflect remunerative interest alone, requires the application of a differential which is complex to calculate in order to be comparable with other indices, and entails a risk that the consumer will have to pay partly duplicated bank fees, Article 5 of Directive [93/13] must be interpreted as precluding legislation or case-law according to which it is permissible for the seller or supplier not to include the following information in the agreement or expressly provide it to the consumer sufficiently in advance of conclusion of the agreement:
(a)
the fact that the reference [index] reflects not only remunerative interest but also fees;
(b)
the actual increase this represents;
(c)
whether it applies a negative differential to the reference rate margin to offset that increase,
so that consumers can easily make a genuine comparison between the different possible reference rates and ascertain whether, under the agreement to be concluded, they will be liable to pay partly duplicated fees and the amount of any such fees, and so that they can challenge any such fees?
(6)
Whether national case-law, such as that established by the Tribunal Supremo (Supreme Court), according to which the seller or supplier party to an agreement is relieved of any responsibility for informing consumers about the functioning of the method of calculating the IRPH [reference index] and the resulting economic consequences and that responsibility is transferred to the consumers who, although lacking any financial knowledge, must look for that information themselves by finding and understanding a definition published in the [Boletín Oficial del Estado], which contains no explicit information to the effect that the index in question includes differentials and costs, and must infer that circumstance themselves from the fact that [that index] is determined on a monthly basis using an average of the APRCs of the reference transactions, is contrary to paragraph 57 of the observations of the European Commission [in Case C‑125/18], points 2 and 125 of the Opinion of [Advocate General Szpunar in the case Gómez del Moral Guasch (C‑125/18, EU:C:2019:695),] and paragraphs 51, 52, 54 and 55 of the judgment [of 3 March 2020, Gómez del Moral Guasch, (C‑125/18, EU:C:2020:138)]?
(7)
Whether an interpretation of paragraphs 53 and 56 of the judgment [of 3 March 2020, Gómez del Moral Guasch, (C‑125/18, EU:C:2020:138)], according to which mere publication of the definition of the IRPH rate in the [Boletín Oficial del Estado] places consumers in a position to know that [that index] includes the differentials and costs applied by the [credit] institutions is compatible with settled case-law of the Court of Justice according to which consumers are in a weaker position in respect of information than the seller or supplier with which they contract, and with point 2 of the Opinion of [Advocate General Szpunar in the case Gómez del Moral Guasch (C‑125/18, EU:C:2019:695),] which states that the average consumer is not in a position to understand certain concepts, such as “interest rate”, “reference index” or “annual percentage rate of charge” (APRC), and, in particular, the differences between those concepts, and that the same applies to the functioning of the actual calculation not only of the variable interest rates but also of the official reference indices of mortgage loans and of the APRCs on the basis of which those interest rates are calculated?
(8)
Whether an interpretation of paragraphs 53 and 56 of the judgment [of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138)], according to which a consumer is in a position to know, from the definition published in the [Boletín Oficial del Estado], that the IRPH … rate includes differentials and costs even though, in order to do so, the consumer must know what an APRC is and what it represents in order to be in a position to infer that, since the IRPH for savings banks rate is calculated using a simple average of APRCs, it will necessarily include the fees, differentials and costs applied by the [credit] institutions, is contrary to the settled case-law of the Court according to which consumers are in a weaker position in respect of information than the seller or supplier with which they contract, and contrary to point 2 of the of the Opinion of [Advocate General Szpunar in the case Gómez del Moral Guasch (C‑125/18, EU:C:2019:695)]?
(9)
Whether, where the seller or supplier is permitted, in accordance with the order [of 17 November 2021, Gómez del Moral Guasch (C‑655/20, EU:C:2021:943)] not to include in a contract the full definition of the reference index used to calculate a variable interest rate and not to provide an information booklet setting out past fluctuations in that index, that permission is absolute and unconditional or is, in contrast, subject to the consumer being in a position, merely from the official information provided by the seller or supplier, to understand the functioning of the method for calculating [that] index and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences on his or her financial situation?
(10)
Whether that permission also covers situations in which, under the national legislation in force at the time the contract is concluded, the contract must include the full definition of the reference index used to calculate the variable interest rate and the information booklet setting out past fluctuations in that index must be provided?
(11)
Whether, where Directive [2005/29] concerning unfair business-to-consumer commercial practices in the internal market applies, failure by the seller or supplier to provide relevant information such as the specific functioning of the method used to calculate the IRPH rates, the fact that those rates are calculated using APRCs from the reference transactions, having the effect that the average differentials, fees and costs of those transactions are included in their nominal rates, the fact that they have been constantly above Euribor [reference index] throughout the years since its creation, and the existence of a warning by the Bank of Spain to the financial institutions about the need to include a negative differential in order to prevent the APRC for the transaction being higher than the market APRC, can be regarded as a misleading practice in the light of Article 7 of that directive?
(12)
Whether, where the national court finds that the practice carried on by the seller or supplier was misleading in the light of Directive [2005/29], it is to be understood, without further ado, that the behaviour of the seller or supplier gives rise to the significant imbalance contrary to the requirement of good faith referred to in Article 3(1) of Directive [93/13], or, on the contrary, it is compatible for the seller or supplier to act in a misleading manner in the light of Directive [2005/29] and in good faith in the light of Directive [93/13]?
(13)
Whether the principle of effectiveness is infringed by national case-law, such as that established by the Tribunal Supremo (Supreme Court), according to which, where the term by which the IRPH for savings banks rate is included in an agreement concluded between a consumer and a seller or supplier has been found to lack transparency, the provisions of Article 83 of [the General Law on the protection of consumers and users] and of Article 5(5) of [Law 7/1998, after their amendment by Law 5/2019,] cannot be applied retroactively, thereby giving rise to two levels of protection against the same unfair term, one for consumers who concluded agreements before that amendment and a different one for consumers who concluded agreements subsequently?
(14)
Whether the principle of effectiveness is infringed by national case-law, such as that established by the Tribunal Supremo (Supreme Court), according to which the lack of transparency of a price clause in an agreement, such as a “floor clause”, renders the term unfair, because it involves misleading information, whereas the lack of transparency of the term by which the IRPH for savings banks rate is included in the agreement, a term which likewise affects the price of the contract, does not render it unfair?
(15)
Whether national case-law, such as that established by the Tribunal Supremo (Supreme Court), which finds it illogical to argue that the seller or supplier did not act in good faith when it used an official [index reference] regulated by the Bank of Spain and habitually used by the public administration in its officially protected housing programmes and infers in consequence, in all cases, that the seller or supplier acted in good faith, finding there to be no requirement to [ascertain] whether the seller or supplier could have believed that the consumer, dealt with fairly and equitably, would have agreed to the term at issue in individual negotiations, is contrary to paragraph 69 of the judgment [of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164),] and to the concept of an imbalance ‘contrary to the requirement of good faith’?
