Judgment;Summary — ECLI:EU:C:2021:470
Date: 2021-06-10
Language of the case: French
Court formation: First Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

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Translation  C-776/19 — 1 
Case C-776/19 
Request for a preliminary ruling  
Date lodged:  
22 October 2019 
Referring court: 
Tribunal de grande instance de Paris (France) 
Date of the decision to refer: 
1 October 2019 
Applicants: 
VB 
WA 
Defendant:  
BNP Paribas Personal Finance SA 
  
TRIBUNAL 
DE GRANDE 
INSTANCE 
DEPARIS  
(REGIONAL COURT, PARIS) 
[…] INTERLOCUTORY JUDGMENT  
Delivered on Tuesday 1 October 2019    
[…] 
EN 
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APPLICANTS 
VB 
[…] PARIS 
WA 
[…]PARIS  
[…] 
DEFENDANT 
S.A. BNP PARIBAS PERSONAL FINANCE 
[…] PARIS 
[…] [Or. 2] […] 
INTERLOCUTORY JUDGMENT  
[…] 
In accordance with an offer made on 19 June 2009, the acceptance of which is not 
disputed, VB and WA took out a first mortgage loan, called ‘Helvet Immo’, from 
BNP Paribas Personal Finance, for an amount of Swiss francs (CHS) 425 525.61, 
for an initial period of 25 years, in order to purchase an apartment for rental 
purposes. 
The contract […] specified that the credit was financed by a loan taken out in 
Swiss francs by the lender on the international currency markets, which ‘enables 
you to benefit from the interest rates defined herein’. It also stated that the credit 
was managed in both Swiss francs (the account currency) and in euros (the 
payment currency), and that two internal accounts, one in euros and the other in 
Swiss francs, were opened. As regards the ‘exchange transactions’, it was stated 
[…] that ‘as this is not an international credit transaction, your payments in 
respect of this loan can be made only in euros for repayment in Swiss francs’. […] 
It was also stated that the amount of the credit, including exchange charges, was 
fixed on the basis of EUR 1 = CHF 1.5096. The contract set out the exchange 
transactions to be carried out, including, in the event of default by the borrower, 
the possibility for the lender, unilaterally, to replace the Swiss franc by the euro 
[…], and stated that the amount of the exchange charges would be 1.50% for each 
transaction [Or. 3] 
The initial repayment amount, over the first 34 months, was EUR 1 033.91, then 
EUR 1 695.49 for the next 266 months: the amortisation depended on fluctuations 
in the euro/Swiss franc parity and the contract stated that if the exchange 
transaction entailed sum below the amount due in Swiss francs, the amortisation 
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would be ‘less rapid’, and any unpaid part of the capital would be added to the 
debit balance and, in the opposite case, that repayment of the credit would be 
more rapid. If the total amount of payments made did not allow the total balance 
to be settled over the initial loan period plus five years, payments would be 
increased in order to allow such settlement, within the limit of the INSEE 
consumer price index over the preceding five years. If, at the end of the fifth year 
of extension, a debit balance remained, payments would have to continue until the 
amount in question was settled in full. 
The rate, initially set at 4.1%, was subject to review every five years, according to 
a formula […] with one part fixed at 2.25 and the other equal to the monthly 
average of the Swiss francs five-year SWAP rate in the preceding calendar month. 
The contract provided for the possibility for the borrower to choose, at the time of 
the five-yearly rate review, an account currency in euros, either by choosing a 
fixed rate in euros, based on the monthly average rate of long-term State 
borrowing, plus 2.35%, or 2.55% or even 2.65% according to the remaining 
repayment period, or by choosing a variable rate in euros, the variable rate being 
based on a fixed component (2.35%) and the other on the Euribor monthly 
average. 
Annexed to the contract were two simulations, the first relating to the impact of a 
2-point increase or decrease in the interest rates taking place from the 61st 
repayment period on the amount of the payments, the duration and the total cost of 
the credit, and the second, entitled ‘information relating to the exchange 
transactions carried out in the context of the management of your credit’, 
simulated the variations of those factors if the euro should appreciate against the 
Swiss franc (EUR 1 = CHF 1.5896) and if it should depreciate (EUR 1 = 
CHF 1.4296). 
