Opinion of the Advocate General — ECLI:EU:C:2020:181
Date: 2020-03-05
Language of the case: Romanian
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

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: 
7 November 2018 
Referring court: 
Tribunalul Specializat Mureș (Romania) 
Date of the decision to refer:  
12 June 2018 
Appellant: 
SC Raiffeisen Bank SA 
Respondent: 
JB 
  
Subject matter of the main proceedings 
Appeal against the judgment of the Judecătoria Târgu-Mureş (Court of First 
Instance, Târgu-Mureş, Romania) upholding, at first instance, the action brought 
by JB seeking to establish the unfairness of certain terms of the personal loan 
agreement into which he had entered, as borrower, with the appellant bank, SC 
Raiffeisen Bank SA, and to obtain the reimbursement of the sums paid pursuant to 
those terms. 
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, the referring court seeks an interpretation of the 
12th, 21st and 23rd recitals and of Articles 2(b), 6(1), 7(2) and 8 of Directive 
93/13/EEC, with a view to establishing the temporal duration of the status as 
‘consumer’ of borrowers under loan agreements that have been performed in their 
entirety.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-698/18 
 
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Questions referred 
1. Do the provisions of Council Directive 93/13/EEC on unfair terms in 
consumer contracts, in particular the 12th, 21st and 23rd recitals and Articles 2(b), 
6(1), 7(2) and 8 thereof, permit, in accordance with the principle of procedural 
autonomy and the principle of equivalence and effectiveness, a set of means of 
legal recourse that consists in an ordinary legal action, not subject to any 
limitation period, to establish the unfairness of certain terms in a consumer 
contract and an ordinary legal action of a personal and pecuniary nature that is 
subject to a limitation period, which is used in pursuit of the directive’s aim of 
eliminating the effects of all obligations arising and performed under clauses 
which are found to be unfair to consumers? 
2. In the event that the first question is answered in the affirmative, do those 
same provisions preclude an interpretation, derived from application of the 
principle of the certainty of civil-law legal relationships, according to which the 
objective point in time by which the consumer must have known or should have 
known of the existence of the unfair terms is the time at which the loan agreement 
with that consumer came to an end? 
Provisions of EU law and case-law referred to 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, in particular the 12th, 21st and 23rd recitals and Articles 2(b), 6(1), 7(2) 
and 8 thereof. 
Judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, C-488/11, 
EU:C:2013:341, paragraph 44; judgment of 21 December 2016, Gutiérrez 
Naranjo, C-154/15, C-307/15 and C-308/15, EU:C:2016:980, paragraphs 54, 69 
and 70; judgment of 6 October 2009, Asturcom telecomunicaciones, C-40/08, 
EU:C:2009:615, paragraph 41. 
Provisions of national law, case-law and legal theory referred to 
Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între 
profesioniști și consumatori (Law No 193/2000 on unfair terms in contracts 
between professionals and consumers), republished in the Monitorul Oficial al 
României, Part I, no 543 of 3 August 2012, as amended in 2014, in particular, 
Articles 1 and 2, which are relevant to the definition of ‘consumer’, Article 6, in 
accordance with which unfair terms do not produce effects as regards the 
consumer, and Articles 12 and 14, which provide for the right of consumers who 
have sustained damage as a result of an agreement entered into in breach of this 
law to bring legal proceedings. 
Codul civil 1864 (the Civil Code of 1864), Articles 993, 994 and 1092, and 
Decretul nr. 167/1958 (Decree No 167/1958), Articles 1, 2, 7 and 8, which, taken 
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together, provide the basis for the assimilation, in legal theory and in case-law, of 
the unenforceability of unfair terms with the regime of absolute invalidity. 
Ordonanța Guvernului nr. 9/2000 privind nivelul dobânzii legale pentru obligații 
bănești (Legislative Decree No 9/2000 on the statutory rate of interest for 
pecuniary obligations), in particular Article 2, which provides that, where the 
obligation is productive of interest but the rate of interest is not stated, interest at 
the statutory rate will be payable. 
Ordonanța Guvernului nr. 13/2011 privind dobânda legală remuneratorie și 
penalizatoare pentru obligații bănești, precum și pentru reglementarea unor măsuri 
financiar-fiscale în domeniul bancar (Legislative Decree No 13/2011 on the rates 
of statutory interest and default interest for pecuniary obligations and on the 
regulation of certain financial and fiscal measures in the banking sector), which 
repealed and replaced Ordonanța Guvernului nr. 9/2000 (Legislative Decree 
No 9/2000). 
The referring court also puts forward an analysis of invalidity as a civil-law 
sanction, its classification as absolute or relative, on the one hand, and, on the 
other, as complete or partial invalidity, as well as the way in which it is governed 
and its effects, outlining a series of principles, of which the principle of the 
retroactivity of effects and the principle of restitutio are relevant to the case at 
hand. 
Succinct presentation of the facts and the main proceedings 
1 On 26 June 2008, the credit institution Raiffeisen Bank SA and JB entered into an 
agreement for a personal loan of EUR 4 148.41 to be made to the borrower, a 
natural person. 
2 Pursuant to the terms of that agreement, the borrower was required to pay (i) a 
processing fee of EUR 121.41 (3% of the amount of the loan), fully payable on 
the date on which the loan was taken out, (ii) variable interest calculated in 
accordance with a formula set out in the ‘general conditions of banking 
operations’, the rate of which could be changed by the bank in line with 
developments in the financial market (the rate being 11% initially and varying 
between 10.25% and 12.00% over the duration of the agreement), and (iii) a 
monthly administration fee of 0.39% of the initial amount of the loan, which was 
for the bank’s monitoring of the use and repayment of the loan and for its 
fulfilment of any other obligations assumed by the bank under the loan agreement. 
3 According to the reimbursement schedule issued on 26 June 2008, the borrower 
was required to pay 84 monthly instalments, giving rise to a final amount of 
EUR 7 360.93. The agreement terminated in 2015, with the loan having been 
repaid in full. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-698/18 
 
