delivered on 2 February 2016 (1)

Case C‑421/14

(Request for a preliminary ruling from the Juzgado de Primera Instancia No 2 de Santander (Court of First Instance No 2, Santander, Spain))

‘Unfair terms in consumer contracts — Directive 93/13/EEC — Mortgage loan agreement — Transitional national provision laying down a time limit for lodging an objection to enforcement based on the unfairness of a term — Principle of effectiveness — Accelerated repayment term — Term concerning calculation of ordinary interest — Obligations of the national court)’

I – Introduction

1.In the present case, the Court once again has before it a request for a preliminary ruling on the interpretation of Directive 93/13/EEC (2) in connection with a mortgage loan agreement.

2.In a dispute concerning an extraordinary application objecting to enforcement proceedings in respect of a mortgaged property (‘mortgage enforcement proceedings’) in which the debtor raises the unfairness of a contractual term, the questions referred to the Court by the Juzgado de Primera Instancia No 2 de Santander (Court of First Instance No 2, Santander, Spain) concern the criteria for assessing the unfairness of certain terms in the agreement and the scope of the national court’s obligations in making that assessment. The Court is thus faced with a problem on which there have already been a considerable number of judgments, but which is here in a novel configuration, since the objection to enforcement at issue gives the referring court the opportunity to review of its own motion other terms in the agreement which are not covered by the objection.

3.In that context, the Court is required, in particular, to determine whether the protection provided by Articles 6 and 7 of Directive 93/13 means that the fact that a national court has of its own motion conducted a preliminary review of one or more terms in a contract limits its obligation to examine of its own motion the unfairness of the other terms of the contract at a later stage in the proceedings.

II – Legal framework

A – EU law

4.The 19th recital of Directive 93/13 states:

‘Whereas, for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject matter of the contract nor the quality/price ratio of the goods or services supplied; whereas the main subject matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; …’

5.Article 4 of the directive provides:

‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

6.Article 6(1) of the directive provides:

‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

7.According to Article 7(1) of the directive:

‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’

B – Spanish law

8.Law 1/2013 on the protection of mortgagors, restructuring of debt and social rent (Ley 1/2013 de medidas para reforzar la protección a los deudores hipotecarios, reestructuración de deuda y alquiler social) of 14 May 2013 (3) amended the Civil Procedure Code (Ley de enjuiciamiento civil, ‘the Civil Procedure Code’) of 7 January 2000. (4)

9.Mortgage enforcement proceedings are governed by Articles 681-698 of the Civil Procedure Code. Article 695 of the Civil Procedure Code, including in the version resulting from Law 1/2013, reads as follows:

‘1. In proceedings under this chapter, an objection to enforcement by the party against whom enforcement is sought may be admitted only if it is based on the following grounds:

…

(4) the unfairness of a contractual term constituting the basis for enforcement or which has enabled the amount due to be calculated.

…

Save in those circumstances, no appeal shall lie against orders adjudicating upon the objection to enforcement referred to in the present article and the effects of those orders shall be confined exclusively to the enforcement proceedings in which they are made.’

10.Under Article 556.1 of the Civil Procedure Code, an objection to enforcement under Article 695 of the Civil Procedure Code, including in the version resulting from Law 1/2013, must be lodged within 10 days of notification of the enforcement order. That period is applicable to mortgage enforcement since a reference to that period appears in Article 557 of the Civil Procedure Code, which was also amended by Law 1/2013, relating to the procedure for objecting to enforcement based on instruments that are neither judicial nor arbitral (which includes authenticated instruments relating to mortgage loans which provide the basis for mortgage enforcement).

11.Article 693.2 of the Civil Procedure Code concerning accelerated repayment of debts payable in instalments, as set out in Law 1/2013, reads as follows:

‘2. The total amount owed by way of principal and interest may be claimed where it has been agreed that repayment in full is due in the event of non-payment of at least three monthly instalments and the debtor has failed to fulfil his obligation to make payment of a number of instalments such that the debtor has failed to fulfil his obligation for a period at least equivalent to three months, and provided that such agreement is recorded in the instrument creating the mortgage.’

12.The First Transitional Provision of Law No 1/2013 states:

‘This Law shall apply to judicial and extrajudicial mortgage enforcement proceedings in progress on the date of entry into force of the Law, provided that eviction has not taken place.’

13.The Fourth Transitional Provision of Law 1/2013 (‘the Fourth Transitional Provision’) concerns enforcement proceedings instituted before the entry into force of Law 1/2013 and not yet concluded. That provision reads as follows:

‘1. The amendments to the Civil Procedure Code introduced by the present Law shall apply to enforcement proceedings already in progress at the date of entry into force of the present Law, only in respect of those enforcement measures still to be taken.

In accordance with the provisions of Articles 558 and Article 695 of the Civil Procedure Code, the time limit of one month shall start to run from the day following the entry into force of the present Law, and the effect of the lodging by the parties of the application objecting to enforcement shall be to suspend proceedings until the application has been adjudicated upon.

The present transitional provision shall be applicable to all enforcement proceedings that have not led to the mortgagee’s taking possession of the property in accordance with the provisions of Article 675 of the Civil Procedure Code.’

