62019CO0013(01)_INF
Order of the Court (Seventh Chamber) of 3 March 2021 – Ibercaja Banco
(Case C‑13/19) (
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)
(Reference for a preliminary ruling – Article 53(2) and 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 – Waiver of legal action against the terms of the contract – No binding character – Directive 2005/29/EC – Unfair business-to-consumer commercial practices – Article 6(1) and Article 7(1))
1.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Finding that a term is unfair – Scope – Term that is capable of being found to be unfair which is the subject of a novation agreement – Agreement stipulating that a consumer waives the benefit that he or she would otherwise gain when such a term is found to be unfair – Whether permissible – Condition – A matter for the national court to ascertain – Waiving by the consumer of the right to bring an action in respect of the new term – Not permissible
(Council Directive 93/13, Art. 6(1))
see paras 31-38, operative part 1)
2.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Unfair term within the meaning of Article 3 – Term which has not been individually negotiated – Concept – Term of a novation agreement seeking to modify a potentially unfair term in an earlier agreement concluded between the same parties or providing that the consumer waives any right to bring an action – Included – Condition – A matter for the national court to ascertain
(Council Directive 93/13, Arts 3(1) and (2))
(see paras 40-43, 47, operative part 2)
3.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Novation agreement seeking to modify a potentially unfair term in an earlier agreement concluded between the same parties or providing that the consumer waives any right to bring an action – Requirement of transparency – Scope – Criteria for assessment
(Council Directive 93/13, Art. 3(1), 4(2) and 5)
(see paras 50-57, 62-65, 71, 74, operative part 3)
Operative part
1.
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, under which the consumer waives the effects which would result from a declaration that the term is unfair, provided that that waiver is the result of the free and informed consent of the consumer, which it is for the national court to determine. By contrast, a term under which that consumer waives, in respect of future disputes, legal proceedings based on the rights which he or she holds under Directive 93/13, is not binding on that consumer.
2.
Article 3 of Directive 93/13 must be interpreted as meaning that a term in a mortgage loan agreement concluded between a seller or supplier and a consumer which seeks to amend a potentially unfair term of an earlier agreement concluded between them or provides that the consumer waives any right to bring legal proceedings against the seller or supplier may be regarded as not having been individually negotiated, where that consumer was not able to influence the content of the new term, which is for the national court to determine.
3.
Articles 3 to 5 of Directive 93/13 must be interpreted as meaning that the requirement of transparency, responsibility for which lies on a seller or supplier under those provisions, implies that, when a novation agreement is concluded which, first, seeks to amend a potentially unfair term of a contract previously concluded and, second, provides for the consumer to waive any legal action against the seller or supplier, that consumer must be put in a position to understand all the decisive legal and economic consequences which would result for him or her from the conclusion of that novation agreement.
4.
The tenth and thirteenth questions put by the Audiencia Provincial de Zaragoza (District Court of Zaragoza, Spain) are manifestly inadmissible.
(
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)	OJ C 148, 29.4.2019.