OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 13 September 2018 (1)

Case C‑70/17

Abanca Corporación Bancaria SA

v

Alberto García Salamanca Santos

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling — Directive 93/13/EEC — Consumer protection — Unfair terms in consumer contracts — Accelerated repayment term in a mortgage loan agreement — Article 6(1) — Article 7(1) — Declaration of partial unfairness — Powers of the national court — Application of a supplementary provision of national law)

and

Case C‑179/17

Bankia SA

v

Alfonso Antonio Lau Mendoza,

Verónica Yuliana Rodriguez Ramirez

(Request for a preliminary ruling from the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona, Spain))

(Reference for a preliminary ruling — Directive 93/13/EEC — Consumer protection — Unfair terms in consumer contracts — Accelerated repayment term in a mortgage loan agreement — Article 6(1) — Powers of the national court — Application of a supplementary provision of national law)

Table of contents

I.      Introduction

1.        In his Opinion delivered on 16 December 1999 in Joined Cases Océano Grupo Editorial and Salvat Editores, (2) Advocate General Saggio stated that, in those cases, it was the first time that the Court of Justice had been called upon to give a ruling on Council Directive 93/13/EEC. (3) Reference had been made to the Court by a Spanish court regarding the power of the court to assess of its own motion whether contractual terms were unfair. Since then, to my knowledge, the Court has ruled on 26 occasions on the interpretation of that directive at the request of Spanish courts. A large proportion of those requests are subsequent to the judgment in Aziz, (4) delivered on 14 March 2013, in the midst of an economic crisis.

2.        The Court’s case-law on Directive 93/13 has played a major, or even determining, role in strengthening the internal market and protecting consumers covered by that directive, which is now an essential element in the day-to-day protection of EU consumers. This jurisprudential endeavour has been, and continues to be, carried out in close cooperation with not only the Spanish courts but also the courts of many other Member States.

3.        In the present cases, the requests for a preliminary ruling once again concern the interpretation of Directive 93/13. The Tribunal Supremo (Supreme Court, Spain) and the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona, Spain) ask, inter alia, whether the case-law of the Tribunal Supremo (Supreme Court) on the interpretation of accelerated repayment terms is compatible with the system of consumer protection established by that directive.

4.        By its questions, the Tribunal Supremo (Supreme Court) asks the Court of Justice, in essence, whether EU law precludes national case-law which authorises the national court to cure the invalidity of an unfair accelerated repayment term by amending that term and by substituting the amended part of that term for a provision of national law, in order to enable financial institutions to continue special enforcement proceedings in respect of a mortgaged property (‘mortgage enforcement proceedings’) in so far as those proceedings appear more favourable to the debtor consumer than the enforcement of a conviction decision given in the context of proceedings on the substance.

5.        The Court has already ruled on those issues on many occasions and its case-law on that subject is not only well established and has been applied in the Member States for many years, but is also well known by EU consumers. The Court must therefore decide whether it wishes to alter its case-law or confirm it. (5)

II.    Legal framework

A.      EU law

6.        According to the fourth recital of Directive 93/13, ‘it is the responsibility of the Member States to ensure that contracts concluded with consumers do not contain unfair terms’.

7.        Article 1(2) of Directive 93/13 provides:

‘The contractual terms which reflect mandatory statutory or regulatory provisions …, shall not be subject to the provisions of this Directive.’

8.        Article 3(1) and (2) of that directive provides:

‘1.      A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

2.      A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.’

9.        Article 4 of that directive is worded as follows:

‘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.

2.      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 supplied in exchange, on the other, in so far as these terms are in plain intelligible language.’

10.      Article 6(1) of that directive is worded as follows:

‘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.’

11.      Article 7(1) of Directive 93/13 provides:

‘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

12.      Article 1101 of the Código Civil (Civil Code) provides:

‘Persons who, in the performance of their obligations, act fraudulently or negligently or cause a delay, or do not comply with the terms of those obligations in any way, shall be required to remedy the damage caused.’

13.      Article 1124 of the Civil Code provides:

‘The possibility of terminating obligations is deemed to be implied in reciprocal obligations if one of the contracting parties fails to comply with its obligations.

The injured party may demand either the performance or the termination of that obligation. Damages shall be payable in both cases. Even after having opted for performance, the injured party may request termination if performance proves to be impossible.

The court shall order the termination requested unless there are grounds to justify the grant of a period in which to perform the obligation.’

14.      Under Article 552(1) of Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000, (6) in the version applicable to the disputes in the main proceedings (‘the LEC’), regarding the review of the court’s own motion as to whether terms are unfair:

‘The court shall examine of its own motion whether a term in any of the enforceable instruments referred to in Article 557(1) may be considered to be unfair. If it finds that any of those terms may be considered to be unfair, it shall hear the parties within 15 days. After hearing the parties, it shall give a ruling within five working days, in accordance with Article 561(1)(3).’

15.      Article 557 of the LEC is worded as follows:

‘1.      Where enforcement is ordered in respect of the instruments referred to in Article 517(2)(4), (5), (6) and (7), and of other enforceable documents referred to in Article 517(2)(9), the party against whom enforcement is sought may lodge an objection, within the period and in the form provided for in the preceding article, only if it relies on one of the following grounds:

…

7°      The instrument contains unfair terms.

2.      If an objection referred to in the previous paragraph is made, the Judicial Officer shall suspend the enforcement by a measure of organisation of the procedure.’

16.      Under Article 561(1)(3) of the LEC:

‘If one or more terms are held to be unfair, the order to be made shall determine the consequences of such unfairness, directing either that enforcement is unavailable or ordering enforcement without application of the terms considered unfair.’

17.      Under Article 693(2) of the LEC concerning the accelerated repayment of debts payable in instalments:

‘The total amount owed by way of principal and interest may be claimed if it has been agreed that repayment of the total amount of the loan is due in the event of non-payment of at least three monthly instalments and the debtor has failed to fulfil his payment obligation, or to pay 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.’

18.      Article 695 of the LEC, concerning objections to the enforcement of the mortgage, is worded as follows:

‘1.      In the proceedings referred to 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 grounds for enforcement or which has enabled the amount due to be calculated.

2.      If an objection is lodged under the previous paragraph, the Judicial Officer shall suspend enforcement and shall summon the parties to appear before the court that issued the general enforcement order. There shall be at least 15 days between the summons and the date of the hearing in question. At that hearing, the court shall hear the parties, admit the documents that are submitted and within two days adopt, by way of order, such decision as it thinks fit.

3.      ...

If the fourth ground [of paragraph 1 of this article] is upheld, enforcement shall be discontinued where it is based on the contractual term. In other cases, enforcement shall be continued without the application of the unfair term.

…’

19.      Directive 93/13 was transposed into Spanish law by Ley 7/1998 sobre condiciones generales de la contratación (Law 7/1998 on general contractual conditions) of 13 April 1998 (7) and by Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (Royal Legislative Decree 1/2007 approving the revised text of the general law for the protection of consumers and users and other supplementary laws) of 16 November 2007. (8)

20.      Under Article 83 of Royal Legislative Decree 1/2007, as amended by Law 3/2014 of 27 March 2014: (9)

‘Unfair terms shall automatically be void and deemed not to have formed part of the contract. To that end, after consulting the parties, the court shall rule that the unfair terms in the contract are void. The contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions.’

III. Facts and the questions referred for a preliminary ruling

21.      The relevant facts of the disputes in the main proceedings, as they appear from the orders for reference, may be summarised as follows.

A.      Case C‑70/17

22.      On 30 May 2008, Mr Alberto García Salamanca Santos and Ms Verónica Varela obtained a loan which was secured by a mortgage on their home from Abanca Corporación Bancaria SA (‘Abanca’). That loan, in the amount of EUR 100 000 and granted for a term of 30 years, was repayable in 360 monthly instalments.

23.      In accordance with clause 6a of the loan agreement, relating to accelerated repayment, in the event of non-payment of any repayment of interest or principal, the mortgagee could consider the loan to be due and bring legal proceedings demanding payment of all the capital, plus default interest, expenses and costs.

24.      Mr García Salamanca Santos brought proceedings seeking the annulment of a number of terms in the loan agreement, including clause 6a, on the ground that they were unfair. The court at first instance granted that application in part and annulled the term at issue, inter alia. That decision was confirmed on appeal by the Audiencia Provincial Pontevedra (Provincial Court, Pontevedra, Spain).

25.      Appeal proceedings on a point of law have been brought by Abanca before the Tribunal Supremo (Supreme Court), which states that the questions at issue concern whether the accelerated repayment term contained in the loan agreements secured by a mortgage concluded with consumers is unfair and the extent of the invalidity resulting from a finding that the term is unfair. Thus, the referring court has doubts as to whether that term may be found to be unfair in part. Those doubts stem from, inter alia, its interpretation of accelerated repayment terms in its own case-law, which allows the supplementary application of national legislation, such as Article 693(2) of the LEC, in order to enable the mortgage enforcement to continue.

26.      It is clear from the order for reference that, by its judgment of 23 December 2015, (10) confirmed by the judgment of 18 February 2016, (11) the Tribunal Supremo (Supreme Court) considered that, for accelerated repayment terms to be valid, they must make adjustments for the seriousness of the default according to the loan period and amount and allow the consumer to avoid their application by acting diligently to remedy the situation. The Tribunal Supremo (Supreme Court) held, however, that the mortgage enforcement could be continued if the power to order the accelerated repayment of the loan had not been exercised unfairly, in view of the advantages that the special procedure conferred on the consumer.

27.      In that regard, the referring court states that, under Spanish law, in a loan agreement secured by a mortgage, where a borrower fails to comply with his obligation to repay the amount received, the creditor may institute either proceedings on the substance (12) or mortgage enforcement proceedings. (13) It states that mortgage enforcement proceedings are more favourable to the debtor consumer than proceedings which hold that enforcement of the mortgage must be discontinued. (14) Where the latter is ordered, the consumer is therefore obliged to have recourse to proceedings on the substance. According to that court, the initiation of those proceedings in order to declare that the mortgage has been terminated as the debtor has failed to fulfil his obligations, in accordance with Article 1124 of the Civil Code (legal power, non-contractual), will have harmful effects on the consumer, inter alia, the ‘accumulation of orders to pay procedural costs in both the declaratory and enforcement phases and an increase of default interest because of the duration of the procedure’.

28.      In those circumstances, the Tribunal Supremo (Supreme Court), after having heard the parties, decided, by judgment of 8 February 2017, lodged at the Court Registry on 9 February 2017, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must Article 6(1) of Directive 93/13 be interpreted to the effect that a national court, in appraising the unfairness of an accelerated repayment clause in a mortgage loan contract concluded with a consumer that provides for acceleration upon failure to pay an instalment, in addition to other cases of non-payment of further instalments, may assess the unfairness only of the contractual term or case of non-payment of an instalment and treat the accelerated repayment clause covering non-payment of instalments also laid down on a general basis in the clause as still valid, regardless of whether any specific finding of validity or unfairness has to be deferred to the time when the power is exercised?

(2)      Does a national court have powers under Directive 93/13 — once an accelerated repayment clause in a loan or credit contract secured by a mortgage is declared unfair — whereby it may take the view that the supplementary application of a provision of national law, even though giving rise to the commencement or continuation of enforcement proceedings against the consumer, appears more favourable to the consumer than a stay of that special mortgage enforcement procedure and may allow the creditor to initiate proceedings to terminate the loan or credit contract, or to claim the sums owing, and ensure the subsequent enforcement of the adverse judgment, without the advantages which the special mortgage enforcement procedure makes available to consumers?’

B.      Case C‑179/17

29.      On 22 June 2005, the banking institution Bankia SA, the party seeking enforcement in the main proceedings and Mr Alfonso Antonio Lau Mendoza and Ms Verónica Yuliana Rodríguez Ramírez, the defendants in the main proceedings, concluded a mortgage loan agreement for a sum of EUR 188 000 for the sale of a property which is their principal residence, the term of which was fixed, after novation of the contract, at 37 years.

30.      Under clause 6a of the mortgage loan agreement, entitled, ‘Early termination by the credit institution’:

‘Notwithstanding the stipulated term of this agreement, the creditor bank may declare that the loan is due, considering it to have been terminated and the early repayment of all of the debt to be due, in particular in the event of non-payment on the due date of one, several or all of the repayment instalments set out in the second clause [concerning amortisation].’

31.      Following the non-payment of 36 monthly instalments by the debtors, Bankia lodged an application for mortgage enforcement before the referring court against the property mortgaged as security for the loan granted.

