Judgment;Summary — ECLI:EU:C:2021:68
Date: 2021-01-27
Language of the case: Dutch
Court formation: First Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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: 
14 March 2019 
Referring court: 
Gerechtshof te Amsterdam (Netherlands) 
Date of the decision to refer: 
5 March 2019 
Applicant: 
Dexia Nederland BV 
Defendant: 
XXX 
  
Subject of the action in the main proceedings 
The dispute in the main proceedings concerns two so-called ‘securities lease 
agreements’ (hereinafter also ‘lease agreements’) that were/have been concluded 
between XXX, a consumer, and a legal predecessor of Dexia Nederland BV 
(‘Dexia’), a bank. At stake here is the amount which Dexia is entitled to claim 
after premature termination of the lease agreements. More specifically, the 
question is whether, under the special terms and conditions of the lease agreement, 
in addition to the residual debt, Dexia may also claim an amount in default 
interest, calculated on the basis of a percentage fixed in those special terms and 
conditions.  
Subject and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU concerns unfair terms in consumer 
contracts being declared inapplicable. More specifically, it concerns the question 
of which standard is to be used when making an evaluation on the basis of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-229/19 
 
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criteria laid down in Council Directive 93/13/EEC of 5 April 1993 on unfair terms 
in consumer contracts (‘Directive 93/13’).   
Question referred 
Should Directive 93/13 be interpreted as meaning that a contractual term, 
from the point of view of the criteria laid down in that directive, should 
already be regarded as unfair if that contractual term, assessed in the light of 
all the circumstances attending the conclusion of the contract, contains the 
mere possibility of causing a significant imbalance depending on the 
circumstances that materialise during the course of the contract, in particular 
because that contractual term fixes in advance a potential advantage that 
arises for the seller at the time of the premature termination of the contract, 
at a certain percentage of the remaining lease sum, thereby derogating from 
the applicable rules of national law under which such an advantage is not 
fixed in advance but must be determined on the basis of the circumstances 
attending the termination of the contract, in particular, the level of the 
interest rate that should be applied for the remaining duration of the contract 
to an amount received prematurely?    
Provisions of European Union law cited 
Articles 3 and 4 of Directive 93/13. 
Provisions of national law cited 
Articles 6:265, 6:271, and 6:277 of the Burgerlijk Wetboek (Civil Code; ‘BW’), 
and Article 7A:1576e BW (former). 
Brief summary of the facts and the procedure in the main proceedings 
The dispute in the main proceedings concerns so-called ‘securities lease 
agreements’, which were widely offered by Netherlands banks in the late 1990s. 
Under those lease agreements, a consumer takes out a loan with a bank, which 
then uses that money to purchase securities for that consumer. The aim of the 
agreement is that, at the end of its duration, the shares are sold and the loan is 
repaid with the proceeds. Depending on the price of the shares, what remains is 
either a profit or a residual debt for the consumer.     
In 1999, XXX concluded two such agreements with a legal predecessor of Dexia. 
No repayments were made in respect of those specific lease agreements, apart 
from a first small instalment. Interest was paid in monthly instalments. In the 
present case, however, XXX did not meet those payment obligations and, on 6 
June 2005, Dexia prematurely terminated the lease agreements, after having 
DEXIA NEDERLAND 
 
