Judgment;Summary — ECLI:EU:C:2021:1045
Date: 2021-12-21
Language of the case: Greek
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-243/20 — 1 
Case C-243/20 
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: 
5 June 2020 
Referring court: 
Polymeles Protodikeio Αthinon (Greece) 
Date of the decision to refer: 
5 May 2020 
Applicants:  
DP 
SG 
Defendant:  
Trapeza Peiraios AE 
  
Subject matter of the main proceedings 
Action for a declaration that terms of a contract between a bank and a consumer 
are unfair. 
Subject matter and legal basis of the request for a preliminary ruling 
Article 267 TFEU, interpretation of Directive 93/13/ΕEC 
Questions referred for a preliminary ruling 
(1) Is Article 8 of Directive 93/13/ΕEC, which provides that the Member States 
may adopt more stringent provisions to ensure a greater degree of protection for 
the consumer, to be interpreted as meaning that a Member State need not 
transpose Article 1(2) of Directive 93/13/ΕEC into national law and may allow 
EN 
REQUEST FOR A PRELIMINARY RULING — CASE C-243/20 
 
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judicial review also of terms which reflect statutory or regulatory provisions of 
mandatory or non-mandatory law? 
(2) Can the first and second subparagraphs 1 of Article 1(2) of Directive 
93/13/EEC, even though not expressly transposed into Greek law, be regarded as 
having been transposed indirectly together with the content of Article 3(1) and 
Article 4(1) of that directive, as transposed in Article [2(6)] of Law 225[1]/1994? 
(3) Is the exclusion in the first and second subparagraphs of Article 1(2) of 
Directive 93/13/EEC contained in the concept and the scope of unfair terms as 
defined in Article 3(1) and Article 4(1) of Directive 93/13/EEC? 
(4) Does review of the unfairness of a general term of business in accordance 
with the provisions of Directive 93/13/EEC extend to a term – contained in a 
credit agreement entered into by a consumer with a credit institution – which 
reflects the content of a rule of non-mandatory law of the Member State, where 
the term was not individually negotiated? 
Relevant provisions of EU law 
Council Directive 93/13/ΕEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29), in particular Article 1(2) and Article 8. 
Relevant provisions of national law 
Article 291 of the Civil Code: ‘Where a monetary debt owed in a foreign currency 
is payable in Greece, the debtor shall be entitled, unless agreed otherwise, to repay 
the debt in local currency on the basis of the current value of the foreign currency 
at the time and place of payment’. 
Law 2251/1994 on consumer protection (FEK A 191), as amended, in particular 
Article 2(6). 
Brief summary of the facts and procedure 
1 On 3 September 2004, the defendant, acting as lender, granted the applicants 
(borrowers) a repayment mortgage for a residential property. Under the mortgage 
agreement with the defendant, the applicants were granted a residential property 
loan of EUR 100 000 over a period of 30 years. It was stated in the agreement that 
 
1  Translator’s note: the second subparagraph is not included in the English version of Article 1(2) 
of the directive. In the Greek version of the directive, the second subparagraph of Article 1(2) 
repeats the 13th recital of the directive in so far as that recital states that ‘the wording 
“mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, 
according to the law, shall apply between the contracting parties provided that no other 
arrangements have been established’. 
TRAPEZA PEIRAIOS 
 