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4 On 20 December 2016, JB brought an action against the bank with a view to 
establishing the unfairness of the terms of the loan agreement that provided for (i) 
the bank’s entitlement to change the interest rate, (ii) the monthly administration 
fee and (iii) the processing fee, and also seeking the annulment of those terms 
following the establishment of their unfairness. JB also sought the reimbursement 
of the sums paid under those clauses together with the payment of statutory 
interest on the sums to be reimbursed, from the date of their receipt to the date of 
their actual reimbursement. 
5 The defendant bank raised the objection that the applicant did not have standing to 
bring the proceedings because he had lodged his application over a year after the 
termination of the contractual relationship between the parties and therefore, in its 
view, no longer had the status of consumer. 
6 The Judecătoria Târgu-Mureș (Court of First Instance, Târgu-Mureș) upheld the 
applicant’s action in its entirety, finding that he was indeed a consumer. The court 
of first instance stated that neither Law No 193/2000 nor Directive 93/13 
expressly stipulated what sanctions were applicable in the event of a finding that 
contractual terms were unfair, but both referred to the unenforceability of such 
terms. The court then went on to assimilate the characteristics of such 
unenforceability with the legal regime of absolute invalidity and applied the 
principle of restitutio in integrum to the sums paid under the terms considered 
unfair. 
7 The defendant brought an appeal against the judgment of the Judecătoriei Târgu-
Mureș, reiterating its objection that JB did not have standing to bring the 
proceedings. 
The essential arguments of the parties to the main proceedings 
8 The defendant/appellant also submits that the interpretation given to date of the 
concept of consumer does not indicate the temporal duration of the status of 
consumer in a situation such as that in the main proceedings, in which the loan 
agreement has already been performed and terminated. Determining that duration 
is, it contends, decisive for the purpose of adjudicating the claims ancillary to an 
action to establish the unfairness of contractual terms, by which the consumer 
seeks reimbursement, given that, under domestic law, such claims are subject to a 
limitation period. 
9 JB considers that a person acquires the status of consumer on entering into a loan 
agreement and retains that status as long as the unfair terms continue to have an 
effect on his financial situation. He regards as correct the national case-law which 
assimilates the unenforceability of unfair terms with absolute invalidity, the 
procedural regime for which is not subject to any limitation period. 
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Succinct presentation of the reasons for the request for a preliminary ruling 
10 In the view of the referring court, it is important, in order to resolve the case, to 
determine the temporal duration of the status of consumer after the termination of 
the agreement and, in this connection, whether the manner in which the agreement 
is terminated is relevant (early repayment or performance over the full term). 
11 Although the directive speaks of the fact that unfair terms do not give rise to 
obligations for the consumer, in the sense that the consumer cannot be bound by 
such clauses and may therefore ignore them, which leads to the notion of 
unenforceability, having regard to the characteristics of invalidity and of 
unenforceability, as governed by national law, the sanction of invalidity appears to 
be more faithful to the scheme established by the directive. 
12 With reference to the procedural autonomy conferred on Member States by 
Article 7(2) of the directive, the referring court observes that, although Law 
No 193/200 does not expressly provide for application of the sanction of 
invalidity, Article 12(4) of that law does provide that the existence of the 
administrative procedures governed by Article 12(1) to (3) does not alter the 
consumer’s right to argue the invalidity of an unfair term, either by bringing an 
action or by raising an objection. 
13 With reference to the fact that the entire system for the protection of consumer 
rights is, in law, a matter of public policy, as is confirmed by provisions of law 
and case-law in accordance with which national courts are not only able, but are 
also required, to review, on their own motion, potentially unfair contract terms, it 
is clear that that case-law is oriented toward the legal regime of absolute 
invalidity, as a matter of public policy. 
14 The referring court points out that the Court of Justice itself held, in its judgments 
in Asbeek Brusse and de Man Garabito and Gutiérrez Naranjo, cited above, that 
Article 6(1) of the directive must be regarded as a provision of equal standing to 
national rules which, within the domestic legal system, are in the nature of rules of 
public policy. 
15 Therefore, by virtue of that assimilation of the mechanism for establishing the 
unfairness of contractual terms with the legal regime of absolute invalidity, a 
person who claims to be a consumer in the conclusion of a loan agreement with a 
bank may bring proceedings before a court at any time, without any limitation 
period being applied, given that the aim pursued is to eliminate the effects of 
unfair contractual terms. 
16 In the present case, however, the consumer has argued the unfairness of certain 
terms contained in an agreement concluded with a professional which had ceased 
to exist more than a year earlier, having reached its term. Therefore, on that date 
also, the terms in question ceased to produce any effects, which means that the 
aim pursued by the EU legislature and by the national legislature is no longer 
present. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-698/18 
 