32.      The Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona) asks about the consequences of a finding that an accelerated repayment term is unfair in the context of mortgage enforcement proceedings, in particular in the light of the recent case-law of the Tribunal Supremo (Supreme Court). That case-law allows the mortgage enforcement to continue despite the finding that the accelerated repayment term which forms the basis of those proceedings is unfair. The referring court states that it must comply with the case-law of the Tribunal Supremo (Supreme Court) as a supplement to Spanish law, but, at the same time, it must comply with EU law, as interpreted by the Court of Justice.

33.      In its request for a preliminary ruling, the referring court raises a number of legal issues which, in its view, may be of particular significance for the purposes of answering the questions raised in the present cases. Those legal issues concern, first, the uncertainty as to whether the declaratory action based on Article 1124 of the Civil Code (15) will succeed. In that regard, that court states that, to date, the settled case-law of the Tribunal Supremo (Supreme Court) has found that Article 1124 of the Civil Code — which applies to reciprocal obligations only — cannot be applied to mortgage loan agreements (real, unilateral contract). Therefore, the referring court considers that the application in declaratory proceedings concerning a mortgage loan agreement which is based on Article 1124 of the Civil Code should be rejected by the national court. (16) However, the referring court emphasises that, even if the Tribunal Supremo (Supreme Court) had decided to clarify that case-law and to accept that that article applies to mortgages, (17) it cannot be ruled out that the action to terminate the loan would be dismissed if the court found it justified to grant the debtor time to comply with the obligation, as expressly provided for in Article 1124 of the Civil Code. (18)

34.      Secondly, the referring court states that the supplementary application of Article 693(2) of the LEC is contrary to the case-law of the Court. It is clear to that court that the loan agreement can continue without the early repayment term and that that provision cannot apply on a supplementary basis since the ‘essential condition for it to apply’, namely ‘that the contract contains an agreement regarding early payment between the parties which has in fact been declared unfair, has not been met’. (19) That court considers, therefore, that although those issues are not addressed in the present request for a preliminary ruling, it still doubts whether the mortgage enforcement may continue in the dispute in the main proceedings and new questions could be referred for a preliminary ruling.

35.      In those circumstances, the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona) decided, by judgment of 30 March 2017, lodged at the Court Registry on 10 April 2017, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is case-law incompatible with Articles 6 and 7 of Directive 93/13 … when it [judgment of the Tribunal Supremo (Supreme Court) of 18 February 2016] holds that, despite the unfairness of the early repayment term and even though the application for enforcement is based on that term, mortgage enforcement proceedings are not to be closed because their continuation is more favourable to the consumer, given that, in the event of any enforcement of a judgment given in declaratory proceedings brought under Article 1124 [of the Civil Code], a consumer would not enjoy the procedural privileges applicable in mortgage enforcement proceedings, and when that case-law does not take into account the settled case-law of the [Tribunal Supremo (Supreme Court)] to the effect that Article 1124 [of the Civil Code] (laid down for contracts creating reciprocal obligations) is not applicable to loan agreements, because such an agreement is a real, unilateral contract which does not become valid until the money is handed over and which, therefore, creates obligations for the borrower alone and not for the lender (creditor), so that, if [that case-law] were to be applied in declaratory proceedings, a consumer could obtain a ruling dismissing the claim for termination and compensation and it could no longer be argued that continuation of the mortgage enforcement proceedings was more favourable to him?

(2)      If the application of Article 1124 [of the Civil Code] to loan agreements or in the case of all credit agreements should be accepted, is case-law like that referred to incompatible with Articles 6 and 7 of Directive 93/13 … when that case-law does not take into account, for the purpose of assessing whether it is more favourable to the consumer for the mortgage enforcement proceedings to continue or more detrimental to hold declaratory proceedings under Article 1124 [of the Civil Code], the fact that, in declaratory proceedings, the claim for termination of the agreement and the claim for compensation may be dismissed if the court applies the stipulation in Article 1124 [of the Civil Code] that “the court shall order the termination requested, unless there are justified grounds allowing it to fix a period”, bearing in mind that, precisely in the context of long-term (20 or 30 years) loans and mortgages for the purchase of dwellings, it is relatively likely that the courts will apply that ground for dismissal, particularly where the non-performance of the payment obligation has not been very serious?

(3)      If it were to be accepted that it is more favourable to the consumer to continue enforcement of the mortgage with the effects of early repayment, is case-law like that referred to incompatible with Articles 6 and 7 of Directive 93/13 … when that case-law applies on a supplementary basis a statutory provision (Article 693(2) [LEC], even though the contract is capable of continuing to exist without the early repayment term, and when that case-law gives effects to Article 693(2) LEC, even though the essential condition stipulated therein has not been met: that there should be in the contract a valid and effective agreement regarding early repayment, and the early repayment term has in fact been declared unfair, void and ineffective?’

IV.    The procedure before the Court

36.      By order of the President of the Court of 16 March 2017, the request by the Tribunal Supremo (Supreme Court) that Case C‑70/17 be determined pursuant to the expedited procedure provided for in Article 105(1) of the Rules of Procedure of the Court was rejected. By decision of the President of the Court of 24 October 2017, the treatment of Cases C‑92/16, C‑167/16, C‑486/16, C‑70/17 and C‑179/17 was to be coordinated.

37.      Written observations were submitted by Abanca, the Spanish and Polish Governments and the European Commission in Case C‑70/17 and by Bankia, the Spanish and Hungarian Governments and the Commission in Case C‑179/17.

38.      By decision of 20 February 2018, pursuant to Article 29(1) of the Rules of Procedure, the Court decided to assign the cases to the Grand Chamber with the same composition and, pursuant to Article 77 of the Rules of Procedure, organised a joint hearing of those cases.

39.      Abanca, Bankia, the Spanish Government and the Commission presented oral argument at the joint hearing on 15 May 2018.

V.      Analysis

A.      The admissibility of the question referred for a preliminary ruling in Case C‑179/17

40.      Before beginning the substantive analysis, the Spanish Government, in its written observations, contests the admissibility of the reference for a preliminary ruling in Case C‑179/17. That government submits that the objective pursued by that reference is to supplement the legal framework set out by the Tribunal Supremo (Supreme Court) in Case C‑70/17. In that regard, it submits, in the first place, that the purpose of a question for a preliminary ruling is to interpret rules of EU law. However, the questions raised by the referring court concern the interpretation of rules of national law only. In the second place, the Spanish Government submits that the referring court calls into question the legal assessment of rules of national law by the Tribunal Supremo (Supreme Court), whereas that court is the supreme court in all areas of law and is responsible for interpreting national law, such that, under Article 123(1) of the Spanish Constitution and Article 1(6) of the Civil Code, its case-law supplements the Spanish legal order. Finally, in the third place, the Spanish Government does not see how Articles 6 and 7 of Directive 93/13 would apply in order to examine whether or not the Tribunal Supremo (Supreme Court) may have made an error in the analysis and interpretation of the Spanish national legal framework.

41.      In that regard, I consider it appropriate to recall the principles relating to the Court’s jurisdiction and the admissibility of questions referred for a preliminary ruling under Article 267 TFEU. 

42.      In the first place, it is well established that the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court and the national courts by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. (20) The aim of that procedure is to make direct and complementary contributions to the working out of a decision to ensure that EU law is applied in a unified manner in all Member States. (21)

43.      In the words of the Court, in the context of that judicial cooperation, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (22) Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. (23)

44.      The Court also held that questions concerning EU law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (24)

45.      In the second place, I note that the Court has repeatedly held that national courts have the widest discretion in referring questions to the Court involving interpretation of relevant provisions of EU law (25) and that a rule of national law cannot prevent a national court from using that discretion, (26) that discretion being replaced by an obligation for courts of final instance, subject to certain exceptions recognised by the Court’s case-law. (27)Both that discretion and that obligation are an inherent part of the system of cooperation between the national courts and the Court of Justice established by Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts. (28)

46.      In the third place, I note, as the Court has ruled on several occasions, that the existence of a rule of national law whereby courts against whose decisions there is a judicial remedy are bound on points of law by the rulings of a court superior to them cannot, on the basis of that fact alone, prevent the courts from using that discretion. (29) Moreover, the Court has also held that a lower court must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions which concern it. (30) As a consequence, where a national court before which a case is pending considers that a question concerning the interpretation of EU law has arisen in that case, it has the discretion, or is under an obligation, to request a preliminary ruling from the Court, and national rules imposed by legislation or case-law cannot interfere with that discretion or that obligation. (31)

47.      Turning to the present case, I consider that the three questions, as formulated, clearly concern the interpretation of Articles 6 and 7 of Directive 93/13. Therefore, the presumption of relevance enjoyed by the request for a preliminary ruling in Case C‑179/17 is not rebutted by the objections submitted by the Spanish Government. Moreover, given that the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona) has doubts as to the legal assessment by the Tribunal Supremo (Supreme Court), which could lead it to give a judgment contrary to EU law, it has the right to refer to the Court the questions which it considers relevant.

48.      In those circumstances, in the light of the principles relating to the Court’s jurisdiction and the admissibility of questions referred for a preliminary ruling under Article 267 TFEU set out in the preceding points and raised on many occasions by the Court since preliminary ruling proceedings have been established, I see no reason why the Court should not give a ruling in the present case by interpreting the provisions of Directive 93/13. Therefore, I consider that the request for a preliminary ruling in Case C‑179/17 is admissible.

B.      The substance of Cases C‑70/17 and C‑179/17

49.      Although the questions referred for a preliminary ruling by the national courts in the present cases were raised in two different sets of national proceedings, (32) both requests for a preliminary ruling, made by the Tribunal Supremo (Supreme Court) (Case C‑70/17) and by the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona) (Case C‑179/17), concern, in essence, the interpretation of Directive 93/13 and whether the case-law of the Tribunal Supremo (Supreme Court) concerning accelerated repayment terms is compatible with the system of consumer protection established by that directive, in particular Articles 6 and 7 thereof, and with the case-law of the Court. (33)

50.      In so far as the two cases involve essentially the same issues of EU law, I propose to address them in a joined Opinion.

1.      General considerations

51.      By way of introduction, it seems to me appropriate to make a few observations which will make it possible to establish the framework for Directive 93/13 and to examine how EU law, as a result of that directive in particular, has placed consumer protection at the heart of the process of European integration.

52.      Looking back reveals that, in the early years of building the European Union, consumer protection was perceived as a ‘by-product’ of the common market. (34) It was during the summit conference in Paris on 19 and 20 October 1972 that the Heads of State or Government approved, for the first time, the principle of a consumer protection and information policy. However, it was another 3 years before the consumer protection policy was officially launched (35) and 20 years before that policy acquired the status of a ‘Community’ policy, where, in 1992, the Treaty of Maastricht introduced Article 129 EC, which became Article 153 EC and then Article 169 TFEU, which established in primary law the specific characteristics of the consumer protection policy by giving it recognition and autonomy. (36)

53.      Therefore, ever since its creation, (37) the guiding theme of consumer protection policy has been to improve the quality of living conditions in the European Union. (38) Almost 46 years later, the objective remains the same: to protect the economic interests of the consumer. (39) Consumer protection has therefore become one of the essential fields of EU law which, in its dual dimension — economic and social — affects the everyday lives of EU consumers. Strict rules ensure that their interests are protected in many areas, (40) including that of unfair contractual terms. That field of consumer protection teaches us that, as a result of Directive 93/13, the degree of protection afforded to EU consumers is quite high and EU consumers benefit from fairer access to credit in general, and to mortgage credit in particular, conferring on them rights which must be protected by the national courts. (41)

54.      However, a key aspect of that directive should not be forgotten: harmonising consumer protection is deemed necessary in order to strengthen the internal market and consequently to strengthen economic and social activity. Therefore, the EU legislature considered that, in view of the fact that the laws of Member States relating to the terms of contract between the seller of goods or supplier of services, on the one hand, and the consumer of them, on the other hand, showed many disparities, with the result that the national markets for the sale of goods and services to consumers differed from each other and that distortions of competition may have arisen amongst the sellers and suppliers, notably when they sell and supply in other Member States, it was essential to legislate in that field. (42)

55.      In particular, the EU legislature considered that the laws of Member States relating to unfair terms in consumer contracts showed marked divergences and that, ‘in order to facilitate the establishment of the internal market and to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own’, it was essential to remove unfair terms from those contracts. It stated that, thereby, sellers of goods and suppliers of services would be helped in their task of selling goods and supplying services, both at home and throughout the internal market and that competition would thus be stimulated, so contributing to increased choice for EU citizens as consumers. (43)

56.      That is, therefore, the context in which, in general, EU law in the field of consumer protection and, more specifically, Directive 93/13 arises.

