Judgment;Summary — ECLI:EU:C:2023:555
Date: 2023-07-06
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-593/22 – 1 
Case C-593/22 
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: 
12 September 2022 
Referring court: 
Tribunalul Specializat Cluj (Romania) 
Date of the decision to refer: 
23 May 2022 
Appellants 
FS 
WU 
Respondent: 
First Bank SA 
  
Subject matter of the main proceedings 
Appeal brought by the appellants FS and WU, in proceedings between them and 
the respondent First Bank SA, challenging the civil judgment delivered on 
31 January 2018 by the Judecătoria Cluj-Napoca (Court of First Instance, Cluj-
Napoca, Romania) in an action seeking a declaration that certain contractual terms 
are unfair 
Subject matter and legal basis of the request 
In accordance with Article 267 TFEU, interpretation is sought of Article 1(2) of 
Directive 93/13. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-593/22 
 
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Questions referred for a preliminary ruling 
1. Is Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts to be interpreted as meaning that 
(a) a ‘contractual term which reflects statutory provisions’ must reproduce, in 
whole or in part, the corresponding legal rule set out in the relevant statutory 
provision; 
or that 
(b) a ‘contractual term which reflects statutory provisions’ must contain an 
express reference to the corresponding legal rule set out in the relevant statutory 
provision; 
or, on the contrary, that, 
(c) in order for the exclusion from the scope of the analysis of the unfairness of 
a contractual term provided for in Article 1(2) of Directive 93/13 to be deemed to 
apply, it is sufficient to apply the general civil-law rule that contracts are 
supplemented by the law, without any specific reference being made to the 
corresponding legal rule set out in the relevant statutory provision? 
2. Is Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts to be interpreted as meaning that, in the context of the 
special legal regime for the protection of consumer rights, it is excessive to take 
the view that the consumer is under an obligation to be familiar with the content 
of all the legal rules set out in the statutory provisions which supplement a 
contract, without the seller or supplier first providing the consumer with 
information to that effect? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Article 1(2) 
Provisions of national law relied on 
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) 
Article 3(2) 
‘Contractual terms provided for by other pieces of legislation in force are not 
subject to the provisions of this Law.’ 
FIRST BANK 
 
3 
The old Cod civil (Civil Code) 
Article 969(1) 
‘Contracts entered into in accordance with the law shall be legally binding as 
between the contracting parties.’ 
Article 970(1) and (2) 
‘Contracts shall be performed in good faith. 
They shall be binding not only as regards what is specifically provided for therein 
but also as regards all the consequences which arise therefrom – according to their 
nature – in accordance with equity, custom or law.’ 
Article 1578 
‘The debt arising under a monetary loan shall always be limited to the numerical 
sum set out in the agreement. 
Where there is an increase or a decrease in the value of the currency before the 
due date for payment, the debtor must repay the numerical sum lent and is obliged 
to repay that sum only in the currency used at the time of payment.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 17 August 2007 a personal loan agreement was concluded between FS, as 
borrower, and WU, as joint debtor and guarantor, on the one hand, and the 
respondent Piraeus Bank România SA (which subsequently became First Bank 
SA), on the other, under which Piraeus Bank România granted FS and WU a loan 
of 78 180.00 Swiss francs (CHF). 
2 In accordance with the first sentence of Article 6.3 of the loan agreement, the 
borrower was required, by no later than the due date, to deposit in the current 
account opened with the bank the sum needed to repay the loan in the currency 
specified in the loan repayment schedule. 
3 FS and WU brought an action against Piraeus Bank România before the Court of 
First Instance, Cluj-Napoca, seeking a declaration that the terms of the agreement 
under which FS and WU, as borrowers, assumed the entirety of the foreign 
exchange risk were unfair and invalid, as well as an order requiring the contractual 
balance to be restored by way of an obligation upon the bank to calculate and 
collect the instalments, interest and commissions at the rate of exchange between 
Swiss francs and Romanian lei (CHF/RON) announced by the [national bank of 
Romania] on the day on which the agreement was concluded, with retroactive and 
future effect, up to repayment of the loan, and to reimburse the sums paid in 
excess. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-593/22 
 
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4 By civil judgment of 31 January 2018, the Court of First Instance, Cluj-Napoca, 
dismissed that action. In essence, it found that the term set out in the first sentence 
of Article 6.3 of the loan agreement was a pre-formulated term and that First Bank 
had not provided evidence that that term had been negotiated. On the other hand, 
although FS and WU had shown which term they considered to be unfair, their 
complaint was rather that there was no term in the agreement to protect them from 
foreign exchange risk. However, there was no rule, national or European, that 
enabled a court to supplement an agreement with terms that had not been agreed 
between the parties; not even where it was shown that the seller or supplier had 
acted in bad faith or had failed in its obligation to provide information or where 
the absence of such a term created a significant imbalance to the detriment of the 
consumer. 
The court of first instance also found that the obligation to repay the loan in the 
currency in which it was contracted, which FS and WU sought to call into 
question, was consistent with the principle of monetary nominalism, enshrined in 
Article 1578 of the old Civil Code (of 1864). It took note of the fact that, while, in 
its judgment in Case C-186/16, Andriciuc and Others, the Court of Justice had 
taken the existence of that national rule into consideration, it had not also assessed 
the applicability of the general legal principle nemo censetur ignorare legem. 
Therefore, since the national rule was that the borrower is under an obligation to 
repay the numerical sum lent, irrespective of any depreciation of the national 
currency in relation to the currency of the loan, the consumer could not argue that 
he or she was unaware of the effects of that obligation, since it arose from the law 
itself. The court of first instance consequently found that, since the terms of the 
agreement relating to the repayment of the loan in the currency in which it was 
granted constituted an expression of the principle of monetary nominalism, 
provided for and permitted by prevailing legal provisions, those terms were not 
unfair. 
5 FS and WU brought an appeal against that judgment before the referring court. 
The essential arguments of the parties in the main proceedings 
6 In their appeal, FS and WU argue, in particular, that the court of first instance 
applied the principle of monetary nominalism enshrined in Article 1578 of the old 
Civil Code incorrectly, taking the view that that principle had been introduced by 
the Romanian legislature in order to protect the debtor from the risk of inflation 
and not to place the risk relating to foreign currency loans solely upon the 
borrower. 
7 In support of that argument, FS and WU refer to the judgments of the Court of 
Justice in Cases C-186/16, Andriciuc and Others, and C-449/13, CA Consumer 
Finance SA, as well as its orders in Cases C-126/17, ERSTE Bank Hungary, and 
C-119/17, Lupean and Lupean, and argue that the respondent bank failed in its 
obligation to provide them with accurate and comprehensive information about 
FIRST BANK 
 
