Judgment;Summary — ECLI:EU:C:2024:443
Date: 2024-05-30
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-176/23 – 1 
Case C-176/23 
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: 
21 March 2023 
Referring court: 
Tribunalul Specializat Mureș (Romania) 
Date of the decision to refer: 
2 March 2021 
Appellant and applicant at first instance: 
UG 
Respondent and defendant at first instance: 
SC Raiffeisen Bank SA 
  
Subject matter of the main proceedings 
Appeal against a judgment of the Judecătoria Sighișoara (Court of First Instance, 
Sighișoara, Romania) which dismissed an action brought by the appellant and 
applicant at first instance (‘the applicant at first instance’) in which he requested, 
in essence, that certain terms included in a credit agreement he had concluded 
with the respondent and defendant at first instance (‘the defendant at first 
instance’) be declared unfair. This request for a preliminary ruling concerns the 
scope of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts (‘Directive 93/13’). 
Subject matter and legal basis of the request for a preliminary ruling 
The Court is requested, on the basis of Article 276 TFEU, to interpret Article 1(2) 
of Directive 93/13, read in the light of the twelfth and thirteenth recitals of that 
directive. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-176/23 
 
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Questions referred 
(1) When applying the provisions of Article 1(2) of Directive 93/13/EEC on 
unfair terms in consumer contracts, transposed into national law by the provisions 
of Article 3(2) of Legea nr. 193/2000, republicată, privind clauzele abuzive în 
contractele încheiate între profesioniști și consumatori (Law No 193/2000, 
republished, on unfair terms in contracts concluded between sellers or suppliers 
and consumers), 
in the light of, in particular, the twelfth and thirteenth recitals of that directive, 
but also taking into account the provisions of Articles 80 and 81 of Ordonanța de 
urgență a Guvernului (OUG) nr. 50/2010 privind contractele de credit pentru 
consumatori (Government Emergency Order No 50/2010 concerning consumer 
credit agreements; ‘OUG No 50/2010’), 
must those provisions be interpreted as not precluding national courts from also 
examining suspicions concerning the unfair nature of contractual terms stipulated 
in supplementary agreements to credit agreements concluded between sellers or 
suppliers and consumers before the aforementioned act having the force of law 
came into effect, that is to say, pursuant to the provisions of Article 95 of OUG 
No 50/2010, regardless of whether those terms have been expressly accepted by 
the consumer in the manner provided for by the provisions of Article 40(1) of 
OUG No 50/2010 or whether they have been considered tacitly accepted by law in 
the manner provided for by the provisions of Article 40(3) of OUG No 50/2010? 
(2) If the first question is answered in the affirmative, the [referring] court also 
asks: would it be at odds [with the possibility referred to in Question 1], in light of 
the background set out above and the circumstances of the dispute pending before 
it, for there to be a line of case-law of the national courts establishing that express 
acceptance of a supplementary agreement drawn up in the manner provided for by 
Article 40(1) of OUG No 50/2010 and pursuant to the provisions of Article 95 
thereof automatically leads to the conclusion that [that supplementary agreement] 
has been negotiated and, consequently, there can be no examination of any 
suspicions that the terms stipulated within it are unfair? 
Provisions of European Union law and case-law relied on 
Directive 93/13, twelfth, thirteenth and fifteenth recitals, [as well as] Article 1(2), 
Article 2(b), Article 6(1), Article 7(2) and Article 8. 
Judgments of the Court of Justice of 9 July 2020, Banca Transilvania, C-81/19, 
EU:C:2020:532; of 14 March 2019, Dunai, C-118/17, EU:C:2019:207; of 
20 September 2018, OTP Bank and OTP Faktoring, C-51/17, EU:C:2018:750; of 
20 September 2017, Andriciuc and Others, C-186/16, EU:C:2017:703; [and] of 
10 September 2014, Kušionová, C-34/13, EU:C:2014:2189. 
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Provisions of national law relied on 
Legea nr. 193 din 6 noiembrie 2000 privind clauzele abuzive din contractele 
încheiate între profesioniști și consumatori (Law No 193 of 6 November 2000 on 
unfair terms in contracts concluded between sellers or suppliers and consumers), 
Article 1, Article 2(1) and (2), Article 3(2), and Articles 6, 12 and 14. That law, 
which transposes Directive 93/13 into national law, provides, in Article 3(2) 
thereof, that ‘contractual terms stipulated on the basis of other legislative acts in 
force are not subject to the provisions of this Law’. 