57.      The answer that I propose below is also intended to be viewed in that context.

2.      Preliminary observations

58.      An initial remark regarding the present two cases must be made immediately: it is clear from points 27, 33 and 34 of this Opinion that, in its order for reference (Case C‑179/17), the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona) presented a different interpretation of the national legal framework at issue from that adopted by the Tribunal Supremo (Supreme Court) in its order for reference (Case C‑70/17).

59.      In that context, I should note that the Court has repeatedly held that it is for referring courts to determine, in the cases before them, what the correct interpretation of national law is. (44)

60.      Thus, the fact that the two courts have presented a different interpretation of the national legal framework at issue does not prevent the Court from providing a useful interpretation of EU law. Moreover, that difference in the interpretation of national law cannot undermine the essential characteristics of the system of cooperation between the Court and the national courts, established by Article 267 TFEU, as they result from the Court’s settled case-law. (45)

61.      Furthermore, that cooperation is based on the courts of final instance and the lower courts being equal. Thus, irrespective of their interpretation of national law, when faced with a divergence of interpretation of EU law, each may — or, as the case may be, must be able to — refer questions to the Court. (46)

62.      The aim of my second remark, which relates solely to Case C‑70/17, is to emphasise that, as is clear from the order for reference of the Tribunal Supremo (Supreme Court), that court has raised two separate issues. The first is legal in nature and concerns the conclusions to be drawn from a finding that a contractual term which enables banking institutions to terminate the mortgage loan agreement as the debtor has failed to fulfil his obligations, on which the initiation or continuation of mortgage enforcement proceedings depends, is unfair. In that context, the question arises whether the Spanish courts are able to amend a term of that kind in order to enable banking institutions to continue the mortgage enforcement proceedings. I will examine that issue below.

63.      The second issue is economic in nature and concerns the socio-economic context of the mortgage loan in order to purchase housing in Spain. The Tribunal Supremo (Supreme Court) points out that the banking system in Spain could experience serious and systemic disruption if the banks were unable to bring mortgage enforcement proceedings. In that regard, the referring court states, first, that the same type of (unfair) term providing for accelerated repayment has been used in almost all mortgage loan agreements and, secondly, that, because of the link between the widespread granting of mortgage loans to households to purchase their home and the lender’s guarantees for the purposes of the forced recovery of debts, if it is not possible to be reimbursed for the loan by initiating the special mortgage enforcement procedure if the borrower defaults, this could result in a future credit crunch, which would make it extremely difficult to own your own home.

64.      In order to address the doubts of the referring courts in the present cases, I think it is necessary, in the first place, to recall the relevant case-law of the Court before examining, in the second place, the scope of the finding that an accelerated repayment term is unfair, as reflected in that case-law. In that regard, in order to better understand the interpretation adopted by Tribunal Supremo (Supreme Court) in its request for a preliminary ruling as regards the possibility of limiting the finding that the term at issue is unfair to only one part of that term, I shall start by examining the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany) on the rule concerning the Teilbarkeit der Klausel (severability of the term) to which the referring court itself refers. I shall then endeavour to draw the necessary conclusions for the purposes of applying the case-law of the Court of Justice to cases such as those in the main proceedings. Finally, I shall make a few concluding remarks on whether it is appropriate to question the Court’s existing case-law.

3.      Reminder of the relevant case-law

65.      It seems to me important to recall that the process of reviewing unfair terms by the national court contains two consecutive and different steps which involve two separate operations or exercises. The first step is the classification, by the national court, of the contractual term as an unfair term, whereas the second step concerns the consequences that that court must draw from the classification of the term as unfair. That practice by the national court which consists in establishing all of the consequences of the finding that the term is unfair is different, with regard to both time and substance, from the classification which preceded it. The fact that the two operations are consecutive should not lead us to confuse them. Moreover, their differences are clearly shown in the case-law of the Court, as we shall see below.

(a)    The classification by the national court of the contractual term as an unfair term

66.      It should be noted, in the first place, that, in the judgment in Océano Grupo Editorial and Salvat Editores, (47) the Court held for the first time 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. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of the terms’. That rationale, which underlies that directive, implies that the court seised of the action is required to ensure the effectiveness of the protection intended to be given by the provisions of the directive (48) and, consequently, must determine of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair. (49)

67.      It should be noted, in the second place, that, in the case giving rise to the judgment in VB Pénzügyi Lízing, which concerned the obligation on the national court to assess of its own motion whether a term conferring jurisdiction was unfair in appeal proceedings brought by a consumer against an order for payment, the Court held that it is for the national court to determine whether a contractual term is unfair. (50) That was confirmed in the judgment in Invitel, in which the Court stated inter alia that it limits itself to providing the referring court with the indications which the latter must take into account in order to assess whether the term at issue is unfair. (51)

68.      I note, in the third place, that, for a contractual term which has not been individually negotiated to be regarded as unfair, Article 3(1) of Directive 93/13 makes reference to a significant imbalance in the parties’ rights and obligations arising under the contract that is caused to the detriment of the consumer. (52) Thus, when that article refers to the concept of a ‘significant imbalance caused to the detriment of the consumer’ in the parties’ rights and obligations arising under the contract, it merely defines in a general way the factors which make it possible to consider that a contractual term that has not been individually negotiated is unfair. (53) That is why the Court, recalling the Opinion of Advocate General Kokott, (54) stated that, in order to ascertain whether a term causes a ‘significant imbalance’ in the parties’ rights and obligations arising under the 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. 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. (55)

69.      As regards, in particular, the term concerning accelerated repayment, the Court, reiterating the reasoning which it had followed in the judgment in Aziz, (56) noted, in the judgment in Banco Primus, (57)the factors that the national court must take into account when examining whether that term is unfair. It is clear from those judgments that the referring court must examine, inter alia, (i) 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; (ii) 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; (iii) whether that right derogates from the applicable common law rules, where specific contractual provisions are lacking; and, finally, (iv) whether national law provides for adequate and effective means enabling the consumer subject to such a term to remedy the effects of the loan being called in. (58) Those factors enable the national court to assess whether a contractual term is unfair.

70.      In that context, the question arises as to the time to which the national court must refer when examining whether the term is unfair, in order to determine those assessment criteria and to be able to reach a decision on whether the term is unfair. That fundamental issue has already been resolved by the Court. In the judgment in Aziz, the Court held that, ‘pursuant to Article 4(1) of [Directive 93/13], the unfairness of a contractual term is to 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 it’. (59) In that regard, the Court noted 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. (60) Therefore, the national court must not focus on the time of performance of the contract but on the time it was concluded, or signed, in order to assess whether the contractual term is unfair. (61)

71.      After having found that the accelerated repayment term is unfair, as in the present case, it follows from the case-law of the Court that the national court is obliged to establish all the consequences of that finding.

(b)    The consequences to be drawn from the finding that a contractual term is unfair

72.      As regards the consequences to be drawn from the finding that a contractual term is unfair, it should be noted that the general rule which is well established in the settled case-law of the Court, and which follows from the wording of Article 6(1) of Directive 93/13, is that the national court is required to exclude the application of an unfair term. To date, there is only one exception to that rule, which was adopted in the judgment in Kásler and Káslerné Rábai. (62) However, as I shall explain below, in order for the exception adopted in that judgment to be able to be applied by the national court in conformity with the Court’s case-law, the Court made it subject to certain conditions. With that in mind, I shall now examine the general rule.

(1)    The general rule in the settled case-law of the Court: the obligation on the national court to exclude the application of an unfair term without being authorised to revise its content

73.      Before addressing the background to the obligation on the national court to exclude the application of an unfair term deriving from the case-law of the Court, I must say a few words about the origin of that case-law and, therefore, of that obligation: the judgment in Banco Español de Crédito. (63)

74.      In the case which gave rise to that judgment, which concerned an order for payment procedure, the Court was asked for the first time whether Directive 93/13 precluded national legislation (64) which allowed a national court, in the case where it found that an unfair term in a contract concluded between a seller or supplier and a consumer was void, to modify that contract by revising the content of that term. In its response, the Court noted first of all that the wording of Article 6(1) of Directive 93/13, while granting the Member States a certain degree of autonomy so far as concerns the definition of the legal arrangements applicable to unfair terms, nevertheless expressly requires them to provide that those terms ‘shall … not be binding on the consumer’. (65)

75.      Starting from that premiss, the Court then recalled, first, the settled case-law, in accordance with which, under that provision, it is a matter for national courts, when they find that contractual terms are unfair, to draw all the consequences that follow under national law, in order that the consumer will not be bound by those terms. (66) Secondly, the Court held that the EU legislature had explicitly laid down, in the second part of the sentence in Article 6(1) of Directive 93/13 and in the 21st recital of that directive, that the contract concluded between the seller or supplier and the consumer would continue to bind the parties ‘upon those terms’ if it was capable of continuing in existence ‘without the unfair terms’. (67) Consequently, the Court held that ‘the national courts are required … to exclude the application of an unfair … term in order that it does not produce binding effects with regard to the consumer, without being authorised to revise its content’. (68) It was also careful to state, and has since reiterated on several occasions, that that contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible. (69)

76.      If the national court was able to revise the content of unfair terms, this would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those terms in so far as those sellers or suppliers would remain tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers. (70)

77.      It follows from the foregoing that, given the significant imbalance caused to the detriment of the consumer in the parties’ rights and obligations arising under the contract, where that contract contains unfair terms, the national courts are required to exclude them, in accordance with Article 6(1) of Directive 93/13.

78.      It is true that the Court held that that provision is a mandatory provision which, taking into account the weaker position of one of the parties to the contract (the consumer), aims to replace the formal balance which the latter establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. (71) It seems clear to me that, by that statement, the Court refers to the rationale for Article 6(1) of Directive 93/13 without attempting to establish any form of framework to implement it in specific cases. (72)

79.      In addition, there can be no doubt that the restoration of the balance between the consumer and seller or supplier may not lead to the option of altering unfair contractual terms. On the one hand, such an option would be contrary to Article 6(1) of Directive 93/13, which would be rendered meaningless and, therefore, to the effectiveness of the protection intended to be given by it. (73) On the other hand, such an option would not allow the dissuasive effect on sellers and suppliers of not being able to apply such terms with regard to consumers to be maintained.

(2)    The exception to the rule: the judgment in Kásler and Káslerné Rábai

80.      The case which gave rise to the judgment in Kásler and Káslerné Rábai (74) concerned a mortgage loan agreement concluded between a bank and a consumer, denominated in a foreign currency (Swiss francs), the amount of which was calculated, on the day it was granted, in Hungarian forint, using the buying rate of exchange for the foreign currency. The borrower, however, had to repay that loan in forint at the selling rate of exchange for that same currency. By its third question, the referring court asked in essence whether, in a situation in which a contract concluded between a seller or supplier and a consumer may not continue in existence after the deletion of an unfair term, Article 6(1) of Directive 93/13 must be interpreted as meaning that it precludes national law which authorises the national court to cure the invalidity of the unfair term by substituting a supplementary provision of national law.

81.      In its response, the Court ruled that when a contract concluded between a seller or supplier and a consumer cannot continue in existence after an unfair term has been deleted, that provision does not preclude a rule of national law enabling the national court to cure the invalidity of that term by substituting for it a supplementary provision of national law.

82.      It is clear from that judgment that, as I have already stated in point 72 of this Opinion, two conditions must be satisfied for the national court to be able to delete the unfair term by substituting it for a supplementary provision of national law. First, that substitution must be able to lead to the result ‘that the contract may continue in existence in spite of the fact that [the unfair term] has been deleted’ and that it ‘continues to be binding for the parties’ (75) for the national court not to be required to annul the contract in its entirety. Second, where the court is obliged to annul the contract in its entirety, that substitution must have the effect of preventing the consumer from being exposed to ‘particularly unfavourable consequences, so that the dissuasive effect resulting from the annulment of the contract could well be jeopardised’. (76)

83.      The questions referred by the national courts must be answered in the light of the case-law recalled in points 65 to 82 of this Opinion.

4.      The first question in Case C‑70/17: the scope of the finding that an accelerated repayment term is unfair in the light of the case-law set out

84.      By its first question in Case C‑70/17, the Tribunal Supremo (Supreme Court) asks, in essence, whether Article 6(1) of Directive 93/13 must be interpreted as meaning that it precludes a national court which has found that a contractual term that makes it possible to demand the accelerated maturity of a mortgage loan agreement, in particular in the event of the failure to pay just one monthly instalment, is unfair, from being able to maintain the partial validity of that term by simply deleting the grounds for acceleration which make it unfair.

