# C_2022359EN.01001201.xml

| 19.9.2022 | EN | Official Journal of the European Union | C 359/12 |
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19.9.2022

EN

Official Journal of the European Union

C 359/12

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Order of the Court (Eighth Chamber) of 24 March 2022 (request for a preliminary ruling from the Tribunal Judiciaire — Bobigny — France) — BNP Paribas Personal Finance SA v ZD

(Case C-288/20) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Loan agreement denominated in a foreign currency (Swiss francs) - Terms exposing the borrower to a foreign exchange risk - Article 4(2) - Requirements of intelligibility and transparency - Burden of proof - Article 3(1) - Significant imbalance - Article 5 - Contractual term that is in plain, intelligible language)

(2022/C 359/14)

Language of the case: French

Referring court

Tribunal Judiciaire — Bobigny

Parties to the main proceedings

Applicant: BNP Paribas Personal Finance SA

Defendant: ZD

Operative part of the order

| 1. | Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the concept of the ‘main subject matter of the contract’, within the meaning of that provision, covers terms of the loan agreement which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect that the foreign exchange risk is borne by the borrower, where those terms lay down an essential element characterising the agreement. |
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1.

Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the concept of the ‘main subject matter of the contract’, within the meaning of that provision, covers terms of the loan agreement which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect that the foreign exchange risk is borne by the borrower, where those terms lay down an essential element characterising the agreement.

| 2. | Article 4(2) of Directive 93/13 must be interpreted as meaning that, in the context of a loan agreement denominated in a foreign currency, the requirement of transparency of the terms of that agreement, which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect that the foreign exchange risk is borne by the borrower, is satisfied where the seller or supplier has provided the consumer with sufficient and accurate information to enable the average consumer, who is reasonably well informed and reasonably observant and circumspect, to understand the specific functioning of the financial mechanism in question and thus to evaluate the risk of potentially significant adverse economic consequences of such terms on his or her financial obligations throughout the term of the agreement. |
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2.

Article 4(2) of Directive 93/13 must be interpreted as meaning that, in the context of a loan agreement denominated in a foreign currency, the requirement of transparency of the terms of that agreement, which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect that the foreign exchange risk is borne by the borrower, is satisfied where the seller or supplier has provided the consumer with sufficient and accurate information to enable the average consumer, who is reasonably well informed and reasonably observant and circumspect, to understand the specific functioning of the financial mechanism in question and thus to evaluate the risk of potentially significant adverse economic consequences of such terms on his or her financial obligations throughout the term of the agreement.

| 3. | Directive 93/13 must be interpreted as precluding the burden of proving that a contractual term is plain and intelligible, for the purposes of Article 4(2) of that directive, from being borne by the consumer. |
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3.

Directive 93/13 must be interpreted as precluding the burden of proving that a contractual term is plain and intelligible, for the purposes of Article 4(2) of that directive, from being borne by the consumer.

| 4. | Article 3(1) of Directive 93/13 must be interpreted as meaning that terms of a loan agreement which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect of placing the foreign exchange risk on the borrower, without providing for an upper limit to that risk, are liable to cause a significant imbalance in the parties’ rights and obligations arising under that agreement, to the detriment of the consumer, where the seller or supplier could not reasonably expect, in compliance with the requirement of transparency in relation to the consumer, that the consumer would have agreed to a disproportionate foreign exchange risk resulting from those terms. |
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4.

Article 3(1) of Directive 93/13 must be interpreted as meaning that terms of a loan agreement which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect of placing the foreign exchange risk on the borrower, without providing for an upper limit to that risk, are liable to cause a significant imbalance in the parties’ rights and obligations arising under that agreement, to the detriment of the consumer, where the seller or supplier could not reasonably expect, in compliance with the requirement of transparency in relation to the consumer, that the consumer would have agreed to a disproportionate foreign exchange risk resulting from those terms.

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(1)  OJ C 297, 7.9.2020.

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