Following a judicial investigation (a criminal investigation entrusted to an 
investigating judge), BNPPF was committed for trial before the tribunal 
correctionnel (Criminal Court) on 29 August 2017, charged with misleading 
commercial practice. 
By a document served by a bailiff dated 22 February 2018, VB and WA brought 
proceedings against BNP Paribas before this court, claiming, in particular, that the 
terms establishing the financial mechanism of the loan contract were unfair. 
By order of 23 January 2019, the judge responsible for preparing the case for trial 
[…] ordered that the proceedings be stayed pending the definitive outcome of the 
criminal proceedings. 
On an application to stay the proceedings pending a number of decisions of the 
Cour de cassation (Court of Cassation), the judge responsible for preparing the 
case for trial raised the suggestion that the CJEU might be requested to give a 
preliminary ruling on certain questions. [Or. 4] 
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In their final submissions, notified […] on 20 May 2019, VB and WA request the 
Court to [refer a number of questions to the Court of Justice of the European 
Union for a preliminary ruling in application of Article 267 TFEU]. 
[…] [Or. 5] […] [Or. 6] […] [questions for a preliminary ruling suggested by the 
plaintiffs in the main proceedings] 
In its final submissions, notified […] on 20 May 2019, BNPPF requests the Court 
to […] 
– hold that it is not appropriate to make a reference to the Court of Justice of the 
European Union for a preliminary ruling; 
– consequently, reject VB’s and WA’s request to make a reference for a 
preliminary ruling to the Court of Justice of the European Union; 
[…] [Or. 7] […] 
GROUNDS OF THE DECISION: 
[…] [national procedural considerations] 
The questions for a preliminary ruling  
A. Relevant Community law — general matters 
As regards unfair terms in consumer contracts, in application of Directive 
93/13/EEC of 5 April 1993, transposed into French law, at the time of the 
contract, by Article L. 132-1 of the Consumer Code, the principle of effectiveness 
of Community law requires that the court raise of its own motion the possible 
unfairness of a term (CJEU, Pannon, 4 June 2009, Case C-243/08), which is the 
elaboration of a more general principle of Community consumer law (CJEU, 
Radlinger, 21 April 2016, Case C-377/14), which precludes any procedural 
mechanism that would prevent the effective application of provisions designed to 
protect consumers, such as limitation (see, for example, CJEC, Cofidis v Frédout, 
21 November 2002, Case C-473/00) now Article 4(2) of Directive 93/13 states, 
however, that ‘assessment of the unfair nature of the terms shall relate neither to 
the definition of the main subject matter of the contract nor to the adequacy of the 
[Or. 8] price and remuneration, on the one hand, as against the services or goods 
supplie[d] in exchange, on the other, in so far as these terms are in plain 
intelligible language.’ 
As regards the assessment of the essential subject matter of the contract, in 
connection with contracts for loans indexed and/or repayable in foreign 
currencies, the CJEU has held, first, that the exception to the review of the 
unfairness of a term provided for in Article 4(2) of that directive must be strictly 
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interpreted (CJEU, 30 April 2014, Kasler and Others v OTP Jelzalogbank Zrt, 
Case C-26/13, paragraph 42) and, second, that:  
’57 In the circumstances, it must be stated, in addition, that the exclusion of the 
assessment of the unfairness of a term being limited to the adequacy of the price 
and the remuneration on one hand as against the services or goods supplied on the 
other, it cannot apply where there is a challenge to the variation between the 
selling rate of exchange of a foreign currency, which must be used in accordance 
with that term in order to calculate the repayment instalments, and the buying rate 
of exchange of that currency, which must be used in accordance with other terms 
of the loan agreement in order to calculate the amount of the loan advanced. 
58 Moreover, that exclusion cannot apply to terms that, like Clause III/2, merely 
determine the conversion rate of the foreign currency in which the loan agreement 
is denominated, in order to calculate the repayment instalments, without however 
any foreign exchange service being supplied by the lender in making that 
calculation and do not, therefore, constitute “remuneration”, the adequacy of 
which as consideration for a service supplied by the lender could be assessed to 
determine its unfairness pursuant to Article 4(2) of Directive 93/13.’ 
