XZ v Ibercaja Banco, SA.
Date: 2020-07-09
22


It should be noted that, under Article 6(1) of Directive 93/13, Member States are to lay down that unfair terms in a contract concluded with a consumer by a seller or supplier are not binding on consumers, as provided for under their national law (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 53).
23


Thus, a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 61).
24


Consequently, under Article 6(1) of Directive 93/13, it is for the national courts to exclude the application of unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 52 and the case-law cited).
25


However, it is clear from the Court’s case-law that the right to effective consumer protection includes the option to waive the exercise of one’s rights, with the consequence that, where appropriate, account must be taken of the intention expressed by the consumer where, although aware of the non-binding nature of an unfair term, that consumer states nevertheless that he or she is opposed to that term being disregarded, thus giving his or her free and informed consent to the term in question (see, to that effect, judgment of 14 April 2016, Sales Sinués and Drame Ba, C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 25).
26


Directive 93/13 does not go as far as making the system of protection against the use of unfair terms by suppliers or sellers, a system which it introduced for the benefit of consumers, mandatory. Accordingly, where the consumer prefers not to rely on it, that system of protection is not applied (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 54).
27


It is thus for the national court to take into account, where appropriate, the intention expressed by the consumer where, although aware of the non-binding nature of an unfair term, that consumer states nevertheless that he or she is opposed to that term being disregarded, thus giving his or her free and informed consent to that term (see, to that effect, judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 35).
28


Consequently, and by way of analogy, it must be accepted, as the Advocate General essentially noted in points 39 to 42 of his Opinion, that a consumer may waive the right to rely on the unfairness of a contractual term in the context of a novation agreement, whereby the consumer waives the effects that would result from that term being declared to be unfair, provided that that waiver is the result of free and informed consent.
33


Article 3(2) of that directive specifies that a term must always be regarded as not individually negotiated where it has been drafted in advance by the seller or supplier and the consumer has therefore not been able to influence the substance of the term, as is the case, in particular, in the context of a pre-formulated standard contract. In that regard, the Court has previously held that a term drafted for general use constituted a term that has not been individually negotiated (judgment of 15 January 2015, Šiba, C‑537/13, EU:C:2015:14, paragraph 31).
44


It is apparent from the case-law of the Court that the requirement of transparency laid down in Article 4(2) and Article 5 of Directive 93/13 may not be reduced to the requirement of being formally and grammatically intelligible. As the system of protection introduced by that directive is based on the idea that consumers are in a position of weakness vis-à-vis sellers or suppliers, in particular as regards their level of knowledge, that requirement, laid down by the directive, that the contractual terms are to be drafted in plain, intelligible language and, accordingly, that they be transparent, must be understood in a broad sense (judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 50).
45


Therefore, the requirement that a contractual term must be drafted in plain, intelligible language must be understood to mean also that the contract should indicate transparently how the mechanism to which the relevant term refers is specifically to function and, where appropriate, the relationship between that mechanism and that provided for by other contractual terms, so that the consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him or her of entering into the contract (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 45).
46


In the case of a mortgage loan agreement, it is for the national court to carry out the necessary checks in that regard, in the light of all the relevant facts, including the promotional material and information provided by the lender in the negotiation of the agreement. More specifically, it is for the national court, when it considers all the circumstances surrounding the conclusion of the contract, to determine whether all the information likely to have a bearing on the extent of his or her commitment has been communicated to the consumer, enabling him or her to estimate, in particular, the total cost of his or her loan. First, whether the terms are drafted in plain, intelligible language enabling an average consumer to estimate that cost and, second, the fact of failing to mention in the loan agreement information regarded as being essential, in the light of the nature of the goods or services which are the subject matter of that agreement play a decisive role in that determination (judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 52).
47


In particular, providing information, before concluding such a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is on the basis of that information in particular that the consumer decides whether he or she wishes to be bound by the terms drawn up in advance by the seller or supplier (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 50 and the case-law cited).
48


Furthermore, the unfairness of a contractual term is to be assessed by reference to the time of conclusion of the contract at issue, taking account of all the circumstances which could have been known to the seller or supplier at that time, and which were of such a nature that they could affect the future performance of the contract, since a contractual term may give rise to an imbalance between the parties which manifests itself only during the performance of the contract (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 54).
51


In those circumstances, the consumer concerned must be placed in a position to understand the economic consequences such a term will cause for him or her (see, to that effect, judgment of 5 June 2019, GT, C‑38/17, EU:C:2019:461, paragraph 33 and the case-law cited).
53


The fact remains that the Court has held that, with regard to variable rate mortgage loans, the provision of data relating to past changes in the index on the basis of which that rate is calculated is a particularly relevant factor (see, to that effect, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 56).
61


It is for the national court to determine whether the contractual terms brought before it must be classed as unfair, taking account, in principle, and in accordance with Article 4(1) of that directive, of all the circumstances of the case (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 66).
62


It is for the national court to determine whether, having regard to the particular circumstances of the case, a term meets the requirements of good faith, balance and transparency. Nonetheless, the Court has jurisdiction to identify from the provisions of Directive 93/13 the criteria which the national court may or must apply when making such a determination (judgment of 28 July 2016, Verein für Konsumenteninformation, C‑191/15, EU:C:2016:612, paragraph 65).
76


In that regard, it should be noted that Article 6(1) of Directive 93/13, according to which Member States are to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier are not to be binding on consumers, as provided for under their national law, is mandatory (see, to that effect, judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 55). If it were to be permissible for a consumer to grant a prior waiver of the rights he or she derives from the system of protection put in place by the directive, that would run counter to the mandatory nature of that provision and would jeopardise the effectiveness of that system.