Opinion of Advocate General Kokott delivered on 3 February 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:76
• Date: 03 February 2022
• Celex Number: 62020CC0567
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 3 February 2022 (1)

Case C‑567/20

A.H.

v

Zagrebačka banka d.d.

(Request for a preliminary ruling from the Općinski građanski sud u Zagrebu (Municipal Civil Court, Zagreb, Croatia))

(Request for a preliminary ruling – Consumer protection – Unfair terms in consumer credit contracts – Directive 93/13/EEC – Article 6(1) – Second subparagraph of Article 10(1) – Applicability ratione temporis of the directive – Jurisdiction of the Court – Conclusion of a contract prior to a Member State’s accession to the EU – Article 1(2) – Exclusion of contractual terms which reflect mandatory statutory or regulatory provisions)

I. Introduction

1. Article 6(1) of Directive 93/13 (2) requires the Member States to ensure that unfair terms used in consumer contracts are not binding on the consumer. Such contracts are to be maintained without the unfair terms, to the extent possible. However, in accordance with settled case-law, where, on an exceptional basis, an unfair term in such a contract is replaced by a new term as a result of legislative intervention, it must be ensured that the legal and factual situation of the consumer in the absence of that unfair term is thereby restored. In particular, the consumer should be able to claim restitution of all advantages wrongly obtained, to his or her detriment, by the seller or supplier on the basis of that unfair term (the ‘restitutory effect’). (3)

2. In the main proceedings, the applicant takes the view, in essence, that a reform by the Croatian legislature in 2015, which gave consumers the right retroactively to convert loans expressed in Swiss francs into euro, was inadequate in that regard. In particular, the contractual adjustments provided for by law did not lead to consumers being reimbursed all the sums improperly paid.

3. The distinguishing feature of the case lies in the fact that the applicant’s credit contract was concluded in 2007, and thus before the Republic of Croatia’s accession to the EU. However, the replacement of the unfair terms by virtue of the abovementioned legislative reform did not take place until after the accession. Against that background, the case raises the question of the applicability ratione temporis of Article 6(1) of Directive 93/13 in the main proceedings with regard to the restitutory effect of the statutory provision in question. In other words, it needs to be clarified whether a provision adopted after the accession of a Member State must also guarantee that restitutory effect in respect of unfair terms in a contract concluded before the accession.

II. Legal framework

A. European Union law

1. Documents concerning the accession of the Republic of Croatia to the European Union

4. According to Article 3(3) of the Treaty between the Member States of the European Union and the Republic of Croatia concerning the accession of the Republic of Croatia to the European Union, (4) that Treaty is to enter into force on 1 July 2013 provided that all the instruments of ratification have been deposited before that date.

5. Article 2 of the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community, (5) provides as follows in its first paragraph:

‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession shall be binding on Croatia and shall apply in Croatia under the conditions laid down in those Treaties and in this Act.’

6. According to the first sentence of Article 46 of the 2012 Act of Accession, upon accession, the Republic of Croatia is to be considered as being an addressee, in accordance with the original Treaties, of directives and decisions within the meaning of Article 288 TFEU.

2. Directive 93/13

7. The thirteenth recital of Directive 93/13 reads as follows:

‘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 …; 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’.

8. Accordingly, Article 1(2) of the directive provides as follows:

‘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.’

9. Article 6(1) of the directive states:

‘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.’

10. Article 7(1) of the directive provides that Member States are to 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’.

11. Article 10(1) of the directive reads as follows:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1994. They shall forthwith inform the Commission thereof.

These provisions shall be applicable to all contracts concluded after 31 December 1994.’

B. Croatian law

12. On 30 September 2015, the Zakon o izmjeni i dopunama Zakona o potrošačkom kreditiranju (Law amending the Law on Consumer Credit; ‘the Law of 2015’) (6) was adopted, giving consumers the possibility to convert their credit liabilities from Swiss francs into euro. Article 19e of the Law of 2015 obliges lenders to offer consumers either a new loan agreement or an annex to the existing loan agreement within 45 days of the entry into force of that law. Consumers can accept the conversion of the loan within 30 days. Otherwise, the loan must be repaid under the same conditions as before.

13. The Law of 2015 provides for a specific methodology for calculating the new amount of the consumer’s debt for conversion purposes. It consists, in essence, in comparing the consumer’s actual loan repayments with a fictitious loan in euro. This gives a new loan balance in euro as of 30 September 2015, which is decisive for the borrower’s repayment of the loan as of that date.

14. The purpose of the Law of 2015 is to put Swiss franc borrowers on an equal footing with euro borrowers, as follows from Article 19b thereof.

15. Article 148(1) and Article 326 of the Zakon o obveznim odnosima (Law on Obligations), in the version of 5 April 2018, (7) provide that an invalid contract does not become valid by virtue of the subsequent removal of the cause of its invalidity or by virtue of its renewal. In accordance with Article 322 of that law, an invalid legal transaction is deemed not to have taken place at all and cannot be confirmed, replaced or made valid by means of a legal transaction.

III. Facts and main proceedings

16. According to the order for reference, on 15 October 2007, A.H., the applicant in the main proceedings, concluded in her capacity as a consumer a real estate loan agreement with Zagrebačka banka d.d., the defendant in the main proceedings, for an amount expressed in Swiss francs but disbursed in kuna. In the standard-form agreement, the parties agreed, inter alia, that the repayment amount of the loan was linked to the Swiss franc and that the applicable variable interest rate could be changed unilaterally by the bank.

17. The Law of 2015 was adopted on 30 September 2015. (8)

18. Subsequently, on 8 January 2016, the applicant in the main proceedings and Zagrebačka banka entered into an annex to the loan agreement in order to effect the conversion provided for in the Law of 2015, with the result that the recalculated principal amount of the loan was linked to the euro with effect from 30 September 2015 and a new interest calculation method was applied.

19. On 12 June 2019, the applicant in the main proceedings brought an action against Zagrebačka banka before the referring court, the Općinski građanski sud u Zagrebu (Municipal Civil Court, Zagreb, Croatia). By her action, she seeks, first, a declaration that the Swiss franc indexation clause and the variable interest rate clause contained in her original agreement are unfair under both Croatian and EU law and are therefore invalid. In support of her request, she relies on class action proceedings before the Trgovački sud u Zagrebu (Commercial Court, Zagreb, Croatia), in which the unfairness of foreign currency clauses such as those at issue in the main proceedings was established by final judgment.

20. Second, the applicant seeks, on the basis of an expert’s report that she had commissioned, an order requiring the bank to return to her all the advantages which the bank unduly obtained on the basis of those clauses. The applicant in the main proceedings takes the view that, accordingly, the provisions of the Law of 2015 or the annex provided for by law did not fully restore the situation in which she would have been had the original contract not contained unfair terms. She submits that, moreover, she did not in any way waive those rights, to which she is entitled as a consumer.

21. On 4 March 2020, in ‘proceedings unifying the interpretation of law’, the Vrhovni sud...