(16)
Whether, in the context of a dispute relating to the inclusion of term providing for an [indexed interest rate in relation an] IRPH for savings banks rate in [a mortgage loan] agreement in order to determine the contractual remuneration, paragraph 69 of the judgment [of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164),] must be interpreted as meaning that the national court is required to examine whether the seller or supplier could have believed that a consumer, who understood the functioning of the method of calculating the IRPH for savings banks rate, knew the fluctuations in the IRPH for savings banks rate in at least the two years preceding conclusion of the agreement and had been informed that, in Notice 5/1994, the Bank of Spain warned that it was necessary, where applicable, to include a negative differential – a warning which the seller or supplier did not intend to heed – would have agreed to that term in individual negotiations?
(17)
Whether, applied to a term by which the IRPH for savings banks rate is included in [a mortgage loan] agreement concluded between a consumer and a seller, paragraph 67 of the judgment [of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60),] must be interpreted as meaning that, in order to determine whether there is an imbalance contrary to the requirement of good faith, the national court must compare on the one hand the method of calculating that [IRPH] with the method used to determine the Euribor [reference] index, the most widely used rate, and, on the other, the resulting actual rate in each case for loans of equivalent amounts and durations?
(18)
Whether, for the purpose of determining, in accordance with paragraph 67 of the judgment [of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60)], a term by which the IRPH for savings banks rate is included in [a mortgage loan] agreement concluded between a consumer and a seller gives rise to an imbalance contrary to the requirement of good faith, it is relevant that the actual rate resulting from … the Euribor [reference] index represents the price at which [credit] institutions purchase the money which they subsequently lend to their customers, whereas the actual rate resulting from calculation of the IRPH for savings banks rate, which is always higher, represents the total cost borne by the customers to whom the savings banks have lent that money?
(19)
Whether Article 7(1) of Directive [93/13] is infringed where, once a term by which the IRPH for savings banks rate is included in [a mortgage loan] agreement concluded between a consumer and a seller has been found to be unfair and it has transpired that the agreement cannot continue to exist after removal of that term, the term is replaced in accordance with the [supplementary rule in] the 15th additional provision of [Law 14/2013], since that replacement would have the effect that the imbalance to the benefit of the seller or supplier, which the national court declared unlawful, remains in place, because that supplementary rule was intended to replace the index automatically and sought to ensure that doing so did not affect the situation existing before the [initial reference] index was abolished?
(20)
Whether, having regard to the fact that, according to the Bank of Spain, all the criticisms [regarding use of] the IRPH for savings banks would have been neutralised if [a] … negative differential had been included, Article 6(1) of Directive [93/13] must be interpreted as meaning that, where the term by which the IRPH for savings banks rate is included in [a mortgage loan] agreement concluded between a consumer and a seller or supplier has been found to be unfair, the national court is not precluded from retroactively replacing the differential [initially] included in the agreement with the negative differential which should have been included at the time it was concluded, reimbursing the consumer the amount [which he or she has] unfairly [paid], plus interest, with the aim of preventing the agreement from being void and of transforming it into the agreement which should have been entered into in accordance with the warning by the Bank of Spain?
(21)
Whether Article 7(1) of Directive [93/13] is infringed where, once the term by which the IRPH for savings banks rate is included in [a mortgage loan] agreement concluded between a consumer and a seller has been found to be unfair and the agreement has been declared void because it cannot continue to exist once that term has been removed, Article 1303 of the Civil Code is applied, with the effect that the infringing party benefits because it recovers the entire amount [of capital] lent, plus statutory interest [at a rate that is] higher than the interest under the agreement and applicable to the entire amount of the loan from the first day?
(22)
Whether, bearing in mind that we are dealing with a pre-formulated standard contract comprising non-negotiated general contract terms which have been imposed by the seller or supplier, [and that seller or supplier] is solely responsible for including unfair terms relating to essential aspects of the price, Article 7(1) of Directive [93/13] must be interpreted as meaning that the seller or supplier is liable for the illegality or immorality which rendered the agreement void in its entirety and, in consequence, that Article 1306(2) of the Civil Code should apply?’
The request for a preliminary ruling
Admissibility
58
The Spanish Government has doubts as to the admissibility of the request for a preliminary ruling. In that regard, it submits that, in the absence of sufficient information regarding the factual context of the case in the main proceedings, apart from the fact that a ruling has not yet been given on the admission of the evidence submitted by the parties to the main proceedings and that the claims of those parties are unknown, the Court is unable to give a useful ruling on the questions referred, since the assessment of the transparency and unfairness of a term must be based on all the particular circumstances of each individual case. In those circumstances, the Court is required to carry out a general and abstract examination of Directive 93/13 in connection with the use of an IRPH as a reference index in mortgage loan agreements. That government also submits that the presentation of the case-law of the Tribunal Supremo (Supreme Court) in the order for reference is approximate, or even incorrect, and that the case-law of the Court of Justice already contains an answer to several of those questions.
59
As a preliminary point, it must be noted, first, that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, which enjoy a presumption of relevance. Therefore, in so far as a question referred concerns the interpretation or validity of a rule of EU law, the Court is, in principle, required to give a ruling, unless it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action, it is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the question submitted to it (judgment of 21 December 2021, Trapeza Peiraios, C‑243/20, EU:C:2021:1045, paragraph 25 and the case-law cited). Second, in accordance with Article 94(a) and (c) of the Rules of Procedure of the Court of Justice, an order for reference must contain ‘a summary’ of the facts and a ‘statement’ of the reasons for the reference.
60
The order for reference contains information regarding the facts of the case in the main proceedings which, although limited, are nevertheless sufficient to enable an understanding of the scope of the questions referred and their relevance for the resolution of that case, and to enable the Court to provide useful answers, while giving the governments of the Member States and other interested parties the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union.
61
In that regard, it should be noted that it is for the national court, and not for the Court of Justice, to take account of all the particular circumstances of the case in order to determine whether, in the light of the criteria laid down in Article 3(1) and Article 5 of Directive 93/13, a contractual term meets the requirements of good faith, balance and transparency laid down by that directive (see, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 50 and the case-law cited).
62
Next, national courts are free to refer questions to the Court at whatever stage of the proceedings they consider appropriate, provided that they explain, at the very least, the factual circumstances on which their questions are based (see, to that effect, order of 25 March 2022, IP and Others(Establishment of the accuracy of the facts in the main proceedings), C‑609/21, EU:C:2022:232, paragraph 21 and the case-law cited).
63
Lastly, questions on the interpretation of EU law are referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine (see, to that effect, judgment of 8 June 2016, Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 30 and the case-law cited).
64
The defendant in the main proceedings also disputes, in practice, the admissibility of all the questions referred, on the ground that the Court’s case-law already contains an answer to those questions.
65
In that regard, it must be held that even if such a fact were established, it could only justify recourse to a reply by reasoned order, based on Article 99 of the Rules of Procedure, and not the rejection of the request for a preliminary ruling. Moreover, it must be stated that, although the answer to certain questions can be inferred from the case-law, that is not true of all the questions.
66
Consequently, the request for a preliminary ruling is admissible, without prejudice to the examination of the admissibility of certain questions.
