Unicaja Banco, SA v José Hidalgo Rueda and Others and Caixabank SA v Manuel María Rueda Ledesma and Others.
Date: 2015-01-21
28. In that context, it should be borne in mind that, as regards the inferences to be drawn from the finding of unfairness of a contract provision between a consumer and a professional, it follows from the wording of Article 6(1) of Directive 93/13 that national courts are merely required to exclude the application of 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 (judgments in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 65, and in Asbeek Brusse and de Man Garabito , C‑488/11, EU:C:2013:341, paragraph 57).
29. In particular, that provision may not be interpreted as allowing the national court, if it establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, to reduce the amount of the penalty imposed on the consumer instead of excluding the application of that clause in its entirety with regard to that consumer (judgment in Asbeek Brusse and de Man Garabito , EU:C:2013:341, paragraph 59).
30. Moreover, given the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers, Directive 93/13, as is apparent from Article 7(1) thereof, read in conjunction with its twenty-fourth recital, requires the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers (judgments in Banco Español de Crédito , EU:C:2012:349, paragraph 68, and in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 78).
31. In fact, if it were open to the national court to revise the content of unfair terms, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be adjusted, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgments in Banco Español de Crédito , EU:C:2012:349, paragraph 69, and in Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 79).
32. In the light of the foregoing considerations, the Court has held that Article 6(1) of Directive 93/13 precludes a rule of national law which allows a national court, if it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to adjust the contract by revising the content of that term (judgments in Banco Español de Crédito , EU:C:2012:349, paragraph 73, and in Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 77).
33. It is true that the Court has also recognised the possibility for the national court of substituting a supplementary provision of national law for an unfair term, provided that that substitution is consistent with the objective of Article 6(1) of Directive 93/13 and enables real balance between the rights and obligations of the parties to be restored. However, that possibility is limited to cases in which the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to disadvantageous consequences (see, to that effect, Kásler and Káslerné Rábai , EU:C:2014:282, paragraphs 82 to 84).
34. However, in the case in the main proceedings, and subject to the checks to be made in this regard by the referring court, the annulment of the contractual clauses at issue could not have adverse consequences for the consumer, inasmuch as the amounts for which the mortgage enforcement proceedings have been brought will necessarily be lower in the absence of an increase by applying default interest laid down by those clauses.
35. Those principles having been reiterated, it is clear from the order for reference that the Second Transitional Provision of Law 1/2013 requires a moderation of default interest for loans or credit for the purchase of a principal residence and guaranteed by mortgages on the dwelling at issue. Accordingly, it is laid down that in proceedings for enforcement or extra-judicial sale commenced and not concluded by the time of the entry into force of that law, that is, on 15 May 2013, and in proceedings in which the sum in respect of which an enforcement order or order for extrajudicial sale is sought has already been fixed, that amount must be adjusted by applying default interest at a rate at most equal to three times the statutory rate, if the rate of default interest under the mortgage contract is higher than that rate.
36. As was pointed out by the Spanish Government, in its pleadings and at the hearing and by the Advocate General in points 38 and 39 of his Opinion as well, the application of the Second Transitional Provision of Law 1/2013 extends to any mortgage-loan contract and is thus distinguished from that of Directive 93/13 which concerns only unfair terms included in contracts concluded between a seller or supplier and a consumer. It follows that the obligation to respect the threshold corresponding to the default interest rate equal to three times the statutory interest rate, as it was intended by the legislature, is without prejudice to the assessment, by the court, of the unfairness of a term setting default interest.
37. In those circumstances, it must be borne in mind that, pursuant to Article 4(1) of Directive 93/13, the unfairness of a contractual term must be assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, on the date of conclusion of the contract, to all the circumstances attending its conclusion. It therefore follows that the consequences of the term under the law applicable to the contract must also be taken into account. This requires consideration to be given to national law (see order in Sebestyén , C‑342/13, EU:C:2014:1857, paragraph 29 and the case-law cited).
38. In that connection, it must be recalled, furthermore, that a national court, when hearing a case between individuals, is required, when applying the provisions of domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive ( Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 64).
39. Therefore, it is important to consider that, inasmuch as the Second Transitional Provision of Law 1/2013 does not prevent the national court, faced with an unfair term, performing its duties by removing that clause, Directive 93/13 does not preclude the application of such a national provision.
40. That implies, in particular, first, that when the national court is faced with a contractual term relating to default interest at a rate less than that provided by the Second Transitional Provision of Law 1/2013, the setting of that legislative ceiling does not prevent that court from assessing the possible unfairness of that clause, within the meaning of Article 3 of Directive 93/13. Accordingly, a default interest rate less than three times the statutory rate is not necessarily to be considered to be fair within the meaning of that directive.
41. Second, when the default interest rate laid down in a term in a mortgage-loan contract is higher than that provided by the Second Transitional Provision of Law 1/2013 and must, in accordance with that provision, be subject to a limitation, such a fact must not preclude the national court from, above and beyond that measure of moderation, drawing all the inferences of possible unfairness — in the light of Directive 93/13 — of the term which contains that rate, if necessary by annulling it.
42. Therefore, it follows from all the foregoing considerations that Article 6(1) of Directive 93/13 must be interpreted as not precluding a national provision under which the national court hearing mortgage enforcement proceedings is required to adjust the amounts due under a term in a mortgage-loan contract providing for default interest at a rate more than three times greater than the statutory rate in order that the amount of that interest may not exceed that threshold, provided that the application of that national provision:
– is without prejudice to the assessment by that national court of the unfairness of such a term and
– does not prevent that court removing that clause if it were to find the latter to be ‘unfair’, within the meaning of Article 3(1) of that directive.
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