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the risk which they were taking on by contracting a loan in Swiss francs, at a time 
when the rate of exchange between Swiss francs and Romanian lei was at a 
historic low and the respondent bank was not exposed to any foreign exchange 
risk, having entirely fulfilled its obligation to make the sum lent available. 
8 The respondent, First Bank, lodged a defence, arguing that the term contained in 
the first sentence of Article 6.3 of the loan agreement reflected a statutory 
provision, namely Article 1578 of the old Civil Code, which enshrined the 
principle of monetary nominalism. In accordance with Article 3(2) of Law 
No 193/2000, the court of first instance was therefore not entitled to review 
whether or not that term was unfair. 
9 The respondent bank asserts that the appellants/borrowers should have known that 
Article 970(2) and Article 1578 of the old Civil Code – provisions requiring the 
combined application of the term contained in Article 6.3 of the loan agreement 
and Article 1578 of the old Civil Code – were applicable, in accordance with the 
legal principle nemo censetur ignorare legem (ignorantia iuris non excusat). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court considers it necessary in the present case to have the Court of 
Justice determine the correct interpretation of the provisions of Article 1(2) of 
Directive 93/13, that is to say, the meaning of the expression ‘contractual term 
which reflects statutory provisions’. 
11 In the present case, the term which the appellants regard as unfair and which the 
respondent regards as reflecting the provisions of Article 1578 of the old Civil 
Code, which enshrines the principle of monetary nominalism, does not contain 
any reference to that article or that principle. 
12 The correlation between the term set out in Article 6.3 of the loan agreement, on 
the one hand, and the provisions of Article 1578 of the old Civil Code and the 
principle of monetary nominalism, on the other, is the result of the application of 
Article 970(2) of the old Civil Code, pursuant to which contractual terms are 
supplemented by the provisions of law which apply to the factual situation. 
13 Indeed, the term that ‘the borrower shall, by no later than the due date, deposit in 
the current account opened with the bank the sum needed to repay the loan in the 
currency specified in the loan repayment schedule’ is supplemented by the 
provisions of Article 1578 of the old Civil Code, with the result that the borrower 
is required to deposit in the current account opened with the bank the nominal sum 
necessary for repayment as stipulated in the loan repayment schedule, irrespective 
of any increase in the value of the Swiss currency (CHF) by comparison with the 
national currency (RON). 
14 The referring court also mentions the relevant European Union case-law. In its 
judgment of 9 July 2020, Banca Transilvania (C-81/19), and its order of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-593/22 
 
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14 October 2021, NSV and NM (C-87/21), the Court started from the premiss that 
the contractual term alleged to be unfair reflected a supplementary provision of 
national law. In its judgment of 21 December 2021, Trapeza Peiraios (C-243/20), 
the Court took into account the fact that, in the case before the Greek courts, the 
term which the consumer was challenging paraphrased an article of the Greek 
Civil Code. Lastly, in its judgment of 3 April 2019, Aqua Med (C-266/18), the 
Court held that a contractual term which made a general reference to the national 
law applicable in so far as concerned the determination of jurisdiction to hear 
disputes between the parties to a contract did not fall outside the scope of 
Directive 93/13. 
15 In that jurisprudential context, the referring court questions whether the fact that a 
contractual term contains no reference to a legislative act is relevant to its possible 
exclusion from the scope of Directive 93/13. More specifically, the referring court 
raises the issue of whether the provisions of Article 1(2) of Directive 93/13 are to 
be interpreted as meaning that, in the context of the special legal regime for the 
protection of consumer rights, the view may be taken that the consumer is under 
an obligation to be familiar with the content of all the legal rules set out in the 
statutory provisions which supplement a contract, without the seller or supplier 
first providing the consumer with information concerning the precise legal rule 
which supplements the contract (by setting out that rule or its content). 
16 The result of strict application of the legal principle nemo censetur ignorare legem 
(ignorantia iuris non excusat) would appear to be that, regardless of whether or 
not a contractual term contains a reference to a legal rule which supplements that 
term, the consumer should know that the manner in which the seller or supplier 
may exercise as against him or her the right conferred by that contractual term is 
the manner contemplated by the provision of law which supplements that 
contractual term, and that the courts, by virtue of the provisions of national law 
transposing Article 1(2) of Directive 93/13, will never be able to censure the 
possible unfairness of the term, because it would not fall within the scope of the 
review of unfairness.