11.5.2020

Official Journal of the European Union

C 161/2

(Case C-125/18) (<span class="super note-tag">1</span>)

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Mortgage loan agreement - Variable interest rate - Reference index based on mortgage loans granted by savings banks - Index arising from a regulatory or administrative provision - Unilateral introduction of the term by the seller or supplier - Review of the transparency requirement by the national court - Consequences of a finding that the term is unfair)

(2020/C 161/03)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Marc Gómez del Moral Guasch

Defendant: Bankia SA

Operative part of the judgment

1.Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a contractual term in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides that the interest rate applicable to the loan is based on one of the official reference indices provided for by the national legislation that may be applied by credit institutions to mortgage loans, falls within the scope of that directive, where that national legislation does not provide either for the mandatory application of that index independently of the choice of the parties to the agreement or for the supplementary application thereof in the absence of other arrangements established by those parties.

2.Directive 93/13, in particular Article 4(2) and Article 8 thereof, must be interpreted as meaning that the court of a Member State is required to verify that a contractual term relating to the main subject matter of the agreement is plain and intelligible, irrespective of whether or not Article 4(2) of that directive was transposed into the legal order of that Member State.

3.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 includes (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.

4.Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding the national court, where an unfair contractual term setting a reference index for calculating the variable interest of a loan is null and void, from replacing that index with a statutory index applicable in the absence of an agreement to the contrary between the parties to the contract, in so far as the mortgage loan agreement in question is not capable of continuing in existence if the unfair term is removed and annulment of that agreement in its entirety would expose the consumer to particularly unfavourable consequences.

(<span class="super">1</span>) OJ C 152, 30.4.2018.