Opinion of Advocate General Hogan delivered on 2 April 2020.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:259
• Date: 02 April 2020

Provisional text

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 2 April 2020(1)

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

Profi Credit Polska S.A. z siedzibą w Bielsku- Białej

v

QJ (C‑84/19)

(Request for a preliminary ruling from the Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie (District Court for Szczecin — Prawobrzeże and Zachód, Szczecin, Poland))

and

BW

v

DR (C‑222/19)

and

QL

v

CG (C‑252/19)

(Request for a preliminary ruling from the Sąd Rejonowy w Opatowie (District Court for Opatów, Poland))

(Reference for a preliminary ruling — Consumer protection — Credit agreements for consumers — Directive 93/13/EEC — Unfair terms in consumer contracts — Article 1(2) — Exclusion provided for contractual terms reflecting mandatory legislative or regulatory provisions — National provision instituting a maximum amount of total cost of the credit for the consumer excluding interest — Article 4(2) — Scope — Application to clauses providing fees in addition of an interest — Obligation to draft contract terms in plain, intelligible language — Article 3(1) — Compatibility of a national legislation laying down the maximum amount of non-interest credit cost — Directive 2008/48 — Article 3(g) — Compatibility of a national legislation calculating maximum amount of non-interest credit cost by taking into account the general expenses of the credit institution)

1. These references for a preliminary ruling once again concern the interpretation of Article 1(2) and Article 4(2) of Council Directive 93/13/EEC (2) as well as Article 3(g) and Article 22 of Directive 2008/48/EC. (3)

2. Directive 93/13 has already generated much case-law, both in this Court and in the national courts. While that directive has clearly augmented a regime of consumer protection in that it allows courts to declare that contractual terms which have been drawn up for general use by the supplier or producer to be unfair (and, hence, unenforceable), Article 4(2) of that directive provides, however, for two important exceptions to this regime, namely, where the allegedly unfair term relates either to the definition of the main subject matter of the contract or, the adequacy of the price or remuneration in respect of the goods and services. The scope of those exceptions is at the heart of these preliminary references, with one of the principal questions (in Case C‑84/19) being whether non-interest charges paid by a bank customer in respect of a loan agreement fall within the scope of either of those exceptions.

3. The present issues arise in respect of three different consumer credit agreements. In essence, the consumer in each case has raised a plea of unfairness in relation to certain terms of the contract as a defence to actions for debt and enforcement of the loans brought by a credit institution. Each of these cases raises a distinct — albeit sometimes overlapping — issue concerning the application of the principles contained in Directive 93/13 in the context of credit agreements. Before considering these issues, however, it is first necessary to set out the relevant legal provisions.

I. The legal framework

A. Union law

1. Directive 93/13

4. Article 1(2) of Directive 93/13 states:

‘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.’

5. Article 3(1) of Directive 93/13 states:

‘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(2) of the Directive 93/13 reads as follows:

‘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.’

7. Article 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. …’

8. Under Article 8 of Directive 93/13:

‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’

9. According to Article 8a(1) of that directive:

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

2. Directive 2008/48

10. Article 3 of Directive 2008/48, entitled ‘Definitions’, states:

‘For the purposes of this Directive, the following definitions shall apply:

…

(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’.

11. Article 22(1) of Directive 2008/48, entitled ‘Harmonisation and imperative nature of this Directive’, specifies:

‘Insofar as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive.’

B. National law

12. For the presentation of the national legislation, I refer to my Opinion in Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty w Warszawie.(4) In essence, Polish law sets a maximum amount of interest that may be claimed in return for a legal act, that is to say, twice the amount of annual legal interest. However, certain creditors have circumvented this limit by artificially increasing the amount of commission and fees charged. In response, the Polish legislature then introduced, by means of Articles 5(6a) and 36a of the ustawa z dnia 12 maja 2011 r. o kredycie konsumenckim (Law of 12 May 2011 on Consumer Credit) (Dz. U. of 2011, No 126, item 715) (‘the Law on Consumer Credit’), a mechanism to cap the amount of the non-interest credit costs that can be claimed.

II. Facts and requests for a preliminary ruling

A. Case C‑84/19

13. On 19 September 2016, a consumer credit agreement was concluded through an intermediary between Profi Credit Polska and a consumer. In return for the provision of 9 000 zloty (PLN) (approximately EUR 2 090), to be repaid by the borrower over a 36-month instalment period, the contract provides for the payment by the consumer of, first, an interest rate of 9.83% per annum of the borrowed capital; second, an entitled ‘front-end fee’ of PLN 129 (approximately EUR 30); third, a so-called ‘commission’, equal to PLN 7 771 (approximately EUR 1 804); and, fourth, an additional package fee (named ‘Twój Pakiet — Pakiet Extra’ (Your Package — Extra Package)) of PLN 1 100 (approximately EUR 255).

14. According to the referring court, the non-interest credit costs provided for in the agreement were set at the upper limit laid down in the national legislation under Paragraph 36a of the Law on Consumer Credit. However, the agreement did not specify in what capacity the person with whom the defendant concluded the agreement was acting, nor did it define the terms ‘front-end fee’ and ‘commission’, nor did it indicate to which specific mutual services of the applicant the aforementioned fees corresponded. Only the consideration of the ‘Your Package — Extra Package’ fee could be determined, which corresponded to the consumer’s right, on a one-off basis, to defer the payment of two instalments or to reduce the amount of four instalments, and at the same time to extend the duration of the agreement (in the event of deferral) or to pay the instalments at a later date (in the event of reduction).

15. Before the end of the instalment period, Profi Credit Polska requested that an order be issued for payment. The referring court granted Profi Credit Polska a judgment in default, against which the consumer lodged a defence raising objections relating to the unfair nature of certain terms of the contract. In the course of these proceedings, the credit institution explained that the ‘front-end fee’ corresponded to actual costs incurred in the conclusion of the contract and that the fees entitled ‘commission’ constituted the consideration for granting the credit, while the interest constituted remuneration for making the funds available to the consumer.

16. In that context, the referring court has doubts as to whether the clauses setting out these fees should be regarded as excluded from the assessment of the fairness of contractual terms provided for in Directive 93/13. It does so for the following reasons. First, in so far as these costs do not exceed the limit provided for by national legislation, it could be suggested that these clauses simply reflect that legislation and therefore, in accordance with Article 1(2) of Directive 93/13, are not subject to the provisions of that directive. Second, those price clauses could constitute, for Profi Credit Polska, the main subject matter of the contract and, as such, fall outside the scope of the directive by virtue of Article 4(2) of that directive. Third, since examining whether or not these fees...