Consideration of the questions referred
67
The fourth and sixth to tenth questions and, in part, the fifth question, concern compliance, with the requirement of transparency, of terms of consumer contracts in the context of the conclusion of a mortgage loan agreement containing a term such as the term at issue.
68
The first to third and eleventh to eighteenth questions and, in part, the fifth question, concern the possible unfairness of such a term.
69
The nineteenth to twenty-second questions concern the consequences of any finding that that term is unfair.
70
Those questions must be examined in that order.
The fourth and sixth to tenth questions and, in part, the fifth question, concerning compliance with the requirement of transparency
71
As a preliminary point, it should be noted that, in accordance with the first paragraph of Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning only the interpretation of the Treaties and acts of the institutions, bodies, offices or agencies of the European Union. The Court cannot therefore rule on the interpretation either of an Opinion delivered by an Advocate General in the context of an earlier reference for a preliminary ruling, or of observations submitted by an institution in the context of such a reference for a preliminary ruling.
72
The Court therefore does not have jurisdiction to answer the sixth to eighth questions in so far as they seek the interpretation of such an Opinion or observations.
73
That being so, by its fourth and sixth to tenth questions and, in part, by its fifth question, which it is appropriate to examine together, the referring court asks, in essence, whether Article 4(2) and Article 5 of Directive 93/13 must be interpreted as meaning that the requirement of transparency resulting from those provisions is complied with, when a mortgage loan agreement is concluded as regards the term of that agreement providing for the periodic adjustment of the interest rate in relation to the value of an official index established by an administrative act, which contains the definition of that index, merely because that act and the previous values of the index concerned were published in the official journal of the relevant Member State, therefore without the lender itself having to inform the consumer about the definition of that index and its previous trend, even if, because of the method of calculating that index, the latter corresponds not to a remunerative interest rate, but to an APRC, since that method of calculation also takes into account margins, fees and costs provided for in similar agreements which are used to establish the successive values of that index. The referring court also raises the question of the possible influence, in that regard, of the fact that the national legislation applicable at the time when the relevant agreement was concluded provides that credit institutions must include, in agreements concluded with individuals, the definition of the reference index used for the periodic adjustment of the interest rate and must provide a document recording previous changes in that reference index over a certain period.
74
The referring court states in that regard that the consumer is in a position of weakness vis-à-vis the seller or supplier in respect of information, in particular as regards the exact scope of the concept of ‘APRC’, that the method of calculating an index such as an IRPH may make it difficult for a consumer to compare a proposed agreement containing a term adjusting the interest rate by reference to such an index with proposals providing for an adjustment of the interest rate by reference to indices corresponding to nominal interest rates, and not to APRCs, and that it is difficult for a consumer to determine the extent to which the use of an index such as an IRPH indirectly involves the payment of margins, fees or charges other than those expressly provided for in his or her own agreement.
75
In order to answer the questions as reformulated in paragraph 73 of the present judgment, it should be noted that information, before concluding a contract, on the terms of the contract and the consequences of concluding it, is of fundamental importance for a consumer. It is on the basis of that information in particular that the consumer decides whether he or she wishes to be bound by the terms previously drawn up by the seller or supplier (judgment of 13 July 2023, Banco Santander(Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 51 and the case-law cited).
76
Consequently, and since the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, in particular as regards his or her level of knowledge, the requirement of transparency must be understood in a broad sense (judgment of 13 July 2023, Banco Santander(Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 52 and the case-law cited).
77
Specifically, the requirement that a contractual term must be drafted in plain intelligible language requires, in the case of loan agreements, financial institutions to provide borrowers with sufficient information to enable them to take prudent and well-informed decisions. In that regard, it is for the national court, when it considers all the circumstances surrounding the conclusion of a contract, to ascertain whether all the information likely to have a bearing on the extent of his [or her] commitment has been communicated to the consumer, enabling him or her to estimate in particular the total cost of the loan (judgment of 13 July 2023, Banco Santander(Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 53 and the case-law cited).
78
First, whether the terms are drafted in plain intelligible language enabling an average consumer, that is to say a reasonably well-informed and reasonably observant and circumspect consumer, to estimate such a cost and, secondly, the mention or failure to mention in the loan agreement the information regarded as being essential with regard to the nature of the goods or services which are the subject matter of that contract play a decisive role in that assessment (judgment of 13 July 2023, Banco Santander(Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 54 and the case-law cited).
79
As regards, in particular, a contractual term providing, under a mortgage loan agreement, for that loan to be remunerated by interest calculated on the basis of a variable rate established, as in the case in the main proceedings, by reference to an official index, the transparency requirement must be understood as requiring, in particular, that an average consumer, who is reasonably well-informed and reasonably observant and circumspect, is in a position 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 (judgment of 13 July 2023, Banco Santander(Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 55 and the case-law cited).
80
The relevant factors which the national court must take into account when carrying out the necessary checks in that regard include not only the content of the information provided by the lender in the negotiation of the loan agreement concerned, but also the fact that the main elements relating to the calculation of the reference index are easily accessible, on account of their publication (judgment of 13 July 2023, Banco Santander(Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 56 and the case-law cited).
81
In the case of a loan agreement for which the interest rate is variable, so that the exact value of that interest rate cannot be determined for the entire duration of that agreement, it is relevant that the reference index to which that agreement refers is established by an administrative act which has been officially published, since, in principle, borrowers thus have access to information that may enable an average consumer to understand the method of calculating that index.
82
Nevertheless, although such publication may result in a lender being relieved of the obligation to provide certain information to a prospective borrower regarding the term providing for the periodic adjustment of the interest rate of the proposed loan, that is on the condition that, in the light of the publicly available and accessible information and the information provided, as the case may be, by the lender, an average consumer, who is reasonably well-informed and reasonably observant and circumspect, was in a position to understand the specific functioning of the method used for calculating the variable interest rate, in particular in so far as it involves a reference index, 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 (see, to that effect, order of 17 November 2021, Gómez del Moral Guasch, C‑655/20, EU:C:2021:943, paragraphs 29 and 34).
83
It follows, in particular, that information on certain contractual aspects that is necessary for prospective borrowers to understand the scope of accepting a loan agreement proposal may be derived from information not provided directly by the lender, provided that that information is publicly available and accessible, where appropriate by means of certain indications given for that purpose by the lender.
84
As regards, in particular, the accessibility of information not directly provided by the seller or supplier, it follows from paragraph 60 of the judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578), that it is necessary for that seller or supplier to provide sufficiently precise and accurate information to prospective borrowers so that they can acquaint themselves with that information without taking steps which, since they would fall within the scope of legal research, cannot reasonably be expected of an average consumer.
85
In the present case, it does not follow from the order for reference that the loan agreement at issue in the main proceedings contains a reference to the Boletín Oficial del Estado or to the relevant Notice of the Bank of Spain. It follows from the preceding paragraph of the present judgment that the absence of a reliable indication in that regard is capable of compromising the accessibility of the relevant information for the average consumer.
