Marc Gómez del Moral Guasch v Bankia SA.
Date: 2020-03-03
27


It should be noted as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it (judgment of 7 August 2018, Smith, C‑122/17, EU:C:2018:631, paragraph 34).
30


Article 1(2) of Directive 93/13 thus introduces an exclusion of those terms from the scope of Directive 93/13, such exclusion to be interpreted strictly (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraphs 27 and 31, and the case-law cited).
31


That exclusion requires two conditions to be met: first, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory (judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 78, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 28).
32


In order to establish whether those conditions are met, the Court has held that it is for the national court to determine whether the contractual term concerned reflects mandatory provisions of national law that apply between the parties to the contract independently of their choice or provisions that are supplementary in nature and therefore apply by default, that is to say, in the absence of other arrangements established by the parties (judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 26; of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 79, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraphs 29 et 30).
42


However, in the light of the clarification in paragraph 39 above as to the scope of the second question, part (a), it is not necessary to determine whether or not Article 4(2) of Directive 93/13 has actually been transposed into the Spanish legal order.
43


Indeed, it is appropriate to recall that, according to settled case-law, the system of protection introduced by Directive 93/13 is based on the idea that consumers are in a position of weakness vis-à-vis sellers or suppliers, as regards both their bargaining power and their level of knowledge. This leads to consumers agreeing to terms drawn up in advance by sellers or suppliers without being able to influence the content of those terms (see, inter alia, judgments of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid, C‑484/08, EU:C:2010:309, paragraph 27 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 49).
44


In the light of that position of weakness, Directive 93/13 requires Member States to provide for a mechanism ensuring that every contractual term that has not been individually negotiated may be reviewed in order to assess whether or not it is unfair. In that context, it is for the national court to determine, taking account of the criteria laid down in Article 3(1) and Article 5 of Directive 93/13, whether, having regard to the particular circumstances of the case, such a term meets the requirements of good faith, balance and transparency laid down by that directive (see, to that effect, judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraphs 42 to 48; of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 40, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 50).
45


Article 4(2) of Directive 93/13, read in conjunction with Article 8 thereof, however, allows the Member States to provide, in the legislation transposing that directive, that an ‘assessment of the unfair nature’ is not to apply to the terms to which that provision relates, on condition that they are drafted in plain, intelligible language. (see, to that effect, judgments of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid, C‑484/08, EU:C:2010:309, paragraph 32, and of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 41).
46


The Court also observed that that requirement for plain, intelligible drafting appears in Article 5 of Directive 93/13, which states that contractual terms must ‘always’ satisfy that requirement (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 67 et 68, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 43). It follows that that requirement applies in any event, including when a contractual term falls within the scope of Article 4(2) of the directive and even if the Member State concerned has failed to transpose that provision. That requirement cannot be reduced merely to a contractual term being formally and grammatically intelligible (judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 71).
49


In that regard, as the Advocate General noted in points 106 to 109 of his Opinion, according to settled case-law of the Court on the requirement of transparency, information provided before the conclusion of 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 contractually bound to a seller or supplier by the terms previously drawn up by the latter (judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 44; of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 70; 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 of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 48).
50


It follows that, as already noted in paragraph 46 above, the transparency requirement of contractual terms, as resulting from Article 4(2) and Article 5 of Directive 93/13, cannot be reduced merely to their 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 (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 71 and 72, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 44).
51


As to a contractual term providing, under a mortgage loan agreement, for that loan to be remunerated by interest calculated on the basis of a variable rate, that requirement must thus be understood as requiring not only that the term in question must be formally and grammatically intelligible to the consumer, but also that an average consumer, who is reasonably well-informed and reasonably observant and circumspect, is in a position to understand the specific functioning of the method used for calculating that rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations (see, to that effect and by analogy, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 75, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 51).
52


