Information;Order — ECLI:EU:C:2021:860
Date: 2021-10-14
Language of the case: Romanian
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-87/21 – 1 
Case C-87/21 
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: 
11 February 2021 
Referring court: 
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
26 November 2020 
Appellants: 
NSV 
NM 
Respondent: 
BT 
  
Subject matter of the main proceedings 
Appeal brought before the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania) 
by NSV and NM against the judgment delivered at first instance by the Tribunalul 
Specializat Cluj (Specialised Court, Cluj, Romania) and dismissing the action by 
which they had sought to establish the unfairness of certain terms of a credit 
agreement concluded in Swiss francs (CHF) with the bank BT and had requested a 
finding that those terms were invalid as well as an order requiring that bank to 
remove the unfair terms from the agreement and to refund, with interest, the sums 
unduly paid under those terms and providing for repayment in Romanian lei 
(RON) of the sum borrowed, after conversion of the loan, in Swiss francs, into 
RON at the rate of exchange on the date on which the loan was granted. 
Subject matter and legal basis of the request for a preliminary ruling 
In accordance with Article 267 TFEU, interpretation is sought of Directive 
93/13/EEC, in particular, Article 1(2), Article 4(1) and Article 5 thereof. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-87/21 
 
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Questions referred for a preliminary ruling 
1. Are Article 1(2), Article 5 [and] Article 4(1) of Directive 93/13/EEC to be 
interpreted as not excluding from review a term relating to foreign exchange risk 
which brings within a contract for consideration, based on relationships of 
strength, a principle expressed by a supplementary rule that is ordinarily 
applicable to a contract which is free of charge and is intended to place the 
contracting parties on an equal footing, but has not been assessed by the 
legislature with a view to striking a reasonable balance between the interests of 
the seller or supplier and those of the consumer, where the seller or supplier has 
included that principle in the contract without providing the consumer, at the pre-
contractual stage, with information, advice and warnings regarding the particular 
features of the banking product concerned in terms of the characteristics of the 
currency of the loan, so that the consumer might understand the economic 
consequences of the commitment undertaken by him or her? 
2. Is Directive 93/13/EEC to be interpreted as meaning that exclusion is not 
justified where there is evidence which suggests that the seller or supplier inserted 
the term in bad faith, knowing that the application of the principle expressed by 
the supplementary rule was liable to cause a significant imbalance in the parties’ 
rights and obligations, to the detriment of the consumer? 
Provisions of EU law relied on and case-law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, recitals 12 and 13, Article 1, Article 3(1), Articles 4 and 5, Article 6(1), 
Article 7(1) and point 1(i) of the Annex 
Judgments of 14 June 2012, Banco Español de Crédito (C-618/10); of 21 March 
2013, RWE Vertrieb AG (C-92/11), paragraph 30; of 30 May 2013, Jőrös 
(C-397/11); of 10 September 2014, Kušionová (C-34/13), and of 30 April 2014, 
Barclays Bank (C-280/13); order of 22 February 2018, Lupean and Lupean (C-
l19/17); judgments of 20 September 2018, OTP Bank and OTP Faktoring 
(C-51/17); of 20 September 2017, Andriciuc and Others (C-186/16); of 9 July 
2020, Banca Transilvania (C-81/19), paragraphs 24 to 26, 36 and 38; of 3 October 
2019, Dziubak (C-260/18); of 3 April 2019, Aqua Med (C-266/18), and of 
3 March 2020, Gómez del Moral Guasch (C-l25/18) 
Provisions of national law relied on 
Article 1578 of the Codul civil (Romanian Civil Code; ‘the Civil Code’), in the 
version in force on the date of conclusion of the credit agreement, which 
establishes the principle of monetary nominalism, in accordance with which 
monetary loans are to be repaid in the currency and in the amount stated in the 
agreement. 
NSV AND NM 
 
