Request for a preliminary ruling from the Audiencia Provincial de Alicante (España) lodged on 25 June 2015 — Banco Popular Español, S.A. v Emilio Irles López, Teresa Torres Andreu

(Case C-308/15)

Language of the case: Spanish

Referring court

Audiencia Provincial de Alicante

Parties to the main proceedings

Applicant: Banco Popular Español, S.A.

Defendants: Emilio Irles López, Teresa Torres Andreu

Questions referred

Is it compatible with the principle that unfair terms are not binding, laid down in Article 6(1) of Council Directive 93/13/EEC ¹ of 5 April 1993 on unfair terms in consumer contracts, for the restitutory effects derived from a declaration on grounds of unfairness of the nullity of a ‘floor clause’ included in a loan agreement not to be applied retroactively from the date of conclusion of the agreement but rather from a later date?

Is the criterion that those concerned must act in good faith, which operates as a basis for limiting the retroactive effect derived from an unfair term, an autonomous concept of EU law that must be interpreted uniformly throughout the Member States?

If so, what circumstances must be taken into account in order for it to be determined whether those concerned acted in good faith?

At all events, is it compatible with the criterion of good faith for the actions of a seller or supplier, in creating the agreement, to have been the cause of a lack of transparency making the term unfair?

Is the risk of serious difficulties, which operates as a basis for limiting the retroactive effect derived from an unfair term, an autonomous concept of EU law that must be interpreted uniformly throughout the Member States?

If so, what criteria ought to be taken into account?

Must the risk of serious difficulties be assessed by taking account solely of the risk which may arise for the seller or supplier or must account also be taken of the loss caused to a consumer by the failure to reimburse in full the sums paid under that ‘floor clause’?

Is it compatible with the principle that consumers are not bound by unfair terms, laid down in Article 6(1) of Council Directive 93/13/EEC, and with the right to effective judicial protection affirmed in Article 47 of the Charter of Fundamental Rights of the European Union, ² for the same limitation of the restitutory effects deriving from the nullity of a ‘floor clause’, declared in proceedings brought by a consumers’ association against financial bodies, to be automatically extended to individual actions for a declaration that a ‘floor clause’ is void because unfair brought by consumer customers who have concluded a mortgage loan with other financial bodies?

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¹ OJ 1993 L 95, p. 29.

² OJ 2000 C 364, p. 1.