Request for a preliminary ruling from the Juzgado de Primera Instancia No 8 de Donostia – San Sebastián (Spain) lodged on 16 November 2023 – FG v Caja Rural de Navarra, SCC

(Case C-699/23)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 8 de Donostia – San Sebastián

Parties to the main proceedings

Applicant: FG

Defendant: Caja Rural de Navarra SCC

Questions referred

Is the principle of transparency infringed where an arrangement fee is charged for the provision of services by a seller or supplier and the latter does not specify what those services consist of or the time spent on them, thereby preventing consumers from ascertaining, first, whether the charging of the fee corresponds to what was agreed, what is established in the schedule of prices or, in any event, what is reasonable in view of the type of service; and, secondly, that there is no overlap between services, that the consumer is not paying for services which are already remunerated as part of the contractual interest and that the seller or supplier is not charging twice for any other service?

Is the principle of transparency infringed where the seller or supplier advertised the interest rate it was offering for mortgage loans aimed at consumers but did not also publicise the compulsory arrangement fee payable on conclusion of the advertised mortgage, in particular where that fee was a known, predetermined and invariable percentage of the loan granted, regardless of the amount of the loan?

If the services remunerated by means of the arrangement fee when the loan application is approved and the loan is taken out include: the examination of the application and steps taken in relation to it; collation and analysis of information about the applicant’s creditworthiness and ability to pay the loan throughout its term; and assessment of the security submitted, but there is no charge for the same services where the loan application is refused, should the services in question be understood to be services inherent in banking activity and forming part of the banking safety protocol, whose cost should be borne by the institution, as was considered to be the case in Directive 2014/17/EU of the European Parliament and of the Council on credit agreements for consumers relating to residential immovable property? ¹

Were it to be found that the arrangement fee remunerates services that are paid for in addition to the compensatory interest because they are unconnected with the activity of the lender institution, should the lender institution therefore provide consumers with the relevant invoice corresponding to any supply of services containing a breakdown of those services and VAT?

Is the principle of transparency infringed where a seller or supplier that required payment of an arrangement fee as the price payable for a series of very specific services did not have a schedule with the price per hour of each service and did not provide that schedule to consumers, before the agreement was concluded, so that consumers, first, knew in advance what the final cost of their loan agreement would be and secondly, could compare the price of those services with the prices offered by other sellers or suppliers?

Is the principle of transparency upheld where a seller or supplier charged for a series of very specific services, which were essential to conclusion of the agreement that both parties wished to conclude, by deducting a percentage of the total amount of the loan granted, with the effect that an identical service, provided by the same number of people for the same period of time, was invoiced, as an ‘arrangement fee’, at different amounts depending on the amount of the loan granted in each case?

Is a transparency test incompatible with Article 4(2) of Directive 93/13/EEC ¹ where, according to that test, a term relating to an arrangement fee is considered to be unfair or otherwise depending on whether its amount exceeds a specific figure drawn from statistics obtained online on the charging of arrangement fees?

Is national case-law compatible with Articles 6(1) and 7(1) of Directive 93/13/EEC where, according to that case-law, arrangement fees are found to be disproportionate or otherwise on the basis of the amounts, according to the statistics, of the arrangement fees then being charged in Spain, at a time when Spain did not review the fairness of terms containing arrangement fees?

Is the principle of effectiveness infringed by the fact that, under agreements concluded before the Kingdom of Spain transposed Directive 2014/17/EU into its domestic legal order, sellers or suppliers charge arrangement fees that remunerate the examination of the creditworthiness of the potential lender and the viability of the transaction whereas, after the transposition of that directive that examination can no longer entail any cost to the potential borrower?

Must Article 3(1) of Directive 93/13/EEC be interpreted as meaning that it precludes national case-law such as that laid down by the Supreme Court in its judgment 816/2023 of 29 May 2023, which establishes that the test of the fairness of a term relating to an arrangement fee does not require the term to specify what services are remunerated by means of the arrangement fee or the price at which they are invoiced, and that a review of fairness merely ascertains whether the term clearly sets out the amount payable by the consumer and whether that amount exceeds the threshold above which it would be found to be disproportionate.

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¹ Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34).

¹ Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).