14.Furthermore, Article 136 of the Civil Procedure Code provides:

‘Once the period for carrying out a procedural step has elapsed or the time limit for doing so has passed, the step in question shall become time-barred and the opportunity to carry it out shall be lost. The Court Clerk shall leave a record of the elapse of the time limit in an official document and shall order the measures to be adopted or shall serve notice to the court so the corresponding decision can be ordered.’

15.Article 207 of the Civil Procedure Code states:

‘…

16.Article 222.1 of the Civil Procedure Code provides that ‘the res judicata of final judgments, whether they uphold or dismiss the claim, shall exclude pursuant to the law any subsequent proceedings whose subject matter is identical to the subject matter of the proceedings from which it arose’.

III – Facts in the main proceedings, questions referred and procedure before the Court

17.On 12 June 2008 Banco Primus SA (‘Banco Primus’) granted a loan to Mr Gutiérrez García which was secured by a mortgage on his home. The loan was granted for a term of 47 years, and was repayable in 564 monthly instalments.

18.On 23 March 2010, because of the failure of the defendant in the main proceedings to pay seven successive monthly instalments in repayment of the loan, the bank, under the accelerated repayment clause in the loan agreement, sought payment of the total principal plus ordinary and default interest and costs, as well as the auction of the mortgaged property.

19.On 11 January 2011 the auction of the property took place, but there were no bidders. Consequently, the referring court, by an enforceable decision of 21 March 2011, awarded the property to Banco Primus at a price of EUR 78482.34, which represented 50% of its valuation. On 6 April 2011 Banco Primus sought to obtain possession of the property, which was deferred as a result of three successive objections, the last of which was concluded by a decision of 8 April 2014 terminating the proceedings for suspension of eviction.

20.On 11 June 2014 Mr Gutiérrez García lodged an extraordinary application pursuant to Article 695 of the Civil Procedure Code objecting to the mortgage enforcement proceedings on the ground that the clause on default interest in the loan agreement was unfair. That clause had, however, already been reviewed by a court of its own motion, and the interest had been reduced to zero by an order of 12 June 2013. (5)

21.By a decision of 16 June 2014, the referring court held that the objection had been duly submitted and suspended the mortgage enforcement proceedings, as it informed the Court of Justice in a letter of 29 September 2014.

22.When it examined the objection, the referring court observed that some terms in the loan agreement other than the default interest clause might be regarded as unfair under Directive 93/13: the accelerated repayment clause, under which Banco Primus can demand immediate repayment of the loan principal, interest and costs inter alia in the event of failure to pay on the agreed date any amount owed by way of principal, interest or amounts advanced, and the ordinary interest clause, which requires ordinary interest to be calculated on the basis of a formula dividing the outstanding loan principal and the accrued interest by 360, the number of days in a financial year.

23.However, the objection was not lodged until around a year after the expiry of the time limit laid down by the Fourth Transitional Provision. That provision would therefore prevent the referring court, in the present case, from examining some of the terms in the loan agreement which might be regarded as unfair under Directive 93/13. The referring court, however, has certain doubts as to whether the Fourth Transitional Provision is compatible with Directive 93/13. It also seeks clarification concerning the criteria for assessing the unfairness of certain terms and the national court’s obligations where it has found a term to be unfair.

24.It was in those circumstances that the Juzgado de Primera Instancia No 2 de Santander (Court of First Instance No 2, Santander) decided, in a decision of 10 September 2014 received at the Court Registry on the same date, to continue to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1) (a) Must the Fourth Transitional Provision … be interpreted so as not to constitute an obstacle to the protection of the consumer?

(b) Under Directive 93/13, and in particular Articles 6(1) and 7(1) thereof, and in order to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, is a consumer permitted to raise a complaint regarding the presence of unfair terms outside the period specified under national legislation for raising such a complaint, and is the national court required to examine such terms?

(c) Under Directive 93/13, and in particular Articles 6(1) and 7(1) thereof, and in order to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, is a national court required to assess, of its own motion, whether a term is unfair and to determine the appropriate consequences, even where an earlier decision of that court reached the opposite conclusion or declined to make such an assessment and that decision was final under national procedural law?

(2) In what way may the quality/price ratio affect the review of the unfairness of non-essential terms of a contract? When conducting an indirect review of such factors, is it relevant to have regard to the limits imposed on prices under national legislation? Is it possible that terms that are valid when viewed in abstract cease to be so where it is found that the price of the transaction is very high by comparison with the market standard?

(3) For the purposes of Article 4 of Directive 93/13, can circumstances arising after the conclusion of the contract be taken into account if an examination of the national legislation suggests that this is required?

(4) (a) Must Article 693(2) of the LEC [(Ley de Enjuiciamiento Civil) (Law on Civil Procedure)], as amended by Law 1/2013, be interpreted so as not to constitute an obstacle to the protection of consumer interests?

(b) Under Directive 93/13, and in particular Articles 6(1) and 7(1) thereof, and in order to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, must a national court, when it finds there to be an unfair term concerning accelerated repayment, declare that that term does not form part of the contract and determine the consequences inherent in such a finding[,] even where the seller or supplier has waited the minimum time provided for in the national provision?

