Francisco Gutiérrez Naranjo v Cajasur Banco SAU, Ana María Palacios Martínez v Banco Bilbao Vizcaya Argentaria SA (BBVA), Banco Popular Español SA v Emilio Irles López and Teresa Torres Andreu.
Date: 2016-12-21
50


In that regard, the Court has already held that information, before concluding 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 wishes to be bound by the terms previously drawn up by the seller or supplier (judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 44).
53


Under Article 6(1) of Directive 93/13, Member States are to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer.
54


That provision must be regarded as a provision of equal standing to that of national rules that have, within the domestic legal system, the character of rules of public policy (see, to that effect, judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 44).
55


In addition, this is a mandatory provision that is intended to replace the formal balance established by the contract between the rights and obligations of the parties with an effective balance that re-establishes equality between them (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 63, and the case-law cited).
56


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, obliges 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’ (judgment of 30 April, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 78).
57


To this end, it is for the national court purely and simply to exclude the application of an unfair contractual term in order for it not to produce binding effects with regard to the consumer, without being authorised to revise its content (see, to that effect, judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 65).
58


In that context, on the one hand, a national court is bound to assess, of its own motion, whether a contractual term falling within the scope of Directive 93/13 is unfair and by so doing to compensate for the imbalance existing between the consumer and the seller or supplier, when it has available to it the legal and factual elements necessary to that end.
59


The full effectiveness of the protection provided for by the directive requires the national court that has found of its own motion that a term is unfair to be able to establish all the consequences of that finding, without expecting the consumer, who has been fully informed of his rights, to submit a statement requesting that that term be declared invalid (judgment of 30 May 2013, Jőrös, C‑397/11, EU:C:2013:340, paragraph 42).
60


On the other hand, the national court may not revise the content of unfair terms, lest it contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms (see, to that effect, judgment of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 et C‑487/13, EU:C:2015:21, paragraph 31 and the case-law cited).
61


It follows from the foregoing considerations that Article 6(1) of Directive 93/13 must be interpreted as meaning that 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. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he would have been in if that term had not existed.
62


It follows that the obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts.
64


It is true that Article 6(1) of Directive 93/13 requires the Member States to lay down that unfair terms are not to be binding on the consumer, ‘as provided for under their national law’ (judgment of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 57).
65


However, the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope and, therefore, the substance of that protection and thus affect the strengthening of the effectiveness of that protection by the adoption of uniform rules of law in respect of unfair terms, which was the intention of the EU legislature, as stated in recital 10 of Directive 93/13.
66


Consequently, while it is for the Member States, by means of their national legislation, to define the detailed rules under which the unfairness of a contractual clause is established and the actual legal effects of that finding are produced, the fact remains that such a finding must allow the restoration of the legal and factual situation that the consumer would have been in if that unfair term had not existed, by inter alia, creating a right to restitution of advantages wrongly obtained, to the consumer’s detriment, by the seller or supplier on the basis of that unfair term.
68


In that regard, it is true that the Court has also recognised that consumer protection is not absolute. In particular, it has ruled to the effect that EU law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13 (see, to that effect, judgment of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 37). It follows that the Tribunal Supremo (Supreme Court) was entitled to hold, in its judgment of 9 May 2013, that the latter did not affect situations in respect of which a judgment with the force of res judicata had been given.
69


Likewise, the Court has previously held that in the interests of legal certainty it is compatible with EU law to lay down reasonable time-limits for bringing proceedings (judgment of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 41).
70


Nevertheless, the application of a procedural rule, such as a reasonable limitation period, is to be distinguished from a temporal limitation of the effects of an interpretation of a rule of EU law (see, to that effect, judgment of 15 April 2010, Barth, C‑542/08, EU:C:2010:193, paragraph 30 and the case-law cited). In that regard, it must be recalled that it is for the Court alone, in the light of the fundamental requirement of a general and uniform application of EU law, to decide upon the temporal limitations to be placed on the interpretation it lays down in respect of such a rule (see, to that effect, judgment of 2 February 1988, Barra and Others, 309/85, EU:C:1988:42, paragraph 13).
71


So, the provisions of national law to which Article 6(1) of Directive 93/13 refers may not adversely affect the substance of the right that consumers acquire under that provision, as interpreted by the case-law of the Court referred to at paragraphs 54 to 61 of the present judgment, not to be bound by a term deemed to be unfair.
73


It follows that national case-law, such as that following from the judgment of 9 May 2013, concerning the temporal limitation of the legal effects resulting, in accordance with Article 6(1) of Directive 93/13, from the finding that a contractual term is unfair, ensures only limited protection for consumers who have concluded a mortgage loan contract containing a ‘floor clause’ before the date of the judgment in which the finding of unfairness was made. Such protection is, therefore, incomplete and insufficient and does not constitute either an adequate or effective means of preventing the continued use of that type of term, contrary to Article 7(1) of Directive 93/13 (see, to that effect, judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 60).
74


In those circumstances, the referring courts, being bound for the purposes of the decisions to be given in the main proceedings by the interpretation of EU law given by the Court, must disapply, of their own motion, the temporal limitation which the Tribunal Supremo (Supreme Court) applied in its judgment of 9 May 2013, because that limitation does not appear to be compatible with that law (see, to that effect, judgments of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraphs 29 to 32; of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraphs 33 and 34; of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 36, and of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 67 to 70).