Case C-13/19: Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 January 2019 — Ibercaja Banco, S.A. v TJ and UK
Date: 2019-01-09
Institutions: Court of Justice
Subjects: bank, consumer protection, interest, mortgage, right of action, unfair terms of contract








C_2019148EN.01001301.xml










29.4.2019   


EN


Official Journal of the European Union


C 148/13






Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 January 2019 — Ibercaja Banco, S.A. v TJ and UK
(Case C-13/19)
(2019/C 148/13)
Language of the case: Spanish

Referring court

Audiencia Provincial de Zaragoza

Parties to the main proceedings


Appellant: Ibercaja Banco, S.A.

Respondents: TJ and UK

Questions referred







1.


In the light of Article 3 of Directive 93/13, (1) can the ‘floor clause’ amendment in the form established under the agreement, as described in the statement of facts, be classified as a standard condition of contract?










2.


In the same circumstances, can the waiver of the right to take legal action against the bank be classified as a standard condition of contract, that is to say, can a contractual condition which the seller or supplier draws up for general purposes and the content of which is not demonstrably explained to the consumer signing up to the contract be classified as a standard condition of contract?










3.


In such circumstances, are the requirements for clarity, transparency, true comprehensibility of the financial burden, pre-contractual information and individual negotiation laid down in Articles 3 and 4 of Directive 93/13 satisfied in the case where the consequences of that condition have a significant bearing on the consumer?










4.


Must the requirement for pre-contractual information as a criterion for determining whether a contractual term is unfair (Articles 4 and 5 of Directive [93/13]) apply to an equal or even greater extent in the case of an agreement for the relaxation of a term that is likely to be void (specific financial consequences of relaxation; reference to the relevant case-law and its specific effects, etc.)?










5.


For the purposes of relaxing a term that is likely to be void, is the consumer’s manuscript copy of the relaxation of the potentially void term sufficient to comply with the requirements for pre-contractual information and clarity laid down in Articles 4 and 5 of Directive [93/13]?










6.


Are (i) the fact that the initiative to effect a relaxation or settlement comes from the banking institution and (ii) the prohibition against removing the document from the branch unless it has been signed by the consumer particularly relevant when it comes to assessing whether the relaxation clause is unfair (Articles 4 and 5 of Directive [93/13])?










7.


Can a term that is likely to be void because it is unfair be relaxed (principle that unfair terms are non-binding)?










8.


Can a term that is likely to be void because it is unfair to the consumer be the subject of a waiver of the right to take legal action by the consumer (Article 3 of Directive [93/13] in conjunction with point 1(q) of the Annex to Directive 93/13 and the principle that unfair terms are not to be binding, laid down in Article 6 of the Directive)?










9.


In the event of a reply in the affirmative, must the requirement for pre-contractual information be equal to or greater than that applicable at the time of the original agreement?










10.


In the light of the requirement for pre-contractual information (Articles 4 and 5 of Directive [93/13]), is the term providing for a waiver of the right to take legal action not to be treated as a secondary and ancillary matter from the point of view of its documentation (Articles 3, 4 and 5 of Directive [93/13])?










11.


Do the validity of the relaxation of terms that are likely to be void and the waiver of the right to take legal action to obtain a declaration that those terms are void and ineffective run counter to the deterrent effect vis-à-vis the seller or supplier making the offer (Article 7 of Directive [93/13] and judgment of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15 (2))?










12.


Can a contractual term that is likely to be void because it is unfair under Articles 3 and 4 of Directive 93/13 bind the consumer to whom it applies when the banking institution uses a procedure whereby it agrees with the customer, after the contract containing the term in question has been concluded, that the seller or supplier will refrain from applying the unfair term in return for some other consideration from the consumer? In other words, is the void term rendered effective by the agreement with the consumer to replace it with another term which is more favourable to him? Could an agreement of this kind be contrary to Article 6(1) of Directive [93/13]?










13.


Is conduct on the part of a banking institution such as that described in the statement of facts caught by the prohibition of unfair behaviour and unfair commercial practices in dealings with consumers which is contained in recital 14 and Articles 6 and 7 of Directive 2005/29? (3)







(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(2)  Judgment of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15, C-307/15 and C-308/15, EU:C:2016:980.

(3)  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).