Case C-254/22, Caixabank: Order of the Court (Ninth Chamber) of 28 February 2023 (request for a preliminary ruling from the Juzgado de Primera Instancia No 17 de Palma de Mallorca — Spain) — AW, PN v Caixabank SA (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)
Date: 2023-02-28
Institutions: Court of Justice
Subjects: borrowing, consumer protection, interest, real estate credit, unfair terms of contract








C_2023179EN.01001001.xml










22.5.2023   


EN


Official Journal of the European Union


C 179/10






Order of the Court (Ninth Chamber) of 28 February 2023 (request for a preliminary ruling from the Juzgado de Primera Instancia No 17 de Palma de Mallorca — Spain) — AW, PN v Caixabank SA
(Case C-254/22, (1) Caixabank)
(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)
(2023/C 179/13)
Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 17 de Palma de Mallorca

Parties to the main proceedings


Applicants: AW and PN

Defendant: Caixabank SA

Operative part of the order







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.






(1)  Date lodged: 12.4.2022.