3 
Articles 1 and 3 to 7 of Legea nr. 193/2000 privind clauzele abuzive din 
contractele încheiate între comercianți și consumatori (Law No 193/2000 on 
unfair terms in contracts between sellers or suppliers and consumers), which 
transposes Directive 93/13/EEC. In accordance with Article 3(2) of that law, 
contractual terms provided for by other pieces of legislation in force are not 
subject to the provisions of that law. 
Legea nr. 296/2004 privind Codul consumului (Law No 296/2004 on the 
Consumer Code), in the version in force on the date of conclusion of the credit 
agreement 
Article 1, pursuant to which the purpose of that law, inter alia, is to govern the 
legal relationships between economic operators and consumers with regard to the 
purchase of goods and services, including financial services, ensuring the 
necessary framework for consumers to be provided with full and accurate 
information about the essential characteristics of the goods and services and for 
the legitimate rights and interests of consumers to be guaranteed and protected 
against abusive practices 
Article 5, pursuant to which the State, through the competent central authority for 
consumer protection, is to fix as objectives, inter alia, the protection of consumers 
against the risk of purchasing goods or receiving services which could affect their 
legitimate rights and interests, the protection of consumers’ economic interests, 
and ensuring consumers have access to full, accurate and precise information 
about the essential characteristics of goods and services 
Article 27, which provides for the right of consumers to be protected against the 
risk of purchasing goods or receiving services which could adversely affect their 
legitimate rights and interests, and for their right to be informed fully, accurately 
and precisely about the essential characteristics of goods and services, such that 
the decisions they take in relation to them best meet their needs 
Article 44, which enshrines the right of consumers to be informed fully, accurately 
and precisely about the essential characteristics of goods and services, including 
financial services, provided by economic operators, so that they can make a 
rational choice between the goods and services offered, in accordance with their 
economic and other interests 
Article 79, pursuant to which a contractual term is to be regarded as not having 
been negotiated directly with the consumer if it was stipulated without the 
consumer being able to influence its nature, as in the case of standard-form 
contracts or general conditions of sale practised by sellers or suppliers 
Ordonanța Guvernului nr. 21/1992 privind protecția consumatorului 
(Government Order No 21/1992 on consumer protection), in the version in force 
on the date of conclusion of the credit agreement, provided, inter alia, for the right 
of consumers to be informed fully, accurately and precisely about the essential 
characteristics of goods and services (Article 3(a)) and for their right to take 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-87/21 
 
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decisions at the time of purchasing goods or services, without unfair contractual 
terms being imposed on them, and for the right of consumers to have contractual 
terms drafted clearly and precisely and for the conditions of credit and interest to 
be fixed precisely (Article 10(a) and (b)). 
Legea nr. 363 din 21 decembrie 2007 privind combaterea practicilor incorecte ale 
comercianților în relația cu consumatorii și armonizarea reglementărilor cu 
legislația europeană privind protecția consumatorilor (Law No 363 of 
21 December 2007 on combating unfair practices by sellers or suppliers in relation 
to consumers and harmonising the existing regulations with the European Union 
legislation on consumer protection) 
Article 4, which provides that a commercial practice is unfair if it is contrary to 
the requirements of professional diligence or distorts or is liable to distort 
significantly the economic behaviour of the average consumer 
In accordance with Article 7, a commercial practice is to be regarded as a 
misleading omission if, having regard to all the characteristics and circumstances 
of the factual situation and the limits of the means of communication used, it 
omits essential information that is needed by the average consumer to make an 
informed commercial decision and therefore causes or is liable to cause the 
consumer to take a commercial decision which he or she would not otherwise 
have taken. The practice of concealing essential information or providing essential 
information in an unclear, unintelligible or ambiguous manner or at an 
inappropriate time also constitutes a misleading omission where it causes the 
average consumer to take a decision that he or she would not otherwise have 
taken. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 17 January 2008, for the purpose of purchasing a property, the appellants 
concluded with the respondent bank, BT, a credit agreement in the sum of 
CHF 92 547.47, with a term of 300 months and a current interest rate of 4.25%. 
The loan was to be repaid in monthly instalments of CHF 504.23. Between the 
time when the loan was contracted and the time when an application was made to 
a court, the rate of exchange between Swiss francs and Romanian lei changed 
from RON 2.2819 to RON 4.1026. 
2 In accordance with Article 6 of the special terms and conditions of the agreement, 
the borrowers undertook jointly and severally to repay the loan in accordance with 
the monthly repayment schedule, in the instalments stipulated, amounting to 
CHF 504.23, due on the 11th of each month. The repayments were to be made in 
accordance with Section 4 of the general terms and conditions. 
3 In accordance with Articles 4.1, 4.2 and 4.3 of Section 4 of the general terms and 
conditions of the credit agreement, all payments under that agreement were to be 
made in the currency of the loan. The borrowers authorised the bank to make all 
NSV AND NM 
 