Legea nr. 289 din 24 iunie 2004 privind regimul juridic al contractelor de credit 
pentru consum destinate consumatorilor, persoane fizice (Law No 289 of 24 June 
2004 on the legal provisions governing consumer credit agreements addressed to 
consumers who are natural persons). Article 8 of the version of that law which 
was in force when the credit agreement [at issue] was signed provided, inter alia, 
that a credit agreement must include the actual annual interest rate and an 
indication of the conditions under which that rate may be changed. That article 
was amended by Ordonanța de urgență [a Guvernului] nr. 174 din 19 noiembrie 
2008 pentru modificarea și completarea unor acte normative privind protecția 
consumatorilor (Government Emergency Order No 174 of 19 November 2008 
amending and supplementing certain legislative acts regarding consumer 
protection) to state that a credit agreement must include ‘the interest rate, 
specifying the type of rate (fixed and/or floating); in the event of a floating interest 
rate, the variation must not depend on the will of the creditor, [but must] 
correspond to fluctuations in verifiable reference indices mentioned in the 
agreement or to legislative changes requiring [such a variation]’. 
Ordonanța de urgență a Guvernului nr. 50 din 9 iunie 2010 privind contractele 
de credit pentru consumatori (Government Emergency Order No 50 of 9 June 
2010 concerning consumer credit agreements), Articles 37, 80, 81 and 95. That 
emergency order repealed Law No 289/2004. 
Article 37 of OUG No 50/2010, in the version applicable to the dispute in the 
main proceedings, established, inter alia, that, for credit agreements with floating 
interest rates, ‘the interest rate must correspond to fluctuations in the 
EURIBOR/ROBOR/LIBOR reference indices or the BNR [Banca Națională a 
României (National Bank of Romania)] benchmark interest rate, depending on the 
currency of the loan, to which the creditor may add a certain margin which shall 
remain fixed for the entire duration of the agreement’. 
Article 40(1) of OUG No 50/2010 provides that ‘contractual terms which give the 
creditor the right to amend contractual terms unilaterally without concluding a 
supplementary agreement which is accepted by the consumer shall be prohibited’. 
Article 40(3) thereof provides that ‘in the case of amendments imposed by 
legislation, should the consumer fail to sign the supplementary agreements 
provided for in paragraph 1, this shall be deemed to constitute tacit acceptance 
[…]’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-176/23 
 
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Article 95 of OUG No 50/2010, in its initial version, provided: 
‘(1) For ongoing contracts, creditors are obliged to ensure, within 90 days of this 
Emergency Order entering into force, that the contract complies with the 
provisions of this Emergency Order. 
(2) Ongoing contracts must be amended by means of supplementary agreements 
within 90 days of this Emergency Order entering into force. 
[…] 
(5) Should the consumer fail to sign the supplementary agreements provided for 
in paragraph 2, this shall be deemed to constitute tacit acceptance’. 
OUG No 50/2010 was submitted for approval to the Romanian Parliament which, 
by Legea nr. 288 din 28 decembrie 2010 (Law No 288 of 28 December 2010), 
amended Article 95 of that emergency order as follows: 
‘The provisions of this Emergency Order shall not apply to contracts which are 
ongoing on the date of [its] entry into force […]’. 
Ordonanța de urgență a Guvernului nr. 19 din 29 martie 2019 pentru 
modificarea și completarea unor acte normative (Government Emergency Order 
No 19 of 29 March 2019 amending and supplementing certain legislative acts), 
Articles II and XI. 
Codul civil (Romanian Civil Code), Articles 993, 994, 1088 and 1092. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 23 March 2007, the parties entered into a credit agreement with a floating 
interest rate, in which the defendant at first instance granted the applicant at first 
instance a loan of 15 300 Swiss francs (CHF), to be repaid over a period of 
156 months. 
