Judgment;Summary — ECLI:EU:C:2021:469
Date: 2021-06-10
Language of the case: French
Court formation: First Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-609/19 — 1 
Case C-609/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
13 August 2019 
Referring court:  
Tribunal d’instance de Lagny-sur-Marne (France) 
Date of the decision to refer:  
2 August 2019 
Applicant:  
BNP Paribas Personal Finance SA 
Defendant:  
VE 
  
I. Summary of the dispute 
1 On 10 March 2009, VE and his wife acquired a property and concluded with BNP 
Paribas Personal Finance (‘BNP Paribas’ or ‘the lender’) a mortgage loan of 
EUR 143 421.53, giving rise to a debt of CHF 216 566.51. 
As a result of payment defaults, acceleration of the repayment term was declared. 
2 On 16 January 2015, the compulsory sale of the property was ordered by court 
decision. On 20 March 2015, the property was sold at the price of EUR 55 000. 
3 On 12 January 2017, BNP Paribas applied to the referring court for authorisation 
to attach the earnings of VE (‘the borrower’ or ‘the consumer’). 
II. Arguments and forms of order sought 
1. BNP Paribas 
4 BNP Paribas claims, inter alia, that the court should: 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-609/19 
 
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– rule that its claim amounts to a total of EUR 192 268.73, in accordance with the 
statement of account established on 21 February 2019; 
– authorise the attachment of VE’s earnings; 
– declare inadmissible VE’s application for a declaration of nullity of the loan on 
grounds of a misleading commercial practice, and, alternatively, reject it; 
in the alternative: 
– declare inadmissible VE’s claims based on unfair terms; 
– rule that the clause in the loan stipulating Swiss francs as the 
accounting currency does not come within the scope of unfair terms, in 
that it defines the main subject matter of the contract and is drafted in 
plain, intelligible language; 
in the further alternative: 
– rule that the clause in the loan stipulating Swiss francs as the 
accounting currency is not unfair in that it does not cause any 
significant imbalance in the rights and obligations of the parties; 
– declare unfounded VE’s claims based on unfair terms. 
5 BNP Paribas submits that VE was informed of the variation in the exchange rate 
to which he was exposed and of its consequences on the repayment of his loan. 
BNP Paribas therefore takes the view that the contract contains no unfair terms. 
2. VE 
6 VE contends, inter alia, that the court should: 
– refer a series of questions to the Court of Justice for a preliminary ruling; 
– annul the HELVET IMMO agreement which he entered into; 
in the alternative: 
– review the unfairness of the following terms: ‘Description of your 
loan’ (Clause 1),’ Financing of your loan’ (Clause 2), ‘Opening an 
internal account in euros and an internal account in Swiss francs to 
manage your loan’ (Clause 3), ‘Foreign exchange transactions’ (Clause 
4), ‘Repayment of your loan’ (Clause 5), ‘Option to change the 
accounting currency’ (Clause 6), ‘Clause acknowledging information 
from the loan acceptance form’ (Clause 7), ‘Repayment of your loan’ 
(Clause 8), ‘Repayment of the principal’ (Clause 9); 
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– declare that each of the Clauses 1 to 9 are to be deemed null and void 
and exclude their application; 
– reclassify the HELVET IMMO and INVEST IMMO agreements as 
euro-denominated, fixed-rate loan agreements as of their conclusion, 
apply an exchange rate of 1 euro to 1.50 Swiss francs and recalculate 
the balance due; 
in the further alternative: 
– if it is held that the implied indexation clause forms part of the 
main subject matter of the contract at issue, declare the contract 
null and void. 
7 VE submits that the loan at issue exposes it to an unlimited foreign exchange risk, 
that the agreement does not refer to a foreign exchange risk and does not contain 
the words ‘foreign exchange risk’. He states that the simulations for informing 
borrowers were not communicated to him, even though the loan was offered 
during a period when the lender anticipated significant variations in the exchange 
rate. 
