EN
24.1.2022
Official Journal of the European Union
C 37/3
2.
Article 3(1), Article 4(2) and Article 5 of Directive 93/13 must be interpreted as meaning that, where a national court takes the view that a contractual term the purpose of which is to determine the method for calculating a variable interest rate under a mortgage contract is not drafted in plain intelligible language within the meaning of Article 4(2) or Article 5 of that directive, that court is required to examine whether that term is ‘unfair’ within the meaning of Article 3(1) of that directive. 3.
Article 6(1) of Directive 93/13 must be interpreted as requiring the national court to offer the consumer a choice between, on the one hand, amending the contract by substituting a contractual term fixing a variable rate of interest found to be unfair with a term referring to a supplementary index provided for by law, and, on the other hand, annulment of the mortgage loan agreement in its entirety if that contract is not capable of continuing in existence without that term. 4.
Article 6(1) and Article 7(1) of Directive 93/13, read in the light of Article 1(2) of that directive, must be interpreted as not precluding the national court, where an unfair term setting a reference index for calculating the variable interest of a loan is 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, in accordance with the conditions laid down in paragraph 67 of the judgment of 3 March 2020, Gómez del Moral Guasch (C-125/18, EU:C:2020:138), where those two indices are determined by a method of calculation of equivalent complexity and national law provides for that replacement to be made where there is no dispute and the objective is to preserve the balance of the parties’ obligations, provided that the substitute index does in fact reflect a supplementary provision of national law. 5.
Article 6(1) of Directive 93/13 must be interpreted as meaning that, where a contract concluded between a seller or supplier and a consumer is not capable of continuing in existence after the removal of an unfair term and the annulment of the contract in its entirety would expose the consumer to particularly unfavourable consequences, the national court may cure the invalidity of that term by substituting it with a supplementary provision of national law, with the application of the rate resulting from the substitute index taking effect at the date of the conclusion of the contract.
(1)
Date of filing: 2/12/2020
Order of the Court (Ninth Chamber) of 17 November 2021 (request for a preliminary ruling from the Juzgado de Primera Instancia No 2 de Ibiza — Spain) — YB v Unión de Créditos Inmobiliarios SA (Case C-79/21) (1) (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 — Mortgage loan agreement — Variable interest rate — Mortgage loan reference index (IRPH) — Review of transparency by the national court — Duty to provide information — Assessment of the unfair nature of contractual terms — Requirements of good faith, balance and transparency — Consequences of a declaration of nullity) (2022/C 37/03) Language of the case: Spanish Referring court Juzgado de Primera Instancia No 2 de Ibiza
Parties to the main proceedings Applicant: YB Defendant: Unión de Créditos Inmobiliarios SA