2 Under point 1.1 of that agreement, the applicant at first instance was required to 
pay a loan handling fee of CHF 300, corresponding to 2% of the amount of the 
loan. In addition, under point 3.3 thereof, the interest rate at the date on which the 
agreement was concluded was 5.9% per annum, but the defendant at first instance 
was entitled to change this depending on financial market trends. Any new interest 
rate was to be brought to the attention of the applicant at first instance. 
3 On 10 September 2010, the applicant at first instance was notified of an 
amendment to the credit agreement in question. In essence, the defendant at first 
instance confirmed in that notification that, by OUG No 50/2010, the legislature 
had required certain changes to be made to all consumer credit agreements, in 
particular with regard to terms relating to the structure of floating interest rates. 
Those rates now had to correspond to an objective index depending on the 
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currency of the loan, to which a fixed margin determined by the credit institution 
was added. For loans in CHF, the index was the LIBOR 6 M. 
4 On 29 December 2017, the applicant at first instance brought an action in which 
he requested, in essence, that the terms laid down in points 1.1 and 3.3 of the 
credit agreement [at issue] be declared unfair. 
5 In its defence, the defendant at first instance argued that the terms in question 
could not be subject to an examination of whether they were unfair, and, to that 
end, relied on Article 4(6) of Law No 193/2000, as well as Article 3(2) thereof. In 
that regard, it indicated, on the one hand, that the terms in question related to the 
definition of the subject matter of the agreement and to the appropriateness of the 
remuneration for the services provided, and, on the other hand, that the floating 
rate of interest on the loan stemmed from a supplementary agreement to the credit 
agreement [at issue] which reflected the provisions of OUG No 50/2010. 
6 By judgment of 10 June 2020, the Court of First Instance, Sighișoara, dismissed 
the action brought by the applicant at first instance on the grounds set out by the 
defendant at first instance. The applicant at first instance has brought an appeal 
against that judgment before the referring court. 
The essential arguments of the parties in the main proceedings 
7 The applicant at first instance submits that the act with the force of law constituted 
by OUG No 50/2010 contains provisions the sole purpose of which is enhancing 
consumer protection. However, those provisions were not correctly incorporated 
into the credit agreement at issue, because account was not taken of the specific 
situation at the time when that agreement was concluded, but rather of the 
situation near the time when OUG No 50/2010 entered into force, at which point 
the interest rate for the [credit] agreement [at issue] had already been fixed on the 
basis of the terms which are suspected of being unfair. 
8 The defendant at first instance argues that the effects of the original term set out in 
point 3.3 of the [credit] agreement [at issue] ceased on the date on which the 
supplementary agreement of 10 September 2010 came into effect. That term was 
replaced by the one currently in force, as a result of which the floating rate of 
interest on the loan corresponds to a verifiable reference index, namely the 
LIBOR 6 M, to which a fixed margin has been added. Therefore, the defendant at 
first instance complied with the mandatory provisions of OUG No 50/2010 and 
the manner in which it acted was deemed appropriate by the Autoritatea Națională 
pentru Protecția Consumatorilor (National Consumer Protection Authority, 
Romania), as demonstrated by a letter from that authority dated 5 October 2010. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-176/23 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The referring court considers that the exclusion, from the examination of 
unfairness, of certain contractual terms which reflect the provisions of OUG 
No 50/2010 should be analysed in the light of Directive 93/13 and the relevant 
case-law of the Court of Justice. 
10 In this regard, the Court has emphasised that, as they constitute an exception to the 
rules on the protection of consumers against unfair contractual terms, the 
provisions of Article 1(2) of Directive 93/13 must be interpreted restrictively, 
given that the rationale for such an exclusion from the scope of that directive is 
based on the legitimate assumption that the national legislature has struck a 
balance between all the rights and obligations of the parties to certain agreements. 
