Official Journal of the European Union

C series

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C/2025/692

10.2.2025

(Case C-300/23,

Kuxtabank)

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Mortgage loan agreement - Term providing for a variable interest rate - Reference index based on the annual percentage rates of charge (APRC) of mortgage loans granted by savings banks - Official index established by a published administrative act - Information contained in the preamble to that act - Check relating to the requirement of transparency - Assessment of the unfair nature of the term - Principle of effectiveness)

(C/2025/692)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: NB

Defendant: Kutxabank SA

Intervener: Ministerio Fiscal

Operative part of the judgment

1.Article 4(2) and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the requirement of transparency resulting from those provisions is complied with, when a mortgage loan agreement is concluded as regards the term of that agreement providing for the periodic adjustment of the interest rate in relation to the value of an official index established by an administrative act, which contains the definition of that index, merely because that act and the previous values of that index were published in the official journal of the relevant Member State, therefore without the lender itself having to inform the consumer about the definition of that index and its previous trend, even if, because of the method of calculating that index, the latter corresponds not to a remunerative interest rate, but to an annual percentage rate of charge (APRC), provided that, as a result of their publication, those elements are sufficiently accessible for an average consumer as a result of the indications given for that purpose by that seller or supplier. In the absence of such indications, it is for the seller or supplier directly to provide a complete definition of that index and any relevant information, in particular in respect of a possible warning from the authority which established that index as regards the index’s particular features and their consequences which may be regarded as important for the consumer in order to assess correctly the economic consequences of concluding the mortgage loan agreement proposed to him or her. In any event, it is for the seller or supplier to provide the consumer with all the information that the applicable national legislation requires to be provided at the time when the agreement is concluded.

2.Article 3(1) of Directive 93/13 must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for periodic adjustment of the interest rate in relation to the value of an official index, it is of relevance that that term refers directly and simply to that index, even though it follows from the information in the administrative act which established that index that, because of the particular features resulting from the method of calculating it, it would be necessary to apply a negative differential in order to align the annual percentage rate of charge (APRC) of the transaction concerned with the market APRC, provided that the seller or supplier did not inform the consumer of that information and provided that that information was not sufficiently accessible for an average consumer.

3.Article 3(1) of Directive 93/13 must be interpreted as meaning that, in the event of the use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index established on the basis of the annual percentage rates of charge (APRCs) applicable to the agreements taken into consideration for the calculation of the successive values of that index, the fact that those APRCs contain elements arising from terms which may subsequently be found to be unfair does not mean that the term adjusting the interest rate of the relevant agreement must be regarded as unfair and therefore unenforceable against the consumer.

4.Article 3(1) of Directive 93/13 must be interpreted as meaning that it cannot be presumed that the seller or supplier is acting in good faith in the event of use, in a term providing for the periodic adjustment of the interest rate of a mortgage loan agreement, of a reference index merely because it is an official index established by an administrative authority and used by the public authorities. The assessment of the possible unfairness of such a term must be carried out based on the particular circumstances of the case, by taking into consideration, inter alia, a failure to comply with the requirement of transparency, and by comparing the method of calculating the rate of ordinary interest provided for by that term and the actual sum resulting from that rate with the methods of calculation normally used and, inter alia, the interest rates applied on the market on the date on which the relevant loan agreement was concluded for a loan of a comparable sum and duration to those of that agreement.

5.Article 3(1) of Directive 93/13 must be interpreted as meaning that, in order to assess the possible unfairness of a term in a variable-rate mortgage loan agreement providing for the periodic adjustment of the interest rate in relation to the value of a particular reference index, it is relevant to compare the method of calculating the rate of ordinary interest provided for in that term and the actual sum resulting from that rate with the methods of calculation generally used and, inter alia, the interest rates applied on the market at the date of conclusion of that agreement for a loan of a comparable sum and duration to those of that agreement. Other aspects of the method for calculating the contractual interest rate or the reference index may be relevant if they are capable of creating an imbalance to the detriment of the consumer.

6.Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, in the event that, in principle, a variable-rate mortgage loan agreement cannot continue to exist without the term providing for a periodic adjustment of the interest rate in relation to the value of a particular reference index, which has been found to be unfair, but where annulment of that agreement in its entirety would expose the consumer to particularly unfavourable consequences, those provisions do not preclude the national court from replacing that term with a supplementary provision of national law, provided that that supplementary provision has a scope equivalent to that of the term the substitution of which is envisaged. However, that court cannot revise that term by adding to it an element capable of remedying the imbalance which that term presents to the detriment of the consumer.

7.Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that, if a mortgage loan agreement cannot continue to exist without a term which has been found to be unfair, those provisions preclude the application of a rule of national law under which the seller or supplier would be entitled to obtain repayment of the whole of the sum lent plus interest calculated at the statutory rate from the date on which that sum was made available to the consumer.

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OJ C C/2023/1121.

ELI: http://data.europa.eu/eli/C/2025/692/oj

ISSN 1977-091X (electronic edition)

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