8 Consequently, he requests that a number of questions be referred to the Court of 
Justice of the European Union for a preliminary ruling, in particular in order to 
assess whether the case-law of the Cour de cassation (Court of Cassation) (France) 
is compatible with the provisions of the Council Directive of 5 April 1993 on 
unfair terms in consumer contracts (OJ 1993 L 95, p. 29). He seeks, in essence, a 
declaration that the loan is null and void, on account of what he regards as a 
misleading commercial practice. In the alternative, he maintains that the amount 
of the claim must be reduced on account of the unfairness of an implied 
indexation clause, the accounting and payment currency clauses, the absence of a 
reference to a ‘foreign exchange risk’, the redemption clause and the option to 
purchase clause. 
III. The agreement and the legal framework 
1. The loan at issue 
9 Under the terms of the agreement at issue, the lender grants a fixed rate loan 
denominated in Swiss francs. The loan is repaid by payments in euros, but those 
monthly instalments are converted into Swiss francs to repay the principal and 
interest into an account denominated in Swiss francs. 
10 It is stated in the offer that, if changes in the exchange rate increase the cost of the 
loan for the consumer, the monthly instalments will first be allocated to interest 
and the term of the loan will be extended by five years. It is also stated that ‘the 
amount of your repayments in euros will also remain unchanged but the term of 
your loan will be extended. However, if maintaining the amount of your 
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repayments in euros does not allow the full balance of your account to be repaid 
over the initial remaining term, plus 5 years, your repayments in euros will then be 
increased’. 
11 In the present case, VE borrowed a sum of EUR 143 421.53; that sum corresponds 
to CHF 216 566.51. After the sale of the property, the price of which was credited 
against the outstanding capital, the lender requested the attachment of VE’s 
earnings for the sum of EUR 192 268.73. 
2. European Union law 
12 The referring court considers that the act of EU law applicable in the present case 
is Directive 93/13, in particular Articles 3 and 4 thereof. 
13 According to the Opinion of Advocate General Wahl in Kásler and Káslerné 
Rábai (C-26/13, EU:C:2014:85, point 91 and paragraph 2 of the conclusion of the 
Opinion): ‘the examination of whether the contractual terms are plain and 
intelligible must take account of all the circumstances of the individual case, 
including the information given to the consumer when the contract was concluded, 
and must cover, in addition to the strictly formal, linguistic aspect, a precise 
assessment of the economic consequences of those terms and any links that might 
exist between them’. 
14 In the judgment of 20 September 2017, Andriciuc and Others (C-186/16, 
EU:C:2017:703, paragraph 51 and point 2 of the operative part), the Court held 
that for a term comparable to that at issue to be plain and intelligible it ‘must be 
understood by the consumer both at the formal and grammatical level, and also in 
terms of its actual effects, so that the average consumer, who is reasonably well 
informed and reasonably observant and circumspect, would be aware both of the 
possibility of a rise or fall in the value of the foreign currency in which the loan 
was taken out, and would also be able to assess the potentially significant 
economic consequences of such a term with regard to his financial obligations. It 
is for the national court to carry out the necessary checks in that regard’. 
15 The Court recalled that since ‘the consumer is in a position of weakness vis-à-vis 
the seller or supplier, in particular as regards his level of knowledge, that 
requirement of plain and intelligible drafting of contractual terms and, therefore, 
the requirement of transparency laid down by the directive must be understood in 
a broad sense’ (judgment of 20 September 2017, Andriciuc and Others 
(C-186/16, EU:C:2017:703, paragraph 44 and the case-law cited)). In 
paragraph 46 of that judgment, the Court specifies that that issue must be 
examined by the referring court. 
16 The Court has also held that ‘a term in a loan agreement … 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 
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that agreement, is liable to be regarded as unfair by the national court’ (order of 
22 February 2018, Lupean (C-119/17, not published, EU:C:2018:103, 
paragraph 31 and point 2 of the operative part). 