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17 However, once the unfairness of a contractual clause has been established, the 
absolute invalidity of the contractual provision contained in it entails the 
application of the corresponding principles of national law, including the principle 
of restitutio in integrum. 
18 The referring court adds that, since the right to seek the reimbursement of moneys 
paid pursuant to contractual terms that have been invalidated is closely linked with 
the finding of invalidity, in the sense that that right arises only after the 
declaration of invalidity, then, in so far as procedure is concerned, personal 
pecuniary claims will no longer be subject to a time-bar and it will be possible to 
rule on an ancillary head of claim (seeking reimbursement) – in itself subject to a 
time-bar – that is made in the pleadings in the main action to establish the 
unfairness of the contractual terms, which is essentially not subject to a time-bar. 
19 Consequently, since no reasonable period of time is stipulated for determining 
whether a borrower remains a ‘consumer’ after the termination of a loan 
agreement, reliance could be placed on the fact that absolute invalidity is not 
subject to any time-bar in order to obtain a pecuniary benefit from the declaration 
of invalidity, albeit in the absence of the public-policy objective pursued by the 
EU legislature and the national legislature and also at the risk of undermining 
other principles, such as the principle of legal certainty. 
20 Clarification is also necessary because, once the loan agreement has come to an 
end, so too does the legal relationship between the parties and, along with that, the 
consumer’s position as the weaker of the parties, by comparison with the 
professional, in terms of economic strength, which is what affects the consumer’s 
bargaining power and leads to contractual imbalances. 
21 In the interests of achieving a balance between the principle of ensuring a high 
level of consumer protection and the principle of legal certainty, the referring 
court observes, by way of illustration, that pecuniary claims resulting from the 
application of the regime of invalidity to an unfair term of a contract that has 
already terminated could be subject to a limitation period that commences at a 
given time, determined objectively, which could be the date of termination of the 
agreement. Under national law, that limitation period is three years. 
22 While, in the present case, JB brought his action approximately one year after the 
termination of the contract, thus within the national limitation period of three 
years laid down for pecuniary claims, and will consequently be entitled to obtain 
reimbursement of the moneys paid under the contested clauses, the referring court 
observes that, in parallel proceedings pending before it, which raise identical legal 
issues and in which the borrower also applied for a request to be made for a 
preliminary ruling, in similar terms (Case C-699/18), the borrower’s action to 
establish the unfairness of certain terms and to obtain the reimbursement of sums 
paid under those terms was brought approximately 11 years after the date of 
termination of the loan agreement by way of the early payment of the balance in 
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accordance with the terms of the contract. That is well beyond the three-year 
limitation period. 
23 In the referring court’s view, when an action is brought so late, the public-policy 
objective pursued by the EU legislature and the national legislature and the private 
interest of consumers in obtaining pecuniary benefits from application of the 
regime of invalidity could jeopardise the security of legal relationships and would 
therefore be in conflict with the principle of legal certainty.