18.4.2016   

EN

Official Journal of the European Union

C 136/12

1.

In the context of a loan agreement concluded between a seller or supplier and a consumer, containing a standard clause, not individually negotiated, limiting a fall in the ordinary interest rate agreed (‘floor clause’), included in that contract insufficiently clearly and comprehensibly for the consumer, to the point of being held unfair by a court, is it compatible with Article 6(1) of Council Directive 93/13/EEC (1) on unfair terms in consumer contracts for the phrase ‘shall … not be binding’ to be interpreted to the effect that the result of a declaration by a court that that clause is unfair may be that the consumer is not reimbursed the payments he has previously made to the seller or supplier as a result of the application of that clause?

2.

If that interpretation should be held to be compatible with Article 6(1) of Directive 93/13, is an interpretation like that set out above, concerning the effects that must flow from a declaration that a clause of the kind described is unfair, compatible with the concept of ‘adequate and effective means … to prevent the continued use of unfair terms’ in Article 7(1) of Directive 93/13?

3.

If those interpretations should be held to be incompatible with Articles 6(1) and 7(1) of Directive 93/13, is it always and at all events contrary to the ‘requirement of good faith’ to include in a contract concluded between a seller or supplier and a consumer clauses that define the main object of the contract and are worded in insufficiently clearly and comprehensibly, or must that breach of the principle of good faith be examined in the light of other circumstances? In the latter case, what circumstances must the national court take into consideration in order to be able to find that there has been no breach of the principle of good faith when it identifies the existence of a clause defining the main object of the contract that is worded unclearly and incomprehensibly? In particular, may such circumstances include the existence of national legislation with the status of a law or regulation which provides, in abstracto, for the validity of that type of ‘floor clause’?

4.

In the context of proceedings such as those in the instant case, in which an individual action has been brought seeking a declaration of the nullity of a ‘floor clause’ considered untransparent, is an interpretation based on the risk of serious difficulties for the economic public order that limits the reimbursement of amounts paid by the consumer to the seller or supplier under such a clause, which has been declared unfair by a court, compatible with the phrase ‘shall … not be binding on the consumer’ in Article 6(1) of Directive 93/13, if the judgment given by the court does not have the force of res judicata for other consumers in the same situation?