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demanded payment from XXX and given XXX notice of default, and, by 
agreement, charged the negative balance of EUR 14 457.35 to XXX.    
At first instance, XXX lodged claims seeking a ruling declaring the lease 
agreements annulled, or at least dissolved, or at least that Dexia acted unlawfully 
towards it. XXX claimed reimbursement of the amounts it had paid to Dexia 
under the lease agreements, whether or not by way of compensation, plus interest. 
Dexia filed a counterclaim, demanding that XXX be ordered to pay the amount 
still outstanding. 
By judgment of 19 November 2008, the kantonrechter (Cantonal Court) ordered 
Dexia to pay XXX compensation of EUR 2 507.69 per lease agreement, plus 
statutory interest. Dexia’s claim was rejected. Dexia lodged an appeal against that 
judgment on 15 December 2008, requesting that XXX’s claim be rejected and that 
its own claim be upheld. XXX, in turn, sought a higher amount of compensation.     
Main submissions of the parties to the main proceedings  
1 When drawing up the final statements for both lease agreements, Dexia applied 
Articles 6 and 15 of the ‘Bijzondere voorwaarden effecten lease’ (‘Special 
conditions for lease securities’; ‘Bijzondere voorwaarden’), which applied to the 
lease agreements. Article 6 of the Bijzondere voorwaarden gives Dexia the 
authority to terminate the lease prematurely in the event of default by the lessee. 
As a result of such termination, the unpaid part of the lease sum, consisting of the 
principal sum and the remaining interest instalments, becomes immediately 
payable in full. The part of the lease sum still owed is then reduced on the basis of 
Article 15 of the Bijzondere voorwaarden in accordance with article 7A:1576e(2) 
BW (former), in the sense that a deduction of 5% per year is applied to that part of 
the lease sum still owed. The period taken into account for that is the remaining 
term of the lease agreement.  
2 In a preliminary ruling of 21 April 2017 (ECLI:NL:HR:2017:773), the Hoge Raad 
der Nederlanden (Supreme Court of the Netherlands; ‘Hoge Raad’) ruled that 
Article 6 of the Bijzondere voorwaarden must be regarded as an unfair term 
within the meaning of Directive 93/13. The Hoge Raad took into account the fact 
that the advantage which arises for Dexia due to the remainder of the lease sum 
becoming available after the termination of the lease agreement is fixed in 
advance at a deduction of 5% per year. The Hoge Raad found that Dexia thus 
receives a disproportionately high level of compensation. The advantage for Dexia 
can, depending on the level of interest and the timing of the termination or 
dissolution, be very substantial. According to the Hoge Raad, the deduction of 5% 
per year only partially compensates for the advantage enjoyed by Dexia. If the 
advantage to Dexia exceeds that percentage, that difference is not offset against 
the compensation that Dexia receives. According to the Hoge Raad, the fact that 
the advantage enjoyed by Dexia as a result of the dissolution, depending on the 
circumstances of the case, may also be very small or non-existent, does not detract 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-229/19 
 
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from the unfairness of the contractual term. According to the Hoge Raad, the 
assessment relates to the consequences that the contractual term can have for the 
consumer and to the impairment of his legal position by the term, both assessed at 
the time of entering into the agreement.   
Brief summary of the reasons for the referral 
3 The starting points as formulated by the Hoge Raad may result in the court being 
obliged to consider the related Articles 6 and 15 of the Bijzondere voorwaarden as 
unfair and to proceed to annulment, even if the consumer is not adversely affected 
by their application. The consequences of annulment are, according to the Hoge 
Raad, governed by supplementary national law. The application of supplementary 
national law would mean that, under Article 6:265 BW, Dexia has the option to 
dissolve the lease agreements in the event of default by the buyer. Under Articles 
6:271 and 6:277 BW, the consequence of that dissolution would be that Dexia, 
after offsetting the proceeds of the shares, would be entitled to the principal sum 
and an amount of compensation equal to the total interest instalments still due. 
Based on Article 6:277 BW, when determining the damage suffered by Dexia as a 
result of the dissolution, the court may apply a deduction to compensate for the 
interest advantage that Dexia acquires at the time of the dissolution. With a low 
interest rate, that can result in a deduction lower than the deduction of 5% per year 
that can be obtained under Article 15 of the Bijzondere voorwaarden during the 
remaining term of the lease sum still owed. In that case, therefore, the annulment 
of the Bijzondere voorwaarden would in fact result in detriment to the consumer. 
4 The Gerechtshof (Court of Appeal) reads Articles 6 and 15 of the Bijzondere 
voorwaarden, considered in conjunction with one another, as contractually 
governing the amounts to which Dexia can lay claim in the case of the premature 
termination of the lease agreement. Those related contractual terms must be 
evaluated on the basis of Directive 93/13 in the light of all the circumstances 
attending the conclusion of the contract (Article 4 of Directive 93/13). In order to 
ascertain whether a contractual term causes a ‘significant imbalance’ in the 
parties’ rights and obligations arising from the contract, to the detriment of the 
consumer, it must in particular be considered what rules of national law would 
apply in the absence of an agreement by the parties in that regard. Such a 
comparative analysis will enable the national court to evaluate whether and, as the 
case may be, to what extent, the contract places the consumer in a legal situation 
less favourable than that provided for by the national law in force (judgment of the 
Court of Justice of 14 March 2013, Aziz, C-415/11, EU:C:2013:164, paragraph 
68).  
5 By Articles 6 and 15 of the Bijzondere voorwaarden, in which the interest 
advantage that arises for Dexia is fixed at an amount equal to 5% per annum of the 
principal sum due and of the remaining interest instalments due, Dexia has 
derogated from national law (Article 6:277 BW), under which the interest 
advantage that has to be taken into account when estimating the compensation due 
DEXIA NEDERLAND 
 
