Dumitru Tarcău and Ileana Tarcău v Banca Comercială Intesa Sanpaolo România SA and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Berger
• ECLI: ECLI:EU:C:2015:772
• Docket Number: C-74/15
• Date: 19 November 2015
• Procedure Type: Reference for a preliminary ruling

ORDER OF THE COURT (Sixth Chamber)

19 November 2015 ( * )

‛Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Consumer protection — Directive 93/13/EEC — Article 1(1) and Article 2(b) — Unfair terms in consumer contracts — Contracts of guarantee or providing security concluded with a credit institution by natural persons acting for purposes outside their trade, business or profession and not having any link of a functional nature with the commercial company in respect of which they act as guarantors or sureties’

In Case C‑74/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Oradea (court of appeal of Oradea) (Romania), made by decision of 5 February 2015, received at the Court on 18 February 2015, in the proceedings

Dumitru Tarcău,

Ileana Tarcău

v

Banca Comercială Intesa Sanpaolo România SA and Others,

THE COURT (Sixth Chamber),

composed of A. Borg Barthet, acting as President of the Chamber, M. Berger (Rapporteur) and S. Rodin, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Mr Tarcău and Mrs Tarcău, by C. Herţa, avocat,

— Banca Comercială Intesa Sanpaolo România SA and Others, by L. Bercea, avocat,

— the Romanian Government, by R. H. Radu, R. I. Haţieganu and A.‑G. Văcaru, acting as Agents,

— the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

— the Spanish Government, by A. Gavela Llopis, acting as Agent,

— the European Commission, by C. Gheorghiu and D. Roussanov, acting as Agents,

having regard to the decision taken, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 99 of the Rules of Procedure of the Court,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of Article 1(1) and Article 2(b) 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 Mr and Mrs Tarcău and Banca Comercială Intesa Sanpaolo România SA and Others concerning a contract providing immovable property as security and a contract of guarantee.

Legal context

EU Law

3 Recitals 9 and 10 of Directive 93/13 are worded as follows: ‘… acquirers of goods and services should be protected against the abuse of power by the seller or supplier, in particular against one-sided standard contracts and the unfair exclusion of essential rights in contracts; … more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; … those rules should apply to all contracts concluded between sellers or suppliers and consumers; … as a result inter alia contracts relating to employment, contracts relating to succession rights, contracts relating to rights under family law and contracts relating to the incorporation and organisation of companies or partnership agreements must be excluded from this Directive.’

4 Article 1(1) of that directive provides that: ‘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.’

5 Article 2 of the directive defines the notions of ‘consumer’ and ‘seller or supplier’ in the following way: ‘For the purposes of this Directive: … (b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession; (c) “seller or supplier” means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’

Romanian Law

6 Law No 193/2000 on unfair terms in contracts between traders and consumers (Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între comercianţi şi consumatori), in its republished version (Monitorul Oficial al României, part I, No 305 of 18 April 2008) is intended to transpose Directive 93/13 into national law.

7 Article 1(1) of that Law provides that: ‘Any contract concluded between traders and consumers for the sale of goods or the provision of services must contain clear terms which are unambiguous and intelligible without the need for specialist knowledge.’

8 Article 2(1) of the same Law states that: ‘A “consumer” means any natural person or group of natural persons forming an association who, on the basis of a contract falling within the ambit of the present law, acts for purposes outside trade, industrial or manufacturing, artisanal or professional activity.’

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

9 On 24 October 2008, a credit agreement was concluded between Banca Comercială Intesa Sanpaolo România SA (‘Sanpaolo’), as lender, and SC Crisco SRL (‘Crisco’), a commercial company, as borrower. Crisco was represented by Cristian Tarcău, in his capacity as sole shareholder and director.

10 At the request of their son, Cristian Tarcău, who wished to obtain an increase in the line of credit which had been granted to Crisco, on 7 August 2009 Dumitru Tarcău and Ileana Tarcău signed an addendum to the credit agreement concluded between that company and Sanpaolo. That addendum restated the essential clauses of the initial credit agreement and added two new forms of security, granted by Mr and Mrs Tarcău, to those established when the contract was originally concluded.

11 The new forms of security, which were intended to secure the repayment of the credit granted to Crisco, were provided by Mr and Mrs Tarcău in the form of a contract providing immovable property as security, dated 7 August 2009, by which they granted a mortgage to Sanpaolo over immovable property belonging to them, and by a contract of guarantee, also dated 7 August 2009, by which they guaranteed the payment of all sums due from Crisco pursuant to the credit agreement.

12 Mr and Mrs Tarcău have stated that they agreed to provide security for the credit granted to Crisco only because their son was the sole shareholder and director of that company.

13 Taking the view that they had acted as consumers and that the provisions of Law No 193/2000 applied to them, Mr and Mrs Tarcău brought the matter before the court of Satu Mare (Tribunalul Satu Mare) seeking the annulment of the addendum of 7 August 2009, the contract providing immovable property as security and the contract of guarantee or, in the alternative, the annulment of certain terms in those contracts which they considered unfair.

14 By judgment of 8 May 2014, the Tribunalul Satu Mare (court of Satu Mare) rejected this request on the ground that, under Article 1(1) of Law No 193/2000, that Law applies only to contracts for the sale of goods or the supply of services to a consumer, a condition which it did not consider to be met in the main proceedings, as the beneficiary of the credit was Crisco. That court also held that the fact that the contract providing immovable property as security and the contract of guarantee were ancillary to the credit agreement did not allow them to be included in the scope of Law No 193/2000 either, given that the beneficiary of the credit was a commercial company which did not have the status of a consumer.

15 Mr and Mrs Tarcău brought an appeal against that judgment before the referring court.

16 In those circumstances the Curtea de Apel...