Judgment — ECLI:EU:C:2015:127
Date: 2015-02-26
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Ninth Chamber), 26 February 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Conclusion of a settlement agreement between the parties in the main proceedings — Case pending before the referring court alleged to have become devoid of purpose — Question referred for a preliminary ruling concerning a matter of public policy — Answer of the Court still useful and decisive for the resolution of the dispute in the main proceedings — Rejection of the plea of inadmissibility (Art. 267 TFEU) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Terms defining the main subject-matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration — Concept — Terms containing ‘risk charge’ applied by the lender and authorising it, under certain conditions, unilaterally to alter the interest rate — Not included (Council Directive 93/13, Art. 4(2)) 3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Terms defining the main subject-matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration — Not included — Conditions — Obligation to satisfy the requirements of intelligibility and transparency — Scope (Council Directive 93/13, Arts 3, 4(2) and 5, Annex II, points 1(j) and (l) and 2(b) and (d)) 1. See the text of the decision. (see paras 38, 40-42) 2. Article 4(2) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that ‘main subject-matter of the contract’ and ‘adequacy of the price and remuneration, on the one hand, as against the services or goods supplie[d] in exchange, on the other’ do not, in principle, cover the types of terms in the credit agreements concluded between a professional and consumers which, on one hand, allow, under certain conditions, the lender unilaterally to alter the interest rate and, on the other hand, provide for a ‘risk charge’ applied by it. However, it is for the referring court to verify that classification of those contractual terms, having regard to the nature, general scheme and stipulations of the agreements concerned and the legal and factual context of which they form part. Contractual terms falling within the notion of the ‘main subject-matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it. By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within the notion of the ‘main subject-matter of the contract’. It also follows from the wording of Article 4(2) of Directive 93/13 that the second category of terms which cannot be examined as regards unfairness is limited in scope, for that exclusion concerns only the adequacy of the price or remuneration as against the services or goods supplied in exchange, that exclusion being explained by the fact that no legal scale or criterion exists that can provide a framework for, and guide, such a review. Accordingly, terms relating to the consideration due by the consumer to the lender or having an impact on the actual price to be paid to the latter by the consumer thus do not, in principle, fall within the second category of terms, except as regards the question whether the amount of consideration or the price as stipulated in the contract are adequate as compared with the service provided in exchange by the lender (see paras 54-56, 78, operative part) 3. If a term falls within the ‘main subject-matter of the contract’ or it is challenged with regard to the adequacy of the price or the remuneration, the fact remains that it must be subject to an assessment of its unfairness if it were found, which is also for the referring court to verify, to be not drafted in clear and intelligible language. In that connection, the requirement of transparency of contractual terms laid down by Articles 4(2) and 5 of Directive 93/13 on unfair terms in consumer contracts cannot be reduced merely to their being formally and grammatically intelligible. It follows, in particular from Articles 3 and 5 of Directive 93/13 and Paragraph 1(j) and (l) and Paragraph 2(b) and (d) of the annex to that directive that it is of fundamental importance, for the purpose of complying with the requirement of transparency, to determine whether the loan agreement sets out transparently the reasons for and the particularities of the mechanism for altering the interest rate and the relationship between that mechanism and the other terms relating to the lender’s remuneration, so that the consumer can foresee, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it. That question must be examined by the referring court, in the light of all the relevant facts, including the promotional material and information provided by the lender in the negotiation of the loan agreement and the level of attention to be expected of the average consumer, who is reasonably well informed and reasonably observant and circumspect. (see paras 72-75)