1. 

Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Unfair term within the meaning of Article 3 – Term which has not been individually negotiated – Concept – Clause of a loan agreement denominated in a foreign currency enabling the bank unilaterally to fix the final amount of the loan – Included – Conditions

(Council Directive 93/13, Art. 3(1) and (2))

(see paragraphs 38-40, operative part 1)

2. 

Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Terms defining the main subject matter of the contract or relating to the price or remuneration and the services or goods supplied in exchange – Concept – Clause inserted in a loan agreement denominated in a foreign currency assigning the exchange rate risk to the consumer and the advantage linked to the exchange rate differential to the bank – Included – Conditions – Obligation to satisfy the requirements of intelligibility and transparency – Lack of information regarding the inclusion of the exchange rate differential – Non-compliance – Precluded – Provision of information regarding the transfer of the exchange rate risk – Irrelevant

(Council Directive 93/13, Art. 4(2))

(see paragraphs 53-65, operative part 2)

3. 

Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Unfair term within the meaning of Article 3 – Clause inserted in a loan agreement denominated in a foreign currency assigning the exchange rate risk to the consumer and the advantage linked to the exchange rate differential to the bank – Existence of a significant imbalance between the rights and obligations of the parties under the contract – Criteria for assessment – Assignment to the bank of the advantage linked to the exchange rate differential – Included – Transfer to the consumer of the exchange rate risk – Irrelevant

(Council Directive 93/13, Art. 3(1))

(see paragraphs 69-77, operative part 3)

4. 

Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Finding that a term is unfair – Scope – Loan agreement denominated in a foreign currency – Contract not capable of continuing in existence after removal of unfair terms – Assessment by the national court – Criteria for assessment – Finding that the term fixing the final amount of the loan is unfair – Annulment of the agreement – Whether permissible – Fairness of other terms of the agreement – Irrelevant

(Council Directive 93/13, Art. 6(1))

(see paragraphs 81-87, operative part 4)

1. 

Article 3(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as meaning that a clause forming part of a loan agreement denominated in a foreign currency concluded with a consumer under which the bank may fix the final amount of the loan denominated in that currency by applying to the sum expressed in national currency, corresponding to the consumer’s request for finance, an exchange rate which it determines unilaterally, where the arrangements for fixing that amount were determined exclusively by the bank prior to the conclusion of the agreement without the consumer thereby having been able to influence the determination of those arrangements, has not been individually negotiated within the meaning of that provision.

2. 

Article 4(2) of Directive 93/13

must be interpreted as meaning that where, in the context of a loan agreement denominated in a foreign currency concluded with a consumer, a clause of that agreement has the effect, first, of transferring to the consumer the exchange rate risk associated with the appreciation of that currency against the national currency and, secondly, of granting the bank, at the consumer’s expense, an advantage arising from the difference between the exchange rate chosen by the bank for the purpose of fixing the final amount of the loan denominated in that currency and other rates which it could have used on that occasion, it is sufficient, in order to consider that that clause, in so far as it concerns the exchange rate differential, does not meet the requirement of being drafted in plain, intelligible language within the meaning of that provision, to note that the bank has not provided the consumer with any information concerning the inclusion of such a differential, irrespective of the extent of the information provided to the consumer concerning the transfer of the exchange rate risk.

3. 

Article 3(1) of Directive 93/13

must be interpreted as meaning that where, in the context of a loan agreement denominated in a foreign currency concluded with a consumer, a clause of that agreement has the effect, first, of transferring to the consumer the exchange rate risk associated with the appreciation of that currency against the national currency and, secondly, of granting the bank an advantage linked to an exchange rate differential, that clause, in so far as it concerns the exchange rate differential, may be regarded as capable in itself of creating, to the detriment of the consumer, a significant imbalance in the rights and obligations arising under the agreement, irrespective of whether the clause, in so far as it relates to the transfer of the exchange rate risk, is unfair within the meaning of that provision.

4. 

Article 6(1) of Directive 93/13

must be interpreted as not precluding a loan agreement denominated in a foreign currency concluded with a consumer from being declared void and the consumer thereby being relieved of the financial consequences arising from the clause of that agreement relating to the transfer of the exchange rate risk, where the national court finds that the clause of that agreement relating to the fixing of the final amount of the loan, in so far as it has the effect of granting the bank an advantage linked to the exchange rate differential, is unfair, even though the clauses of that agreement setting out the arrangements for converting the currency for the purposes of repayment of the loan are not unfair or their removal would not entail the annulment of that agreement, if the national court considers, in accordance with the rules of its domestic law and following an objective approach, that the loan agreement cannot survive without the unfair clause, in particular in so far as that clause defines the main subject matter of the agreement.