Joined Cases C‑568/14 to C‑570/14

Ismael Fernández Oliva and Others

v

Caixabank SA and Others

(Requests for a preliminary ruling

from the Juzgado de lo Mercantil No 3 de Barcelona)

‛Reference for a preliminary ruling — Directive 93/13/EEC — Article 99 of the Rules of Procedure of the Court of Justice — Contracts concluded between sellers or suppliers and consumers — Mortgage contracts — ‘Floor’ clause — Collective proceedings — Individual action with the same subject matter — Interim relief’

Summary — Order of the Court (Fifth Chamber), 26 October 2016

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim

   (Council Directive 93/13)

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation for the national court to examine of its own motion whether a term in a contract referred to it for assessment is unfair — Scope

   (Council Directive 93/13)

3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Mortgage enforcement proceedings — No power for the national court to adopt interim relief — Unlawful — Not compatible with the principle of effectiveness

   (Council Directive 93/13, Art. 7(1))

4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a term is unfair — Scope — No power for the national court to adopt interim relief, in the context of an individual action brought by a consumer, pending a final judgment in a collective action the outcome of which may be applied to the individual action — Unlawful — Not compatible with the principle of effectiveness

   (Council Directive 93/13, Art. 7(1))

1.  See the text of the decision.

   (see para. 23)

2.  See the text of the decision.

   (see para. 24)

3.  See the text of the decision.

   (see paras 26, 27)

4.  Article 7(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as precluding a provision of national law which does not permit a court seised of an individual action brought by a consumer seeking a declaration that a term of a contract binding him to a seller or supplier is unfair to adopt interim relief of its own motion, for as long as it considers appropriate, pending a final judgment in an ongoing collective action, the outcome of which may be applied to the individual action, when such relief is necessary in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed by the consumer under Directive 93/13.

   If it is not possible for the court seised to grant interim relief of its own motion, in cases in which a consumer has not expressly applied for such relief, in the context of an individual action, in order to have the application of a ‘floor’ clause suspended pending a final judgment in an ongoing parallel collective action, that court cannot prevent that consumer from paying, during potentially lengthy court proceedings, higher monthly payments than those that would in fact be payable if the term concerned had to be disregarded. That is a fortiori the case when there is a genuine and immediate risk that that consumer’s ability to pay may be compromised in the meantime and that the financial institutions initiate mortgage enforcement proceedings for the purposes of obtaining, through the seizure of the dwelling of the consumer and his family, the payment of sums that may not be due.

   (see paras 35, 37, operative part)