The referring court requested that the Court of Justice adjudicate in this case under an accelerated procedure, pursuant to Article 105(1) of the Court’s Rules of Procedure. That request was rejected by an order of 11 November 2014 on the ground, in particular, that, as it had informed the Court by a letter of 29 September 2014, the referring court had suspended the enforcement proceedings by a decision of 16 June 2014, such that there was no immediate risk that Mr Gutiérrez García would lose his home.

Written observations have been submitted by Banco Primus, the Spanish Government and the European Commission.

The Spanish Government and the Commission presented oral arguments at the hearing on 24 September 2015.

IV – Assessment

A – Admissibility of the request for a preliminary ruling

In its written observations, the Spanish Government calls into question the admissibility of the questions raised on the ground that the Court’s replies would not assist the referring court in giving judgment in the dispute before it. It argues that the referring court no longer has jurisdiction since it concluded the enforcement proceedings by ordering the eviction of the debtor and the occupants in an order of 8 April 2014 which has the force of res judicata.

Banco Primus does not expressly raise the inadmissibility of the request for a preliminary ruling, but relies on similar arguments.

I do not believe that the questions raised by the referring court can be declared inadmissible. Its description of the national legislation clearly shows that the mortgage enforcement proceedings at issue have not been concluded. The Fourth Transitional Provision provides that the Law is applicable ‘to all enforcement proceedings that have not led to the mortgagee’s taking possession of the property’. The enforcement proceedings have not been completed since possession has not been taken of the property, as the Spanish Government itself confirmed in its written observations. (6)

Furthermore, the Fourth Transitional Provision precisely allows an enforcement decision which has become final to be challenged because the ordinary objection period expired before the Law came into force.

Consequently, the presumption that requests for a preliminary ruling are relevant is not disproved by the objections raised by the Spanish Government and Banco Primus (7) and the questions referred are therefore altogether admissible.

B – Substance

a) Question 1(a) and (b)

In Question 1(a) and (b) the referring court asks essentially whether, in the light of the principles of equivalence and effectiveness, Articles 6 and 7 of Directive 93/13 preclude a national transitional procedural provision, such as that at issue in the case in the main proceedings, which imposes on consumers a one-month time limit, from the day following that of the publication of the law containing that provision, within which to submit an objection based on the alleged unfairness of terms of the contract in the context of mortgage enforcement proceedings in progress.

The Court recently examined essentially the same question in BBVA, (8) where I concluded, on 13 May 2015, (9) that the time limit introduced by Law 1/2013 was unlawful. The Court, agreeing with that view, held in its judgment in BBVA (C‑8/14, EU:C:2015:731) that ‘Articles 6 and 7 of Directive 93/13 must be interpreted as meaning that they preclude a national transitional provision … which makes consumers, against whom mortgage repossession proceedings have been instituted before the entry into force of the Law of which that provision forms part and which have not been concluded at that date, subject to a one-month time limit, calculated from the day following the publication of that law, to bring an objection to enforcement, in particular on the basis of the alleged unfairness of the contractual terms’.

Since the lawfulness of that time limit has already been called into question by the Court, the present Opinion will be confined to aspects not previously considered in the BBVA case. (10) For the other aspects I would refer to the Court’s judgment and my Opinion in that case.

b) Question 1(c)

i) Preliminary observations

Before considering this question, it seems to me relevant to recall that, in response to the delivery of the judgment in Aziz, (11) Law 1/2013 amended those articles of the Civil Procedure Code relating, in particular, to enforcement proceedings in respect of mortgaged or pledged assets in order to adapt mortgage enforcement proceedings to comply with that case-law. More specifically, the Spanish legislature amended the Civil Procedure Code, first, by permitting the enforcing court to assess of its own motion, at any point in the proceedings, the unfairness of contractual terms (12) and, secondly, by adding a new ground of objection, based on the unfairness of a contractual term constituting the grounds for enforcement or that has determined the sum due. (13)

It is against that background that Question 1(c) asked by the referring court must be considered.

ii) Reformulation of Question 1(c)

The referring court asks essentially whether, under Articles 6 and 7 of Directive 93/13, a national court is required to examine, of its own motion, whether there are unfair terms, even where it has not previously made such an assessment or has found the terms not to be unfair and that decision was final under national law.

In this question, the referring court contemplates two situations, one where the national court has not previously examined a term, and one where it has declared that the term was not unfair in a national order that has become final.

I would observe, however, on the basis of the national documents lodged with the Court Registry, that, in the text of the national decision cited by the referring court (the order of 12 June 2013), the court merely found, of its own motion, that the default interest clause was unfair, without ruling on or even mentioning the other terms of the agreement. (14) Consequently, I shall exclude from my examination the second scenario in the question raised by the referring court, since it is clearly hypothetical.

For that reason I cannot agree with the argument, put forward by the Spanish Government in its written observations, that the referring court is seeking to re-examine the mortgage agreement, which has already been ruled not to contain any unfair terms in an order with the force of res judicata. (15)

In order to provide a relevant answer to the referring court’s questions and in the spirit of cooperation which the Court must demonstrate with national courts, I propose to reformulate the question as seeking to determine whether the protection provided by Articles 6 and 7 of Directive 93/13 means that the fact that a court has already examined, of its own motion, one or more contractual terms limits the national court’s obligation to examine of its own motion, at a later stage in the proceedings, whether the other terms of the contract are unfair.

This is the question which I will now consider, after first recalling the relevant case-law of the Court.

iii) Summary of the relevant case-law

It seems to me important to note, first of all, that, according to consistent case-law, the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. (16)

The Court has consistently held that, in the light of that weak position, Article 6(1) of Directive 93/13 provides that unfair terms are not binding on the consumer. It is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. (17)

As regards the obligation for a court to examine unfair terms of its own motion, (18) the Court initially gave national courts the power to conduct such an examination (19) and then, subsequently, held that national courts are required to assess of their own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the parties to the contract, where the courts have available to them the legal and factual elements necessary for that task. (20) The Court thus transformed the possibility for national courts to examine of their own motion whether contractual terms are unfair into an obligation to do so. That change means that the role assigned by EU law to the national courts in the area of consumer protection ‘is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of [their] own motion’. (21)

It should also be remembered that the justification for that obligation is based on the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers. (22) The court seised of an action is therefore required to ensure the effectiveness of the protection intended to be given by the provisions of the directive.

Consequently, I take the view that, in the context of Directive 93/13, the fact that the national court, once properly seised of the action, did not examine one contractual term at a particular stage of the proceedings does not prevent it from examining other terms at a later stage. (23)

In the light of all these considerations, I propose that the answer to Question 1(c) raised by the referring court should be that the protection provided for consumers by Articles 6 and 7 of Directive 93/13 implies that the fact that a national court has of its own motion carried out a preliminary review of one or more terms in a contract does not limit its obligation to examine of its own motion the unfairness of the other terms in the contract at a later stage in the proceedings.

In these two questions, which should be examined together, the referring court essentially asks the Court about the criteria for assessing the unfairness of terms relating to the calculation of ordinary interest and accelerated repayment, such as those laid down in the agreement at issue in the main proceedings, as well as about the obligations placed on the national court by Article 4 of Directive 93/13, in order to ascertain whether, when examining such contractual terms, the national court must take account of the quality/price ratio of the goods or services supplied resulting from the overall loan agreement, the price limits imposed under national legislation and circumstances arising after the conclusion of the contract.

In order to answer those questions, I shall begin by recalling the general criteria for assessing the unfairness of contractual terms, as established by the Court in its case-law. In the light of that case-law I will then examine, first, the ordinary interest clause in the light of Article 4(2) of Directive 93/13, and, second, the accelerated repayment clause in the light of Article 4(1) of the directive.

a) The case-law on criteria for assessing the unfairness of contractual terms

First of all, the Court has stated on a number of occasions that it has jurisdiction, first, to interpret the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 and in the annex thereto and, second, to lay down the criteria which the national court may or must apply when examining a contractual term in the light of the directive. However, the Court has held that it is for the national court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case in the main proceedings. (24) A comprehensive assessment of the consequences which the term in question may have under the law applicable to the contract involves an examination of the national legal system which only the national court can carry out. (25) It must also decide whether the terms at issue are unfair, (26) and the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair. (27)

Secondly, the Court has stated that, in referring to concepts of ‘good faith’ and ‘significant imbalance’ in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, Article 3(1) of Directive 93/13 merely defines in a general way the factors that render unfair a contractual term that has not been individually negotiated. (28)

In that regard, as Advocate General Kokott pointed out in his Opinion in the Aziz case, (29) the Court has held that, in order to ascertain whether a term causes a ‘significant imbalance’ in the parties’ rights and obligations arising under a contract, to the detriment of the consumer, it must in particular be considered what rules of national law would apply in the absence of an agreement by the parties [in such a case]. According to the Court, such a comparative analysis will enable the national court to evaluate whether and, as the case may be, to what extent, the contract places the consumer in a legal situation less favourable than that provided for by the national law in force. Likewise, it appears relevant, to that end, that an assessment should be carried out of the legal situation of that consumer having regard to the means at his disposal, under national legislation, to prevent continued use of unfair terms. (30)

Thirdly, with regard to the question of the circumstances in which such an imbalance is caused ‘contrary to the requirement of good faith’, the Court has held that it is important to note that, having regard to the 16th recital of Directive 93/13, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations. (31)

Moreover, the Court has pointed out that the annex to which Article 3(3) of Directive 93/13 refers contains only an indicative and non-exhaustive list of terms that may be regarded as unfair. (32) It has stated that, pursuant to Article 4(1) of Directive 93/13, in assessing the unfairness of a contractual term, account must be taken of the nature of the goods or services for which the contract was concluded and reference must be made, at the time of conclusion of the contract, to all the circumstances attending its conclusion. It follows that, in that respect, the consequences of that term under the law applicable to the contract must also be taken into account, requiring consideration to be given to the national legal system. (33)

It is in the light of those general criteria that the referring court must assess the unfairness of the clause relating to the calculation of ordinary interest and the accelerated repayment clause to which that court refers.

b) Ordinary interest clause

Clause 3 of the contested agreement provides that ‘the financial formula to be used to arrive at the figure for the amount of interest accrued in each interest period on the basis of the nominal annual interest rate is the following: C x d x R / 360 x 100; where C = outstanding loan principal at the beginning of the interest period, d = the number of days comprising the interest period, R = the nominal annual interest rate. … For the purposes of calculating interest, a year will be deemed to have 360 days’.