85.      The Tribunal Supremo (Supreme Court) states in its order for reference that there is a possibility that the unfairness of a contractual term does not affect the whole of the term examined but only a part of it, in the present case, the part concerning ‘the number and magnitude of the payment defaults allowing accelerated repayment’. In the present case, the non-payment concerned ‘just one monthly instalment’. The referring court submits, with reference to the case-law of the Bundesgerichtshof (Federal Court of Justice), that, in such a case, that term could be maintained by simply deleting the part which makes it unfair, provided that that amended term is grammatically intelligible, makes legal sense and that deletion does not involve the creation of a rule that is new or different from that initially included in the term.

86.      In that regard, the Tribunal Supremo (Supreme Court) refers to the case-law of the Bundesgerichtshof (Federal Court of Justice) on the rule concerning the severability of the term, and in particular to the judgment of 10 October 2013. (77) According to the referring court, the severability of the term is not automatically contrary to EU law. It does not involve a revision of the term, but is a partial invalidity, which is useful where the term is invalid on account of it being unfair, in which, after the deletion of the part considered to be unfair, the contract continues in existence with the remainder of the term. Thus, if the assessment of the remaining part of the term reveals that it is reasonable and transparent, that part must be considered to be valid and to produce effects.

87.      To better understand the meaning and the implications of the first question referred for a preliminary ruling by the Tribunal Supremo (Supreme Court), I will set out the case-law of the Bundesgerichtshof (Federal Court of Justice) on the rule concerning the severability of the term, followed by the assessment of that case-law in German legal literature.

(a)    The case-law of the Bundesgerichtshof (Federal Court of Justice) on the rule concerning the severability of the term

88.      Since the 1980s, the Bundesgerichtshof (Federal Court of Justice) has developed nuanced case-law with regard to the interpretation of terms which are unfair in part. The legal basis for that interpretation is Paragraph 306 of the Bürgerliches Gesetzbuch (German Civil Code). That provision, which predates Directive 93/13, is today regarded as transposing Article 6 of that directive. The issue raised by that court in its case-law is the following: is it possible to divide a term which is ‘tainted’ by an unfair element into a part which is unfair and a part which is fair? If so, what are the consequences of that division?

(1)    The interpretation of the Bundesgerichtshof (Federal Court of Justice)

89.      In 1981, for the first time, (78) the Bundesgerichtshof (Federal Court of Justice) allowed the ‘dissection/division’ of a contractual term into several parts, of which one (or more) is unfair, in order to ‘save’ the remainder of the term. The idea is always (i) that the ‘tainted’ part may be deleted without any other amendment, (ii) that the remaining phrase makes sense without the deleted elements, and (iii) that the initial purpose of the remaining phrase is maintained, that is to say, the meaning does not change. (79) If those conditions are not satisfied, in particular if the operation cannot be carried out by the mere ‘stroke of a pen’, it is no longer a ‘division’, but a ‘saving reduction/amendment’ (geltungserhaltende Reduktion). A reduction or amendment of that kind, which preserves validity, is therefore, at least as regards situations which fall within the scope of Directive 93/13, considered inadmissible by the Bundesgerichtshof (Federal Court of Justice). (80) According to that court, the main arguments against an amendment of that kind, which preserves validity, are, first, that the user of the terms may simply include unfair terms in the knowledge that the court would amend them to make them admissible and, secondly, that it is not for the court adjudicating on the substance of the case to find a solution that is admissible. (81)

90.      To illustrate the German practice of dividing a term, I shall refer to the judgment of the Bundesgerichtshof (Federal Court of Justice) of 10 October 2013, (82) to which the Tribunal Supremo (Supreme Court) refers in its order for reference. That case concerned the consent given by a patient to the dentist treating him in respect of three points, namely: (1) to authorise the disclosure of personal data, (2) to authorise the assignment of a claim to a collection agency, (3) to authorise the subsequent assignment of the same claim by the initial assignee to a banking institution for refinancing purposes. The Bundesgerichtshof (Federal Court of Justice) held that, although the third point, concerning ‘subsequent assignment’, was incompatible with the legislation on unfair terms, the remainder of the contract continued to be valid as the term was severable. The term was drafted as follows (the parts to be deleted are in brackets and highlighted in italics):

‘Consent to assignment

(i) I hereby agree to the dentist named overleaf disclosing to ZA Zahnärtzliche Abrechnungsgesellschaft (‘ZAAG’) all the necessary documents for the purposes of creating the invoice and recovering the claim — if necessary, by legal action —, in particular, my name, my address, my date of birth, the service code, the invoice amount, treatment notes, laboratory invoices, forms, etc.

(ii) For those purposes, I expressly authorise the dentist not to exercise medical confidentiality and expressly agree to the dentist assigning the claim resulting from the treatment to ZAAG[, which may, where appropriate, assign it to D. Bank e.G. for refinancing purposes].

(iii) I am aware that after the assignment of the claim resulting from the treatment, ZAAG will present itself to me as a creditor, and therefore, in the event of a dispute, all of the objections against that claim must be raised and submitted to it, including where they derive from treatment and medical history, and the dentist treating me may be heard as a witness. ...’ (83)

91.      It is clear from the wording of that term that it could be divided into three separate parts. Therefore, the Bundesgerichtshof (Federal Court of Justice) simply deleted the part considered to satisfy the criteria of the unfair or ‘tainted’ term, without amending the remainder of the text and without applying any supplementary provision of national law in order to preserve the term after amendment. It is clear from its case-law that, in addition, the meaning of the phrase must not change.

(2)    The concordant position according to the predominant view in German legal literature

92.      In 1988, to describe that method of ‘division’, German legal literature introduced the term ‘blue pencil test’, (84) which was used originally in competition law. (85) That term, which was not used initially by the Bundesgerichtshof (Federal Court of Justice), is evocative. It refers to the action of striking out the element considered to satisfy the criteria of being unfair using a blue felt pen.

93.      The rationale which underlies the blue pencil test, namely the division of terms into an unfair part and a part which is fair, has been predominantly well received in Germany. (86) The main argument put forward in German legal literature is the same as that laid down in the case-law: accepting the solution of a saving reduction/amendment would mean that the user of the terms may, without incurring any risks, devise unfair terms knowing that the case-law will amend them to a permissible level. In other words, a saving reduction/amendment of that kind would not have a dissuasive effect, (87) which is why it cannot be permitted. (88)

94.      Having thus set out the context from case-law and legal literature of the rule concerning the severability of the term, or the blue pencil test, and without wishing to take a view on whether that rule is compatible with EU law, it is already clear to me that the exercise proposed by the Tribunal Supremo (Supreme Court) is not a division of the term, or blue pencil test, but an amendment to the term to preserve its validity. I therefore intend to explain this in the reasoning below.

(b)    The term at issue

(1)    Is the term severable, or must it be amended to preserve its validity?

95.      It is clear from point 84 of this Opinion that the proposal by the Tribunal Supremo (Supreme Court) is to retain the term at issue by deleting only the part which makes it unfair, namely the failure to pay any repayment. To better understand the interpretation that that court is putting to the Court, I feel it would be useful to transcribe the term at issue below, as it follows from the legal framework set out in Case C‑70/17, and to include the division proposed by the Tribunal Supremo (Supreme Court) in order to examine whether or not, in the light of the blue pencil test it mentions in its order for reference, that term is severable (the part to be severed being in square brackets and italicised):

‘The bank may, without first making a demand, call in the loan and require, by legal proceedings, payment of the total debt, both sums that have fallen due and those yet to fall due, with interest, default interest, expenses and costs, in the following cases: (a) Failure to pay [any] instalment of interest or repayment instalment, including all the components thereof, the parties expressly requesting that this stipulation be noted in the records of the Land Registry, in accordance with Article 693 of the LEC.’ (89)

96.      Can the view be taken that the term satisfies the requirements of the blue pencil test and is therefore severable into a number of diverse parts?

97.      I think not.

98.      In the first place, it follows from the application of the blue pencil test, as set out in point 90 of this Opinion, that the term at issue in Case C‑70/17 (90)is not severable. In the contractual term under examination in the judgment of the Bundesgerichtshof (Federal Court of Justice), cited by the Tribunal Supremo (Supreme Court) in its order for reference, three types of rights are concerned: an authorisation to disclose personal data and two assignment agreements, the first to a collection agency and the second to a banking institution. Deleting the part of the term referring to the assignment of a claim to a banking institution, in principle, does not affect the other parts of the term since the three parts are independent.

99.      However, the situation is different with regard to the term at issue which gave rise to Case C‑70/17. The ‘tainted’ part concerns point (a) only, namely the right of the bank to call in the loan in the event of the ‘failure to pay [any] instalment of interest or repayment instalment ...’. Therefore, in accordance with the rule in the blue pencil test, the term at issue would satisfy the first condition of being severable, namely that the ‘tainted’ part may be deleted without any other amendment, in only two cases. The first is if the term at issue contained several grounds for accelerated repayment and, for example, was drafted as follows: ‘... in the following cases: (a) Failure to pay one, several or all of the instalments ...’. The term ‘one’ would therefore be the only ground to be deleted, without further intervention in respect of the other elements in point (a). In that case, the same term, in the formal sense, would cover several identifiable and severable situations. However, that is not the case, in my view, with respect to the term at issue which gave rise to Case C‑70/17. (91) The second case is if the ‘tainted’ part formed the whole of point (a). Point (a) could therefore be deleted without intervention in respect of the other points in the term, points (b), (c) or (d). (92)

100. In the second place, even if it were accepted that the ‘tainted’ part of the term at issue which gave rise to Case C‑70/17 may be deleted without any other amendment (93) — which, on the basis of the information available to me, I do not accept — the division of the ‘tainted’ part should allow the term to be read correctly. The result would be as follows: ‘Failure to pay instalment of interest or repayment instalment’. It is highly likely that opinions will be divided as to whether or not the term, resulting from that division, is grammatically intelligible. Is it clear from reading the term which has been divided how many monthly instalments must not be paid in order for the creditor to be able to rely on the accelerated maturity of the loan agreement? Clearly, the answer is no.

101. In any event, even if the term at issue, after division, were deemed to be grammatically clear and intelligible, which, in my view, is questionable from the point of view of legal certainty, I am convinced that, after the unfair term has been deleted, the initial purpose of that term would be challenged since, in referring in general to the ‘failure to pay instalment’, that term would irrevocably take on a new legal meaning. As I have stated in points 89 to 93 of this Opinion, that outcome is not permitted by the blue pencil test, as interpreted by the case-law of the Bundesgerichtshof (Federal Court of Justice) and put forward by the Tribunal Supremo (Supreme Court). Accordingly, as the conditions established by that rule are not satisfied, I must conclude that the exercise proposed by the Tribunal Supremo (Supreme Court) is not a ‘division’ of the term at issue, but a ‘saving reduction/amendment’ of it, which involves it being redrafted.

102. In order to maintain the purpose of that term, a rule that is new or different from the original rule would have to be introduced, which is not allowed in the blue pencil test, as the Tribunal Supremo (Supreme Court) itself admits in the order for reference. Since the term cannot be implemented without applying a supplementary provision of national law, such as Article 693(2) of the LEC, it seems clear to me that the amendment proposed by the referring court cannot be limited to the ‘mere stroke of a pen’, as required by the blue pencil test.

103. In any event, I would point out, in that regard, that, within the scope of Directive 93/13, an amendment to preserve validity is precluded by the case-law of the Bundesgerichtshof (Federal Court of Justice) (94) to which the Tribunal Supremo (Supreme Court) refers. It is clear from point 93 of this Opinion that that type of amendment would not be a deterrent and that it is not for the court adjudicating on the substance of the case to find a solution that is admissible. (95)

104. Having found that the exercise proposed by the Tribunal Supremo (Supreme Court) in Case C‑70/17 is not a ‘division’ of the term at issue, but a ‘saving amendment’ of that term, it is now necessary to examine, in the context of the first question referred for a preliminary ruling, the fundamental question as to whether EU law precludes the amendment proposed by the Tribunal Supremo (Supreme Court) of an accelerated repayment term which the national court has found to be unfair.

(2)    Is the purpose of the term at issue maintained, in the light of the case-law of the Court, without a reference to the number of unpaid monthly instalments which enable it to be implemented?