11 In order to ascertain whether a contractual term reflects a mandatory statutory 
provision for the purposes of Article 1(2) of Directive 93/13, the referring court 
considers that it must be established whether the provisions of national law in 
question apply to the contracting parties irrespective of their choice, as well as 
whether those provisions are supplementary in nature, meaning that they would 
apply automatically unless otherwise agreed between the contracting parties. 
12 The referring court notes that, by the provisions of OUG No 50/2010, the 
Romanian legislature considered it necessary to regulate credit agreements 
concluded between sellers or suppliers and consumers, after recognising that the 
previous legislation had proved itself incapable of appropriately protecting 
consumers from the natural instinct of sellers and suppliers to use the persuasive 
power of their experience and their tangible opportunities to impose contractual 
terms that could be unfair. The legislature thus sought to eliminate the possibility 
of abuse by sellers and suppliers owing to the lack of regulation of consumer 
credit agreements with floating interest rates. 
13 By Article 95 of OUG No 50/2010, in its original form, provision was made for a 
mechanism which allowed credit institutions immediately to implement such 
mandatory provisions, including with regard to ongoing credit agreements. 
Therefore, an agreement of that kind should have been amended by means of a 
supplementary agreement, which should have been sent to the consumer for 
signing. It was assumed that a failure to sign the supplementary agreement 
constituted a tacit acceptance of its terms. However, the referring court 
emphasises that the legislature failed to regulate the option of actually negotiating 
the contractual terms affected by amendments. Although that mechanism was 
eliminated by Law No 288/2010 approving OUG No 50/2010, that elimination 
came too late for the present case, as the supplementary agreement in question had 
already been (i) sent to the applicant at first instance and (ii) deemed to have been 
signed by him. 
14 In those circumstances, the referring court has doubts as to whether the relevant 
provisions of OUG No 50/2010 satisfy the requirement that a balance be struck 
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between all the rights and obligations of the parties to certain agreements. In 
addition, the referring court has doubts as to whether the contractual terms 
contained in the supplementary agreement in question reflect the provisions of 
OUG No 50/2010, as the content of those terms lacks data and information that 
would have been essential for the applicant at first instance to understand the 
scope of the obligations he was assuming. 
15 The referring court also emphasises that Article 37 of OUG No 50/2010 
determines only the structure of the floating contractual interest rate, in the form 
of an objective reference index and a fixed margin. The margin reflects the 
contractual interests of the seller or supplier, while the index is independent of the 
will of the parties. That index, however, is susceptible to considerable fluctuations 
over time and may be best exploited by the seller or supplier, who has experience 
and a greater capacity to anticipate than the average consumer who is reasonably 
observant and circumspect. Therefore, the referring court has doubts as to whether 
the provisions of that article can (i) be implemented independently of the will of 
the parties or (ii) operate automatically without an agreement between the parties. 
16 In this regard, the referring court states that, in fixing a floating rate of interest for 
credit agreements by means of a supplementary agreement reflecting the 
provisions of OUG No 50/2010, sellers and suppliers took account of the structure 
of the floating interest rate in a manner exclusively beneficial to them, based on 
the specific circumstances at the time, as, when OUG No 50/2010 entered into 
force, the reference indices were exceptionally low. They converted the difference 
between those indices and the interest rate stipulated in the agreements into the 
fixed margin to which they were entitled and which had been granted to them by 
the legislature. Since the reference indices could only fluctuate upwards, the 
contractual floating interest rate followed the same trend, exclusively in favour of 
the sellers and suppliers and to the clear detriment of the consumer. 
17 Thus, the legislature’s generous intention to establish rules for enhanced consumer 
protection deteriorated, when OUG No 50/2010 was actually implemented, into 
consumers being manifestly more vulnerable from a contractual perspective. 
18 Lastly, the referring court emphasises that the case-law of the national courts on 
the subject is to the effect that contractual terms such as those at issue in the 
dispute in the main proceedings cannot be the subject of an examination of 
whether they are unfair. Consequently, it would not be possible either to negotiate 
such terms or to provide appropriate safeguards allowing consumers to challenge 
a potentially unfair application, by sellers or suppliers, of the legislative 
provisions which those terms reflect.