5 
payments due (instalments/annuities/interest/fees/other charges) by debiting their 
current account in a sum corresponding to the currency of the loan. In the event of 
there being insufficient funds in the account corresponding to the currency of the 
loan, the bank was authorised to debit any other current or deposit account of the 
borrowers, making the currency exchange on their behalf on the basis of its own 
quotations. 
4 On 17 August 2016, the appellants brought an action before the Tribunalul 
Specializat Cluj (Specialised Court, Cluj) seeking to establish the unfairness of the 
terms contained in Article 6 of the special terms and conditions and in Article 4.1, 
4.2 and 4.3 of the general terms and conditions, an order requiring the bank to 
refund the sums unduly paid under those terms, amounting to RON 71 195.82 at 
the time when the application was made to that court, together with interest up to 
the time of the removal of the terms from the agreement, and an order requiring 
the bank to issue a new repayment schedule providing for the repayment of the 
loan in Romanian lei and the conversion of the amount of the loan from CHF to 
RON at the rate of exchange between Swiss francs and Romanian lei on the date 
on which the loan was contracted. 
5 The Tribunalul Specializat Cluj (Specialised Court, Cluj; ‘the Tribunalul’) 
dismissed the action on the ground that, since the agreement between the parties 
did not provide for any derogation from the rule of ordinary law establishing the 
principle of monetary nominalism, the provisions of Article 1(2) of Directive 
93/13, transposed by Article 3(2) of Law No 193/2000, applied. 
6 The Tribunalul held that both Government Order No 21/1992 (Articles 18, 19 and 
21) and Law No 296/2004 (Article 27(b)), in force at the time the loan was 
granted, provided for the right of consumers to be fully, accurately and precisely 
informed about the essential characteristics of the services offered by economic 
operators, and that that information was to be provided by way of elements which 
characterised the service in accordance with the nature of that service, including 
the foreseeable risks. 
7 However, given that the bank’s portfolio included credit services not only in 
Swiss francs, but also in lei and in euros, the fact that the appellants had chosen 
such a loan product after being told that the Swiss franc was a stable currency did 
not necessarily mean that the bank had provided false or misleading information 
concerning the Swiss franc. In reaching that finding, the court noted that a graph 
showing Swiss franc exchange rates over the period from 1999 to 2008 showed 
that the currency had varied only slightly and that it could be regarded as a stable 
currency at the time the credit agreement was concluded. 
8 Given that the appellants had an acceptable level of indebtedness, the Tribunalul 
considered that it was unlikely that the bank had meant for that level of 
indebtedness to be exceeded as a result of overvaluation of the Swiss franc. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-87/21 
 
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9 The Tribunalul found that, beyond the appellants’ claims, there was no evidence 
to suggest that the bank had any definite information that the exchange rate would 
increase significantly, inasmuch as exchange rates are determined by the free 
financial market, on which currencies vary in accordance with economic 
indicators not within the bank’s control. 
10 NSV and NM brought an appeal against that judgment before the referring court, 
the Curtea de Apel Cluj (Court of Appeal, Cluj). 
The essential arguments of the parties in the main proceedings 
11 The appellants maintain that the currency of the loan was imposed on them by the 
bank, inasmuch as it was the only currency in which the seller or supplier 
considered them to be eligible to take out a loan. The bank had also stated that that 
currency was stable and very advantageous, given the low interest rate. 
12 The appellants also state that, at the time of concluding the agreement, which they 
did not negotiate, since it had been drafted in advance by the seller or supplier, 
they were not informed about the volatility of the Swiss franc or the terms of the 
agreement which required them to bear the foreign exchange risk. 
13 They also consider that the bank failed to fulfil its legal obligation to provide 
information, in particular regarding the essential characteristics of the product and 
the fact that they were taking out a loan in a safe-haven currency, which could 
appreciate strongly in times of crisis. This had exposed them to an extraordinary 
foreign exchange risk, greater than that typical of loans in United States dollars or 
in euros, given that the Swiss franc was not an international currency of which the 
bank kept its own reserves. 
14 Moreover, a series of warnings from the central bank of Switzerland and from the 
National Bank of Romania predicted an imminent increase in the value of the 
Swiss franc at the time the loan was granted. 
15 According to the appellants, the bank had been fully aware of the risk which 
borrowers ran at the time of its offer of an agreement in Swiss francs and had 
inserted unfair terms into the agreement, which placed on consumers an obligation 
to repay the loan in the same currency and to bear the entirety of the foreign 
exchange risk in the event that that currency should appreciate. 
16 Taking the view that Articles 3 and 4 of Directive 93/13/EEC are fully applicable 
in the present case, they request that the credit agreement be re-balanced by means 
of the freezing of the exchange rate in the agreement in Swiss francs and the 
repayment of the loan in lei at the exchange rate on the date on which the 
agreement was concluded. 
17 The appellants consider that the Tribunalul Specializat Cluj (Specialised Court, 
Cluj) erred in finding that the contested contractual terms reflect the principle of 
NSV AND NM 
 
