UG v SC Raiffeisen Bank SA.

• Jurisdiction: European Union
• Celex Number: 62023CJ0176
• ECLI: ECLI:EU:C:2024:443
• Date: 30 May 2024
• Docket Number: C-176/23
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

30 May 2024 (*)

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 1(2) – Scope – Exclusion of contractual terms reflecting mandatory statutory or regulatory provisions – Supplementary agreement to a credit agreement notified by the seller or supplier to the consumer for the purpose of complying with national legislation – Article 3(2) – Contractual term which has not been individually negotiated – Failure of the consumer to sign the supplementary agreement – Presumption of tacit acceptance of that supplementary agreement – National case-law precluding the courts from reviewing whether a contractual term contained in such a supplementary agreement is unfair)

In Case C‑176/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Specializat Mureş (Specialised Court, Mureş, Romania), made by decision of 2 March 2021, received at the Court on 21 March 2023, in the proceedings

UG

v

SC Raiffeisen Bank SA,

THE COURT (Eighth Chamber),

composed of N. Piçarra, President of the Chamber, N. Jääskinen (Rapporteur) and M. Gavalec, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Romanian Government, by R. Antonie, E. Gane and L. Ghiţă, acting as Agents,

– the Portuguese Government, by P. Barros da Costa, A. Cunha, A. Luz and L. Medeiros, acting as Agents,

– the European Commission, by A. Boitos and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1(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 UG, a consumer, and SC Raiffeisen Bank SA concerning a finding of unfairness in respect of terms contained in a credit agreement concluded between those parties.

Legal context

European Union law

3 The thirteenth recital of Directive 93/13 states:

‘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’.

4 Article 1(2) of that directive provides:

‘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 of that directive states:

‘1. 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.

2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.’

Romanian law

The Law on unfair terms

6 Article 3 of Legea nr. 193, privind clauzele abuzive din contractele încheiate între profesioniști și consumatori (Law No 193 on unfair terms in contracts concluded between sellers or suppliers and consumers), of 6 November 2000 (republished in the Monitorul Oficial al României, Part I, No 543 of 3 August 2012; ‘the Law on unfair terms’), provides, in paragraph 2 thereof, that contractual terms stipulated on the basis of other legislation in force are not subject to the provisions of that law.

OUG No 50/2010

7 Under Article 37 of the Ordonanța de urgență a Guvernului nr. 50, privind contractele de credit pentru consumatori (Government Emergency Order No 50 concerning consumer credit agreements), of 9 June 2010 (Monitorul Oficial al României, Part I, No 389 of 11 June 2010), in the version applicable to the dispute in the main proceedings (‘OUG No 50/2010’):

‘The following rules apply to variable-rate credit agreements:

(a) the interest rate shall be linked to fluctuations in the Euribor/ROBOR/LIBOR reference indices or the BNR [Banca Națională a României (National Bank of Romania)] benchmark interest rate, depending on the currency of the credit, to which the creditor may add a margin which shall remain fixed for the entire duration of the agreement;

(b) the margin of the interest rate may be altered only in response to legislative amendments expressly requiring its alteration;

(c) in accordance with the commercial policy of each credit institution, by way of derogation from point (b), the value of the margin and the reference indices may be reduced;

(d) the agreement shall expressly indicate the method of calculating the variation in the interest rate, specifying how often and/or under what conditions the interest rate may be adjusted upwards or downwards;

(e) the details of the method of calculating the variation in the interest rate and the value thereof shall be published on the websites and in all the premises of the creditors.’

8 In accordance with Article 95 of OUG No 50/2010:

‘1. For ongoing agreements, creditors shall be required, within 90 days of the date of entry into force of this Emergency Order, to ensure that the agreement complies with the provisions of this Emergency Order.

2. Ongoing agreements shall be amended by means of supplementary agreements within 90 days of the date of entry into force of this Emergency Order.

3. The creditor must be able to prove that it exercised all due care to inform the consumer regarding the signing of supplementary agreements.

4. The introduction of terms other than those referred to in this Emergency Order into supplementary agreements shall be prohibited. Any term introduced into supplementary agreements other than those required by this Emergency Order shall be deemed automatically void.

5. Failure on the part of the consumer to sign the supplementary agreements referred to in paragraph 2 shall be deemed to constitute tacit acceptance.’

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

9 On 23 March 2007, UG concluded a variable rate credit agreement with Raiffeisen Bank for 15 300 Swiss francs (CHF) (approximately EUR 16 048) (‘the credit agreement at issue’). On the date on which the agreement was concluded, the interest rate was 5.9% per year, but, under the terms of that agreement, the seller or supplier had the option to adjust that rate in line with developments in the financial market, by informing the borrower of the new...