17 Finally, in the judgment of 20 September 2018, OTP Bank and OTP Faktoring 
(C-51/17, EU:C:2018:750), the Court held that ‘Article 4(2) of Directive 93/13 
must be interpreted as meaning that the requirement for a contractual term to be 
drafted in plain intelligible language requires financial institutions to provide 
borrowers with adequate information to enable them to take well-informed and 
prudent decisions. In that regard, that requirement means that a term relating to 
the foreign exchange risk must be understood by the consumer both at the formal 
and grammatical level and also in terms of its actual effects, so that the average 
consumer, who is reasonably well informed and reasonably observant and 
circumspect, would not only be aware of the possibility of a depreciation of the 
national currency in relation to the foreign currency in which the loan was 
denominated, but would also be able to assess the potentially significant economic 
consequences of such a term with regard to his financial obligations’ 
(paragraph 78 and point 3 of the operative part). The Court stated in the same 
judgment that ‘Article 4 of Directive 93/13 must be interpreted as requiring that 
the plainness and intelligibility of the contractual terms be assessed by referring, 
at the time of conclusion of the contract, to all the circumstances attending the 
conclusion of the contract and to all the other terms of the contract’ (paragraph 83 
and point 4 of the operative part); finally, the Court added that it was for the 
national court to identify of its own motion the unfairness of such a term 
(paragraph 91 and point 5 of the operative part). 
3. National law 
18 The referring court is ruling in the present case in relation to an attachment of 
earnings. In that regard, it exercises the powers of the court responsible for 
enforcement and must therefore examine the merits and the amount of the claim. 
19 Article L. 132-1 of the code de la consommation (Consumer Code), now Article 
L. 212-1 of that code, transposes Directive 93/13 into French law. That article 
provides: 
‘In contracts concluded between sellers or suppliers and persons who are not 
sellers or suppliers or who are consumers, terms the purpose or effect of which is 
to cause a significant imbalance in the rights and obligations of the parties to the 
contract, to the detriment of the person who is not a seller or supplier or who is a 
consumer, are unfair. 
A Council of State decree … shall determine a list of terms which must be 
regarded as unfair; in the event of a dispute concerning a contract which contains 
such a term, the seller or supplier must adduce evidence of the fairness of the term 
at issue. 
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A decree adopted under the same conditions shall determine the types of terms 
which, having regard to the seriousness of the disturbance they cause to the 
balance of the contract, must be regarded irrefutably as unfair within the meaning 
of the first paragraph. 
These provisions apply whatever the contract form or medium. This is the case, in 
particular, for purchase orders, invoices, performance bonds, delivery notes or 
slips, travel vouchers or tickets, containing stipulations which may, or may not, 
have been freely negotiated, or references to general terms fixed in advance. 
Without prejudice to the rules of interpretation provided for in Articles 1156 to 
1161, 1163 and 1164 of the civil code, the unfairness of a term shall be assessed 
by referring, at the time of conclusion of the contract, to all the circumstances 
attending the conclusion of the contract and to all the other terms of the contract. 
It shall also be assessed in the light of those contained in another contract where 
the conclusion or performance of those two contracts are legally dependent upon 
one another. 
Unfair terms are deemed to be null and void. 
Assessment of the unfair character of the terms within the meaning of the first 
paragraph shall relate neither to the definition of the main subject matter of the 
contract nor to the adequacy of the price or remuneration as against the goods 
sold or services provided in so far as these terms are in plain, intelligible 
language. 
The contract shall continue to be applicable in all its provisions other than those 
deemed to be unfair if it is capable of continuing in existence without those terms. 
The provisions of this article are public policy rules’. 
20 The penultimate paragraph of that provision transposes Article 4(2) of Directive 
93/13 and forms the basis of the relevant domestic case-law. 