The clause at issue falls within the category of terms referred to in Article 4(2) of Directive 93/13 and which are therefore precluded from examination by the national court. However, that article does allow such contractual terms to be reviewed, but only if they are not in plain intelligible language, as is the case in the main proceedings.

The referring court and the Commission doubt whether the clause at issue, in so far as it is based on a complex financial formula which an average consumer would probably not understand, satisfies the requirement in Article 4(2) of Directive 93/13 that it should be both transparent and intelligible. In particular, the Commission points out that calculating interest on the basis of a 360-day financial year results in a higher rate of interest than if the calculation were based on a calendar year of 365 days. (34)

Consequently, if the referring court finds that the clause is not in plain intelligible language and that it is therefore covered by Article 4(2) of Directive 93/13, it must examine it in the light of the general criteria set out in points 52 to 56 of this Opinion and, more precisely, ascertain whether, in the light of those criteria, the clause at issue causes a significant imbalance in the parties’ rights and obligations under the agreement, to the detriment of the consumer. Its assessment must therefore be conducted in the light of the national rules applicable in the absence of an agreement by the parties, and of the means which the consumer has at his disposal, under national legislation, to prevent continued use of this type of terms.

In making that assessment, the national court must take account of all the criteria laid down in Article 4(1) of Directive 93/13, that is to say, the nature of the goods or services for which the contract was concluded and by reference, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. In that regard, it may be important, in particular, to take account of any price limits imposed by national legislation and to determine whether the formula used to calculate the interest is incompatible with another supplementary rule of Spanish law.

The referring court’s assessment must also seek to ascertain the circumstances in which any imbalance has been caused ‘contrary to the requirement of good faith’. I would point out, in that regard, that according to settled case-law the requirement of good faith implies that the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations. (35)

In any event, it is clear from the documents before the Court that Article 4(2) of Directive 93/13 has not been transposed by the national legislature. While that is indeed true, I would point out that as a result of the failure to transpose that provision into national law, the Spanish legislation at issue in the main proceedings, in allowing the possibility of a comprehensive judicial review of the unfairness of terms such as those referred to in Article 4(2) of Directive 93/13, contained in a contract between a seller or supplier and a consumer, confers on the consumer, in accordance with Article 8 of Directive 93/13, (36) a level of protection that is actually higher than that established by the directive, (37) even where the term relates to the main subject matter of the contract or the quality/price ratio of the goods or services supplied.

c) Accelerated repayment clause

Clause 6a of the contested agreement (38) allows the bank to demand accelerated repayment of the loan principal and the payment of interest and costs in the event of failure to pay any amount owed by way of principal and interest. (39)

As the Court held in its judgment in Aziz, (40) this clause must be examined in the light of certain criteria. It is for the referring court to assess, in particular, first, whether the right of the seller or supplier to call in the totality of the loan is conditional upon the non-compliance by the consumer with an obligation which is of essential importance in the context of the contractual relationship in question, secondly, whether that right is provided for in cases in which such non-compliance is sufficiently serious in the light of the term and amount of the loan, thirdly, whether that right derogates from the relevant applicable rules, and fourthly and finally, whether national law provides for adequate and effective means enabling the consumer subject to such a clause to remedy the effects of the loan being called in. (41)

In assessing the criteria set out in the previous point, the referring court has doubts as to whether it is possible to rely on the foreseeability or otherwise of the non-compliance in the light of Article 4(1) of Directive 93/13. More precisely, it points out that the fact that the non-compliance in question was not serious leads it to wonder whether, from the point of view of the third criterion above, it is possible to take account — in order to assess whether the contested clause places the consumer in a legal situation less favourable than that provided for by the supplementary legislation — of circumstances which arose after the conclusion of the contract, and therefore to consider whether or not the non-compliance was foreseeable, even though Article 4(1) of Directive 93/13 refers to circumstances attending the conclusion of the contract ‘at the time of conclusion of the contract’.

According to the referring court, it was possible under Spanish law, in the absence of terms to the contrary, to terminate the contract early provided that it was foreseeable (circumstance arising after the conclusion of the contract) that the consumer would become guilty of serious non-compliance. (42) Thus, although non-payment of seven monthly instalments out of a total of 564 was not, in the referring court’s view, sufficiently serious in itself, it made serious non-compliance foreseeable. (43)

As regards supplementary rules for assessing whether there is a significant imbalance between the parties, as the case-law requires, it appears to me that the national court may take account of the legislation in force at the time of the conclusion of the contract as being a circumstance attending on that conclusion. In my view, Article 4(1) of Directive 93/13 allows account to be taken of circumstances arising after the conclusion of the contract provided that the reference to such future circumstances follows from an examination of the supplementary national legislation at the time of the conclusion of the contract.

However, it should be noted, as the Commission pertinently argued, that the circumstances attending the conclusion of a contract also include future circumstances which are easily foreseeable and circumstances which already exist but are known to only one of the parties. In that context, assessment of the unfairness of the contested term should take account of market trend forecasts unknown to the consumer, but of which the seller or supplier may be well aware.

d) Possibility for the national court to take account of the quality/price ratio when assessing the unfairness of contractual terms

As regards the possibility for the national court to take account of the quality/price ratio when assessing the unfairness of contractual terms, the Spanish Government argued in its written observations that under Article 4(2) of Directive 93/13 the quality/price ratio may be considered when assessing the unfairness of a term only if that term is not in plain intelligible language, which it is for the referring court to determine.