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this was a variable-rate mortgage and it was agreed that the interest rate would be 
based on the 360-day Euro Inter-Bank Offered Rate (EURIBOR).  
2 In early 2007, the defendant, acting through its staff, suggested to the applicants 
that they vary their mortgage agreement in order to switch the loan currency from 
the euro to the Swiss franc (CHF). It informed them that, as the London Inter-bank 
Offered Rate (LIBOR) was significantly lower than the EURIBOR, this would 
reduce their monthly mortgage repayments. 
3 On 26 March 2007, a rider was signed between the parties varying the initial 
mortgage agreement in order to switch the loan currency from the euro to the 
Swiss franc. By that rider, it was agreed that the balance of the loan on 26 March 
2007, which was EUR 95 726.36, would be converted into Swiss francs on 
17 April 2007. It was further agreed that the interest rate on the mortgage would 
be fixed at 3.65% per annum for the first three years, on expiry of which it would 
switch to a variable rate based on the 360-day Swiss franc LIBOR. 
4 On 25 June 2007, a rider was signed varying the mortgage agreement once again, 
by which it was agreed that the outstanding balance on the loan, which was 
EUR 95 362.84 on 16 June 2007, would be converted into Swiss francs on 17 July 
2007 in accordance with the terms and conditions set out in detail in the aforesaid 
rider. Under that new rider varying the agreement, the interest rate on the loan was 
fixed at 3.9% per annum for the first three years, on expiry of which it would 
switch to a variable rate based on the 360-day Swiss franc LIBOR. 
5 Clause 4.5 of the aforesaid rider varying the agreement reads as follows: 
‘The debtor shall repay the loan either in the same currency or with a sum in euros 
equivalent to the sum in Swiss francs, calculated on the payment date of the 
instalment on the basis of the exchange rate for the currency concerned quoted on 
the interbank currency market. That price shall be higher than the current price at 
which the Bank sells Swiss francs, as quoted in the Bank’s Daily Currency Price 
Bulletin’. 
6 Clause 8.1(3) of that rider varying the agreement states, inter alia, that ‘if notice of 
termination of the mortgage agreement is given, and aside from any other 
consequences noted herein, the Bank shall also be entitled (but not obliged) to 
convert the full outstanding balance into euros on the basis of the Bank’s current 
selling price for the Swiss franc, as quoted in the Bank’s Daily Currency Price 
Bulletin, on the date on which the full debt is converted into euros, and to charge 
on it a default rate calculated at the Bank’s current base rate for mortgages, plus a 
margin and the contribution payable under Law 128/1975, enhanced by 2.5 
percentage points. If a higher default rate is in force, that rate shall apply’. 
7 Up to 2015, the monthly instalments on the loan were duly paid and the applicants 
contend that they were under the impression that the outstanding capital of the 
loan was declining gradually as the monthly instalments were paid. 
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8 According to the applicants, the effect of the above clauses and of the obligation 
to repay the loan on the basis of the exchange rate applicable at the time of 
payment of the instalments was that, whereas they had made repayments towards 
the loan totalling EUR 98 298.62, the defendant informed them that, on 17 April 
2018, the debt solely for the outstanding capital on the loan was EUR 87 858.78. 
9 On the basis of the above facts, the applicants brought an action on 17 September 
2018 before the Polymeles Protodikeio Athinon (Court of First Instance, Athens) 
seeking, inter alia, a declaration that the contested riders varying the mortgage 
agreement are invalid, as they are unfair for the purposes of Article 2(6) and (7) of 
Law 2251/1994 and Article 281 of the Civil Code prohibiting the abusive exercise 
of rights. 
Principal arguments of the parties to the main proceedings 
10 The applicants contend that they were never apprised of the currency risk, in 
either the precontractual or the contractual information provided by the defendant, 
and that they did not have the expertise required to understand the risk. They 
argue that they decided to take out the mortgage in question in Swiss francs at the 
instigation of one of the defendant’s employees, who presented it as the most 
economical option due to the low interest rate, without ever highlighting the risk 
inherent in that contract of a reversal in the exchange rates, even though he knew 
that they had no personal income in Swiss francs. Since the exchange rate of the 
Swiss franc against the euro changed, a large part of their monthly payments was 
swallowed up whereas, had the defendant’s employees advised them that the 
currency risk would be passed on to them and informed them of the consequences 
thereof, they would not have entered into the contested contract. 
11 The applicants argue that the contested clauses (4.5 and 8.1(3)) of the mortgage 
agreement, providing for their debt to the bank to be repaid either in the currency 
in which it was granted or in euros on the basis of the current selling price of the 
currency of grant on the payment date of each instalment, are unfair and, 
therefore, automatically invalid under Article 2 of Law 2251/1994. First, the 
financial reason behind the above term is not plain and intelligible, and nor are the 
financial consequences that follow from it in terms of the total amount ultimately 
repayable, meaning that that term infringes the principle of transparency. Second, 
the term is vague as to the criteria by which the instalments and the outstanding 
capital fluctuate, thereby enabling the bank to determine them unilaterally, at any 
time, without knowing in advance the specific and reasonable criteria on which 
the respective exchange rate is based. 
Brief summary of the grounds for the reference 
12 The applicants request, inter alia, that the riders amending the agreement be 
annulled on the ground of unfairness, in particular the unfairness of clause 4.5 and 
clause 8.1(3). Those clauses essentially repeat the rule (of non-mandatory law) 
TRAPEZA PEIRAIOS 
 
