Report s of C ases OPINION OF ADVOCATE GENERAL SZPUNAR 1 delivered on 10 September 2019 Case C-125/18 Marc Gómez del Moral Guasch v Bankia SA (Request for a preliminary ruling from the Juzgado de Primera Instancia No 38 de Barcelona (Court of First Instance No 38, Barcelona, Spain)) (Reference for a preliminary ruling — Consumer protection — Unfair terms in consumer contracts — Mortgage loan agreement — Variable interest rate — Mortgage loan reference index (IRPH) — Index resulting from a regulatory or administrative provision — Unilateral introduction by the seller or supplier — Review of transparency by the national court — Level of information to be supplied by the bank) Table of contents I. Introduction .................................................................................... 2 II. Legal framework ................................................................................ 3 A. European Union law ......................................................................... 3 B. Spanish law ................................................................................. 4 III. The facts giving rise to the dispute in the main proceedings and the questions for a preliminary ruling ........................................................................................... 9 IV. The procedure before the Court ................................................................. 11 V. Analysis ........................................................................................ 11 A. Preliminary observations ..................................................................... 12 1. The IRPH Cajas: fluctuations and functioning ............................................. 12 1 Original language: French. EN ECLI:EU:C:2019:695 1 OPINION OF MR SZPUNAR — CASE C-125/18 GÓMEZ DEL MORAL GUASCH 2. The judgment of 14 December 2017 ...................................................... 14 B. The questions for a preliminary ruling ....................................................... 15 1. First question: the scope of the exception referred to in Article 1(2) of Directive 93/13 ...... 15 (a) Brief reminder of the Court’s case-law ............................................... 16 (b) Does the term at issue come within the exception provided for in Article 1(2) of Directive 93/13? .................................................................... 17 2. Second question: the scope and content of the review of transparency of the term at issue, in accordance with Article 4(2) of Directive 93/13 ........................................... 20 (a) Second question, part (a) ............................................................ 20 (1) The judgment in Caja de Ahorros y Monte de Piedad de Madrid ................. 20 (2) The Spanish Government’s position ............................................. 21 (3) Consequence of the failure to transpose Article 4(2) of Directive 93/13 ........... 22 (b) Second question, parts (b) and (c) ................................................... 24 (1) Reminder of the Court’s case-law on the scope of the level of information required in the context of the requirement of transparency of contractual terms under Article 4(2) and Article 5 of Directive 93/13 ..................................... 25 (2) Application to the present case .................................................. 26 VI. Conclusion ...................................................................................... 30 I. Introduction 1. Nowadays real property is rarely acquired without a loan. Paying the monthly instalments on a 2 mortgage loan has been normal practice since the dawn of time. In order to take out a loan, the average consumer generally has various sources of information, such as the brochures or practical guides issued by the banks, and also by consumer protection associations, which are intended to inform potential purchasers about various matters such as maximum indebtedness, the fixed or variable interest rates and the reference indices. 2. Frequently, owing to the technical nature of the information relating to mortgage loans, the average consumer is not in a position to understand certain concepts, such as ‘interest rate’ (fixed or variable), ‘reference index’ or ‘annual percentage rate of charge’ (APRC), and, in particular, the differences between those concepts. That also applies to the functioning or the actual calculation not only of the 2 The first cuneiform writings of ancient Mesopotamia attest to the existence of loan arrangements. In any event, there is proof that interest-bearing loans existed during the Sumerian period (3000 BC to 1900 BC) and different political rules imposed maximum limits with regard to that interest (the most common, in various periods, was 33.3% in cereals and 20% in money). The Code of Hammurabi, around 1800 BC, expressly included limits on interest rates, and also detailed regulation of interest rates and the consequences of non-payment. See Santamaría Aquilué, R., El tipo de interés en las operaciones de préstamo: a vueltas con la usura, UPNA, Pampelune, 2014, pp. 6 and 7. 2 ECLI:EU:C:2019:695 OPINION OF MR SZPUNAR — CASE C-125/18 GÓMEZ DEL MORAL GUASCH variable interest rates but also of the official reference indices of mortgage loans and of the APRC on the basis of which those interest rates are calculated. In that context, the level of information required of the seller or supplier is of crucial importance if the average consumer is to understand the real cost of his borrowing. 3. The present reference for a preliminary ruling, which was made to the Court by the Juzgado de Primera Instancia No 38 de Barcelona (Court of First Instance No 38, Barcelona, Spain), concerns the 3 interpretation of Directive 93/13/EEC, in particular Article 1(2), Article 4(2) and Articles 5 and 8 of that directive. The request for a preliminary ruling was made in the context of a dispute between Mr Marc Gómez del Moral Guasch and Bankia SA, a banking institution, concerning what is alleged to be the unfair nature of a term in a mortgage loan agreement entered into by those two parties, under which the variable interest rate of the loan is subject to one of the official mortgage loan reference indices (IRPH) (‘the term at issue’), namely the IRPH Cajas. 4. The questions for a preliminary ruling raised in that request provide the Court with the opportunity to clarify its case-law relating, inter alia, to, first, the scope of the exception set out in Article 1(2) of Directive 93/13 and, second, the extent and the content of the review of the transparency of the term at issue, in accordance with Article 4(2) and Article 5 of that directive. II. Legal framework A. European Union law 5. The 13th, 19th and 20th recitals of Directive 93/13 state: ‘whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions … [to the provisions of this Directive]; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) [of this Directive] also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established; … 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; … whereas contracts should be drafted in plain, intelligible language, … and, if in doubt, the interpretation most favourable to the consumer should prevail’. 6. According to Article 1(2) of Directive 93/13: ‘The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive.’ 3 Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29). ECLI:EU:C:2019:695 3 OPINION OF MR SZPUNAR — CASE C-125/18 GÓMEZ DEL MORAL GUASCH 7. Article 3(3) of that directive provides: ‘The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’ 8. Article 4(2) of that directive provides: ‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’ 9. The Annex to Directive 93/13, entitled ‘Terms referred to in Article 3(3)’, states in point 1(l) and point 2(c) and (d): ‘1. Terms which have the object or effect of: … (l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; … 2. Scope of paragraphs … (l) … (c) Subparagraphs … (l) do not apply to: – transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock