Pavel Dumitraș and Mioara Dumitraș v BRD Groupe Société Générale – sucursala Satu Mare.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Berger
• ECLI: ECLI:EU:C:2016:700
• Docket Number: C-534/15
• Date: 14 September 2016
• Procedure Type: Reference for a preliminary ruling

ORDER OF THE COURT (Tenth Chamber)

14 September 2016 ( *1 )

‛Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms — Article 1(1) — Article 2(b) — Status of consumer — Assignment of a debt by novation of loan agreements — Contracts providing immovable property as security entered into by individuals not having any professional relationship with the new debtor company’

In Case C‑534/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Judecătoria Satu Mare (Court of First Instance, Satu Mare, Romania), made by decision of 30 September 2015, received at the Court on 12 October 2015, in the proceedings

Pavel Dumitraș,

Mioara Dumitraș

v

BRD Groupe Société Générale — Sucursala Judeţeană Satu Mare,

THE COURT (Tenth Chamber),

composed of F. Biltgen, President of the Chamber, A. Borg Barthet and M. Berger (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Mr Dumitraș and Ms Dumitraş, by themselves,

— the Romanian Government, by R. Radu, A. Wellman and L. Liţu, acting as Agents,

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

— the Italian Government, by G. Palmieri, acting as Agent, and by F. Di Matteo, avvocato dello Stato,

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

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of Articles 1(1) and 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 Pavel Dumitraș and Ms Mioara Dumitraş, on one hand, and BRD Groupe Société Générale — Sucursala Judeţeană Satu Mare (Departmental Branch of BRD Groupe Société Générale, Satu Mare; ‘BRD Groupe Société Générale’), on the other, concerning three credit agreements and a contract providing immovable property as security.

Legal context

EU law

3 The 10th recital of Directive 93/13 provides: ‘Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; whereas those rules should apply to all contracts concluded between sellers or suppliers and consumers; whereas 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 Under Article 1(1) of the directive: ‘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 concepts of ‘consumer’ and ‘seller or supplier’ as follows: ‘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.’

6 Article 3(1) of Directive 93/13 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.’

Romanian law

Law No 193/2000

7 Directive 93/13 was transposed into Romanian law by Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între comercianţi şi consumatori (Law No 193/2000 on unfair terms in agreements concluded between traders and consumers) of 10 November 2000, in its republished version (Monitorul Oficial al României, Part I, No 305 of 18 April 2008).

8 Pursuant to Article 1(1) to (3) of Law No 193/2000: ‘(1) Any contract concluded between traders and consumers for the sale of goods or the supply of services must contain clear, unambiguous terms, intelligible without need of specialist knowledge. (2) In cases of doubt as to the interpretation of any terms of a contract, they must be interpreted in favour of the consumer. (3) Traders are prohibited from inserting unfair terms into contracts concluded with consumers.’

9 Article 2(1) and (2) of Law No 193/2000 defines the concepts of ‘consumer’ and ‘seller or supplier’ as follows: ‘(1) “Consumer” means any natural person (or group of natural persons forming an association) who, on the basis of a contract covered by this law, is acting for purposes that are outside his trade, business, industry or profession. (2) “Trader” means any natural person or duly authorised legal person who, on the basis of a contract covered by this law, is acting for purposes that relate to his trade, business, industry or profession, as well as any other person acting for those purposes for and on behalf of that person.’

The Civil Code

10 Article 1128 of the Civil Code provides: ‘Novation may be effected in three ways: 1. where the debtor undertakes a new obligation in respect of the creditor, which supersedes and extinguishes the original obligation. 2. where a new debtor is substituted for the original debtor who is released from all obligation to the creditor; 3. where, as a result of a new undertaking, a new creditor is substituted for the original creditor, with respect to whom the debtor is released from all obligation.’

11 Article 1132 of the Civil Code states: ‘An act by which one debtor is substituted by another debtor who undertakes obligations towards the creditor does not give rise to novation if the creditor has not expressly declared that it intended to release from all obligation the debtor who made the substitution.’

12 Article 1135 of the Civil Code provides: ‘Where novation occurs by the substitution of a new debtor, the privileges and original mortgages of the loan cannot attach to the new debtor’s property.’

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

13 Between 2005 and 2008, BRD Groupe Société Générale, as the lender, and SC Lanca SRL, as the borrower, concluded three loan agreements.

14 In order to guarantee obligations arising under those contracts, Mr Dumitraș, the director and sole member of Lanca, and Ms Dumitraș, entered into a mortgage guarantor agreement vis-à-vis BRD Groupe Société Générale.

15 On 30 July 2009, BRD Groupe Société Générale, as the lender, SC Lanca Construcţii SRL, as borrower, and Lanca as co-debtor, concluded three credit agreements numbered 54/30.07.2009, 55/30.07.2009 and 56.30.07.2009, concerning the refinancing and rescheduling of the three loan agreements previously concluded between BRD Groupe Société Générale and Lanca.

16 On the same date, by notarial instrument bearing authentification No 1017, entitled ‘Sale contract by subjective novation — perfect delegation’, Lanca, the delegating company, substituted by delegation Lanca Construcţii, as the debtor in respect of its obligations arising under the credit agreements originally signed with BRD Groupe Société Générale, with the consent of BRD Groupe Société Générale, in its capacity as the company to which the debtor has undertaken obligations.

17 It is also apparent from the order for reference, first, that neither Mr Dumitraș nor Ms Dumitraș were directors of Lanca Construcţii, second, that they acted as mortgage guarantors for the latter’s obligations as a result of the novation, third, for that purpose, they signed in their own names, as mortgage guarantors, the three credit agreements of 30 July 2009 and, fourth, that Lanca no longer has any obligations to BRD Groupe Société Générale in respect of the credit agreements originally signed.

18 On 6 December 2013, Mr Dumitraș and Ms Dumitraș brought an action against BRD Groupe Société Générale seeking a declaration that certain terms of the credit agreements concluded on 30 July 2009, providing for the charging of commission, were void ab initio on the ground that they were unfair.

19 During the proceedings at first instance...