Opinion of Advocate General Kokott delivered on 19 March 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0081
• ECLI: ECLI:EU:C:2020:217
• Date: 19 March 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 19 March 2020 (1)

Case C‑81/19

NG,

OH

v

SC Banca Transilvania SA

(Request for a preliminary ruling from the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania))

(Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Foreign currency loans — Term on exchange rate — Article 1(2) — Term reflecting a general principle established by law — Article 6(1) — Legal consequences — Removal of unfair term — Contract incapable of continuing in existence without unfair term — Powers of national court)

I. Introduction

1. The subject matter of this preliminary ruling procedure is, once again, consumer protection against unfair terms in foreign currency loan agreements.

2. The term contested in the main proceedings requires the applicants in those proceedings to repay a loan denominated in Swiss francs in that currency. However, as a result of the sharp fall in the value of the Romanian leu (the currency in which the applicants receive their income), the amount which they have to repay has almost doubled over the years since the loan agreement was signed.

3. The order for reference does not explicitly raise the fundamental question of whether foreign currency loans granted to consumers can be regarded as compatible with EU law. That is because, although previous case-law of the Court suggests that the exchange rate risk inherent in such loan agreements cannot automatically be imposed on the consumer, it also follows from that case-law that that practice is not of itself unlawful. (2) According to that case-law, the decisive factor is whether the consumer was informed of the risk in plain intelligible language. (3)

4. On the contrary, this case revolves around the legal consequences that a national court has to draw if it finds that a term governing the exchange rate risk is unfair. That is because, in the opinion of the referring court, all the legal consequences of unfairness highlighted in previous case-law result in an unreasonable burden on the consumer. The referring courts have encountered similar legal problems in a further three cases pending. (4)

II. Legal context

A. EU law

5. The framework of this case in EU law is formed by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (Directive 93/13). (5)

6. Recitals 12 and 13 of Directive 93/13 state:

‘[(12)] Whereas, however, as they now stand, national laws allow only partial harmonisation to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive;

[(13)] Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording ‘mandatory statutory or regulatory provisions’ in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established.’

7. Article 1(2) of Directive 93/13 includes the following rule:

‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

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

‘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.’

9. Article 4(2) of Directive 93/13 provides:

‘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 supplie[d] 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. In accordance with Article 7(1) of Directive 93/13:

‘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. National law

12. The Romanian Codul civil (Civil Code) and Codul comercial (Commercial Code), in the versions in force on the date of signature of the agreement, are relevant to this case.

13. Article 1578 of the Civil Code, which establishes the principle of monetary nominalism, provided as follows:

‘The obligation arising from a money loan is always limited to the same numerical sum shown in the contract. Whenever the value of a currency increases or decreases before the due date for payment, the debtor must return the sum lent and is obliged to return that sum only in the currency used at the time of payment.’

14. Article 41 of the Commercial Code provided as follows:

‘When the currency indicated in an agreement does not have the status of legal or commercial tender in the country and when the exchange rate of that currency has not been determined by the parties themselves, payment may be made in the currency of the country, in accordance with the exchange rate applicable on the day payment falls due and in the place of payment; if there is no exchange rate in that place, it shall be made in accordance with the rate of the closest market, except where the agreement contains an “effective” clause [requiring payment in that currency alone], or another similar clause.’

III. Facts and main proceedings

15. According to the findings of the referring court, on 31 March 2006, the applicants in the main proceedings, acting as consumers, concluded a loan agreement with SC Volksbank România SA (later Banca Transilvania) for 90 000 Romanian lei (RON).

16. In order to refinance the agreement of 31 March 2006, the parties signed a second loan agreement on 15 October 2008 for the amount of 65 000 Swiss francs (CHF). That was equivalent to approximately RON 159 126 or approximately EUR 33 488. (6) The applicants receive their income in Romanian lei.

17. Clause 4.1 of the general terms and conditions of the second loan agreement stated: ‘All payments … shall be made in the currency of the loan, except in the cases expressly mentioned in the special terms and conditions or general terms and conditions’ (‘contested term’).

18. As a result of the fall in value of the leu and the rise in value of the Swiss franc between October 2008 and April 2017, the amount to be repaid rose by RON 117 760 (approximately EUR 24 772).

19. Whereupon the applicants brought an action in the Tribunalul Specializat Cluj (Specialist Tribunal, Cluj, Romania). They contend that the bank failed to fulfil its obligation to provide adequate information on the exchange rate risk, and that, moreover, bearing that risk had unreasonably disadvantaged them. Therefore, essentially they have requested that the exchange rate be frozen at the rate that applied on the date of signature of the agreement.

20. The defendant contends that the contested term is based on the principle of monetary nominalism enshrined in Article 1578 of the Civil Code and, therefore, cannot be assessed as to unfairness in accordance with Article 1(2) of Directive 93/13.

21. The court of first instance dismissed the action. Although it held that the contested term was subject to substantive assessment, it also held that the bank had fulfilled its obligation to provide adequate information, as it could not have predicted the considerable variations in the exchange rate.

22. Further to appeals lodged by both parties, the dispute is now pending before the referring court, the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania). That court has raised doubts with regard to the interpretation of Directive 93/13 in terms of its scope, the obligation of sellers or suppliers to provide information and the legal consequences of any unfair terms.

IV. Request for a preliminary ruling and proceedings before the Court

23. By order of 27 December 2018, received by the Court on 1 February 2019, the Curtea de Apel Cluj (Court of Appeal, Cluj) referred the following questions to the Court for a preliminary ruling in accordance with Article 267 TFEU:

‘(1) Must Article 1(2) of [Directive 93/13] be interpreted as not precluding any analysis, with regard to unfairness, of a contractual term that reproduces a supplementary rule from which the parties could have derogated, but did not in fact do so as there was no negotiation in that regard, as in the present case analysed here with regard to the clause requiring repayment of the loan in the same foreign currency as that in which it was granted?

(2) In a context where, when being granted a loan in a foreign currency, the consumer was not given calculations/estimates relating to the economic impact that...