I do not accept that argument. It should be pointed out, first of all, that what is at issue here is not the assessment of a term relating to the quality/price ratio of the goods or services supplied, but the possibility for the national court to take general account of the quality/price ratio when assessing the unfairness of contractual terms. I would recall, in that regard, that the 19th recital of Directive 93/13 states that even though assessment of unfair character must not be made of terms which describe the main subject matter of the contract nor the quality/price ratio of the goods or services supplied, the main subject matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms. Consequently, there is nothing to stop the national court from taking such a factor into consideration.

e) Interim conclusion

It must be concluded that, when assessing the unfairness of a clause relating to accelerated repayment, such as that laid down in the agreement at issue in the main proceedings, it is for the national court to determine, first, whether recourse to that clause is conditional upon non-compliance by the consumer with an essential obligation of the agreement, secondly, whether that non-compliance is sufficiently serious in the light of the term and amount of the loan, thirdly, whether it derogates from the relevant supplementary national rules applicable, and fourthly, whether national law provides for adequate and effective means enabling consumers to remedy the effects of such a clause.

Moreover, Article 4 of Directive 93/13 must be interpreted as meaning that it is for the national court, when assessing contractual terms, to take account of the quality/price ratio of the goods or services supplied resulting from the overall loan agreement, the price limits imposed under national legislation, future circumstances which are easily foreseeable and circumstances already existing but known to only one of the parties at the time of the conclusion of the contract, and circumstances arising after the conclusion of the contract, provided that the reference to such future circumstances follows from an examination of the national legislation at the time of the conclusion of the contract.

In Question 4 the referring court essentially asks the Court, first, whether Directive 93/13 must be interpreted as preventing a national provision such as Article 693.2 of the Civil Procedure Code, on accelerated repayment in the context of a mortgage loan agreement, and, second, whether a national court, when it finds there to be an unfair term concerning accelerated repayment, must declare that that term does not form part of the contract, even where the lender has, in practice, satisfied the conditions laid down by that national provision.

As regards, first, whether Article 693.2 of the Civil Procedure Code complies with Directive 93/13, I would first point out that, under Article 1(2) of that directive, ‘the contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this directive’. Furthermore, in accordance with the 13th recital of the directive, Article 1(2) of Directive 93/13 ‘also covers rules which, according to [national] law, shall apply between the contracting parties provided that no other arrangements have been established’.

In that context, the first question which arises is whether Article 693.2 of the Civil Procedure Code falls within the scope of Directive 93/13.

In that regard, it is clear from the order for reference, first, that the disputed term, which reproduces Article 693.2 of the previous version of the Civil Procedure Code, does not reflect a ‘mandatory’ statutory or regulatory provision. Second, it is clear from the order for reference and the observations of the Spanish Government and the Commission that that article is also not a supplementary provision, since it cannot be applied without an agreement between the seller or supplier and the consumer. On the contrary, the article states that there must be express agreement between the parties in order for it to produce effects. (44) In the version as amended by Law 1/2013, the article allows the bank to resort to mortgage enforcement proceedings in order to claim the total amount owing by way of principal and interest in the event of non-payment of at least three monthly instalments, provided that that term is included in the mortgage instrument constituting the enforcement order.

Consequently, while it is, admittedly, true that Article 693.2 of the Civil Procedure Code, in the version prior to Law 1/2013, (45) is reproduced in the agreement at issue in the main proceedings, more precisely in the contested accelerated repayment clause, I find that, even though it is statutory or regulatory in nature, this national provision is neither mandatory nor supplementary. It is therefore apparent that, in accordance with the 13th recital of Directive 93/13, this provision does not come under Article 1(2) of that directive, and the directive is therefore applicable. (46)

It must be considered that, inasmuch as Article 693.2 of the Civil Procedure Code does not prevent the national court, faced with an unfair term, from performing its duties by removing that clause, Directive 93/13 does not preclude the application of such a national provision. (47) However, given that this provision requires an express agreement between the parties, it appears to be clear from its wording that it is not applicable without such agreement.

It follows from the above, in my view, that Directive 93/13 must be interpreted as meaning as not precluding a national provision on accelerated repayment in the context of a mortgage loan agreement provided that, first, the provision is not statutory or supplementary in nature, second, its application is solely dependent on an agreement between the parties, third, it is without prejudice to the assessment made by a national court hearing mortgage enforcement proceedings concerning the loan agreement of the unfairness of the accelerated repayment clause, and, fourth, it does not prevent the court from removing that clause if it finds it unfair within the meaning of Article 3(1) of the directive. (48)

As regards, secondly, whether the bank’s failure to apply, at the time of the first non-payment, a term which the national court had found to be unfair renders judicial review of that term unnecessary, the referring court considers that clause 6a of the loan agreement at issue in the main proceedings, which provides for the accelerated repayment of the mortgage loan in the event of late repayment, constitutes an unfair term.