In Andriciuc (CJEU, 20 September 2017, Case C-l86/16), it was stated that, 
conversely, the term providing that the loan must be repaid in the same foreign 
currency as that in which it was taken out (paragraph 40), forms part of the main 
subject matter of an agreement for a loan in Swiss francs that is repayable in 
Swiss francs. 
As to whether a term is ‘plain [and] intelligible’, the CJEU has made clear, in 
particular (CJEU, 20 September 2018, OTP Bank v Ilyes and Kiss, Case C-51/17, 
paragraph 78] that: 
‘In the light of the foregoing, the answer to the third question is that Article 4(2) 
of Directive 93/13 must be interpreted as meaning that the requirement for a 
contractual term to be drafted in plain intelligible language requires financial 
institutions to provide borrowers with adequate information to enable them to take 
well-informed and prudent decisions. 
In that regard, that requirement means that a term relating to the foreign exchange 
risk must be understood by the consumer both at the formal and grammatical level 
and also in terms of its actual effects, so that the average consumer, who is 
reasonably well informed and reasonably observant and circumspect, would not 
only be aware of the possibility of a depreciation of the national currency in 
relation to the foreign currency in which the loan was denominated, but would 
also be able to assess the potentially significant economic consequences [Or. 9] of 
such a term with regard to his financial obligation.’ (emphasis added) 
As regards a sanction, Article 6 of the directive provides that: ‘Member States 
shall lay down that unfair terms used in a contract concluded with a consumer by 
a seller or supplier shall, as provided for under their national law, not be binding 
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on the consumer and that the contract shall continue to bind the parties upon those 
terms if it is capable of continuing in existence without the unfair terms.’ 
As regards the burden of proving that the seller or supplier has fulfilled its 
obligations, the CJEU has stated, in relation to consumer credit, that that burden is 
borne by the seller or supplier and not by the consumer (see CJEU, Crédit 
Agricole Consumer Finance v Bakkaus, 18 December 2014, Case C-449/13). 
In the interest of clarity, the relevant Community and national law will be 
examined in greater detail with respect to each of the questions. 
B. The limitation plea raised by BNP Paribas and the associated questions 
The defendant claims […] that the borrower’s requests are ‘manifestly time-
barred’ and that there is therefore no need to submit questions for a preliminary 
ruling. 
It is therefore necessary to examine that point, and the possible need to request the 
Court of Justice to give a ruling on that question as well, before the other points. 
1. The relevant elements of Community and national law 
In Community law, the question of the conformity of time limits imposed on 
consumers was addressed, in particular, in the judgment in the judgment in Cofidis 
v Frédout, 21 November 2002, Case C-473/00, where the CJEU ruled 
(paragraph 36) that ‘a procedural rule which prohibits the national court, on expiry 
of a limitation period, from finding of its own motion or following a plea raised by 
a consumer that a term sought to be enforced by a seller or supplier is unfair is 
therefore liable, in proceedings in which consumers are defendants, to render 
application of the protection intended to be conferred on them by the Directive 
excessively difficult.’ 
In a judgment of 29 October 2015 (BBVA SA v Lopez, Case C-8/14), the CJEU 
ruled that while the existence of a time limit within which a consumer could raise 
the unfairness of a contractual term, in repossession proceedings, was not in itself 
contrary to Community law, 
‘39 It should be found that the contested transitional provision, in so far as it 
provides that the time limit begins to run in the present case without the 
consumers concerned being personally informed of the possibility to raise a new 
ground of objection in enforcement proceedings which were already in progress 
before the entry into force of that law, is not such as to guarantee full enjoyment 
of that period and, therefore, the effective exercise of the new right recognised by 
the legislative amendment concerned. [Or. 10] 
40 Taking into account the progress and the special features and complexity of the 
proceedings and the applicable legislation, there is a significant risk that the time 
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limit will expire without the consumers in question being able effective and 
usefully to exercise their rights through legal action because they are unaware of 
or do not appreciate the exact extent of their rights.’ 
Furthermore, the Grand Chamber of the Court (CJEU [GC], Naranjo and Others v 
Cajasur Banco and Others, 21 December 2016, C-154/15) examined the case-law 
of the Spanish Tribunal Supremo (Supreme Court), which limited in time, for 
reasons based on the principle of legal certainty, the effects of a declaration that a 
term in numerous mortgage loan agreements was unfair, in such a way that 
payments made before the date of its decision could not be challenged. It 
considered that such a judicial rule, which it distinguished from a ‘reasonable’ 
limitation period, was contrary to EU law since it resulted in consumers, contrary 
to the wording of the directive, being bound by the term that was declared to be 
unfair (see paragraphs 70 to 75). 