21 The Court of Cassation has held that terms defining the main subject matter of the 
contract cannot be considered unfair, provided that those terms are drafted in 
plain, intelligible language (settled case-law). 
22 In 2017, in two cases in which the dispute concerned a loan similar to the loan at 
issue, the Court of Cassation recalled that it was for the court adjudicating on the 
substance to ascertain of its own motion the existence of a significant imbalance. 
23 In 2018, in a case relating to a loan comparable to the loan at issue, the Court of 
Cassation held that the term providing for ‘the conversion into Swiss francs of the 
balance of the monthly payments after payment of the incidental loan charges 
[defined] the main subject matter of the contract’. Moreover, it ruled that that term 
was plain and intelligible for the following reasons: ‘repayment of the loan takes 
place by means of conversion of fixed loan instalments paid in euros, ... such 
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conversion takes place at an exchange rate which may rise or fall, ... such changes 
may lead to an extension or reduction in the repayment period for the loan and, in 
some circumstances, alter the total repayment cost’. 
24 By fifteen decisions delivered on 20 February 2019, the Court of Cassation 
approved judgments of the Courts of Appeal ruling that the Helvet Immo loan 
defined the main subject matter of the contract, holding that ‘the foreign exchange 
risk inherent in that type of loan [had] an impact on repayment of the loan’. In 
those cases, the judgments under appeal described in detail the mechanism of the 
Helvet Immo loan referred to in point III.1 of the present decision and held that 
‘the contract [set out] in a transparent manner the actual operation of the foreign 
currency conversion mechanism’ and that the term in that respect was plain and 
intelligible. Those decisions expressly refer to the judgment of the Court of Justice 
of 20 September 2018, OTP Bank and OTP Faktoring (C-51/17, EU:C:2018:750). 
25 Some of those recent decisions refer to a ‘communication accompanied by 
numerical simulations of the effect of exchange rate variations on the repayment 
plan’, but the question of whether or not that information was provided had no 
bearing on the decision. In his Opinion, the Advocate General proposed that the 
question of whether or not that information is provided, as also required by the 
subsequent legislation (Article L. 312-8 of the Consumer Code, now Article 
L. 313-25 of that code), be used to assess whether the contractual terms at issue 
are plain and intelligible. 
IV. Reasons for the referral 
1. The main subject matter of the contract 
26 The contract at issue contains several terms, presented as forming part of a 
currency conversion mechanism, which have the effect of incorporating the 
foreign exchange risk into the monthly instalments paid by the consumer. The 
amount of the monthly instalments paid in euros is fixed. In the event of changes 
in the exchange rate, the repayment represents a smaller amount in Swiss francs 
than the sum indicated to the consumer when the loan was taken out. That amount 
is first allocated to interest. 
27 That contract is therefore a loan denominated in a foreign currency and repayable 
in the national currency which has not been individually negotiated. As EU law 
transposed into national law now stands, the mechanism in question forms part of 
the main subject matter of the contract. 
28 The terms at issue relate to the rules for allocating payments to interest, the 
operation of the accounts in Swiss francs, the accounting currency, and in euros, 
the payment currency, as well as the extension of the term of the loan. It follows 
that, in the event of an adverse change in the exchange rate, the consumer is liable 
to pay a capital sum in euros greater than the amount borrowed and that his 
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monthly instalments will almost exclusively repay interest, thereby reducing the 
outstanding capital only in a residual manner. 
29 The referring court therefore raises the question of the discretion which it enjoys 
in relation to those terms: must they be regarded as an indivisible whole 
constituting the main subject matter of the contract and, on that basis, incapable of 
being considered unfair, provided that they are plain and intelligible? Conversely, 
must it be held that those terms may be individually regarded as unfair, with the 
exception, already laid down in the case-law, of the term providing for repayment 
in a foreign currency? 