Since the Court’s jurisdiction extends only to the interpretation of provisions of EU law, in the present case Directive 93/13 (see, to that effect, judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 48 and the case-law cited), it is solely for the referring court to carry out the necessary checks in that regard, in the light of all the relevant information, including the promotional material and information provided by the lender in the negotiation of a loan agreement (judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 74; of 26 February 2015, Matei, C‑143/16, EU:C:2015:127, paragraph 75, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 46). Specifically, it is for the national court, when it considers all the circumstances surrounding the conclusion of the contract, to ascertain whether, in the case concerned, all the information likely to have a bearing on the extent of his or her commitment have been communicated to the consumer, enabling the consumer to estimate in particular the total cost of the loan. First, whether the terms are drafted in plain, intelligible language enabling an average consumer, as described in paragraph 51 above, to estimate such a cost and, secondly, the fact of failing to mention in the loan agreement the information regarded as being essential with regard to the nature of the goods or services which are the subject matter of that agreement play a decisive role in that assessment (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 47).
56


In the light of the above, the answer to the second question, parts (b) and (c), is that Directive 93/13, in particular Article 4(2) and Article 5 thereof, must be interpreted as meaning that, with a view to complying with the transparency requirement of a contractual term setting a variable interest rate under a mortgage loan agreement, that term not only must be formally and grammatically intelligible but also enable an average consumer, who is reasonably well-informed and reasonably observant and circumspect, to be in a position to understand the specific functioning of the method used for calculating that rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations. Information that is particularly relevant for the purposes of the assessment to be carried out by the national court in that regard include (i) the fact that essential information relating to the calculation of that rate is easily accessible to anyone intending to take out a mortgage loan, on account of the publication of the method used for calculating that rate, and (ii) the provision of data relating to past fluctuations of the index on the basis of which that rate is calculated.
58


It should first of all be borne in mind that, under Article 6(1) of Directive 93/13, it is for the national court to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (see, to that effect, judgments of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 35; of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 65, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 52).
59


Next, according to the case-law of the Court, where a national court finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, Article 6(1) of Directive 93/13 must be interpreted as precluding a rule of national law which allows the national court to modify that contract by revising the content of that term (judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 73; of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 77, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 53).
60


Thus, if it were open to the national court to revise the content of unfair terms included in such a contract, 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 on 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 modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 69; of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 79, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 54).
61


However, the Court has previously held that in a situation where a contract concluded between a seller or supplier and a consumer is not capable of continuing in existence following the removal of an unfair term, Article 6(1) of Directive 93/13 does not preclude the national court from removing, in accordance with the principles of contract law, an unfair term and replacing it with a supplementary provision of national law in cases where the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, so that the consumer would thus be penalised (see, to that effect, judgments of30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 80 to 84, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraphs 56 and 64, and of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 48).
62


In that regard, the Court has held that such a substitution is fully justified in the light of the purpose of Directive 93/13. It is consistent with the objective of Article 6(1) of Directive 93/13, since that provision is intended to substitute for the formal balance established by the contract between the rights and obligations of the parties a real balance re-establishing equality between them, not to annul all contracts containing unfair terms (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 81 and 82, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 57).
63


If, in a situation such as that described in paragraph 61 above, it was not permissible to replace an unfair term with a supplementary provision of national law which would require the court to annul the contract in its entirety, the consumer might be exposed to particularly unfavourable consequences, meaning that the dissuasive effect resulting from the annulment of the contract could well be jeopardised. In general, the consequence of such an annulment with regard to a loan agreement would be that the outstanding balance of the loan would become due forthwith, which would be likely to be in excess of the consumer’s financial capacities and, as a result, would tend to penalise the consumer rather than the lender who, as a consequence, might not be dissuaded from inserting such terms in its contracts (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 83 and 84, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 58).
64


It must therefore be held that, in a situation where a mortgage loan agreement concluded between a seller or supplier and a consumer is not capable of continuing in existence following the removal of an unfair term referring to a statutory index for calculating the variable interest rate applicable to the loan, Article 6(1) of Directive 93/13 cannot be interpreted as precluding a national court from replacing that term, with a view to preventing that contract from becoming invalid, with a supplementary index provided for under national law, in so far as the annulment of the contract would expose the consumer to particularly unfavourable consequences (see, by analogy, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 et C‑179/17, EU:C:2019:250, paragraph 59).
71


In those circumstances, the financial consequences of the possible invalidity of such a term, for banking institutions taken individually and for the banking system as a whole, cannot be determined on the sole basis of the interpretation of EU law given by the Court in the present case (see, by analogy, judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraphs 60 and 61).