86
However, the term at issue contains a definition of the IRPH of savings banks. Nevertheless, the referring court states that that definition is incomplete, since it reproduces only the first part of the official definition of that index, as set out in Notice 5/1994, according to which that index constitutes an average of the average interest rates of agreements similar to the loan agreement at issue in the main proceedings. It does not therefore include the second part of that official definition, which states that those ‘average interest rates’ are APRCs.
87
Nor does the term at issue contain a reference to the warning given by the Bank of Spain in the preamble to that Notice concerning that characteristic, drawing the attention of credit institutions to the consequences thereof as regards the level of the IRPHs in relation to the market rate and, therefore, to the fact that it would be necessary to apply a negative differential in order to align the APRC of the transaction concerned with the market rate.
88
As regards that characteristic and that warning, the Court stated, in paragraph 59 of the judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578), that the fact that the institution which issued Notice 5/1994 considered it appropriate, by that preamble, to draw the attention of credit institutions to the level of the IRPHs in relation to the market rate and the need to apply a negative differential in order to align the APRC of the transaction concerned with the market APRC is a relevant indication that such information is useful to consumers.
89
Furthermore, subject to verification in that regard by the referring court as to its exact wording, that warning, as set out in paragraph 14 of the judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578), may also be a relevant indication for the purpose of determining an average consumer’s understanding of the concept of APRC in such a context, since the Bank of Spain appears to have considered it useful to state that it is because they also include the effect of charges that the average rates of mortgage loans taken into account in order to set the value of an IRPH are APRCs.
90
However, the use of an IRPH does not appear capable of undermining the comparability of a proposal for an agreement which provides for it with other proposals which refer to an index not corresponding to an APRC, provided that the present value and the previous successive values of those two indexes are given or accessible in such a way that the prospective borrowers are able to acquaint themselves with them without taking steps that cannot reasonably be expected of an average consumer. In that situation, an average consumer can compare the interest rates provided for in the various proposals, since it is sufficient for that consumer, for each proposal, to add to the successive values of the designated reference index, whatever that may be, the margin provided for, in order to obtain comparable values.
91
That said, the fact that, by the methods of calculating them, indices such as the IRPHs are established by reference to APRCs does not have the effect of converting the interest rate of a loan, which is adjusted periodically by reference to the successive values of an IRPH, into an APRC, which can be broken down, on the one hand, into a remunerative interest rate in the strict sense and, on the other hand, into margins, fees and charges. The term in a loan agreement which determines the reference index, whatever it may be, that is applicable for the periodic adjustment of the interest rate is intended only to establish a contractual method of calculating that rate, without altering its nature.
92
Lastly, as regards the fact that the national legislation imposes on credit institutions certain specific obligations to provide information to prospective borrowers, it follows from paragraphs 54 and 55 of the judgment of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138), that such obligations must be complied with by the seller or supplier.
93
Article 8 of Directive 93/13 expressly authorises the Member States to adopt the most stringent provisions compatible with the Treaty in the area covered by that directive, to ensure a maximum degree of protection for the consumer. Such provisions may concern certain information which must compulsorily be provided by sellers or suppliers in the context of the conclusion of specific agreements.
94
Therefore, the answer to the fourth and sixth to tenth questions and, in part, to the fifth question is that Article 4(2) and Article 5 of Directive 93/13 must be interpreted as meaning that the requirement of transparency resulting from those provisions is complied with, when a mortgage loan agreement is concluded as regards the term of that agreement providing for the periodic adjustment of the interest rate in relation to the value of an official index established by an administrative act, which contains the definition of that index, merely because that act and the previous values of that index were published in the official journal of the relevant Member State, therefore without the lender itself having to inform the consumer about the definition of that index and its previous trend, even if, because of the method of calculating that index, the latter corresponds not to a remunerative interest rate, but to an APRC, provided that, as a result of their publication, those elements are sufficiently accessible for an average consumer as a result of the indications given for that purpose by that seller or supplier. In the absence of such indications, it is for the seller or supplier directly to provide a complete definition of that index and any relevant information, in particular in respect of a possible warning from the authority which established that index as regards the index’s particular features and their consequences which may be regarded as important for the consumer in order to assess correctly the economic consequences of concluding the mortgage loan agreement proposed to him or her. In any event, it is for the seller or supplier to provide the consumer with all the information that the applicable national legislation requires to be provided at the time when the agreement is concluded.
The first to third and eleventh to eighteenth questions and, in part, the fifth question, concerning the possible unfairness of a contractual term
95
As a preliminary point, it should be noted, first of all, that the eleventh and twelfth questions concern the interpretation of Directive 2005/29.
96
As the Court noted in paragraph 40 of the judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578), Directive 2005/29 was transposed into Spanish law by the Ley 29/2009, por la que se modifica el régimen legal de la competencia desleal y de la publicidad para la mejora de la protección de los consumidores y usuarios (Law 29/2009 amending the statutory rules governing unfair competition and advertising in order to improve the protection of consumers and users), of 30 December 2009 (BOE No 315 of 31 December 2009, p. 112039).
97
Consequently, for the same reasons as those set out in paragraphs 37 to 39 and 42 of the judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578), since Directive 2005/29 was not applicable on the date on which the loan agreement at issue in the main proceedings was concluded, namely 11 September 2006, the interpretation of that directive has no bearing on the outcome of the dispute in the main proceedings.
98
Next, the thirteenth question seeks a ruling from the Court on the case-law of the Tribunal Supremo (Supreme Court) regarding the scope ratione temporis of a national law introducing a provision that is more favourable to consumers.
99
The Court has repeatedly held that it is not for it, in the context of a request for a preliminary ruling, to rule on the interpretation of national provisions or to decide whether the national court’s interpretation of such provisions is correct, since such an interpretation falls within the exclusive jurisdiction of the national courts (see, to that effect, judgment of 16 February 2017, IOS Finance EFC, C‑555/14, EU:C:2017:121, paragraph 21 and the case-law cited).
100
Lastly, the fourteenth question seeks to have the Court review the consistency of the case-law of the Tribunal Supremo (Supreme Court), not in relation to a rule of EU law, but in relation to two elements of that case-law which the referring court appears to regard as differing without any valid reason.
101
The Court also does not have jurisdiction to carry out such a review, subject, where appropriate, to the principle of equivalence, which is not however relevant in the situation in question and, moreover, is not mentioned by the referring court.
102
Accordingly, the eleventh to fourteenth questions are inadmissible.
– The first and second questions
103
The Spanish Government challenges the admissibility of the second question, relating to the usual conduct of credit institutions where mortgage loan agreements are concluded under the control of public authorities, on the ground that that question is based on a hypothesis which is incomplete or inaccurate. The applicable rate in the context of agreements for the purchase of subsidised dwellings was determined by national legislation, with the result that this is not a context of free determination of prices, unlike mortgage loan agreements concluded for the purchase of other dwellings, such as the loan agreement at issue in the main proceedings.
