Banco Santander SA v Mahamadou Demba and Mercedes Godoy Bonet and Rafael Ramón Escobedo Cortés v Banco de Sabadell SA.
Date: 2018-08-07
44


The Court has held, in essence, that that exclusion covers mandatory statutory or regulatory provisions other than those relating to the control of unfair terms, particularly those concerning the scope of the national court’s powers to assess the unfairness of a contractual term (see, to that effect, order of 7 December 2017, Woonhaven Antwerpen, C‑446/17, not published, EU:C:2017:954, paragraph 27 and the case-law cited).
50


In that regard, it should be recalled that, in the context of the procedure referred to in Article 267 TFEU, which is based on a clear separation of functions between national courts and the Court of Justice, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling and the relevance of the questions which it submits to the Court. Where those questions concern the interpretation of EU law, the Court is bound, in principle, to give a ruling (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 19 and the case-law cited).
51


Such questions in fact enjoy a presumption of relevance. The Court may refuse to give a ruling thereon only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure, are not satisfied or where it is quite obvious that the interpretation of a provision of EU law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 20 and the case-law cited).
53


As regards, in the second place, the first question in Case C‑94/17, it is not obvious that that question bears no relation to the actual facts or purpose of the dispute in the main proceedings or that the problem raised is purely hypothetical. As the Advocate General notes in point 54 of his Opinion, the referring court has, in essence, stated that the appeal before it, although relating specifically to the consequences of the unfairness of the contractual term at issue in the main proceedings, also raises doubts as to the interpretation of the provisions of Directive 93/13 concerning the finding of unfairness. Moreover, it cannot be excluded that, under Spanish law, that court may or must, of its own motion, re-examine the unfairness of the contractual terms in the appeal pending before it and, more specifically, the criteria in the light of which that unfairness must be established –– a point on which it does not appear to have yet given a final ruling: that is particularly so since, in accordance with the Court’s settled case-law, the question whether a contractual term must be declared unfair is to be treated as a question of public policy, the national court being required, as soon as it has the legal and factual elements necessary for that task, to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair (see, to that effect, judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 44, and of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraphs 40, 41 and 44).
57


In that respect, it should be recalled that, as regards the interpretation of provisions of national law, the Court is in principle required to base its consideration on the description given in the order for reference. According to settled case-law, the Court does not have jurisdiction to interpret the internal law of a Member State (judgment of 16 February 2017, Agro Foreign Trade & Agency, C‑507/15, EU:C:2017:129, paragraph 23 and the case-law cited).
63


It is apparent from the considerations stated in paragraphs 17 to 19 of the present judgment and from the documents available to the Court that, to that end, the Tribunal Supremo (Supreme Court) examined the national rules applicable in various branches of law and sought to determine the default rate of interest which could reasonably be agreed to, at the end of an individual negotiation, by a consumer who has been treated fairly and equitably, whilst ensuring in particular that the function of that interest is maintained, which is specifically to deter delays in payment and compensate the creditor in a proportionate manner in the event of such delay. It therefore appears that the Tribunal Supremo (Supreme Court) complied with the requirements set out in particular in the judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraphs 68, 69, 71 and 74).
64


As regards the matter of whether Directive 93/13 precludes the application of a criterion derived from case-law, such as that referred to in paragraph 18 of the present judgment, inasmuch as it results in an irrebuttable presumption that any contractual term which meets it is unfair, it should be recalled that that directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (judgment of 21 December 2016, Biuro podróży Partner, C‑119/15, EU:C:2016:987, paragraph 28 and the case-law cited).
65


In view of that weak position, Directive 93/13 prohibits, in Article 3(1), standard contractual terms which, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer (judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 42).
66


It is for the national court to check whether the contractual terms brought before it must be classed as unfair, by taking account, in principle, and in accordance with Article 4(1) of Directive 93/13, of all the circumstances of the case (see, to that effect, judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 71).
67


The Court in essence inferred from those provisions as well as from Article 6(1) and Article 7(1) of Directive 93/13 that the latter precludes national legislation defining a criterion in the light of which the unfairness of a contractual term must be assessed, when such legislation prevents the national court dealing with a term that does not meet that criterion from examining whether that term is unfair and, if it is, declaring it unfair and setting it aside (see, to that effect, judgment of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraphs 28 to 42). As stated in paragraph 61 of the present judgment, this does not, however, appear to be the effect of the case-law of the Tribunal Supremo (Supreme Court) at issue in the main proceedings.
73


In order to answer those questions, it must be recalled that, in accordance with Article 6(1) of Directive 93/13, national courts are merely required to refrain from applying an unfair contractual term in order that it may not produce binding effects with regard to the consumer, without being empowered to revise the content of that term. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 71 and the case-law cited).
74


While the Court has accepted that a national court may substitute a supplementary provision of domestic law for an unfair contractual term, the Court has held that that possibility is limited to situations in which the invalidation of that contractual term would require the court to annul the agreement in its entirety, thereby exposing the consumer to such consequences that he would be penalised as a result. From that point of view, as the Court has in essence ruled, the annulment of a term in a loan agreement fixing the default rate of interest applicable cannot have adverse consequences for the consumer concerned inasmuch as the amounts which may be demanded from him by the lender will necessarily be lower if that default interest does not apply (see, to that effect, judgment of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraphs 33 and 34).
75


Moreover, Directive 93/13 does not require that, in addition to the term declared unfair, the national court set aside those terms which have not been classed as such. The objective pursued by that directive consists in protecting the consumer and restoring the balance between the parties by not applying those contractual terms held to be unfair, whilst maintaining, in principle, the validity of the other terms of the agreement at issue (see, to that effect, judgments of 30 May 2013, Jőrös, C‑397/11, EU:C:2013:340, paragraph 46, and of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 32).
76


In particular, it does not follow from that directive that the setting aside or annulment of the term in a loan agreement fixing the default rate of interest, on the ground of the unfairness of that term, should also bring about that of the term in that agreement fixing the ordinary rate of interest, particularly as those different terms must be clearly distinguished. In the latter respect, the point should be made that, as is apparent from the order for reference in Case C‑94/17, default interest is intended to penalise the debtor’s failure to fulfil his obligation to make the loan repayments on the dates agreed contractually, to deter the debtor from falling behind in the performance of his obligations and, where appropriate, to compensate the lender for the loss suffered as a result of a late payment. By contrast, the function of ordinary interest is one of remuneration for the lender making a sum of money available until that sum has been repaid.
77


As the Advocate General notes in point 60 of his Opinion, those considerations apply regardless of the way in which the contractual term determining the default interest rate and that fixing the ordinary rate of interest are worded. In particular, they apply not only when the default interest rate is fixed independently of the ordinary interest rate, in a separate contractual term, but also when the default interest rate is fixed in the form of an increase in the ordinary interest rate by a certain number of percentage points. In the latter case, as the unfair term consists in that increase, Directive 93/13 requires solely that that increase be annulled.