62022CO0254_INF
Order of the Court (Ninth Chamber) of 28 February 2023 –Caixabank
(Case C‑254/22)
(Reference for a preliminary ruling – Articles 53 and 99 of the Rules of Procedure of the Court – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Directive 2014/17/EU – Mortgage loan – Variable interest rate – Term providing for the application of an interest rate calculated on the basis of a mortgage loan reference index (IRPH) plus 0.50% – Criteria for assessing whether such a term is unfair – Requirements of good faith, balance and transparency – Consequences of a finding that the term is unfair)
1.
Questions referred for a preliminary ruling – Admissibility – Questions referred without sufficient information regarding the reasons justifying the need for an answer to the questions referred for a preliminary ruling – No connecting factor between the dispute in the main proceedings and the provision of EU law referred to in the questions referred for a preliminary ruling – Manifest inadmissibility
(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)
(see paragraphs 30-35, operative part 1)
2.
Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Interpretation of national law – Precluded
(Art. 267 TFEU)
(see paragraphs 37-40, 46)
3.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Term setting a variable interest rate – Requirement of transparency – Scope – Criteria for assessment – Seller or supplier exempt from the duty to provide the consumer with information on the previous fluctuations of the credit reference index, according to national legislation and case-law – Included – Condition – Information allowing the average consumer to understand the specific functioning of the method used to calculate the reference index and to evaluate the economic consequences – Verification to be carried out by the national court
(Council Directive 93/13, Arts 3, 5 and 7)
(see paragraphs 44-45, 47-49, operative part 2)
4.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Unfair term within the meaning of Article 3 – Assessment of unfair nature by the national court – Term setting a variable interest rate – National legislation and case-law establishing an absence of good faith on the part of the seller or supplier as a necessary precondition for any review of the content of a non-transparent term – Not permissible – Seller or supplier regarded as having acted in good faith in setting the interest rate of a mortgage by reference to an index provided for by law – Significant imbalance, to the detriment of the consumer, between the rights and obligations of the parties arising from the contract – Verification to be carried out by the national court
(Council Directive 93/13, Arts 3, 5 and 7)
(see paragraphs 57-61, operative part 3)
5.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Finding that a term is unfair – Scope – Revision by the national court of the content of an unfair term – Not permissible – Replacement by the national court of an unfair term with a supplementary provision of national law – Whether permissible
(Council Directive 93/13, Arts 6(1) and 7(1))
(see paragraphs 63-77, operative part 4)
Operative part
1.
The second part of the first question, the second part of the eleventh question and the fifteenth question referred for a preliminary ruling by the Juzgado de Primera Instancia No 17 de Palma de Mallorca (Court of First Instance No 17, Palma de Mallorca) are manifestly inadmissible.
2.
Articles 3, 5 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as not precluding national legislation and case-law which exempt the seller or supplier from providing to the consumer, at the time of conclusion of a mortgage loan agreement, information related to the previous fluctuations of the reference index over at least the previous two years by means of a comparison with at least one different index such as the Euribor index, provided that that national legislation and case-law enable the court to satisfy itself that the average consumer who is reasonably well informed and reasonably observant and circumspect was able, in the light of the publicly available and accessible information and, where appropriate, the information provided by the seller or supplier, to understand the specific functioning of the method used to calculate the interest rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of a term setting a variable interest rate on his or her financial obligations.
3.
Articles 3, 5 and 7 of Directive 93/13
must be interpreted as precluding national legislation and case-law which consider an absence of good faith on the part of the seller or supplier to be a necessary precondition for any review of the content of a non-transparent term in a consumer contract. It is for the national court to determine whether, in the light of all the relevant circumstances of the main proceedings, the seller or supplier must be regarded as having acted in good faith by selecting an index provided for by law, and whether the term incorporating such an index is such as to create a significant imbalance, to the detriment of the consumer, between the rights and obligations of the parties arising from the contract.
4.
Articles 6(1) and 7(1) of Directive 93/13
must be interpreted as not precluding the national court, where an unfair term setting the variable interest rate of a loan by linking it to a reference index is found to be null and void, from replacing that index with a statutory index applicable in the absence of an agreement to the contrary between the parties to the contract, provided that the mortgage loan agreement in question is not capable of continuing in existence if the unfair term is removed and the annulment of that agreement in its entirety would expose the consumer to particularly unfavourable consequences.