The court relies on the fact that this contractual term enables the bank to create a situation of significant imbalance to the detriment of the consumer, since it provides that the bank can demand immediate repayment of the loan principal, interest and costs inter alia in the event of non-payment on the agreed date of any amount owing by way of principal, interest or amounts advanced. The referring court notes, in that regard, that the bank has 564 opportunities to produce legal consequences which are incompatible with the requirements of good faith. In other words, the term enables the bank not only to demand the total amount of the debt owing while imposing various costs, but also to initiate extraordinary and summary judicial proceedings limiting the legal remedies available.

I observe, as I have pointed out in point 44 of this Opinion, that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. (49) Consequently, and in order to ensure that Article 7 of Directive 93/13 has a deterrent effect, the powers of the national court finding a term to be unfair under Article 3(1) of the directive must not depend on whether or not that term is actually applied in practice. (50)

In the present case, the fact that the bank initiated the mortgage enforcement proceedings only after non-payment of seven successive monthly instalments is a fact which should not be taken into account when assessing a contractual term that was really designed to allow the bank to resort to mortgage enforcement in the event of non-payment of just one monthly instalment. I note in that regard that, in the area of consumer protection, reasonable conduct in a context where a contractual term is unfair does not render the term fair.

Moreover, according to settled case-law, Article 6(1) of Directive 93/13 cannot be understood as allowing the national court, in the case where it finds that there is an unfair term in a contract concluded between a seller or supplier and a consumer, to revise the content of that term instead of merely setting aside its application to the consumer. (51) The Court has accepted that possibility only where a contract is annulled in its entirety in order to prevent the particularly unfavourable consequences to which the consumer might be exposed, (52) which is not the case in the main proceedings, the contested term being non-essential to and separable from the rest of the loan agreement.

87.Consequently, I consider that Directive 93/13 must be interpreted as meaning that a national provision on accelerated repayment such as the one at issue in the main proceedings does not prevent the national court, when it finds there to be an unfair term, from having to declare that that term does not form part of the contract, even where the lender has, in practice, satisfied the conditions laid down by a national provision.

V – Conclusion

In the light of all the foregoing considerations, I propose that the Court should answer the questions raised by the Juzgado de Primera Instancia No 2 de Santander (Court of First Instance No 2, Santander, Spain) to the following effect:

(1)The protection provided for consumers by Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts implies that the fact that a national court has conducted a preliminary review of its own motion of one or more terms in a contract does not limit its obligation to assess of its own motion the unfairness of the other terms in the contract at a later stage in the proceedings.

(2)When assessing the unfairness of a clause relating to accelerated repayment, such as that laid down in the agreement at issue in the main proceedings, it is for the national court to determine, first, whether recourse to that clause is conditional upon non-compliance by the consumer with an essential obligation of the agreement, secondly, whether that non-compliance is sufficiently serious in the light of the term and amount of the loan, thirdly, whether it derogates from the relevant supplementary national rules applicable, and fourthly, whether national law provides for adequate and effective means enabling consumers to remedy the effects of such a clause.

(3)Article 4 of Directive 93/13 must be interpreted as meaning that it is for the national court, when assessing contractual terms, to take account of the quality/price ratio of the goods or services supplied resulting from the overall loan agreement, the price limits imposed under national legislation, future circumstances which are easily foreseeable and circumstances already existing but known to only one of the parties at the time of the conclusion of the contract, and circumstances arising after the conclusion of the contract, provided that the reference to such future circumstances follows from an examination of the national legislation at the time of the conclusion of the contract.

(4)Directive 93/13 must be interpreted as meaning that:

—first, it does not preclude a national provision on accelerated repayment in a mortgage loan agreement such as the one at issue in the main proceedings, provided that, first, the provision is not statutory or supplementary in nature, second, its application is solely dependent on an agreement between the parties, third, it is without prejudice to the assessment made by a national court hearing mortgage enforcement proceedings concerning the loan agreement of the unfairness of the accelerated repayment clause, and fourth, it does not prevent the court from removing that clause if it finds it unfair within the meaning of Article 3(1) of the directive, and

—secondly, that provision does not prevent the national court, when it finds there to be an unfair term, from having to declare that that term does not form part of the contract, even where the lender has, in practice, satisfied the conditions laid down by a national provision.

(1) Original language: French.

(2) Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(3) BOE No 116 of 15 May 2013, p. 36373.

(4) BOE No 7 of 8 January 2000, p. 575.

(5) The interest was recalculated after the entry into force of Law 1/2013.

(6) It is clear from the legal framework presented by the referring court that the Fourth Transitional Provision concerns enforcement proceedings initiated before the entry into force of Law 1/2013 and not yet concluded.

(7) See, in particular, judgment in Aziz (C‑415/11, EU:C:2013:164, paragraph 34).

(8) Judgment in BBVA (C‑8/14, EU:C:2015:731).

(9) See my Opinion in BBVA (C‑8/14, EU:C:2015:321). In that case, I concluded that, ‘in the light of the principle of effectiveness, Articles 6 and 7 of Directive 93/13 preclude a national transitional provision … which imposes on consumers a one-month time limit, from the date of publication of the law containing that provision, within which to submit an objection based on the unfairness of terms of the contract in the context of mortgage enforcement proceedings in progress’.

(10) Judgment in BBVA (C‑8/14, EU:C:2015:731).