105. In the first place, in accordance with the case-law referred to in point 66 of this Opinion, it is for the national court to determine whether a contractual term is unfair. (96) In the context of the examination as to whether it is unfair, the national court must start by determining what may be regarded as a term, (97) namely a contractual obligation which is separate from the remaining provisions of the contract and which may be the subject of an individual examination as to whether or not it is unfair. That prior examination is essential since, in accordance with the case-law of the Court cited in point 75 of this Opinion, after having found and declared that a term is unfair (review stage relating to the assessment or the classification of the term), (98) the national courts are required to exclude the application of an unfair term in order that it does not produce binding effects with regard to the consumer, without being authorised to revise its content (review stage regarding the consequences of declaring that the term is unfair). (99) The contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible. (100)

106. In the second place, it should be noted that it is clear from the order for reference of the Tribunal Supremo (Supreme Court) that the reference to ‘any instalment’ is an essential and indispensable condition for the implementation of the accelerated repayment term. Therefore, it seems to me that the purpose of the term is not maintained without a precise reference to the number of unpaid monthly instalments which enable it to be implemented, which is a matter for the referring court to ascertain. (101) Moreover, although, according to the case-law of the Court, the national courts are required, purely and simply, not to apply terms which are deemed unfair, the condition that could trigger the accelerated repayment of the loan in full therefore, in my view, becomes ineffective. Accordingly, the term as a whole would inevitably be ineffective.

107. In the third place, I note that a term of that kind, which provides for the accelerated repayment of the total amount of the balance in the event of a failure to pay any instalment, does not satisfy the conditions set out by the Court in the judgments in Aziz and Banco Primus, (102) since the term at issue does not constitute a sufficiently serious failure with respect to the loan period and amount. In any event, it must not be forgotten, as the Commission correctly pointed out, that, if, in accordance with that case-law, the condition mentioned above (the reference to ‘any instalment’) was found to be unfair and, therefore, was not applied, the remaining element, namely the mere possibility of declaring that the total amount of the balance is due, (103) would not only be without any practical effect, but it would also be intangible in that regard as it would not enable the national court to examine whether it satisfied the conditions set out by the Court in the judgment in Banco Primus (104) and recalled in point 69 of this Opinion.

108. I also note that the exact moment when the power of early termination is exercised by the banking institution is a matter of fact which is irrelevant for the purpose of examining a term which mentions the failure to pay just one monthly instalment. This is not a case of determining whether the commercial behaviour of the bank was unfair, but whether a contractual term is unfair. Contrary to what is stated in the order for reference in Case C‑70/17, (105) reasonable commercial behaviour in a context where a contractual term is unfair cannot render redundant the court’s finding that the terms of a contract are unfair. (106) That applies a fortiori where the very term at issue allows the bank to recover the full amount outstanding in the context of mortgage enforcement proceedings following the failure to pay just one instalment of principal and interest.

109. In the light of the foregoing, I take the view that Article 6(1) of Directive 93/13 must be interpreted as meaning that it precludes a national court which has found that a contractual term that makes it possible to demand the accelerated maturity of a mortgage loan agreement, in particular in the event of the failure to pay just one monthly instalment, is unfair, from being able to maintain the partial validity of that term by simply deleting the grounds for acceleration which make it unfair.

5.      The second question in Case C‑70/17 and the first question in Case C‑179/17: the possibility of continuing the mortgage enforcement proceedings by the supplementary application of a provision of national law, such as Article 693(2) of the LEC

110. By the second question referred for a preliminary ruling in Case C‑70/17 and the first in Case C‑179/17, which should be examined together, the referring courts ask, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that they preclude national case-law according to which, where a national court has found that a term relating to accelerated maturity is unfair, the special mortgage enforcement proceedings initiated following the application of that term may continue nevertheless by the supplementary application of a provision of national law, such as Article 693(2) of the LEC, in so far as those proceedings may be more favourable to consumers than the enforcement of a conviction decision given in the context of proceedings on the substance.

111. Before addressing that question, I note first of all that it is clear, inter alia, from my proposed answer to the first question in Case C‑70/17 that, even if the ‘tainted’ part of the term at issue in Case C‑179/17 may be deleted without any other amendment and the outcome is intelligible, that term remains inseverable in the light of the requirements of the blue pencil test cited by the Tribunal Supremo (Supreme Court). (107) Following the division of the unfair part, that term does not retain its original legal meaning. By referring, in general, to ‘... non-payment on the due date of [one,] several or all of the repayment instalments set out’, the legal meaning of the term changes irrevocably. Therefore, is it clear from reading the term which has been divided/amended exactly how many monthly instalments must not be paid in order for the creditor to be able to rely on the accelerated maturity of the loan agreement? I take the view that the only possible answer is the following: ‘at least two instalments’, which would, however, render the term unfair in the light of the requirements set out in the judgment in Aziz, noted in point 107 above. Thus, in the event of division, the purpose of the term at issue which gave rise to Case C‑179/17 is compromised and it becomes irrelevant if the condition for it to be implemented (the agreement and the reference to ‘one’ instalment entered in the register) and which, in the present case, allows the mortgage enforcement proceedings to continue — and, where necessary, to commence — becomes ineffective. It would make no sense, from a legal point of view, to provide the creditor with an option that is purely hypothetical (‘several instalments’) and cannot be implemented in practice. (108)

112. In order to be able to ascertain the number of unpaid monthly instalments required for the accelerated maturity, a provision of national law must be applied, as the Tribunal Supremo (Supreme Court) suggests. However, according to the case-law of the Court, this is possible, in principle, only under the conditions referred to in the judgment in Kásler and Káslerné Rábai, (109) namely that the contract cannot continue in existence after the unfair term has been deleted and that the rule of national law which substitutes it is a supplementary provision.

(a)    Can the mortgage loan agreements in question legally continue in existence after the unfair terms at issue have been deleted?

113. As regards the question which is decisive for the outcome of the disputes in the main proceedings and which was debated at the hearing in response to a question inviting an oral response posed by the Court, namely what are consequences, under Spanish law, of the deletion of the accelerated repayment term for the existence and enforcement of the mortgage security, Abanca submitted that, in general, the loan agreement continues in existence as merely deleting the unfair term cannot render it invalid. However, as both Abanca and Bankia submitted, the mortgage security may be affected significantly in so far as the creditor loses the benefit of mortgage enforcement proceedings in order to implement the security.

114. In its written observations, the Spanish Government submitted, first, that, if the loan agreement stems from the creation of a right in rem relating to a mortgage and that right in rem is affected by the deletion of the term, the loan agreement itself cannot continue in existence. It added, secondly, that, even if the loan agreement may be deemed to continue in existence after the accelerated repayment term has been deleted, that deletion ‘makes the loan agreement too onerous for the bank’ since ‘it forces it to have recourse to proceedings on the substance in order to terminate the contract, and then to general enforcement proceedings to recover the debt’. Therefore, that government asks whether, in those circumstances, the banking institution would have granted a loan that was not secured by a mortgage.

115. It should be noted that, in its order for reference, the Tribunal Supremo (Supreme Court) states that, in the Spanish legal system, mortgage law grants the mortgagee not only the power to request the compulsory sale of the mortgaged property under a special enforcement procedure but also grants it a preferential right over that property (Articles 1923 and 1927 of the Civil Code) and a separate right of enforcement in the event of the debtor becoming insolvent (insolvency declared by the court). It also adds that the nullity of the accelerated repayment term does not give rise to the complete negation of the mortgagee’s powers, but restricts the essential right available under mortgage law, which is the power given to the creditor to force the sale of the mortgaged property in order to pay off the outstanding amount from the proceeds of the sale (Article 1858 of the Civil Code). It follows from the foregoing that, despite the resulting restriction on enforcing the security, the Tribunal Supremo (Supreme Court) does not call into question the fact that the loan agreement continues in existence after the accelerated repayment term has been deleted. (110) Moreover, in its order for reference, that court does not state that it would be obliged to annul the loan agreement in its entirety. In that regard, the referring court in Case C‑179/17 takes the view that ‘it is clear that a loan or credit agreement can continue to exist without an early repayment term’.

116. In the first place, it should be noted, as it is clear from the case-law cited in point 75 of this Opinion, that Article 6(1) of Directive 93/13 provides for two obligations as to the result to be achieved: the first requires that unfair terms do not produce binding effects with regard to the consumer, and that is why ‘the national courts are required to exclude [their] application’, and the second that the Member States ensure that the contract concluded between the seller or supplier and the consumer continues to bind the parties ‘upon those terms’, if it is capable of continuing in existence ‘without the unfair terms’. (111) Therefore, it follows from that case-law that the criterion that the contract must continue in existence must be assessed solely from a legal point of view ‘in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible’. (112)

117. In that context, although I understand the concerns underlying the interpretation proposed by the Tribunal Supremo (Supreme Court), I must point out that it is not a matter of taking into account considerations such as whether the bank would or would not have granted a loan that was not secured by a mortgage, or what consequences the deletion of an unfair term would have had for the creditor, (113) but of ascertaining whether or not the contract is annulled under national law.

118. In the second place, it must not be forgotten that, in the judgment in Banco Primus, (114) the Court held that, in order to ensure the dissuasive effect inherent in Article 7 of Directive 93/13, the prerogatives of the national court concerning the finding as to whether a term is unfair cannot be contingent on whether that term was actually applied or not. In that case, the Court held that whether or not the term had actually been applied was irrelevant for the purposes of establishing whether it is unfair. In the present case, the fact that the threshold is set at three monthly instalments rather than one is also irrelevant.

119. In the judgment in Banco Primus, the Court went on to clarify that ‘in those circumstances …, the fact that, in the present case, the bank in fact satisfied the requirements of Article 693(2) of the LEC and initiated the mortgage enforcement proceedings only after non-payment of seven successive monthly instalments and not, as provided for in clause 6a of the loan agreement at issue in the main proceedings, as a result of failure to pay any amount owed, cannot exonerate the national court from its obligation to draw the appropriate conclusions from the potentially unfair nature of that term’. (115) The Court thus held that ‘Directive 93/13 must be interpreted as precluding an interpretation in the case-law of a provision of national law governing accelerated repayment clauses in loan agreements, such as Article 693(2) of the LEC, which prohibits the national court which has found such a contractual term to be unfair from declaring that term null and void and removing it where the seller or supplier did not in fact apply it, but complied with the requirements laid down in that provision of national law’. (116) Therefore, the compliance of the banks’ commercial practice with Article 693(2) of the LEC cannot cure the invalidity of that term by substituting it, in accordance with paragraphs 80 to 84 of the judgment in Kásler and Káslerné Rábai. (117)

120. It follows from the foregoing that the exception to the general rule established in the judgment in Kásler and Káslerné Rábai, according to which the Court allows the contract to be adjusted by replacing the unfair term with a supplementary provision of national law so that the contract may continue in existence, does not apply in the present case, since the contested terms do not render the loan agreements invalid in their entirety. Unlike the issue in the case which gave rise to the judgment in Kásler and Káslerné Rábai, where, in the present cases, the loan agreements can continue in existence without the accelerated repayment term and, as a result, the national court is not obliged to declare that the contract as a whole is invalid, there is no need to apply a supplementary provision of national law to prevent the consumer from being exposed to ‘particularly unfavourable consequences’.

(b)    The supplementary application of Article 693(2) of the LEC

121. As regards the application of Article 693(2) of the LEC, it is not apparent from the order for reference of the Tribunal Supremo (Supreme Court) that that provision is supplementary. Merely reading that provision reveals that express agreement is required between the parties for it to apply and, accordingly, that provision cannot apply without such agreement. However, the Tribunal Supremo (Supreme Court) refers to the possibility of the ‘supplementary’ application of that provision, without ruling on whether or not it is supplementary. In any event, it is for the national court to assess whether or not a provision of that kind is supplementary.

122. In that regard, reference should be had to the judgment given by the Court, sitting as a Grand Chamber, in the cases giving rise to the judgment in Gutiérrez Naranjo and Others, (118) which concerned ‘floor clauses’ used by the banks in the context of mortgage loan agreements concluded with consumers. The same Tribunal Supremo (Supreme Court) had found that those clauses were unfair and had declared them void because of their lack of transparency due to insufficient information for the borrowers as to the material consequences of their application in practice. However, the Tribunal Supremo (Supreme Court) had held that the floor clauses were in themselves lawful and had limited the retroactive effect of the declaration of nullity in respect of those clauses. (119) The questions referred to the Court for a preliminary ruling by another Spanish court concerned whether or not the temporal limitation of the restitutory effects connected with a finding of unfairness by a court in respect of those clauses to amounts overpaid after the delivery of the decision declaring the unfairness was compatible with Article 6(1) of Directive 93/13. The Court’s answer was that Article 6(1) of Directive 93/13 must be interpreted as meaning that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer.

123. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he would have been in if that term had not existed. In addition, the Court held that, while it is for the Member States, on the basis of their national law, to define the detailed rules under which the unfairness of a contractual clause is established and the actual legal effects of that finding are produced, the fact remains that such a finding must allow the restoration of the legal and factual situation that the consumer would have been in if that unfair term had not existed, by inter alia, creating a right to restitution of advantages wrongly obtained, to the consumer’s detriment, by the seller or supplier on the basis of that unfair term. (120)

124. I must conclude that it follows from that case-law that an unfair term which is declared invalid is deemed never to have existed and never to have had any effect. Therefore, the application, in the present case, of Article 6(1) of Directive 93/13 would, in practice, as pointed out by the Commission in its written observations, have the result that, where the national court finds that an accelerated repayment term is invalid, the mortgage enforcement proceedings could not be brought or, if they had been brought, could not be continued since the agreement of the parties and the reference to one instalment entered in the register has been declared unfair and, accordingly, null and void. It should also be noted that if the invalidity of the term could be remedied by applying the minimum number of three monthly instalments set out in Article 693(2) of the LEC, this would, in fact, amount to authorising national courts to amend that term. (121) However, as the Court noted in the judgment in Gutiérrez Naranjo and Others, ‘the national court may not revise the content of unfair terms, lest it contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms’. (122)

125. Accordingly, the amendment proposed by the Tribunal Supremo (Supreme Court) is an exercise which inevitably involves the integration, redrafting, amendment or reformulation of the accelerated repayment term. That amendment of the term, first, does not satisfy the requirements of the blue pencil test mentioned by the referring court itself as it is considered to be a ‘saving amendment’ which is inadmissible in the context of Directive 93/13. Secondly, that amendment is expressly prohibited by the Court’s settled and well-established case-law to date, which is decisive in respect of the response to be given to the questions referred in the context of the present cases.

126. Finally, the question arises whether the Tribunal Supremo (Supreme Court) is right to mention that the mere fact that the debtor consumers cannot enjoy the procedural benefits of the mortgage enforcement justifies, in the light of the case-law of the Court set out in points 80 to 82 of this Opinion, the terms at issue being deleted and substituted with a supplementary provision of national law, or, as the case may be, the supplementary application of a provision which is not supplementary in nature. (123)

(c)    Do the benefits of the mortgage enforcement proceedings justify the continuation of the mortgage enforcement after the accelerated repayment term has been declared unfair?

127. By way of a reminder, I would point out that it is clear from the fifth reason in the order for reference of the Tribunal Supremo (Supreme Court) that the procedural benefits of the mortgage enforcement for debtor consumers enable national courts to justify the continuation of those proceedings after an accelerated repayment term has been declared unfair.

128. In that regard, the Commission submits in its written observations that the Tribunal Supremo (Supreme Court), in its judgment of 18 February 2016, which is also cited in its order for reference, stated that ‘it cannot be asserted unconditionally and in all cases that the decision to proceed with mortgage enforcement is more harmful to a consumer’. (124) The Commission concluded from this that ‘not being able to assert without reservation’ that proceeding with the mortgage enforcement is harmful to the consumer does not amount, with respect to the level of assurance, to claiming that proceeding with the mortgage enforcement is clearly more beneficial to the consumer in all cases. Therefore, the claim that proceeding with the mortgage enforcement is in the interests of the consumer is questionable at the least and depends on the specific circumstances of each case. The Commission added that, in so far as it is consumers who have challenged the accelerated repayment terms enabling banks to bring mortgage enforcement proceedings, it is reasonable to assume that the consumers bringing such an action have legal assistance and are seeking to protect their interests, not harm them.

129. I share the view expressed by the Commission. Even though, when reading the legal background set out by the Tribunal Supremo (Supreme Court), I can see the procedural benefits of mortgage enforcement myself, I have some doubts, however, as to whether those benefits are favourable for ‘all’ consumers without exception. (125) Of course, the Court cannot answer that question which concerns national law only. However, it seems appropriate to me to share my doubts as to the situation set out by the Tribunal Supremo (Supreme Court), which I will illustrate with two examples. (126)

130. Let us first consider the situation of a young couple without children, ‘P and M’. Both are university educated. In 2000, they secure a mortgage from a bank in order to purchase their home. That loan, in the amount of EUR 180 000, is granted for a term of 30 years. In 2007, they decide to purchase a second home and secure a second mortgage in the amount of EUR 80 000, granted for a term of 15 years. In 2012, in the midst of an economic crisis, M loses his job and the couple is no longer able to repay both mortgages. A few months later, after the non-payment of seven monthly instalments of the first loan, the bank lodges an application for mortgage enforcement. The national court, when reviewing whether terms are unfair, finds that the accelerated repayment term is unfair. However, with the assistance of their parents and by selling the second home, the couple is able, before the auction date, to release their main residence by paying the exact amount owed to the bank. That couple could represent the group of consumers who could benefit from the procedural advantages of the mortgage enforcement.

131. Let us now consider the situation of a young couple, ‘J and L’. J works in the construction sector and L is employed in the services sector. In 2000, despite limited payment capabilities, they secure a mortgage from a bank in the amount of EUR 100 000 to finance a house purchase. That loan is granted for a term of 26 years and accounts for over half of their monthly income. Their two children are born in 2004 and 2007. In 2012, in the midst of an economic crisis, J loses his job. For a while, he receives unemployment benefit, but, at the end of the compensation period and on a single wage, the couple is no longer able to meet their repayment obligations. Following the non-payment of 10 monthly instalments, the bank applies for mortgage enforcement. The court responsible for enforcement, when reviewing whether terms are unfair, finds that the accelerated repayment term is unfair. The couple has no savings that would enable them to release the property by paying the amount owing up until the date of the auction. In the light of the case-law of the Court, the national court decides to suspend the mortgage enforcement and to refer questions to the Court for a preliminary ruling.

132. In the second situation, must the couple be considered to be able to benefit from the advantages of the mortgage enforcement? An answer in the affirmative would be based on the idea that the couple is able to pay the instalments due and, therefore, to release their property, which is not the case. Aside from those procedural advantages from which, given their precarious economic situation, the couple cannot benefit, does that couple, for example, have the opportunity to renegotiate their debt at the stage of the mortgage enforcement proceedings? I think not.

133. In any event, and irrespective of whether consumers may, if appropriate, benefit from mortgage enforcement proceedings, in my view, it cannot be disputed that, having regard to the Court’s case-law concerning the scope of the finding that an accelerated repayment term is unfair, recalled in points 65 to 82 of this Opinion, the impact of those benefits on the response to be given to the questions under consideration which concern the consequences to be drawn from the finding that the term at issue is unfair appears to be uncertain at the very least. Therefore, in the light of that case-law, I consider that, in spite of that finding, the national court which has found that the accelerated repayment term is unfair cannot bring, or, depending on the circumstances, continue, mortgage enforcement proceedings initiated against the debtor consumer, even if it takes the view that those proceedings are more favourable to the debtor consumer.

(d)    The possibility of informing the consumer of the benefits of continuing the mortgage enforcement: the judgment in Pannon GSM

134. As I stated in point 128 of this Opinion, it is not apparent from the order for reference of the Tribunal Supremo (Supreme Court) that the continuation of the mortgage enforcement which is triggered on the basis of an unfair accelerated repayment term always offers advantages for the debtor consumer. However, if the national court were to take the view that the consumer may benefit from those advantages, it must inform him. The consumer, after having consulted his lawyer, may express his intention not to rely on the unfair and non-binding status of that term, as in my first example concerning the couple ‘P and M’.

135. I note in that regard that, in the judgment in Pannon GSM, the Court, after having recalled that the national court is required to ensure the effectiveness of the protection intended to be given by the provisions of Directive 93/13, ruled that, in carrying out the obligation to examine unfair terms of its own motion, ‘the national court is not, however, required under [that] Directive to exclude the possibility that the term in question may be applicable, if the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status’. (127) In the judgment in Banif Plus Bank, the Court confirmed that judgment and stated that the opportunity afforded to the consumer to set out his views on that point also fulfils the obligation on the national court to take into account, where appropriate, the intention expressed by the consumer when, conscious of the non-binding nature of an unfair term, that consumer states nevertheless that he is opposed to that term being disregarded, thus giving his free and informed consent to the term in question. (128)

136. On the basis of all the foregoing considerations, I propose that the answer to the second question referred for a preliminary ruling in Case C‑70/17 and the first question in Case C‑179/17 should be that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that they preclude national case-law according to which, where a national court has found that a term relating to accelerated maturity is unfair, the special mortgage enforcement proceedings initiated following the application of that term may continue nevertheless by the supplementary application of a provision of national law, such as Article 693(2) of the LEC, in so far as those proceedings may be more favourable to consumers than the enforcement of a decision given in the context of proceedings on the substance, unless the consumer, after having been duly informed by the national court that the term is not binding, gives his free and informed consent and expresses his intention not to rely on the unfair and non-binding status of that term.

6.      The second and third questions in Case C‑179/17

137. In view of my proposed answer to the first question referred for a preliminary ruling, there is no need, in my opinion, to answer the second and third questions concerning the interpretation of Spanish law, which is a matter for the national court.

C.      Final remark

138. I should like to make one final comment. As is clear from the sixth recital of Directive 93/13, ‘in order to facilitate the establishment of the internal market and to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own, it is essential to remove unfair terms from those contracts’. I am convinced that the proposed solution has the benefit of preserving the structure, which is now robust and coherent, of consumer protection and, therefore, of strengthening the internal market. For that reason, and for all of the foregoing reasons, I propose that the Court should confirm its case-law.

VI.    Conclusion

139. In the light of all the foregoing considerations, I propose that the Court should reply as follows to the questions referred by the Tribunal Supremo (Supreme Court, Spain) and the Juzgado de Primera Instancia No 1 de Barcelona (Court of First Instance No 1, Barcelona, Spain):

(1)      In Case C‑70/17:

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that it precludes a national court which has found that a contractual term that makes it possible to demand the accelerated maturity of a mortgage loan agreement, in particular in the event of the failure to pay just one monthly instalment, is unfair, from being able to maintain the partial validity of that term by simply deleting the grounds for acceleration which make it unfair.

(2)      In Cases C‑70/17 and C‑179/17:

Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that they preclude national case-law according to which, where a national court has found that a term relating to accelerated maturity is unfair, the special mortgage enforcement proceedings initiated following the application of that term may continue nevertheless by the supplementary application of a provision of national law, such as Article 693(2) of Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000, in the version applicable to the disputes in the main proceedings, in so far as those proceedings may be more favourable to consumers than the enforcement of a decision given in the context of proceedings on the substance, unless the consumer, after having been duly informed by the national court that the term is not binding, gives his free and informed consent and expresses his intention not to rely on the unfair and non-binding status of that term.

1      Original language: French.

2      C‑240/98 to C‑244/98, EU:C:1999:620, point 1.

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

4      C‑415/11, EU:C:2013:164.

5      For an overview of the legal problems at the heart of the references for a preliminary ruling in Cases C‑92/16, C‑167/16, C‑486/16, C‑70/17 and C‑179/17, I refer to my Opinions in Cases C‑486/16 and in Cases C‑92/16 and C‑167/16.

6      BOE No 7 of 8 January 2000, p. 575.

7      BOE No 89 of 14 April 1998, p. 12304.

8      BOE No 287 of 30 November 2007, p. 49181.

9      BOE No 76 of 28 March 2014, p. 26967.

10      Judgment No 705/2015 (ES:TS:2015:5618).

11      Judgment No 79/2016 (ES:TS:2016:626).

12      It is clear from the order for reference that, in the proceedings on the substance, based on Article 1124 of the Civil Code, the creditor may seek termination of the contract as the debtor has failed to fulfil his obligations. That termination leads to the reciprocal restoration of obligations or the enforced performance of the contract, which leads to all unpaid sums, plus the related interest, becoming payable. The final judgment delivered in the proceedings on the substance may give rise to enforcement proceedings during which all of the debtor’s property, including his permanent residence, may be seized and sold at auction.

13      The referring court states that mortgage enforcement proceedings are favoured by the banks as they are swifter and prevent them from having to make provision for the outstanding claim over a long period.

14      The Tribunal Supremo (Supreme Court) states that those benefits for the debtor consumer, in the context of mortgage enforcement proceedings on a permanent residence, are laid down in Article 693(3), Article 579(2) and Article 682(2) of the LEC. It follows from those provisions that the mortgage enforcement enables the mortgaged property serving as the guarantee that the loan will be repaid to be targeted and sold at auction. If that mortgaged property is the debtor consumer’s main residence, the rules governing the mortgage enforcement provide for a series of benefits to enable the debtor to keep his home, or, at least, to reduce the harm to the debtor in relation to the sale of that residence. Those benefits provided for the debtor consumer where the contract is performed in the context of mortgage enforcement proceedings are not applicable in ordinary enforcement proceedings (non-mortgaged) following a judgment delivered in the proceedings on the substance.