7 
monetary nominalism and, for that reason, are excluded from any assessment of 
unfairness. They argue that the exceptions from such an analysis should be 
interpreted restrictively and cannot be extended by analogy. 
18 In particular, they submit, first, on the basis of the wording of Article 3(2) of Law 
No 193/2000, that, in order to escape assessment of whether it is unfair, the term 
at issue must be stipulated in the contract, that it to say, it must faithfully 
reproduce or, at least, reflect the relevant legislative provision. It is therefore a 
requisite minimum condition that the term should exist in material, written form, 
mere similarity to a rule in some legislative act being insufficient. Exemption 
from analysis of unfairness cannot apply to a term which creates confusion or 
shows vague similarity to provisions of a legislative act. The ambiguity or 
vagueness of a contractual term in itself provides grounds for a presumption that 
the term is unfair. 
19 Secondly, a term which requires the consumer to make all payments in the 
currency of the loan cannot be regarded as reflecting the principle of monetary 
nominalism, since that principle relates solely to the repayment of the loan, and 
not to any other payments that may be made under a credit agreement, such as 
payments of interest, fees and charges. 
20 According to the respondent bank, the term stipulating the currency of the loan 
falls within the scope of the main object of the agreement and transposes the 
principle of monetary nominalism. It is therefore outside the scope of the courts’ 
review. The foreign exchange risk is implicitly borne by the consumer, especially 
since, being dependent on external factors not within the control of the seller or 
supplier, that seller or supplier cannot predict it. 
Succinct presentation of the grounds for the reference for a preliminary 
ruling 
21 The referring court points out that the provision in Article 1578 of the Civil Code 
is based on the premiss that the contracting parties are on an equal footing, 
inasmuch as it was not specifically conceived by the national legislature with 
reference to credit agreements concluded by sellers or suppliers with consumers. 
22 The principle enshrined in Article 1578 of the Civil Code appears in the chapter 
on consumer loans that are free of charge and is, by design, favourable to the 
borrower. 
23 The agreement at issue, however, is a contract for consideration, governed by 
relationships of strength. In that context, the relationship between the parties is not 
equal and, given the weaker position of the consumer in economic, technical and 
legal terms, such a contract constitutes fertile ground for the misuse of economic 
power. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-87/21 
 
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24 In the judgment of the Court of Justice in Case C-81/19, Banca Transilvania, no 
account was taken of the nature of the contract into which the principle expressed 
by the supplementary rule was incorporated by means of a standard term. 
Although the Court stated that, for the purposes of the directive, balance did not 
constitute a condition, it also pointed out that the justification for the exclusion 
was solely the legitimate assumption that the national legislature had already 
struck a balance between all the rights concerned. 
25 National legislation on consumer rights is limited to schematically defining bank 
credit agreements which, in essence, are standard contracts that remain subject to 
the restrictions imposed by special regulations. Any analogy between them and 
consumer loans governed by ordinary law (under which the principle of monetary 
nominalism has been regulated) is not, and cannot be perfect, because a bank 
credit agreement is different from a consumer loan agreement. 
26 Bank credit implies trust and the assumption of risk on the part of both parties, on 
the basis of terms that are valid under specific consumer protection legislation. To 
accept that a seller or supplier may define the content of the contract using 
standard terms which reproduce the provisions of supplementary rules specific to 
contracts which exclude the position of inferiority of the contracting parties could 
be regarded as contrary to the requirements imposed by consumer law. 
27 On the one hand, the term which stipulates the conditions of repayment and the 
currency in which the loan is to be repaid concerns an essential obligation. On the 
other hand, the characteristics of the currency in which the loan is to be repaid (its 
varying rate of exchange with other currencies) must be regarded as falling into 
the category of the essential technical specifications that are intended to customise 
the banking product which the seller or supplier offers to the consumer. 
28 Consequently, in the case of a bank credit agreement, there arises, at the pre-
contractual stage, an obligation for the seller or supplier to advise and warn the 
consumer. Given the particular features of a bank credit agreement, which is a 
contract in relation to which the obligation to advise, to warn and to provide 
information tends to take the place of free negotiation, the validity of the terms 
establishing the content of the agreement, which are drafted exclusively by the 
seller or supplier and to which the consumer agrees, is inextricably linked to the 
standards of due diligence laid down in special legislation which must be met by 
the seller or supplier at the pre-contractual stage. 
29 The seller or supplier’s obligation to provide information and warnings of the 
risks associated with the contract also arises from the case-law of the Court of 
Justice; it has its origin in the weak bargaining power which results from the 
inequality of economic, technical and legal power and the low level of consumer 
information. 
30 According to the referring court, the pre-contractual stage, which precedes the 
conclusion of the contract (which contains the transposed term), may be described 
NSV AND NM 
 
