# C_2018142EN.01001601.xml

| 23.4.2018 | EN | Official Journal of the European Union | C 142/16 |
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23.4.2018

EN

Official Journal of the European Union

C 142/16

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Order of the Court (Seventh Chamber) of 22 February 2018 (request for a preliminary ruling from Tribunalul Sibiu — Romania) — Liviu Petru Lupean, Oana Andreea Lupean v SC OTP BAAK Nyrt., acting through OTP BANK SA, acting through Sucursala SIBIU, SC OTP BAAK Nyrt, acting through OTP BANK SA

(Case C-119/17) (1)

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((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 - Articles 3(1), 4(1), 4(2) and 5 - Assessment of the unfairness of contractual terms - Loan agreement concluded in a foreign currency - Exchange rate risk borne entirely by the consumer - Significant imbalance in the parties’ rights and obligations under the contract - Main subject matter of the loan agreement))

(2018/C 142/21)

Language of the case: Romanian

Referring court

Referring court

Tribunalul Sibiu

Parties to the main proceedings

Parties to the main proceedings

Applicants: Liviu Petru Lupean, Oana Andreea Lupean

Applicants:

Defendants: SC OTP BAAK Nyrt, acting through OTP BANK SA, acting through Sucursala SIBIU, SC OTP BAAK Nyrt., acting through OTP BANK SA

Defendants:

Operative part of the order

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 a term incorporated in a loan agreement concluded in a foreign currency between a seller or supplier and a consumer, which has not been negotiated individually, such as that at issue in the main proceedings, under which the loan must be repaid in that same currency, comes within the concept of ‘main subject matter of the contract’, within the meaning of that provision, as that term lays down an essential obligation characterising that contract. |
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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 a term incorporated in a loan agreement concluded in a foreign currency between a seller or supplier and a consumer, which has not been negotiated individually, such as that at issue in the main proceedings, under which the loan must be repaid in that same currency, comes within the concept of ‘main subject matter of the contract’, within the meaning of that provision, as that term lays down an essential obligation characterising that contract.

| 2. | Articles 3, 4 and 5 of Directive 93/13 must be interpreted as meaning that a term in a loan agreement, such as that at issue in the main proceedings, as a consequence of which the entire exchange rate risk is transferred to the borrower, and which is not drafted transparently, with the result that the borrower is unable to assess, on the basis of clear and intelligible criteria, the financial consequences of signing that agreement, is liable to be regarded as unfair by the national court in its assessment of that term where it is found that, 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. In that regard, it is for the referring court to 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 concerning possible variations in the exchange rate and the risks inherent in contracting a loan in a foreign currency, first, the possible failure to comply with the requirement of good faith and second, the existence of a significant imbalance within the meaning of Article 3(1) of Directive 93/13. |
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2.

Articles 3, 4 and 5 of Directive 93/13 must be interpreted as meaning that a term in a loan agreement, such as that at issue in the main proceedings, as a consequence of which the entire exchange rate risk is transferred to the borrower, and which is not drafted transparently, with the result that the borrower is unable to assess, on the basis of clear and intelligible criteria, the financial consequences of signing that agreement, is liable to be regarded as unfair by the national court in its assessment of that term where it is found that, 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. In that regard, it is for the referring court to 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 concerning possible variations in the exchange rate and the risks inherent in contracting a loan in a foreign currency, first, the possible failure to comply with the requirement of good faith and second, the existence of a significant imbalance within the meaning of Article 3(1) of Directive 93/13.

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(1)  OJ C 178, 6.6.2017.

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