(Case C-352/18)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Jaime Cardus Suarez

Defendant: Catalunya Caixa S.A.

Questions referred

Is Article 1(2) of Directive 93/13 to be interpreted as meaning that a contractual term that incorporates an official index, the IRPH, regulated by a statutory provision, is not subject to the provisions of the directive, even if that index does not have to be applied unless the parties so wish and it is not of a supplementary nature in the absence of agreement between the parties?

Is Article 1(2) of Directive 93/13 to be interpreted as meaning that a contractual term that incorporates an official index, the IRPH, even if regulated by a statutory provision, is subject to the provisions of the directive, where that contractual term amends the stipulation contained in the administrative provision defining the IRPH on the negative differential that would need to be applied where that index is used as a contractual rate, in order to match the APR of the mortgage transaction to the market APR, with it then being presumed that the contractual balance struck by the national legislature has been altered?

Does the fact that the reference index, the IRPH, incorporated by the seller or supplier in a loan contract term, is regulated by laws or regulations preclude the court from having to verify that all the information on that index that may impact on the scope of the consumer’s commitment was communicated to the consumer, in order to find that the term was drafted in plain intelligible language within the meaning of Article 4(2) of Directive 93/13?

Is Directive 93/13 contrary to the case-law pursuant to which the obligation of transparency is satisfied by the mere reference to the official index in the preformulated term, without any other information in that regard being required from the seller or supplier, who included the term, or, on the contrary, is it necessary, in order to comply with the obligation of transparency, for information on the configuration, scope and practical operation of the mechanism of this reference index to be supplied by the seller or supplier who included the term?

Is Article 4(2) of Directive 93/13 to be interpreted as meaning that the omission of consumer information on the configuration, operation and previous development of the IRPH and its foreseeable future development, at least in the short or medium term, taking account of the knowledge of the seller or supplier on those elements at the time of contracting, allows it to be considered that the term incorporated in the contract is not drafted in plain intelligible language within the meaning of Article 4(2) of Directive 93/13?

Is the requirement for transparency of the term in Article 4(2) of the directive to be interpreted as requiring the consumer to have been informed about the specific regulations governing the reference index and its contents, as relevant information for properly understanding the economic and legal importance of the term incorporating that index?

Can promotional material and information provided by the seller or supplier who included the term, which may mislead the consumer when concluding his loan contract referenced to the IRPH, constitute a factor on which the court can base its assessment of the unfair character of the contractual term under Article 4(2) of Directive 93/13?

If the term is found to be unfair, such that the loan must be repaid without interest, given that, by annulling and removing the variable interest term, the basis for concluding the contract would disappear from the bank’s perspective only, should the option of integrating this contract by amending the content of the unfair term, and applying another reference index in replacement for the one declared invalid, be permitted? In such a case, would such an interpretation and integration of the contract be contrary to Article 6 of Directive 93/13?

(<span class="note"><a id="t-C_2018285EN.01002602-E0001" href="#c-C_2018285EN.01002602-E0001">1</a></span>) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).