2. The borrower’s knowledge of the foreseeable economic context as an element 
in assessing whether the term is plain and intelligible 
30 It appears that the borrower received a considerable amount of information before 
taking out his loan. The documents in the file show that that information 
emphasised the stable nature of the euro — Swiss franc parity. The consumer 
could therefore take the view that the risk of his commitment related to other 
matters, also communicated by the lender, such as the cost of the currency 
conversion or the fixed nature of the interest rate. 
31 The loan offer sets out in detail a mechanism according to which monthly 
instalments in euros repay a loan denominated in Swiss francs. The foreign 
exchange risk arises from the interplay between various terms. VE points out that 
the expression ‘foreign exchange risk’ is not used in the offer. 
32 It is clear from the documents put before the court that, in times of financial 
market stress, certain currencies, in particular the Swiss franc, represent ‘safe-
haven currencies’, protecting those who hold them from the fluctuations inherent 
in such a context. In the light of the documents before the court, that fact could 
have been known to the lender when the loan was taken out, which is likely 
because of its own competence and knowledge as a professional lender. 
33 The national legislation and the case-law require the courts to examine an offer in 
an objective manner, without taking into account such a context, for example by 
reference to numerical simulations showing the consequence of changes in the 
exchange rate on the cost of the loan, but without necessarily requiring that 
information. The case-law of the Court of Justice refers to the concept of 
transparency in the examination of whether a term forming part of the main 
subject matter of the contract is plain and intelligible. 
34 The referring court therefore raises the question of the specific meaning of that 
concept for a borrower, who is unaware of the consequences of economic stress 
on changes in the exchange rate and who should have been informed, or not, of 
the additional risk thus represented by the economic context in which he entered 
into his commitment. 
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35 Indirectly there arises the question of assessing the lender’s good faith, whose 
expertise could have led it to analyse that foreseeable change. In that regard, VE 
provides economic forecasts from the Swiss central bank pre-dating the loan, 
which he now believes were known to the lender. 
Questions referred for a preliminary ruling 
36 The tribunal d’instance de Lagny-sur-Marne (District Court, Lagny-sur-Marne) 
(France) is referring the following questions to the Court of Justice of the 
European Union for a preliminary ruling: 
1. Must Article 4(2) of Directive 93/13 be interpreted as meaning that terms 
stipulating repayments at fixed intervals allocated first to interest and 
providing for an extension of the term of the contract and for an increase in 
payments in order to pay the account balance, which [may] increase 
significantly as a result of exchange rate variations, constitute the main 
subject matter of a loan denominated in a foreign currency and repayable in 
the national currency, and that those terms cannot be considered in isolation? 
2. Must Article 3(1) of Directive 93/13 be interpreted as meaning that terms 
stipulating payments at fixed intervals allocated first to interest and 
providing for an extension of [the] term [of the contract] and for an increase 
in payments in order to pay the account balance, which may increase 
significantly as a result of exchange rate variations, cause a significant 
imbalance in the rights and obligations of the parties to the contract, in 
particular in that they expose the consumer to a disproportionate foreign 
exchange risk? 
3. Must Article 4 of Directive 93/13 be interpreted as requiring that the 
plainness and intelligibility of the terms of a loan agreement denominated in 
a foreign currency and repayable in the national currency be assessed by 
referring, at the time of conclusion of that agreement, to the foreseeable 
economic context, in the present case the consequences of the economic 
difficulties of the years 2007 to 2009 on exchange rate variations, taking into 
account the professional lender’s expertise and knowledge, as well as its 
good faith? 
4. Must Article 4 of Directive 93/13 be interpreted as requiring that the 
plainness and intelligibility of the terms of a loan agreement denominated in 
a foreign currency and repayable in the national currency be assessed by 
ascertaining that a lender, having [the] expertise and knowledge of a seller 
or supplier, has communicated to the consumer only objective and abstract 
information, inter alia quantitative information, which does not take into 
account the economic context capable of affecting exchange rate variations?