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2018-08 Reports of Cases before the Court of Justice and the Court of First Instance 1 (2018)

handle is hein.intyb/rcbjcofi0406 and id is 1 raw text is: VRw Reports of Cases OPINION OF ADVOCATE GENERAL WAHL delivered on 22 March 2018' Joined Cases C-96/16 and C-94/17 Banco Santander SA V Mahamadou Demba, Mercedes Godoy Bonet (Request for a preliminary ruling from the Juzgado de Primera Instancia No 38 de Barcelona (Court of First Instance No 38, Barcelona, Spain)) and Rafael Ram6n Escobedo Cort6s V Banco de Sabadell SA (Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain)) (Reference for a preliminary ruling - Directive 93/13/EEC - Consumer contracts - Unfair terms - Assignment of debts - Absence of right of withdrawal - Criteria for assessing the unfairness of a contractual term setting default interest - Consequences of that unfairness) Introduction 1. These requests for a preliminary ruling from Spanish courts have both been made in the course of proceedings between certain banking institutions and consumers regarding the enforcement of loan agreements concluded between them. 2. Those cases concern the compatibility with EU law, in particular with Directive 93/13/EEC,2 of the guidance in national case-law according to which, first, non-negotiated terms in consumer loan agreements setting a rate of default interest that exceeds by more than two percentage points the rate of ordinary (remunerative) interest are unfair, and, secondly, certain consequences should follow from that finding, both for unsecured loans and mortgage loans. That rule was established by the Tribunal Supremo (Supreme Court, Spain) in various judgments,3 which were, in turn, delivered after the judgments of the Court of Justice in Aziz' and Unicaja Banco SA.' 1 Original language: French. 2 Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 (OJ 2011 L 304, p. 64) ('Directive 93/13'). 3 Those judgments, which concern unsecured loans, are dated 22 April, and 7 and 8 September 2015, respectively. The Tribunal Supremo (Supreme Court) ruled on mortgage loans by judgments of 23 December 2015 as well as 18 February and 3 June 2016. 4 Judgment of 14 March 2013, Aziz (C-415/11, EU:C:2013:164). 5 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). ECLI:EU:C:2018:216 1

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