104
However, in accordance with the case-law referred to in paragraph 63 of the present judgment, the questions relating to the interpretation of EU law are referred by the national court in the factual and legal context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine.
105
The first question is therefore admissible.
106
By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 93/13 must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for periodic adjustment of the interest rate in relation to the value of an official index, it is of relevance that that term refers directly and simply to that index, even though it follows from the information in the administrative act which established that index that, because of the particular features resulting from the method of calculating it, it would be necessary to apply a negative differential in order to align the APRC of the transaction concerned with the market APRC.
107
The referring court states, in that regard, that credit institutions nevertheless apply such a negative margin in certain mortgage loan agreements concluded under the control of public authorities.
108
It must be noted that, where a national court considers that a contractual term the purpose of which is to fix the method of calculating a variable interest rate in a mortgage loan agreement is not in plain intelligible language, within the meaning of Article 4(2) of Directive 93/13, that court is required to examine whether that term is unfair within the meaning of Article 3(1) of that directive (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 67, second indent; see also, to that effect, order of 17 November 2021, Gómez del Moral Guasch, C‑655/20, EU:C:2021:943, paragraph 46).
109
Consequently, the answer to the first and second questions as regards the possible unfairness of a term such as the term at issue presupposes that it follows from a preliminary assessment by the referring court that that term does not comply with the transparency requirement imposed by Directive 93/13.
110
Furthermore, the transparent nature of a contractual term, as required under Article 5 of Directive 93/13, is one of the elements to be taken into account in the assessment of whether that term is unfair. However, it follows from Article 4(2) of that directive that the fact that a term is not drafted in plain intelligible language is not, in itself, capable of rendering it unfair (judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 66 and the case-law cited).
111
That being so, it must be noted that Article 3(1) of Directive 93/13 provides that a contractual term which has not been individually negotiated is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
112
In the assessment which it is for the national court to carry pursuant to Article 3(1) of Directive 93/13, it is for that court to assess, having regard to all the circumstances of the case, first, the possible failure to observe the requirement of good faith and, second, the possible existence of a significant imbalance to the detriment of the consumer within the meaning of that provision (judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 63 and the case-law cited).
113
Concerning the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the 16th recital of Directive 93/13, the national court must assess whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations (judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 69, and of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 64 and the case-law cited).
114
Furthermore, in order to ascertain whether a term causes a significant imbalance in the parties’ rights and obligations arising under a contract to the detriment of the consumer, within the meaning of Article 3(1) of Directive 93/13, particular account must be taken of which rules of national law would apply in the absence of an agreement by the parties, in order to evaluate whether and, as the case may be, to what extent, the contract places that consumer in a legal situation less favourable than that provided for by the national law in force. As regards a term relating to the calculation of interest in respect of a loan agreement, it is also relevant to compare the method of calculating the rate of ordinary interest provided for in that term and the actual sum resulting from that rate with the methods of calculation generally used, the statutory interest rate and the interest rates applied on the market at the date of conclusion of the loan agreement in question for a loan of a comparable sum and duration to those of that loan agreement (see, to that effect, judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 65 and the case-law cited).
115
The relevance, in the case of a mortgage loan agreement containing a term such as the term at issue, of information set out in a Notice, stating that, in view of the method of calculating the reference index, it is necessary to apply a negative differential in order to align the APRC of the agreement with the market APRC, has already been recognised by the Court (see, to that effect, judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 67).
116
It follows from all the foregoing considerations that the answer to the first and second questions is that Article 3(1) of Directive 93/13 must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for periodic adjustment of the interest rate in relation to the value of an official index, it is of relevance that that term refers directly and simply to that index, even though it follows from the information in the administrative act which established that index that, because of the particular features resulting from the method of calculating it, it would be necessary to apply a negative differential in order to align the APRC of the transaction concerned with the market APRC, provided that the seller or supplier did not inform the consumer of that information and provided that that information was not sufficiently accessible for an average consumer.
– The third question
117
The Spanish Government disputes the admissibility of the third question on the ground that it is based on a hypothesis that is incomplete or inaccurate. In its view, it does not follow from the case-law of the Tribunal Supremo (Supreme Court) that contractual terms providing for the fees and charges referred to in that question must be regarded as unfair.
118
However, as stated in paragraph 63 of the present judgment, the definition of the relevant national legal framework for the questions referred falls within the exclusive responsibility of the referring court. That responsibility concerns, where appropriate, the national case-law which that court considers relevant. In any event, it follows from the order for reference that, in the context of the third question, relating to the possibility that a term such as the term at issue is unfair due to the issue of passing on, in so far as it includes in an agreement certain elements of the APRCs relating to other loans used to establish the IRPH applicable to that agreement in the event that those elements follow from unfair terms, the referring court refers not only to contractual terms which are found to be unfair, but also to terms the legality of which is disputable.
119
The third question is therefore admissible.
120
As a preliminary point, it should be noted that, although that question concerns the interpretation of Article 6(1) of Directive 93/13, concerning the validity of a term such as the term at issue, the referring court’s question essentially concerns the unfairness of such a term, which would entail it being invalid vis-à-vis the consumer, as referred to in that provision.
121
Consequently, it must be held that, by that question, the referring court asks, in essence, whether Article 3(1) of Directive 93/13 must be interpreted as meaning that, in the event of the use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index established on the basis of the APRCs applicable to the agreements taken into consideration for the calculation of the successive values of that index, the fact that those APRCs contain elements arising from terms which may subsequently be found to be unfair means that the term adjusting the interest rate of the relevant agreement must be regarded as unfair and therefore unenforceable against the consumer.
122
In that regard, it must be noted that, as follows from paragraph 91 of the present judgment, the reference to an official index for the periodic adjustment of the interest rate applicable to a loan agreement is intended only to establish a contractual method of calculating that rate, and therefore the detailed rules for determining the value of that index have no bearing on the nature of the interest rate of the agreement concerned, irrespective of the factors taken into consideration in the context of those rules. Consequently, that interest rate cannot be regarded as an APRC certain aspects of which could be held to be invalid and render invalid the term providing for the periodic adjustment of that interest rate.
123
Moreover, the fact that, in the APRCs of the agreements taken into consideration for the calculation of the successive values of an index, certain elements might result from contractual terms which are subsequently shown to be unfair, cannot call into question that index’s nature as an official reference, or retroactively affect the validity of a term in another agreement referring to that index. It follows from Article 4(1) of Directive 93/13, and from Article 3 of that directive, as interpreted by the Court, that the assessment of the unfairness of a contractual term must be carried out by reference to the date of conclusion of the contract concerned (judgment of 27 January 2021, Dexia Nederland, C‑229/19 and C‑289/19, EU:C:2021:68, paragraph 52 and the case-law cited).
124
Consequently, the answer to the third question is that Article 3(1) of Directive 93/13 must be interpreted as meaning that, in the event of the use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index established on the basis of the APRCs applicable to the agreements taken into consideration for the calculation of the successive values of that index, the fact that those APRCs contain elements arising from terms which may subsequently be found to be unfair does not mean that the term adjusting the interest rate of the relevant agreement must be regarded as unfair and therefore unenforceable against the consumer.