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is not fixed in advance at a certain percentage of the remaining lease sum. The 
result of fixing the advantage at 5% of the remaining lease sum is that the 
contractual terms may entail a significant imbalance within the meaning of Article 
3 of Directive 93/13 that manifests depending on the events that occur after the 
conclusion of the agreement, in particular, the relevant interest rate at the time of 
the dissolution of the agreement. However, the mere possibility that a contractual 
term has an impact on the consumer’s legal position, if particular circumstances 
materialise during the term of the agreement, in particular with regard to the 
interest rate, is not generally sufficient to be able to conclude that the contractual 
term is unfair. 
6 In the view of the Gerechtshof, when making an evaluation against the criteria of 
Directive 93/13, the starting point should be that a securities lease agreement is a 
continuing obligation. On that basis, the Gerechtshof is of the view that, when 
evaluating Articles 6 and 15 of the Bijzondere voorwaarden against the criteria of 
Directive 93/13, the interest rate at the time of the conclusion of the agreement is 
not decisive. What must be evaluated is whether, in the light of all the 
circumstances already known at the time of the conclusion of the agreement, the 
fixing of the potential advantage for Dexia is unfair or not. The question to be 
answered is whether it is plausible that the average consumer, who is reasonably 
well informed and reasonably observant and circumspect, would accept that, in 
the event of premature termination due to defaulting on payment, the advantage 
for Dexia, in derogation from legislative provisions, would be fixed under Articles 
6 and 15 of the Bijzondere voorwaarden, if this has been negotiated separately, 
taking account, in particular, of the expertise and knowledge of the seller with 
regard to possible interest rate developments, and taking into account that, when 
the legislative provisions of Article 6:277 BW were applied, the advantage to be 
offset when determining the amount of the damages was not fixed (cf. judgments 
of the Court of Justice of 14 March 2013, Aziz, C-415/11, EU:C:2013:164, 
paragraphs 68 and 69, and of 20 September 2017, Andriciuc, C-186/16, 
EU:C:2017:703, paragraphs 57 and 58). 
7 It follows from the judgment of the Court of Justice of 7 August 2018, Banco 
Santander (C-96/16,EU:2018:643) that national case-law which relies on certain 
criteria for assessing the unfairness of contractual terms and for determining the 
consequences of such unfairness is compatible with Directive 93/13. In that 
regard, the Court held that such case-law is consistent with the objective of 
consumer protection pursued by Directive 93/13. The aforementioned preliminary 
ruling of the Hoge Raad differs from that case-law, since it does not lay down 
specific criteria on the basis of which the lower courts must assess whether 
contractual terms are unfair. On the contrary, the import of that decision is that 
Article 6 of the Bijzondere voorwaarden should in all cases be regarded as unfair 
by lower courts, as that term can have adverse consequences for the consumer if 
certain circumstances materialise during the course of the agreement.   
8 Articles 6 and 15 of the Bijzondere voorwaarden are included in many securities 
leasing agreements concluded by Dexia. There is a large number of cases pending 
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before the Gerechtshof and other courts in the Netherlands concerning a variety of 
securities leasing products in which those contractual terms occur, with different 
durations and different times when they were terminated. In view of the doubt as 
to the applicable standard to be used when making an evaluation within the 
framework of Directive 93/13, a question which will be at issue in a large number 
of similar cases, the Gerechtshof refers the question formulated above for a 
preliminary ruling.