15      That court nevertheless states that it is clearly not asking the Court to examine whether the case-law of the Tribunal Supremo (Supreme Court) regarding (mortgage) loan agreements is correct or accurate, or to determine whether or not the option to terminate provided for in Article 1124 of the Civil Code is applicable to such agreements: it is merely providing information on the position taken by the Tribunal Supremo (Supreme Court) in that regard and asks the Court to assess whether the case-law in question (concerning the continuation of the mortgage enforcement despite the accelerated repayment term being unfair) is not contrary to Directive 93/13 in so far as it does not adequately assess the advantages and disadvantages for the consumer of ending the performance, continuing the proceedings, or holding declaratory proceedings.

16      See point 26 of this Opinion.

17      It states, however, that it is a possibility for which there are currently no indications in the case-law beyond the reference for a preliminary ruling from the Tribunal Supremo (Supreme Court), which fails to give a decision on that question.

18      In that regard, that court notes that Article 1101 of the Civil Code, which concerns claiming damages for delay or non-performance but does not provide for termination of the contract, may be applicable. That provision may be the basis only for a declaration or finding of non-performance of the payment obligation and an order for payment of damages for the losses actually caused by that non-performance, which therefore corresponds not to future repayment instalments, but only to unpaid repayment instalments which have actually become due.

19      See footnote 21 in my Opinion in Case C‑486/16.

20      See order of 26 January 1990, Falciola (C‑286/88, EU:C:1990:33, paragraph 7); judgments of 16 July 1992, Meilicke (C‑83/91, EU:C:1992:332, paragraph 22); of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 83); and of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 65).

21      See judgment of 1 December 1965, Schwarze (16/65, EU:C:1965:117), and order of 5 March 1986, Wünsche (69/85, EU:C:1986:104, paragraph 12).

22      See judgments of 29 November 1978, Redmond (83/78, EU:C:1978:214, paragraph 25); of 21 April 1988, Pardini (338/85, EU:C:1988:194); of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 41); and of 7 March 2018, Santoro (C‑494/16, EU:C:2018:166, paragraph 20).

23      See judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 35); of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraph 59); of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709, paragraph 35); and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 42).

24      See order of 26 January 1990, Falciola (C‑286/88, EU:C:1990:33, paragraph 8); judgments of 5 December 2006, Cipolla and Others (C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 25); of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103, paragraph 35); and of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 35).

25      See judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 3); of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 88); of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 41); and of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 32).

26      See judgment of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 32). That case concerned, inter alia, a provision of national law which prevented the chamber of a court of final instance from referring the matter to the Court for a preliminary ruling if it did not concur with the position adopted by a decision of that court sitting in plenary session.

27      See, to that effect, judgments of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 21); of 27 June 1991, Mecanarte (C‑348/89, EU:C:1991:278, paragraph 42); and of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 32).

28      See judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 33), and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 48).

29      See judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 4); of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 42); and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 48). In the latter case, the Hungarian Government submitted that the referring court called into question certain guidance provided by a judgment delivered by the Constitutional Court, although, under Hungarian constitutional law, that court’s decisions were binding on the lower courts.

30      See judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 4); of 9 March 2010, ERG and Others (C‑378/08, EU:C:2010:126, paragraph 32); of 15 November 2012, Bericap Záródástechnikai (C‑180/11, EU:C:2012:717, paragraph 55); and of 6 November 2014, Cartiera dell’Adda (C‑42/13, EU:C:2014:2345, paragraph 27).

31      See, inter alia, judgment of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 34).

32      In Case C‑70/17, the dispute in the main proceedings concerns proceedings seeking a declaration that a number of terms in a loan agreement are unfair, including the term at issue, whereas in Case C‑179/17, the dispute in the main proceedings concerns mortgage enforcement proceedings during which the court responsible for enforcement found that the term at issue was unfair. See points 24, 31 and 32 of this Opinion.

33      As far as the terms at issue in the disputes in the main proceedings are concerned, it should be noted that they are almost identical. Both cases concern the clause relating to the accelerated maturity of the term of the loan agreements at issue, namely ‘clause 6a’. That standard clause allows the banking institution to demand that the loan is paid and to bring legal action seeking the accelerated repayment of the total amount of the debt in the event of, inter alia, the non-payment of a single monthly instalment.

34      With regard to the origins of consumer protection, see, inter alia, Stuyck, J., ‘European Consumer Law after the Treaty of Amsterdam: Consumer Policy In or Beyond the Internal Market?’, Common Market Law Review, Vol. 37, 2000, pp. 367 to 400.

35      Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy (OJ 1975 C 92, p. 1). That resolution stated that, ‘the consumer is no longer seen merely as a purchaser and user of goods and services for personal, family or group purposes but also as a person concerned with the various facets of society which may affect him either directly or indirectly as a consumer’. The resolution contained a preliminary programme which summed up consumer interests by a statement of five basic rights: ‘(a) the right to protection of health and safety; (b) the right to protection of economic interests; (c) the right of redress; (d) the right to information and education; (e) the right of representation (the right to be heard)’.

36      See Bourgoignie, T., ‘Vers un droit européen de la consommation: unifié, harmonisé, codifié ou fragmenté?’, Les Cahiers de droit, Vol. 46, No 1-2, 2005, pp. 153 to 174.

37      The Council Resolution of 19 May 1981 on a second programme of the European Economic Community for a consumer protection and information policy (OJ 1981 C 133, p. 1) repeated the five basic rights of the consumer set out in the first programme in 1975, adding inter alia that the consumer had to be able to exercise them. In that regard, I note that the ninth recital of Directive 93/13 states that the two Community programmes underlined ‘the importance of safeguarding consumers in the matter of unfair terms of contract; whereas this protection ought to be provided by laws and regulations which are either harmonised at Community level or adopted directly at that level’.

38      In a similar vein, the Court has pointed out that ‘as the aim of … Directive [93/13] is to strengthen consumer protection, it constitutes … a measure which is essential to the accomplishment of the tasks entrusted to the Community and, in particular, to raising the standard of living and the quality of life in its territory’. See judgments of 26 October 2006, Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 37), and of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 26).

39      See, in that regard, the second recitals of the Council Resolutions of 14 April 1975 and 19 May 1981, and Article 169 TFEU.

40      Such as package travel, the purchase of timeshares, misleading and comparative advertising, unfair commercial practices, distance selling and doorstep selling or even the rights of travellers (business and leisure).

41      As Advocate General Wahl wrote in his Opinion in Joined Cases Unicaja Banco and Caixabank, ‘at the time of its inception, it is likely that most Member States would not have foreseen the impact that Directive 93/13 was to have on their legal orders some 20 years later’. Opinion of Advocate General Wahl in Joined Cases Unicaja Banco and Caixabank (C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2014:2299, point 1). I obviously share that view and consider, also, that the majority of EU consumers certainly did not doubt that Directive 93/13 would have the consequence of strengthening their rights in relation to banking institutions.

42      See the first and second recitals of Directive 93/13.

43      See the fifth, sixth and seventh recitals of Directive 93/13. Emphasis added.

44      See, to that effect, judgment of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 50 and the case-law cited).

45      See points 42 to 46 of this Opinion.

46      The origin of the preliminary ruling procedure must not be forgotten. Allow me to recall the words of Judge Pierre Pescatore in that regard, written in 1981: ‘A reminder should be added in that regard to an article which forms the basis of a truly prodigious judicial development: Article 177, which provides for the preliminary ruling procedure. Who invented this extraordinary judicial “gadget”? Were negotiators able to foresee the consequences of that provision for the development of Community law? As a preliminary point, it must be recalled that the preliminary ruling procedure already exists in the ECSC Treaty. It is in Article 41, which has however gone unheeded since it concerns questions of “validity” only. And that was the starting point for discussion. Should that procedure not be extended to questions of interpretation too? … As far as I remember, in principle, no difficulties were encountered in accepting that idea; I am inclined to believe that everyone, perhaps, was not aware of the significance of that innovation. In contrast, the discussion was based rather on the subject of the details of the procedure, especially with regard to which national courts should or may refer matters before the Court of Justice. As the obligation on all courts to refer risks overloading the Court with the number of procedures, for practical reasons, the solution which appears in Article 177 was adopted: optional recourse of all courts, with the exception of supreme courts which will be obliged to make use of the preliminary ruling procedure in order to prevent the formation of case-law in the Member State which jeopardises the effectiveness or the unity of Community law’. Pescatore, P., ‘Les travaux du “Groupe Juridique” dans la négociation des traités de Rome’, Revue d’histoire luxembourgeoise, No 2, Hémecht, 1982, 34, pp. 145 to 161. Emphasis added.

47      Judgment of 27 June 2000 (C‑240/98 to C‑244/98, EU:C:2000:346).

48      See, inter alia, judgment of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraphs 32 and 33). See, also, judgment of 30 May 2013, Asbeek Brusse and de Man Garabito (C‑488/11, EU:C:2013:341, paragraphs 54 to 60). See Report from the Commission on the implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, COM(2000) 248 final: ‘with a view to maintaining the scope and the effectiveness of the Directive, the legal orders must respect a number of principles to ensure that an unfair term does not actually bind the consumer.’

49      Judgment of 27 June 2000, Océano Grupo Editorial and Salvat Editores (C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 25). As regards the review of the court’s own motion as to whether the terms of a contract are unfair, the judgment in Océano Grupo Editorial and Salvat Editores is the first step taken by the Court, which held that the aim of Article 6 of Directive 93/13 may be attained only if the national court acknowledges that it has the power to evaluate of its own motion whether a contractual term is unfair. The second step was taken in the judgment of 26 October 2006, Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 25), in which the Court held that the national court is ‘required’ to assess of its 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, to the detriment of the consumer, between the consumer and the seller or supplier. Those judgments were subsequently confirmed by the Court, first in connection with order for payment procedures, by the judgments of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraphs 22 and 32), and of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 39 and 43), then in connection with adversarial proceedings between a consumer and a seller or supplier, in particular by the judgment of 21 February 2013, Banif Plus Bank (C‑472/11, EU:C:2013:88, paragraphs 19 and 24), and in connection with mortgage enforcement proceedings, in particular by the judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraphs 41, 44 and 46).

50      See judgment of 9 November 2010, VB Pénzügyi Lízing (C‑137/08, EU:C:2010:659, paragraph 44).

51      Judgment of 26 April 2012, Invitel (C‑472/10, EU:C:2012:242, paragraph 22). See, also, judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 66), and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 57).

52      See, to that effect, judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 69), and Opinion of Advocate General Kokott in that case (C‑415/11, EU:C:2012:700, point 74).

53      Judgment of 1 April 2004, Freiburger Kommunalbauten (C‑237/02, EU:C:2004:209).

54      See Opinion of Advocate General Kokott in Aziz (C‑415/11, EU:C:2012:700, point 71).

55      Judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 68).

56      Judgment of 14 March 2013 (C‑415/11, EU:C:2013:164, paragraph 73). See, also, Opinion of Advocate General Kokott in that case (C‑415/11, EU:C:2012:700, points 77 and 78).

57      Judgment of 26 January 2017 (C‑421/14, EU:C:2017:60).

58      Judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 66 and the case-law cited).

59      Judgments of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 39); of 9 November 2010, VB Pénzügyi Lízing (C‑137/08, EU:C:2010:659, paragraph 42); of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 71); and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 61). Emphasis added.

60      See judgment of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 71).

61      Judgment of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 58).

62      Judgment of 30 April 2014 (C‑26/13, EU:C:2014:282).

63      Judgment of 14 June 2012 (C‑618/10, EU:C:2012:349).

64      The national legislation concerned was Article 83 of the texto refundido of the general law on consumer and user protection and other supplementary laws. See point 20 of this Opinion.

65      Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 62).

66      Judgment of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615, paragraph 58); order of 16 November 2010, Pohotovosť (C‑76/10, EU:C:2010:685, paragraph 62); and judgment of 15 March 2012, Pereničová and Perenič (C‑453/10, EU:C:2012:144, paragraph 30).

67      Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 64). The 21st recital of Directive 93/13 provides that ‘Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and … if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions’. Emphasis added.

68      See judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 65), and of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 57).

69      Emphasis added. Judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 65); of 30 May 2013, Asbeek Brusse and de Man Garabito (C‑488/11, EU:C:2013:341, paragraph 57); of 21 January 2015, Unicaja Banco and Caixabank (C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 28); and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 71). It must be added that a legal possibility of that kind as regards the continuity of the contract should be assessed in the light of objective criteria and not in the light of the interests of one of the parties to the contract. See Mikłaszewicz, P., ‘Komentarz do art. 385¹ k.c.’, in Osajda, K., (ed.), Kodeks cywilny. Komentarz, edition 19, 2018, Legalis, commentary on Article 385¹ of the Polish Civil Code, paragraph 45.

