In the most recent ruling of the Court of Justice of the European Union of 20 September 2017 in Case C‑186/16, Ruxandra Paula Andriciuc and Others v. Banca Românească SA, the Court clearly ruled that the requirement of transparency of contractual terms, pursuant to Article 4(2) of Directive 93/13, also repeated in Article 5 thereof, „cannot be reduced merely to their being formally and grammatically intelligible, but that, to the contrary, since the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, in particular as regards his level of knowledge, that requirement of plain and intelligible drafting of contractual terms and, therefore, the requirement of transparency laid down by the directive must be understood in a broad sense (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 71 and 72, and of 9 July 2015, Bucura, C‑348/14, not published, EU:C:2015:447, paragraph 52). Therefore, the requirement that a contractual term must be drafted in plain intelligible language is to be understood as requiring also that the contract should set out transparently the specific functioning of the mechanism to which the relevant term relates and the relationship between that mechanism and that provided for by other contractual terms, so that that consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it.”
In a further part of the justification, the Court also pointed out the position of the Advocate General who observed in points 66 and 67 of his Opinion that , first, the borrower must be clearly informed of the fact that, in entering into a loan agreement denominated in a foreign currency, he is exposing himself to a certain foreign exchange risk which will, potentially, be difficult to bear in the event of a fall in the value of the currency in which he receives his income. Second, the seller or supplier, in this case the bank, must be required to set out the possible variations in the exchange rate and the risks inherent in taking out a loan in a foreign currency, particularly where the consumer borrower does not receive his income in that currency.
In the light of the above, answering the question the Court ruled that “In the light of those findings, the answer to the third question is that Article 4(2) of Directive 93/13 must be interpreted as meaning that the concept of ‘main subject matter of the contract’ within the meaning of that provision, covers a contractual term, such as that at issue in the main proceedings, incorporated into a loan agreement denominated in a foreign currency which was not individually negotiated and according to which the loan must be repaid in the same foreign currency as that in which it was contracted, as that terms lays down an essential obligation characterising that contract. Therefore, that term cannot be regarded as being unfair, provided that it is drafted in plain intelligible language.”
Moreover, as the Court pointed out in the judgment cited above (in Case C‑186/16) “information, before concluding a contract, on the terms of the contract and the consequences of concluding it, is of fundamental importance for a consumer. It is on the basis of that information in particular that he decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier (judgments of 21 March 2013, RWE Vertieb, C‑92/11, EU:C:2013:180, paragraph 44, and of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 50).”
In the opinion of the Court, it follows from the above that “the unfairness of a contractual term is to be assessed by reference to the time of conclusion of the contract at issue, taking account of all the circumstances which could have been known to the seller or supplier at that time, and which were of such a nature that they could affect the future performance of the contract, since a contractual term may give rise to an imbalance between the parties which only manifests itself during the performance of the contract”. Bearing this in mind , the court should assess “having regard to all of the circumstances of the case in the main proceedings, taking account in particular of the expertise and knowledge of the seller or supplier, in the present case the bank, as far as concerns the possible variations in the rate of exchange and the inherent risks in contracting a loan in a foreign currency, first, the possible failure to observe the requirement of good faith and second, the existence of a significant imbalance within the meaning of Article 3(1) of Directive 93/13.” In addition, the Court emphasised that “In order to ascertain whether a term (…) causes a ‘significant imbalance’ in the parties’ rights and obligations arising under the contract to the detriment of the consumer, contrary to the requirement of good faith, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.”
In the light of the above, in the opinion of the Court, ”Article 3(1) of Directive 93/13 must be interpreted as meaning that the assessment of the unfairness of a contractual term must be made by reference to the time of conclusion of the contract at issue, taking account all of the circumstances which could have been known to the seller or supplier at that time, and which were such as to affect the future performance of that contract. It is for the referring court to assess, having regard to all of the circumstances of the case in the main proceedings, and taking account, in particular of the expertise and knowledge of the seller or supplier, in the present case the bank, with regard to the possible variations in the exchange rate and the risks inherent in taking out a loan in a foreign currency, of the existence of a possible imbalance within the meaning of that provision.”
adw. Wiktor Budzewski
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