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established in Article 291 of the Civil Code. Consequently, it is necessary to 
establish in this case if the referring court is able to review the unfairness of the 
aforesaid clauses. The legislative framework that applies primarily for the purpose 
of that assessment is formed, first, by Directive 93/13 and, second, by Law 
2251/1994 transposing the directive into Greek law. It should be noted that, when 
the directive was transposed into Greek law, Article 1(2), which excludes clauses 
that reflect statutory or regulatory provisions of mandatory (or non-mandatory) 
law from review to establish their unfairness, was not expressly transposed. 
13 There has been a division of opinion in Greek case-law regarding the question of 
whether the aforesaid exclusion in Article 1(2) of Directive 93/13, even though it 
was not expressly transposed into Greek law, can be regarded as having been 
transposed by way of interpretation, so that it is not possible to review the 
unfairness of a term in a loan agreement which repeats a statutory provision, in 
this case Article 291 of the Civil Code. 
14 The Grand Chamber of the Areios Pagos (Court of Cassation, Greece) found by a 
majority in its judgment 4/2019 that, although that exclusion had not been 
transposed into national law by a specific and express provision, it should 
nonetheless be regarded as being inherent in the legislation by way of 
interpretation consistent with EU law. That is because, according to Article 2(6) of 
Law 2251/1994, ‘general terms of business that cause a significant imbalance in 
the parties’ rights and obligations to the detriment of the consumer shall 
prohibited and shall be invalid. The unfairness of a general term incorporated in a 
contract shall be assessed taking into account the nature of the goods or services to 
which the contract relates, the purpose of the contract, all the specific 
circumstances attending the conclusion of the contract and all the other terms of 
the contract or of another contract on which it is dependent’. Consequently, in 
order for a general term of business to be unfair under Law 2251/1994, it must 
cause ‘a significant imbalance in the parties’ rights and obligations to the 
detriment of the consumer’. However, if the contested term reflects a provision of 
mandatory or non-mandatory national law, it cannot, by definition, cause an 
imbalance between the parties or be unfair. Therefore, any such term is, by 
definition, excluded from the scope of Law 2251/1994. Consequently, although a 
debt exists in a foreign currency in this case, the debtor has the option of paying a 
different consideration in lieu of that owed originally, namely in local currency on 
the basis of the current value of the foreign currency at the time and place of 
payment. However, any such term in a loan agreement between a bank and a 
borrower reflects the content of Article 291 of the Civil Code and, therefore, it 
cannot cause an imbalance between the parties or be unfair. 
15 However, the referring court concurs, by a majority, with the dissenting opinion in 
the aforesaid judgment of the Grand Chamber of the Court of Cassation. 
According to that opinion, the exclusion in Article 1(2) of Directive 93/13, which 
was not expressly transposed into national law by Law 2251/1994, cannot be 
regarded even by way of interpretation as being inherent in the rule enacted in 
Article 2(6) of Law 2251/1994. Had the national legislature wished to transpose it, 
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it would have done so in an express and specific manner. In any event, exceptions 
to the rule (that all general terms of business must be reviewed for unfairness) 
must be interpreted narrowly and strictly in order not to undermine that rule. That 
is justified by the fact that Directive 93/13 established only partial and minimum 
harmonisation of national legislation on unfair terms, as is apparent from the 12th 
recital, and authorised the Member States in Article 8 to adopt or retain more 
stringent provisions compatible with the Treaty in the area covered by the 
directive, to ensure a greater degree of protection for the consumer. This is 
achieved by not transposing provisions of the directive that restrict the scope of 
consumer protection, as happened with Article 1(2), which was not transposed 
into national law, notwithstanding the successive amendments made to Law 
2251/1994. Thus, as the exclusion in Article 1(2) of the Directive was deliberately 
not transposed into national law, the provision of the directive that was not 
transposed does not produce any direct horizontal effect between private 
individuals, nor can national law be interpreted in keeping with the spirit and 
purpose of the directive, as that would reduce the greater degree of protection for 
the consumer which the legislature intended to achieve in Law 2251/1994 (by not 
transposing the exclusion in Article 1(2) of the directive) and would consequently 
be an impermissible interpretation contra legem of national law. 
16 The referring court finds that there is doubt in this case as to the interpretation of 
provisions of Directive 93/13, in particular as to whether or not Article 1(2) of the 
directive applies where that provision has not been expressly transposed into 
national (in this case Greek) law. Consequently, it considers that a question needs 
to be referred to the Court for a preliminary ruling, given that the above finding is 
a preliminary issue to be resolved before considering the argument that clauses 4.5 
and 8.1(3) of the contested mortgage agreement are unfair and thus invalid. In 
particular, if it is held that the above exclusion has not been transposed into Greek 
law, then the referring court can declare the aforesaid terms to be invalid on the 
ground of unfairness. That option does not exist if it is held that the aforesaid 
exclusion can in fact be regarded, by way of interpretation, as having been 
transposed into Greek law.  
17 It should be noted that, in the majority opinion of the referring court, Article 1(2) 
of Directive 93/13 does not apply, as it was not expressly transposed into Greek 
law, meaning that the Greek courts can also review the unfairness of terms which 
reflect statutory or regulatory provisions of mandatory (and non-mandatory) law. 
However, as mentioned previously, it has been argued that that exclusion must be 
regarded as being inherent in Article 2(6) of Law 2251/1994 by way of 
interpretation consistent with EU law. It should be noted that that provision is a 
straight transposition of Article 3(1) and Article 4(1) of Directive 93/13. 
Therefore, according to that opinion, the exclusion of terms reflecting statutory or 
regulatory provisions of mandatory (and non-mandatory) law from review of 
unfairness may be regarded as being inherent in the rule laid down in Article 3(1) 
and Article 4(1) of the directive. That interpretative approach is one of the 
questions referred to the Court for a preliminary ruling. 
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18 One member of the referring court takes the view that the contested legal issue has 
already been ruled on by the Grand Chamber of the Court of Cassation and that 
the case under consideration should be heard by the referring court and decided in 
light of its legal and substantive merits without the need to refer a question to the 
Court for a preliminary ruling.