(11) See, in particular, judgments in Océano Grupo Editorial and Salvat Editores (C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 25); Aziz (C‑415/11, EU:C:2013:164, paragraph 44); order in Banco Popular Español and Banco de Valencia (C‑537/12 and C‑116/13, EU:C:2013:759, paragraph 39); and judgment in Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 22).

(12) See, in particular, judgments in Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 36) and Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615, paragraph 30).

(13) I note that, in the present case, it is not a situation in which a court has already determined whether or not the contractual terms are unfair, in other words, it is not a case of a duplicate examination of its own motion of the unfairness of the contractual terms, a situation in which the Court has held that ‘the principle of effective judicial protection does not afford a right of access to a second level of jurisdiction but only to a court or tribunal’ (see judgment in Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 36). It is, on the other hand, as is clear from the national documents before the Court, a situation in which the same court has examined, of its own motion, separate unfair terms at two different stages of the enforcement proceedings. See, in that connection, point 42 of this Opinion.

(14) Judgment in Océano Grupo Editorial and Salvat Editores (C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 29).

(15) Judgment in Aziz (C‑415/11, EU:C:2013:164).

paragraph 46 and the case-law cited), and order in Banco Popular Español and Banco de Valencia (C‑537/12 and C‑116/13, EU:C:2013:759, paragraph 41).

Emphasis added. Judgments in Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 32) and Banif Plus Bank (C‑472/11, EU:C:2013:88, paragraphs 22 and 23 and the case-law cited).

Judgment in Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 38).

As regards the order for payment procedure, see my Opinion in Finanmadrid E.F.C. (C‑49/14, EU:C:2015:746, paragraphs 72 to 74).

Judgments in Invitel (C‑472/10, EU:C:2012:242, paragraph 22) and Aziz (C‑415/11, EU:C:2013:164, paragraph 66).

Judgment in Invitel (C‑472/10, EU:C:2012:242, paragraph 22) and Aziz (C‑415/11, EU:C:2013:164, paragraph 66).

Judgment in Aziz (C‑415/11, EU:C:2013:164, paragraph 66).

Ibid. (paragraph 67 and the case-law cited).

According to the referring court, ‘by dividing by 360 but multiplying by the number of actual days in the month (365 or 366 for leap years) [the bank] gains 5 days for every year the mortgage runs’.

Judgment in Aziz (C‑415/11, EU:C:2013:164, paragraph 69) and order in Banco Popular Español and Banco de Valencia (C‑537/12 and C‑116/13, EU:C:2013:759, paragraph 66).

Article 8 of Directive 93/13 provides that ‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer’.

See judgment in Caja de Ahorros y Monte de Piedad de Madrid (C‑484/08, EU:C:2010:309, paragraphs 42 and 43), which states that ‘in the Spanish legal system, as the Tribunal Supremo [(Supreme Court)] states, a national court may, in all circumstances, assess, in a dispute concerning a contract concluded between a seller or supplier and a consumer, the unfairness of a term which was not individually negotiated and which relates to, inter alia, the main subject matter of the contract, even in the case where that term was drawn up in advance by the seller or supplier in plain, intelligible language’.

The Commission has rightly pointed out that the accelerated repayment clause allowed the bank to resort to repossession in order to claim the total amount owed even if only one single monthly instalment was missed, provided that the clause was included in the instrument creating the mortgage. However, in response to the judgment in Aziz (C‑415/11, EU:C:2013:164), the Spanish legislature amended Article 693.2 of the Civil Procedure Code by providing that non-payment had to be of at least three monthly instalments.

The referring court also states that the contested clause is incompatible with Article 693.2 of the Civil Procedure Code as amended by Law 1/2013, since it allows the total amount owed to be claimed only where the parties have agreed to such a penalty in the event of non-payment of three monthly instalments, or where a number of payments have not been made such that the debtor has failed to fulfil his obligation for a period of at least three months.

C‑415/11, EU:C:2013:164.

Ibid. (paragraph 73).

According to the referring court, the possibility of accelerated repayment provided for in the agreement at issue in the main proceedings derogates from the supplementary legislation, in particular Articles 1124, 1467 and 1504 of the Civil Code, thus reducing the consumer’s rights in the absence of the contested term.

It should be noted, as the Commission pointed out, that it is, at the very least, doubtful whether failure to pay a single monthly instalment out of the 564 provided for in an agreement concluded for a period of 47 years could be sufficiently serious. The referring court states, in that connection, that failure to repay a monthly instalment of EUR 448.62 out of a loan of EUR 81600 cannot be classified as serious non-compliance.

The Commission explained at the hearing that this provision allows the lender to claim the total amount owing by way of principal and interest in summary proceedings such as mortgage enforcement proceedings.

(45) In the event, in particular, of non-payment of one monthly instalment.

(46) See, a contrario, judgment in Barclays Bank (C‑280/13, EU:C:2014:279, paragraph 42).

(47) See, to that effect, order in Banco Bilbao Vizcaya Argentaria (C‑602/13, EU:C:2015:397, paragraph 45).

(48) See, to that effect, ibid. (paragraph 46).

(49) See, in particular, judgment in Barclays Bank (C‑280/13, EU:C:2014:279, paragraph 32).

(50) See, to that effect, order in Banco Bilbao Vizcaya Argentaria (C‑602/13, EU:C:2015:397, paragraph 50).

(51) Judgment in Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 71).

(52) Judgment in Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 83).