– The fifteenth and sixteenth questions
125
By its fifteenth and sixteenth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 93/13 must be interpreted as meaning that it is presumed that the seller or supplier is acting in good faith in the event of use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index merely because it is an official index established by an administrative authority and used by the public authorities.
126
In that regard, it must first of all be pointed out that the specific classification of a particular contractual term in the light of Article 3(1) of Directive 93/13 must be determined on the basis of the circumstances of the case (see, to that effect, judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 47 and the case-law cited). It cannot therefore be considered, a priori, that the inclusion, by a seller or supplier, of a given term in a contract which has not been individually negotiated is necessarily compatible with the requirement of good faith imposed by that provision, subject to the application of Article 1(2) of that directive, which excludes from its scope contractual terms which reflect mandatory legislative or regulatory provisions, that exception being justified by the presumption that the national legislature has established a balance between all the rights and obligations of the parties to certain contracts, a balance which the EU legislature explicitly intended to preserve (judgment of 5 May 2022, Zagrebačka banka, C‑567/20, EU:C:2022:352, paragraph 57 and the case-law cited). However, it follows from the order for reference that that exclusion is not applicable in the present case, since the IRPHs are one of a number of indexes, which, moreover, have been used only minimally by the financial institutions.
127
Under Article 3(1) of Directive 93/13, a contractual term is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
128
As stated in paragraph 113 of the present judgment, the assessment of the requirement of good faith in relation to a given term in a contract involves determining whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
129
That criterion presupposes that such negotiations took place in full knowledge of the facts, that is to say, in the case of a term regarding the calculation of interest relating to a loan agreement, when the consumer was well informed about all the information involved in the method of calculating the interest rate and was able to assess the potentially significant economic effects of that term on his or her financial obligations.
130
In accordance with the case-law referred to in paragraph 110 of the present judgment, the transparent nature of a contractual term, as required under Article 5 of Directive 93/13, is one of the elements to be taken into account in the assessment of whether that term is unfair. As follows from paragraph 109 of the present judgment, the examination of whether the term at issue is unfair presupposes that it has already been found that that term does not comply with the requirement of transparency, which is a relevant factor that must be taken into account.
131
Lastly, the unfairness of a term also depends on the existence of a significant imbalance to the detriment of the consumer, within the meaning of Article 3(1) of Directive 93/13. As stated in paragraph 114 of the present judgment, in order to assess, in that regard, a term relating to the calculation of interest in respect of a loan agreement, it is also relevant to compare the method of calculating the rate of ordinary interest provided for in that term and the actual sum resulting from that rate with the methods of calculation generally used and, inter alia, the interest rates applied on the market at the date of conclusion of that agreement for a loan of a comparable sum and duration to those of that agreement.
132
As regards a term such as the term at issue, which provides for the adjustment of the interest rate of a mortgage loan agreement by reference to an official index which, in the light of its characteristics, appears prima facie to be disadvantageous to the consumer, such an assessment requires account to be taken not only of the values of that reference index, but also of the margin applied contractually to it, in order to compare the resulting actual interest rate with the normal market interest rates. Subject to other possibly relevant aspects of the method of calculating the contractual interest rate or the reference index, the possible existence of an imbalance to the detriment of the consumer resulting from such a term depends essentially, ultimately, not on the reference index itself, but on the interest rate which actually follows from that term in the light of the increase applied to the value of that index under that term.
133
The answer to the fifteenth and sixteenth questions is therefore that Article 3(1) of Directive 93/13 must be interpreted as meaning that it cannot be presumed that the seller or supplier is acting in good faith in the event of use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index merely because it is an official index established by an administrative authority and used by the public authorities. The assessment of the possible unfairness of such a term must be carried out based on the particular circumstances of the case, by taking into consideration, inter alia, a failure to comply with the requirement of transparency, and by comparing the method of calculating the rate of ordinary interest provided for by that term and the actual sum resulting from that rate with the methods of calculation normally used and, inter alia, the interest rates applied on the market on the date on which the relevant loan agreement was concluded for a loan of a comparable sum and duration to those of that agreement.
– The seventeenth and eighteenth questions
134
By its seventeenth and eighteenth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 93/13 must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for the periodic adjustment of the interest rate in relation to the value of a particular reference index, it is relevant, first, to compare the method of calculating that index with the method of calculating another reference index which for the most part is used in the Member State concerned for similar agreements, as well as the actual rates resulting from, respectively, that term and from comparable terms using that other reference index, and, second, to take into consideration what each of those indexes actually represents.
135
In accordance with the case-law referred to in paragraph 114 of the present judgment, in order to ascertain whether a term regarding the calculation of interest for a loan agreement causes a significant imbalance in the parties’ rights and obligations arising under the agreement to the detriment of the consumer, within the meaning of Article 3(1) of Directive 93/13, it is relevant to compare the method of calculating the rate of ordinary interest provided for in that term and the actual sum resulting from that rate with the methods of calculation generally used and, inter alia, the interest rates applied on the market at the date of conclusion of the loan agreement in question for a loan of a comparable sum and duration to those of that agreement.
136
The referring court also raises the question of the possible relevance of the method of calculating the two indexes to which it refers and what those two indexes represent, namely, in essence, as regards an IRPH, the average APRC of the mortgage loan agreements that are comparable to the loan agreement in question and, as regards the Euribor, which is the other reference index to which that court refers, the average interest rate at which European banks lend to each other in euros.
137
In that regard, it should be noted that both that connection, which results from the methods of calculating those indexes, and those methods themselves are specifically reflected in their respective values.
138
It also follows from paragraph 132 of the present judgment that, as a general rule, the possible existence of an imbalance to the detriment of the consumer resulting from a term regarding the calculation of interest relating to a loan agreement depends essentially, ultimately, not on the reference index itself, but on the interest rate which actually follows from that term in the light of the increase applied to the value of that index under that term.
139
It cannot, however, be ruled out that certain particular features of the method of calculating the contractual interest rate or the reference index itself may be such as to create an imbalance to the detriment of the consumer, in particular because of their impact on changes in that rate or that index.
140
Therefore, the answer to the seventeenth and eighteenth questions is that Article 3(1) of Directive 93/13 must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for the periodic adjustment of the interest rate in relation to the value of a particular reference index, it is relevant to compare the method of calculating the rate of ordinary interest provided for in that term and the actual sum resulting from that rate with the methods of calculation generally used and, inter alia, the interest rates applied on the market at the date of conclusion of that agreement for a loan of a comparable sum and duration to those of that agreement. Other aspects of the method for calculating the contractual interest rate or the reference index may be relevant if they are capable of creating an imbalance to the detriment of the consumer.
The nineteenth to twenty-second questions, concerning the consequences of any finding that a contractual term is unfair
141
The nineteenth to twenty-second questions concern the consequences of any finding that a contractual term such as the term at issue is unfair in a scenario where, in principle, the contract cannot continue to exist without that term.
