Profi Credit Polska S.A. z siedzibą w Bielsku- Białej and Others v QJ and Others.

• Jurisdiction: European Union
• Celex Number: 62019CJ0084
• ECLI: ECLI:EU:C:2020:631
• Date: 03 September 2020
• Docket Number: C-222/19,C-252/19,C-84/19,
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

3 September 2020 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Article 1(2) – Scope – National provision providing for the maximum amount of non-interest credit costs – Article 3(1) – Contractual term passing on to the consumer costs of the lender’s business activity – Significant imbalance between the rights and obligations of the parties – Article 4(2) – Obligation to draft contract terms in plain intelligible language – Contractual terms which do not specify the services for which remuneration is sought – Directive 2008/48/EC – Article 3(g) – National legislation laying down a method of calculating the maximum non-interest credit cost which may be charged to the consumer)

In Joined Cases C‑84/19, C‑222/19 and C‑252/19,

THREE REQUESTS for a preliminary ruling under Article 267 TFEU from, respectively, the Sąd Rejonowy Szczecin – Prawobrzeże i Zachód w Szczecinie (District Court, Szczecin, Prawobrzeże and Zachód districts, Poland) (C‑84/19), made by decision of 28 December 2018, received at the Court on 31 January 2019, and from the Sąd Rejonowy w Opatowie (District Court, Opatów, 1st Civil Division, Poland) made by decisions of 4 February 2019 (C‑222/19) and 31 January 2019 (C‑252/19), received at the Court on 8 March 2019 and 20 March 2019, respectively, in the proceedings,

Profi Credit Polska SA

v

QJ (C‑84/19),

and

BW

v

DR (C‑222/19),

and

QL

v

CG (C‑252/19),

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, M. Safjan, L. Bay Larsen, C. Toader (Rapporteur) and N. Jääskinen, Judges,

Advocate General: G. Hogan,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– BW, by K. Tomczyk, radca prawny,

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

– the Czech Government, by M. Smolek, J. Vláčil and S. Šindelková, acting as Agents

– the European Commission, by K. Herbout-Borczak, G. Goddin, A. Szmytkowska and N. Ruiz García, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 April 2020,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Articles 1(2), 3(1) and 4(2) of Council Directive 93/13/EEC 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’) and of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66, and corrigenda at OJ 2009 L 207, p. 14, OJ 2010 L 199, p. 40, and OJ 2011 L 234, p. 46).

2 The requests have been made in three sets of proceedings between, on the one hand, Profi Credit Polska, BW and QL, three credit institutions, and, on the other hand, QJ, DR and CG, three consumers, respectively, concerning the recovery from those consumers of sums claimed by those credit institutions under consumer credit agreements.

Legal context

European Union law

Directive 93/13

3 The 12th, 13th, 16th, and 20th recitals of Directive 93/13 are worded as follows:

‘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;

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;

…

Whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account;

…

Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail’.

4 Article 1 of that directive 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 … shall not be subject to the provisions of this Directive.’

5 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.’

6 Article 4 of that directive provides:

‘1. Without prejudice to Article 7, the unfairness of a contract 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 supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language.’

7Article 5 of Directive 93/13 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. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. The rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).’

8 According to Article 6(1) of that directive:

‘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.’

9 Article 7(1) of that directive is worded as follows:

‘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.’

10 Article 8 of that directive provides:

‘Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions, compatible with the Treaty, to ensure a higher level of consumer protection.’

11Article 8a(1) of Directive 93/13 provides:

‘Where a Member State adopts provisions in accordance with Article 8, it shall inform the Commission thereof, as well as of any subsequent changes …’

Directive 2008/48

12 Recitals 7, 9 and 20 of Directive 2008/48 are worded as follows:

‘(7) In order to facilitate the emergence of a well-functioning internal market in consumer credit, it is necessary to make provision for a harmonised Community framework in a number of core areas. In view of the continuously developing market in consumer credit and the increasing mobility of European citizens, forward-looking Community legislation which is able to adapt to future forms of credit and which allows Member States the appropriate degree of flexibility in their implementation should help to establish a modern body of law on consumer credit.

…

(9) Full harmonisation is necessary in order to ensure that all consumers in the Community enjoy a high and equivalent level of protection of their interests and to create a genuine internal market. …

…

(20) The total cost of the credit to the consumer should comprise all the costs, including interest, commissions, taxes, fees for credit intermediaries and any other fees which the consumer has to pay in connection with the credit agreement, except for notarial costs. The creditor’s actual knowledge of the costs should be assessed objectively, taking into account the requirements of professional diligence.’

13 Under Article 3 of that directive:

‘For the purpose of this Directive:

(a) “consumer” means a natural person who, in transactions covered by this Directive, is acting for purposes which are outside his trade, business or profession;

…

(g) “total cost of the credit to the consumer” means all the costs, including interest, commissions, taxes and any other kind of fees which the consumer is required to pay in connection with the credit agreement and which are known to the creditor, except for notarial costs; costs in respect of ancillary services relating to the credit agreement, in particular insurance premiums, are also included if, in addition, the conclusion of a service contract is compulsory in order to obtain the credit or to obtain it on the terms and conditions marketed;

(h) “total amount payable by the consumer” means the...