70      Judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 69). See also Opinion of Advocate General Trstenjak in that case (C‑618/10, EU:C:2012:74, points 86 to 88).

71      See judgment of 26 October 2006, Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 36). See, also, judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 40); of 30 May 2013, Jőrös (C‑397/11, EU:C:2013:340, paragraph 25); and of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen (C‑147/16, EU:C:2018:320, paragraph 27 and the case-law cited).

72      ‘The importance of consumer protection has in particular led the [EU] legislature to lay down, in Article 6(1) of the Directive, that unfair terms used in a contract concluded with a consumer by a seller or supplier “shall … not be binding on the consumer”’. See judgment of 26 October 2006, Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 36).

73      Judgment of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraphs 32 and 33). See, also, footnote 48 of this Opinion.

74      Judgment of 30 April 2014 (C‑26/13, EU:C:2014:282).

75      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 81). See also judgment of 21 January 2015, Unicaja Banco and Caixabank (C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 33) and order of 11 June 2015, Banco Bilbao Vizcaya Argentaria (C‑602/13, not published, EU:C:2015:397, paragraph 38).

76      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 83). See, also, order of 11 June 2015, Banco Bilbao Vizcaya Argentaria (C‑602/13, not published, EU:C:2015:397, paragraph 38 and the case-law cited).

77      BGH III ZR 325/12 — NJW 2014, 141.

78      See judgment of 7 October 1981 (VIII ZR 214/80, NJW 1982, 178 (181)).

79      See Uffmann, K., Das Verbot der geltungserhaltenden Reduktion, Tübingen, 2010, p. 157; Basedow, J., in Krüger, W., Münchener Kommentar zum BGB, 7th Edition, Munich, 2016, § 306, No 18; Schlosser, P., Staudinger Kommentar zum BGB, April 2013, § 306, No 20. As regards the case-law, see BGH, judgments of 10 October 2013 (III ZR 325/12, No 14); of 16 February 2016 (XI ZR 454/14, No 21); and of 18 January 2017 (VIII ZR 263/15, No 38).

80      See, inter alia, BGH, judgments of 17 May 1982 (VII ZR 316/81); of 25 June 2003 (VIII ZR 344/02); of 18 January 2017 (VIII ZR 263/15, No 38).

81      See, inter alia, BGH, judgment of 17 May 1982 (VII ZR 316/81).

82      BGH, judgment of 10 October 2013 (VII ZR 325/12).

83      ‘Einwilligung zur Abtretung

      (i) Ich erkläre mich damit einverstanden, dass der umseitig genannte Zahnarzt zum Zweck der Erstellung der Rechnung sowie zur Einziehung und der gegebenenfalls gerichtlichen Durchsetzung der Forderung alle hierzu notwendigen Unterlagen, insbesondere meinen Namen, Anschrift, Geburtsdatum, Leistungsziffern, Rechnungsbetrag, Behandlungsdokumentation, Laborrechnungen, Formulare etc. an die ZA Zahnärztliche Abrechnungsgesellschaft D. (im Folgenden: ZAAG) weitergibt.

      (ii) Insoweit entbinde ich den Zahnarzt ausdrücklich von seiner ärztlichen Schweigepflicht und stimme ausdrücklich zu, dass der Zahnarzt die sich aus der Behandlung ergebende Forderung an die ZAAG [und diese gegebenenfalls an das refinanzierende Institut — D.-Bank e.G., D.] — abtritt.

      (iii) Ich bin mir bewusst, dass nach der Abtretung der Honorarforderung mir gegenüber die ZAAG als Forderungsinhaberin auftritt und deshalb Einwände gegen die Forderung — auch soweit sie sich aus der Behandlung und der Krankengeschichte ergeben — im Streitfall gegenüber der ZAAG zu erheben und geltend zu machen sind und der mich behandelnde Zahnarzt als Zeuge vernommen werden kann. ...’

84      Temming, F., Zeitschrift für das Privatrecht der Europäischen Union (GPR) 2016, pp. 38 to 46, and, in particular, see footnote 8 which refers to the judgment in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535.

85      See Uffmann, K., Das Verbot der geltungserhaltenden Reduktion, Tübingen, 2010, p. 157.

86      See Kollmann, A., in Dauner-Lieb, B., Langen, W., Nomos-Kommentar zum BGB, Vol. 2, 3rd Edition, 2016, § 306, No 15 et seq.; Schulte-Nölke, H.,in Schulze, R., Handkommentar zum BGB, 9th edition, 2017, § 306, No 4 et seq.; Bonin, in Artz, M., Beck-Online-Großkommentar zum BGB, edition of 1 March 2018, § 306, No 38 et seq.; Schmidt, H., in Bamberger/Roth/Hau/Poseck, Beck’scher Online-Kommentar zum BGB, edition of 1 November 2017, § 306, No 16 et seq., and Schmidt, H., in Ulmer/Brandner/Hensen, AGB-Recht, § 306, No 14 et seq.

87      Roloff, in Westermann, H.-P., Erman — Kommentar zum BGB, 15th edition, 2017, § 306, No 8.

88      For the sake of completeness, it should be noted that the minority view in German legal literature is, in essence, that it would be artificial to say that a division is not also an amendment. See Uffmann, K., Das Verbot der geltungserhaltenden Reduktion, Tübingen, 2010, p. 158 et seq.; Uffmann, K., Recht der Arbeit,2012, pp. 113 to 120 and, in particular, p. 119. In general, it is often almost impossible to make an accurate selection between the parts which are unfair and those which are not. Therefore, according to that minority view, a saving amendment must be recognised. Uffmann, K.op. cit., p. 164 et seq.; Schlosser, P., in Staudinger, ‘Kommentar zum BGB’, April 2013 edition, § 306, No 25; Basedow, J., in Krüger, W., Münchener Kommentar zum BGB, 7th edition, 2016, § 306, No 13 et seq.

89      In this type of mortgage loan agreement, in principle, the following points ((b), (c) or (d), etc.) do not refer to grounds for termination relating to default by the debtor.

90      That term is transcribed in point 95 of this Opinion.

91      On the contrary, that would indeed be the case in respect of the term at issue in Case C‑179/17, which states: ‘Notwithstanding the stipulated term of this agreement, the creditor bank may declare that the loan is due, considering it to have been terminated and the early repayment of all of the debt to be due, in particular in the event of non-payment on the due date of [one,] several or all of the repayment instalments set out in the second clause (concerning amortisation).’ That term satisfies the first condition of the blue pencil test since each type of non-payment (one, several and all) may be considered separately.

92      That would be the case: ‘... (a) [Failure to pay any instalment of interest or repayment instalment] …; (b) …; (c) ...’

93      As is the case, in my view, in respect of the term at issue in Case C‑179/17.

94      See point 89 of this Opinion.

95      The same considerations apply with respect to the term at issue in Case C‑179/17.

96      See judgments of 9 November 2010, VB Pénzügyi Lízing (C‑137/08, EU:C:2010:659, paragraph 44), and of 26 April 2012, Invitel (C‑472/10, EU:C:2012:242, paragraph 22). See, also, judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 66), and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 57).

97      With regard to the difference between the assessment/classification of the unfairness of the term and the consequences to be drawn from that assessment/classification, see point 65 et seq. of this Opinion.

98      See point 66 et seq. of this Opinion.

99      See point 72 et seq. of this Opinion.

100      In particular, with regard to the legal continuity of the contract, see the case-law cited in footnote 69 of this Opinion.

101      On the date of conclusion of the mortgage loan agreements at issue (2005 and 2008), Article 693(2) of the LEC was worded as follows: ‘The total amount of principal and interest owed may be claimed if the calling in of the total debt has been agreed upon in the event of failure to pay one of the agreed instalments and that agreement is entered in the register.’ Therefore, that provision provided for the possibility of claiming, by means of mortgage enforcement proceedings, ‘the total amount of principal and interest owed’ provided that (i) the term or the agreement regarding accelerated maturity is entered in the Land Register and that (ii) the accelerated maturity is dependent on a ‘failure to pay one of the agreed instalments’. See in that regard footnote 21 in my Opinion in Case C‑486/16.

102      Judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 73), and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 66). See, also, point 69 of this Opinion.

103      After the division proposed by the referring court, that term reads as follows: ‘failure to pay instalment of interest or repayment instalment ...’.

104      Judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 73), and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 66).

105      See point 26 of this Opinion.

106      In that regard, see point 118 of this Opinion.

107      See footnotes 91 and 93 of this Opinion.

108      See footnote 101 of this Opinion.

109      Judgment of 30 April 2014 (C‑26/13, EU:C:2014:282).

110      The Tribunal Supremo (Supreme Court) notes that, in addition to the loss of certain advantages for the debtor, the abandonment of the mortgage enforcement proceedings forces the creditor to initiate proceedings on the substance ‘in order to declare that the mortgage has matured or has been terminated as the debtor has failed to fulfil his obligations’. It adds that ‘even in the hypothetical event of the bank waiting for the full agreed redemption period to elapse and not seeking termination of the contract, the default interest owed by the debtor would be of an extraordinarily large amount, given the long repayment periods under such contracts’. Therefore, if proceedings on the substance must be initiated in order to declare that the mortgage has been terminated, it seems clear that the contract continues in existence.

111      I would again point out that the 21st recital of Directive 93/13 provides that ‘unfair terms … will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions’. See, also, judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 64 and 65).

112      In particular, with regard to the legal continuity of the contract, see the case-law cited in footnote 69 of this Opinion.

113      It is clear from the Spanish Government’s written observations that the deletion of the term at issue would make the legal relationship too onerous for the bank as it would force the bank to have recourse first to proceedings on the substance in order to terminate the contract and then to general enforcement proceedings in order to recover the debt. See in that regard points 54, 57 to 58 of my Opinion in Cases C‑92/16 and C‑167/16.

114      Judgment of 26 January 2017 (C‑421/14, EU:C:2017:60, paragraph 73).

115      Judgment of 26 January 2017 (C‑421/14, EU:C:2017:60, paragraph 74). Emphasis added. See also my Opinion in that case (C‑421/14, EU:C:2016:69, point 85).

116      Judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 75).

117      Judgment of 30 April 2014 (C‑26/13, EU:C:2014:282).

118      C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980.

119      Thus, it established the obligation to repay consumers not from the date of conclusion of the contracts at issue, but from the date of the judicial decisions declaring those terms void.

120      Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 61 and 66).

121      The referring court in Case C‑179/17 states that ‘even if, notwithstanding the previous paragraph, supplementary application of Article 693(2) of the LEC were to be considered feasible in the abstract, a new difficulty arises: in accordance with that provision “the total amount owed by way of principal and interest may be claimed if it has been agreed that repayment of the total amount of the loan is due in the event of non-payment of at least three monthly instalments … and provided that such agreement is recorded in the instrument creating the mortgage”. In other words, one of the essential conditions laid down in that article is that there must be an agreement. Admittedly, there was an agreement when the contract was signed, but it has been declared unfair and void, wherefore it is not valid (it has been deleted from the contract and is deemed not to form part of the contract). Thus, it is clear that Article 693(2) of the LEC refers to the existence of a valid and effective agreement, not to an unfair, void and ineffective agreement. Otherwise, if the view were taken that it is irrelevant whether or not the agreement is unfair, it would lead to the absurd situation in which, according to the case-law at issue, early repayment would always be feasible, regardless of the content (and possible unfairness) of the contractual term. That would render the legislation on consumer protection meaningless and the protection it provides could be severely weakened’. Emphasis added. See points 17, 34, 111 and 121 and footnote 101 of this Opinion. See also point 55 of my Opinion in Case C‑486/16.

122      Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 60).

123      I note, in that regard, that it is for the national court to determine whether or not a national provision is supplementary in nature.

124      See point 8 of the second plea in law in that decision.

125      It is clear from the file that, in the judgments of the Tribunal Supremo (Supreme Court) of 23 December 2015 and 18 February 2016, cited above in point 26 of this Opinion, the judge, Francisco Javier Orduña Moreno, presented dissenting opinions and ruled that those judgments of the Tribunal Supremo (Supreme Court) were incompatible with EU law. Available at http://www.poderjudicial.es/search/openDocument/d9586b9875f1d9f4. See pp. 8 to 17. See also point 26 of my Opinion in Cases C‑92/16 and C‑167/16 and footnote 21 of my Opinion in Case C‑486/16.

126      That first example occurred to me at the hearing when, in order to illustrate the disadvantages for consumers of the proceedings on the substance, the Spanish Government referred to a similar hypothetical case.

127      Judgment of 4 June 2009 (C-243/08, EU:C:2009:350, paragraph 33).

128      Judgment of 21 February 2013 (C-472/11, EU:C:2013:88, paragraphs 27 and 35).