Ruxandra Paula Andriciuc and Others v Banca Românească SA.

• Jurisdiction: European Union
• Celex Number: 62016CJ0186
• ECLI: ECLI:EU:C:2017:703
• Date: 20 September 2017
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-186/16

JUDGMENT OF THE COURT (Second Chamber)

20 September 2017 ( *1 )

(Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Article 3(1) and Article 4(2) — Assessment of the unfairness of contractual terms — Loan agreement concluded in a foreign currency — Exchange rate risk born entirely by the consumer — Significant imbalance in the parties’ rights and obligations arising under the contract — Time at which the imbalance must be assessed — Scope of the concept of terms drafted in ‘plain intelligible language’ — Level of information to be procured by the bank)

In Case C‑186/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania), made by decision of 3 March 2016, received at the Court on 1 April 2016, in the proceedings

Ruxandra Paula Andriciuc and Others

v

Banca Românească SA,

THE COURT (Second Chamber),

composed of M. Ilešič, President of the Chamber, A. Prechal (Rapporteur), A. Rosas, C. Toader and E. Jarašiūnas, Judges,

Advocate General: N. Wahl,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 9 February 2017,

after considering the observations submitted on behalf of:

– Ruxandra Paula Andriciuc and Others, by G. Piperea, A. Dimitriu, L. Hagiu and C. Șuhan, avocaţi,

– Banca Românească SA, by R. Radu Tureac, V. Rădoi and D. Nedea, avocaţi,

– the Romanian Government, by R.-H. Radu, L. Liţu, M. Chicu and E. Gane, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by C. Gheorghiu and G. Goddin and by D. Roussanov, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 27 April 2017,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(1) and Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 The request has been made in proceedings between Ms Ruxandra Paula Andriciuc and 68 other persons and Banca Românească SA (‘the Bank’) concerning the alleged unfair terms incorporated in loan agreements providing, in particular, for the repayment of loans in the same foreign currency as that in which they were disbursed.

Legal context

EU law

3 Article 1 of Directive 93/13 provides: ‘1. The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer. 2. 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.’

4 Under Article 3(1) of the directive: ‘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.’

5 Article 4 of the directive is worded as follows: ‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. 2. 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 supplied in exchange, on the other, in so far as these terms are in plain intelligible language.’

6 Article 5 of that directive provides: ‘In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. …’

Romanian law

7 Article 1578 of the Cod Civil (Civil Code), in the version in force at the date on which the agreements at issue in the main proceedings were concluded, provides: ‘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.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 It is apparent from the order for reference that between 2007 and 2008 the applicants in the main proceedings who, during that period, received their income in Romanian lei (RON), concluded loan agreements with the Bank denominated in Swiss francs (CHF) with a view to acquiring immovable property, refinancing other credit arrangements or meeting personal needs.

9 Under Article 1(2) of each of those agreements, the applicants in the main proceedings were required to make monthly payments on the loans in the same currency as that in which they had been concluded, that is in Swiss francs, with the consequence that the risk of fluctuations requiring an increase in the monthly repayments if the exchange rate of the Romanian leu fell against the Swiss franc was born entirely by the applicants. Furthermore, those agreements contained two clauses, in Article 9(1) and Article 10(3)(9) respectively, authorising the Bank, once the monthly payments had fallen due or in the event that the borrower failed to comply with the obligations arising from the agreements, to debit the borrower’s account and, if necessary, to carry out any conversion of the balance available on the borrower’s account into the currency of the contract at the Bank’s exchange rate as it stood on the day of that operation. Pursuant to those terms, any difference in the exchange rate was borne entirely by the borrower.

10 According to the applicants in the main proceedings, the Bank was in a position to foresee the movement and fluctuations in the exchange rate for the Swiss franc. The exchange risk was not fully explained since, unlike other foreign currencies used as a reference currency for loans, the Bank did not point out that the Swiss franc fluctuated significantly against the Romanian leu.

11 More generally, the presentation was made in a biased manner, emphasising the advantages of that type of product and the currency used, while failing to point out the potential risks or the likelihood of those risks materialising. In that connection, the applicants in the main proceedings claim that by failing to inform them in a transparent manner about such fluctuations, the Bank acted in breach of its obligations to inform, warn and advise, and its duty to draft contractual terms in plain and intelligible language, so as to enable a borrower to understand the obligations arising from the contract which he has concluded.

12 Taking the view that the terms providing for the repayment of the loans in Swiss francs, in so far as they placed the exchange risk on the borrowers, were unfair terms, the applicants in the main proceedings brought an action before the Tribunalul Bihor (District Court, Bihor, Romania) seeking a declaration that those terms were completely invalid together with an order requiring the Bank to produce, for each loan agreement, a new repayment schedule providing for the conversion of the credit into Romanian lei, at the exchange rate which had been in force when the loan agreements at issue in the main proceedings were concluded.

13 By judgment of 30 April 2015, the Tribunalul Bihor (District Court, Bihor) dismissed the action. That court held that, even though it was not negotiated with the borrowers, the term providing for the repayment of loans in the same currency as that in which the loan agreements had been concluded was not unfair.

14 The applicants in the main proceedings brought an appeal against that decision before the referring court. They argue that the significant imbalance between the rights and obligations of the parties was caused by the depreciation of the Romanian leu against the Swiss franc which took place after the conclusion of the agreements, and that the Court has never given a ruling on a question of that nature in its judgments relating to the interpretation of Article 3(1) of Directive 93/13 on the definition of ‘significant imbalance’.

15 The referring court observes that, in the present case, from the moment when the loans at issue in the main proceedings were disbursed, the exchange rate of the Swiss franc has increased considerably and that the applicants in the main proceedings suffered the effects of that increase. Therefore, according to that court, it is important to know whether in accordance with the Bank’s duty to inform and advise it should have informed clients about a possible future increase or decrease in the exchange rate of the Swiss franc at the time of conclusion of the loan agreements, and whether the term at issue in the main proceedings, in order to be regarded as having been drafted in plain intelligible language within the meaning of Article 4(2) of Directive 93/13, was also required to set...