– The nineteenth and twentieth questions
142
By its nineteenth and twentieth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, in the event that, in principle, a variable-rate mortgage loan agreement cannot continue to exist without the term providing for the periodic adjustment of the interest rate in relation to the value of a particular reference index, which has been found to be unfair, but where annulment of the agreement in its entirety would expose the consumer to particularly unfavourable consequences, the national court is required to replace that term with a supplementary provision of national law even if the application thereof would entail the maintenance of an imbalance to the detriment of the consumer similar to that which would have been taken into consideration in the assessment of the unfairness of that term and, if not, whether that court may retroactively amend that term by introducing, into the method of calculating the interest rate, an element capable of eliminating that imbalance.
143
Under Article 6(1) of Directive 93/13, it is for the national court to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects. The contract must continue in existence, in principle, without any amendment other than that resulting from the removal of the unfair terms, in so far as, in accordance with the rules of national law, such continuity of the contract is legally possible (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 29 and the case-law cited).
144
Where the continuance of that contract is not possible, Article 6(1) of Directive 93/13 does not preclude the national court from disapplying, in accordance with the principles of contract law, the unfair term and replacing it with a supplementary provision of national law in cases where the annulment of the contract in its entirety would expose the consumer to particularly unfavourable consequences, so that, first, the consumer would thus be penalised and, second, the dissuasive effect resulting from the annulment of the contract could well be jeopardised. In general, the consequence of such an annulment with regard to a loan agreement would be that the outstanding balance of the loan would become due forthwith, which would be likely to be in excess of the consumer’s financial capacities and, as a result, would tend to penalise the consumer rather than the lender (see, to that effect, judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraphs 32 and 34 and the case-law cited).
145
However, such a substitution presupposes that the provision concerned is actually supplementary and that its scope is equivalent to that of the term which is to be replaced.
146
In the present case, the referring court seems to start from the premiss that those conditions could be satisfied as regards the fifteenth additional provision of Law 14/2013.
147
As regards, first, the nature of that provision, it must be noted that it is for the national court to determine whether a provision of national law may be regarded as supplementary under that law (see, to that effect, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraphs 65 and 66). To that end, it is for the referring court to examine the precise content of the fifteenth additional provision of Law 14/2013.
148
That provision appears to establish a transitional regime following the abolition, as from 1 November 2013, of two IRPHs by providing that, in the terms of mortgage loan agreements providing for the adjustment of the interest rate in relation to an IRPH that has been abolished, the reference to that IRPH is replaced, for the future, by a reference to another IRPH, which continued to exist, with certain adjustments required to ensure equivalence.
149
Subject to the checks which it will be for the referring court to carry out, it appears that such a transitional rule does not correspond to the generally accepted definition of a supplementary rule, which, according to the Court’s case-law, covers cases where the parties have not departed from a standard rule provided for by the national legislature in relation to the contracts concerned, or indeed have expressly opted for a rule introduced by the national legislature to that end to be applicable (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 60).
150
Second, as regards the scope of the fifteenth additional provision of Law 14/2013, the replacement provided for by that provision relates, ostensibly, not to the terms referred to, but only to one of the elements of those terms, namely the reference index which they designate, whereas, in the present case, it is the replacement of a term that is envisaged.
151
It should also be noted that such a replacement mechanism appears to assume that the terms concerned are valid, a hypothesis which the considerations set out in the order for reference do not appear to rule out completely in the present case, since the developments in the present judgment relating to the examination of the questions concerning the possible unfairness of a term such as the term at issue show that the referring court’s doubts relate primarily not so much to the use of an IRPH as to the fact of using it without applying a negative differential as referred to in the preamble of Notice 5/1994. However, it follows from paragraph 142 of the present judgment that, in the present case, the nineteenth and twentieth questions are referred in the event that such a term is found to be invalid on the ground that it is unfair.
152
As to the remainder, in the event that the term found to be unfair cannot be excluded and replaced by a supplementary provision, it must be noted that, where the national court finds that an unfair term in a contract concluded between a seller or supplier and a consumer is invalid, that court cannot modify that contract by revising the content of that term. Thus, if it were open to the national court to revise the content of unfair terms included in such a contract, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraphs 30 and 31 and the case-law cited).
153
If a supplementary element were to be added to the detailed rules for the calculation of the interest rate, such as the detailed rules provided for in a term such as the term at issue, and that element were aimed at remedying the contractual imbalance which contributed to the finding that that term was unfair, that would amount to revising the content of that term.
154
In the light of all the foregoing considerations, the answer to the nineteenth and twentieth questions is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, in the event that, in principle, a variable-rate mortgage loan agreement cannot continue to exist without the term providing for a periodic adjustment of the interest rate in relation to the value of a particular reference index, which has been found to be unfair, but where annulment of that agreement in its entirety would expose the consumer to particularly unfavourable consequences, those provisions do not preclude the national court from replacing that term with a supplementary provision of national law, provided that that supplementary provision has a scope equivalent to that of the term the substitution of which is envisaged. However, that court cannot revise that term by adding to it an element capable of remedying the imbalance which that term presents to the detriment of the consumer.
– The twenty-first question
155
The defendant in the main proceedings and the Spanish Government submit that the Court does not have jurisdiction to answer the twenty-first question, since it relates to the application of a provision of national law.
156
However, that question does not seek an interpretation by the Court of the provision of national law to which that question refers, but, rather, seeks a ruling on the compatibility with Directive 93/13 of the consequences which the referring court presents as following from that provision, in so far as it is applicable.
157
It is therefore necessary to answer that question.
158
As a preliminary point, it must be noted that, although Article 6(1) of Directive 93/13 is not referred to by the referring court, it must also be taken into account, since that provision sets out the consequences of the invalidity of a contractual term.
159
Consequently, it must be held that, by its twenty-first question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, if a mortgage loan agreement cannot continue to exist without a term which has been found to be unfair, those provisions preclude the application of a rule of national law under which the seller or supplier would be entitled to obtain repayment of the whole of the sum lent, plus interest calculated at the statutory rate from the date on which that sum was made available to the consumer.
160
It should be noted that Article 6(1) of Directive 93/13 provides that Member States are to lay down that unfair terms are not to be binding on the consumer ‘as provided for under their national law’. However, the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope and, therefore, the substance of that protection and thus affect the strengthening of the effectiveness of that protection by the adoption of uniform rules of law in respect of unfair terms, which was the intention of the EU legislature, as stated in the tenth recital of Directive 93/13 (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 60 and the case-law cited).
161
As regards the practical consequences of the invalidity of a mortgage loan agreement on account of the presence of unfair terms, the Court has held that the compatibility with EU law of national rules governing those consequences depends on whether those rules, first, make it possible to restore, in law and in fact, the situation which the consumer would have been in had that contract not existed and, second, do not undermine the deterrent effect sought by Directive 93/13 (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 68).