9 
as essential. In order for a bank credit agreement to comply with the minimum 
standards required by the directive and the national legislation transposing the 
directive, transparency and legality must be ensured in the conduct of the pre-
contractual stage. 
31 The referring court considers it debateable that the mere reproduction of a 
principle enshrined in a supplementary rule specific to a different contract in a 
term intended to govern the assumption of foreign exchange risk should have the 
consequence of relieving the seller or supplier absolutely of its obligations at the 
pre-contractual stage. 
32 In addition, the seller or supplier is under an obligation to check whether 
eligibility requirements are met not only at the time when it grants the loan, but 
also during the performance of the bank credit agreement, which implies an 
analysis of how the currency of the loan varies over time against the currency in 
which the borrower receives his or her income. 
33 Since foreign exchange risk cannot be considered in the abstract, dissociated from 
the principal characteristics of the payment currency, the choice of the latter 
constitutes an essential element of the contract. 
34 In the case of a consumer loan governed by ordinary law, however, there is no 
obligation upon the lender to provide information at the pre-contractual stage. 
35 The referring court also observes that the contested terms require the consumer to 
make all payments in the currency of the loan, whereas, in the light of 
Article 1578 of the Civil Code, the principle of monetary nominalism relates 
solely to the repayment of the loan, and not to the payment of other contractual 
expenses, such as interest and fees, which are not sums that have been borrowed, 
but charges relating to the loan. 
36 In its opinion, the reference which the seller or supplier has made to the principle 
of monetary nominalism, in other words to the principle of ordinary law which 
does not impose obligations on the seller or supplier to provide information, 
seems to have been made so that the seller or supplier can avoid the obligation to 
provide information that is imposed by special law. 
37 What the referring court is asking the Court of Justice to clarify is whether, in the 
light of Article 1(2) of the directive, there may still be justification for review of 
the substance to be waived in a situation where the rights and obligations created 
by the contract thus drafted do not, taken as a whole, correspond to the balance 
which the national legislature intended to establish by adopting the supplementary 
rule introduced by Article 1578 of the Civil Code, which is based on the presence 
of contracting partners having equal rights. 
38 The referring court points out that good faith in consumer contracts must meet a 
high standard and that the unfairness of contractual terms is an autonomous 
concept of EU law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-87/21 
 
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39 One of the key criteria in the assessment of good faith is the readiness and ability 
of the seller or supplier to provide all the essential information about the nature of, 
and risks which might arise during the performance of the contract, to negotiate 
the essential terms of that contract and thus provide the consumer with an 
opportunity to understand the real nature of the transaction and to conclude a 
contract for a banking product that meets his or her needs and is commensurate 
with his or her income and the risks which he or she is able to manage and accept 
without affecting his or her ability to pay the instalments. 
40 According to the referring court, by offering loans in Swiss francs, the seller or 
supplier seems to have identified a way to increase its own market share and 
profits, while protecting itself from any financial risk and placing that risk, 
relating to the performance of the contract, on the consumer, who has not been 
apprised and informed of all the consequences and effects of the contract. The 
stipulation of the obligation to repay the loan in that currency appears to have 
been an essential element of that mechanism for the protection of the seller or 
supplier, which adversely affects the consumer by exposing him or her to 
excessive risk. 
41 The question therefore arises as to whether the exclusion from review of the 
unfairness of a term is still justified where there is evidence which suggests that 
the seller or supplier inserted the term in bad faith, knowing that the application of 
the principle expressed by the supplementary rule was liable to cause a significant 
imbalance in the parties’ rights and obligations, to the detriment of the consumer.