20

In those circumstances, the Juzgado de Primera Instancia e Instrucción No 3 de Teruel (Court of First Instance and Preliminary Investigations No 3, Teruel) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the principle that void contractual terms are not binding (Article 6 of [Directive 93/13]) also extend to subsequent contracts and legal documents concerning such terms, such as a novation agreement? Given that absolute nullity means that the said term is deemed never to have existed in the legal/financial life of the contract, may it be concluded that subsequent legal documents — that is, the novation agreement — and their effect on the term in question are also devoid of legal reality and must be deemed non-existent and without effect? (2) Can documents which amend, or effect a settlement in respect of, non-negotiated terms which may not satisfy the fairness and transparency tests be considered to be in the nature of general contractual terms for the purposes of Article 3 of Directive 93/13 and, therefore, be subject to the same grounds for invalidity that apply to the original documents that are the subject of the novation or settlement? (3) Must the waiver of rights of action contained in a novation agreement also be void, in so far as the contracts signed by customers did not inform them either of the fact that a contractual term was void or of the money or financial sum they were entitled to receive in repayment of interest paid as a result of the initial imposition of the “floor terms”? It is noted that customers sign a waiver agreeing not to take legal action, without having been told by the bank what rights they are waiving or how much money they are giving up. (4) When the novation agreement amending the loan is examined in the light of the case-law of the Court of Justice of the European Union and Articles 3(1) and 4(2) of Directive 93/13, is the new “floor term” in the novation agreement vitiated once again by a lack of transparency, as the bank has again failed to comply with the transparency criteria laid down in the judgment of the Tribunal Supremo [(Supreme Court)] of 9 May 2013 and failed to inform the customer of the true financial cost of the said term in his or her mortgage, which would make him or her aware of the interest rate (and the resulting monthly payment) that he or she would have to pay if the new “floor term” were to be applied, and the interest rate (and the resulting monthly payment) that he or she would have to pay if no “floor term” were applied and the interest rate agreed in the mortgage were applied with no lower limit? In other words, when the financial institution imposed the document referred to as a “novation” in respect of “floor terms”, should it have satisfied the transparency tests described in Articles 3(1) and 4(2) of Directive 93/13 and informed the consumer of the amount of money lost as a result of applying the “floor terms”, and of the interest rate that would be applicable in the absence of those terms, and, given that the bank did not do so, are those documents also vitiated by a ground of nullity? (5) In view of their substance, can the terms concerning legal action included in the general terms and conditions of the novation agreement amending the loan be considered unfair under Article 3(1) of Directive 93/13 in conjunction with the Annex thereto listing unfair terms, and specifically with paragraph (q) of that annex … given that they restrict the right of consumers to exercise rights that may arise or become evident after the contract has been signed, as was the case with the possibility of claiming full repayment of the interest paid (in accordance with the judgment of the Court … of 21 December 2016)?’