162
The claims which a seller or supplier may invoke against a consumer in such a situation can therefore be accepted only if they do not compromise the objectives referred to in the preceding paragraph of the present judgment.
163
To grant a credit institution the right to seek compensation from the consumer going beyond reimbursement of the capital paid in respect of the performance of that agreement and, as the case may be, the payment of default interest, would be liable to call into question the deterrent effect sought by Directive 93/13 (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 76).
164
The possibility for the seller or supplier to obtain such default interest must be understood as the interest payable from the date on which formal notice was given to repay the sums received under the annulled agreement. If the seller or supplier could claim interest from the date on which the capital lent, in performance of the annulled agreement, was made available to the borrower, that seller or supplier would be placed in a position to obtain remuneration for the use of that capital by the consumer. Such a possibility would compromise both the deterrent effect, on sellers or suppliers, of the nullity of agreements affected by an unfair term and the effectiveness of the protection conferred on consumers by Directive 93/13, since consumers might find themselves in a situation in which it would be more advantageous for them to continue the performance of the contract containing an unfair term rather than to exercise their rights under that directive (see, to that effect, judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraphs 78, 79 and 84).
165
It should also be stated that such a solution is consistent with the principle nemo auditur propriam turpitudinem allegans (no one may rely on his or her own wrongdoing), since a party cannot be allowed to derive economic advantages from his, her or its unlawful conduct or to be compensated for the disadvantages caused by such conduct (see, to that effect, judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract) (C‑520/21, EU:C:2023:478, paragraph 81).
166
That is a fortiori so where the statutory interest rate applicable in the event of an obligation to repay sums received under an annulled loan agreement exceeds the interest rate provided for in that agreement, as is the case here.
167
In the light of all the foregoing considerations, the answer to the twenty-first question is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, if a mortgage loan agreement cannot continue to exist without a term which has been found to be unfair, those provisions preclude the application of a rule of national law under which the seller or supplier would be entitled to obtain repayment of the whole of the sum lent plus interest calculated at the statutory rate from the date on which that sum was made available to the consumer.
– The twenty-second question
168
The defendant in the main proceedings and the Spanish Government also submit that the Court does not have jurisdiction to answer the twenty-second question on the ground that it relates to the application of a provision of national law.
169
It must be noted that that question seeks, in essence, to determine whether the inclusion in an agreement, by a seller or supplier, of an unfair contractual term which has not been individually negotiated, the invalidity of which renders that agreement invalid, constitutes an ‘immoral cause’ within the meaning of Article 1306(2) of the Civil Code.
170
The examination of that question requires an interpretation of that concept of national law, an interpretation which, as follows from the case-law referred to in paragraph 63 of the present judgment, does not fall within the jurisdiction of the Court.
171
There is therefore no need to answer the twenty-second question.
Costs
172
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
1.
Article 4(2) and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as meaning that the requirement of transparency resulting from those provisions is complied with, when a mortgage loan agreement is concluded as regards the term of that agreement providing for the periodic adjustment of the interest rate in relation to the value of an official index established by an administrative act, which contains the definition of that index, merely because that act and the previous values of that index were published in the official journal of the relevant Member State, therefore without the lender itself having to inform the consumer about the definition of that index and its previous trend, even if, because of the method of calculating that index, the latter corresponds not to a remunerative interest rate, but to an annual percentage rate of charge (APRC), provided that, as a result of their publication, those elements are sufficiently accessible for an average consumer as a result of the indications given for that purpose by that seller or supplier. In the absence of such indications, it is for the seller or supplier directly to provide a complete definition of that index and any relevant information, in particular in respect of a possible warning from the authority which established that index as regards the index’s particular features and their consequences which may be regarded as important for the consumer in order to assess correctly the economic consequences of concluding the mortgage loan agreement proposed to him or her. In any event, it is for the seller or supplier to provide the consumer with all the information that the applicable national legislation requires to be provided at the time when the agreement is concluded.
2.
Article 3(1) of Directive 93/13
must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for periodic adjustment of the interest rate in relation to the value of an official index, it is of relevance that that term refers directly and simply to that index, even though it follows from the information in the administrative act which established that index that, because of the particular features resulting from the method of calculating it, it would be necessary to apply a negative differential in order to align the annual percentage rate of charge (APRC) of the transaction concerned with the market APRC, provided that the seller or supplier did not inform the consumer of that information and provided that that information was not sufficiently accessible for an average consumer.
3.
Article 3(1) of Directive 93/13
must be interpreted as meaning that, in the event of the use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index established on the basis of the annual percentage rates of charge (APRCs) applicable to the agreements taken into consideration for the calculation of the successive values of that index, the fact that those APRCs contain elements arising from terms which may subsequently be found to be unfair does not mean that the term adjusting the interest rate of the relevant agreement must be regarded as unfair and therefore unenforceable against the consumer.
4.
Article 3(1) of Directive 93/13
must be interpreted as meaning that it cannot be presumed that the seller or supplier is acting in good faith in the event of use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index merely because it is an official index established by an administrative authority and used by the public authorities. The assessment of the possible unfairness of such a term must be carried out based on the particular circumstances of the case, by taking into consideration, inter alia, a failure to comply with the requirement of transparency, and by comparing the method of calculating the rate of ordinary interest provided for by that term and the actual sum resulting from that rate with the methods of calculation normally used and, inter alia, the interest rates applied on the market on the date on which the relevant loan agreement was concluded for a loan of a comparable sum and duration to those of that agreement.
5.
Article 3(1) of Directive 93/13
must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for the periodic adjustment of the interest rate in relation to the value of a particular reference index, it is relevant to compare the method of calculating the rate of ordinary interest provided for in that term and the actual sum resulting from that rate with the methods of calculation generally used and, inter alia, the interest rates applied on the market at the date of conclusion of that agreement for a loan of a comparable sum and duration to those of that agreement. Other aspects of the method for calculating the contractual interest rate or the reference index may be relevant if they are capable of creating an imbalance to the detriment of the consumer.
6.
Article 6(1) and Article 7(1) of Directive 93/13
must be interpreted as meaning that, in the event that, in principle, a variable-rate mortgage loan agreement cannot continue to exist without the term providing for a periodic adjustment of the interest rate in relation to the value of a particular reference index, which has been found to be unfair, but where annulment of that agreement in its entirety would expose the consumer to particularly unfavourable consequences, those provisions do not preclude the national court from replacing that term with a supplementary provision of national law, provided that that supplementary provision has a scope equivalent to that of the term the substitution of which is envisaged. However, that court cannot revise that term by adding to it an element capable of remedying the imbalance which that term presents to the detriment of the consumer.
7.
Article 6(1) and Article 7(1) of Directive 93/13
must be interpreted as meaning that, if a mortgage loan agreement cannot continue to exist without a term which has been found to be unfair, those provisions preclude the application of a rule of national law under which the seller or supplier would be entitled to obtain repayment of the whole of the sum lent plus interest calculated at the statutory rate from the date on which that sum was made available to the consumer.
[Signatures]
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*1
)	Language of the case: Spanish.