Order of the Court (Seventh Chamber) of 1 June 2021 (request for a preliminary ruling from the Juzgado de Primera Instancia No 7 de Orense – Spain) – UP v Banco Santander SA, formerly Banco Pastor SAU
(Case C-268/19) 1
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Consumer protection – Directive 93/13/EEC – Mortgage loan agreement – Unfair terms – Term limiting the variability of the interest rate (so-called ‘floor’ clause) – Novation agreement – No binding character)
Language of the case: Spanish
Referring court
Juzgado de Primera Instancia No 7 de Orense
Parties to the main proceedings
Applicant: UP
Defendant: Banco Santander SA, formerly Banco Pastor SAU
Operative part of the order
Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a term of a contract concluded between a seller or supplier and a consumer, which is capable of being found to be unfair by a court, from being the subject of a novation agreement between that seller or supplier and that consumer, provided that, at the time of conclusion of that novation agreement, the consumer was aware of the non-binding nature of that term and of the consequences arising therefrom, so that his or her adherence to that novation agreement is the result of free and informed consent, which it is for the referring court to verify.
Articles 3(1) and 4(2) of Directive 93/13 must be interpreted as meaning that the requirement of transparency incumbent on a seller or supplier under those provisions implies that, when concluding a novation agreement between a seller or supplier and a consumer, the terms of which have not been individually negotiated, which is intended to amend a potentially unfair term of an earlier contract concluded between those same parties, that seller or supplier must provide the consumer with the relevant information enabling him or her to understand the legal consequences for him or her and, in particular, the fact that the original term could possibly have been unfair, which it is for the referring court to verify.
____________
1 OJ C 238, 15.7.2019.