In national law, the defendant relies on […] various decisions of this court and of 
the cour d’appel de Paris (Court of Appeal, Paris) applying, where the action is 
brought by the borrower, the five-year limit period laid down in Article 2224 of 
the Civil Code, and causing the limitation period to beginning to run from the date 
of acceptance of the loan offer, so that the claims submitted to them were time-
barred. 
However, as regards the applicability of the limitation period to claims brought 
on the basis of the directive, the First Civil Chamber of the Cour de cassation 
(Court of Cassation) recently delivered the following decision (1st Civ., 13 March 
2019, Appeal No 17-23.169 […] 
‘– The limitation period: 
[…] [Or. 11] […] 
… The cour d’appel (Court of Appeal) was correct to find that the application for 
the terms at issue to be deemed to be non-existent could not be analysed as an 
application for a declaration that those terms are null and void and could not 
therefore be subject to the five-year limitation period; […] 
However, the judgment does not address the possibility that claims for repayment 
of excess interest charged in application of the term declared to be unfair may be 
time-barred, so that, even if that case-law had to be applied, it would not wholly 
settle the question.  
As regards the starting-point of the limitation period, in other areas the case-law is 
more flexible: thus, an earlier decision of the First Civil Chamber accepts that, in 
the case of a breach of the banker’s duty to notify [the borrower], time may begin 
to run only when the first problems in making repayments become evident (1st 
Civ., 9 July 2009, Appeal No 08-10.820, Bull. 2009, I, No 172). The recent case-
law of the Commercial Chamber, in relation to the duty to provide advice, 
establishes that rule more clearly, with respect to interest-only loans, that is, those 
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where the capital is repayable at the end of the loan (see Com., 6 March 2019, 
Appeal No 17-22.668 […]; Com., 13 February 2019, Appeal No 17-14.785[…]). 
[…]  
2. Questions raised by the court 
As regards the relevance of these questions for the outcome of the dispute, they 
are clearly relevant, since the loan agreement was entered into in 2008: therefore, 
if (i) the limitation period is applicable and (ii) the five-year limitation period 
begins to run when the contract is signed, the claims are time-barred on the 
ground that they were lodged by writ of 13 October 2016. 
The first question concerns the compatibility of a limitation period with the 
principle of effectiveness of Community law, where the consumer is the applicant: 
some decisions indicate that the existence of a limitation period is not in itself 
incompatible with Community law, while declaring the device invalid in the light 
of the facts of the case (BBVA v Lopez, C-8/14); however, both the judgment in 
Cofidis (C-473/00) and the judgment of the Grand Chamber in Naranjo 
(C-154/15) underline the difficulties to which the existence of such time limits 
may give rise for a consumer who is unaware of his rights, both from the point of 
view of the effectiveness of Community law and from that of the principle, laid 
down in the directive, that consumers cannot be bound by unfair terms. 
In addition, the distinction between cases in which the consumer is the applicant, 
and those in which he is the defendant, although traditional, is open to question, 
since, if the consumer ceases to make repayments, whether intentionally or 
because of a [Or. 12] genuine inability to meet his commitments, he will be the 
subject either of other proceedings or of a counter-claim. 
It is therefore appropriate to stay the proceedings and to refer the following 
question to the CJEU: 
First question: Does Directive 93/13, interpreted in the light of the principle of 
effectiveness, preclude, in a case such as that in the main proceedings, the 
application of limitation rules, in the following cases: (a) for a declaration 
that a term is unfair; (b) for any restitutions; (c) where the consumer is the 
applicant; and (d) where the consumer is the defendant, including to a 
counter-claim? 
The second question arises only if the answer to the first question is wholly or 
partly negative. If limitation applies one of those situations, the question then 
arises as to when time begins to run, in particular in the light of the decisions 
referred to by BNP Paribas in which the starting-point is fixed at the date on 
which the contract is signed. 
In fact, in the case of a contract with an initial duration of 25 years, and as the 
limitation period in French law is five years, there might be a risk that borrowers 
would not be aware of their rights and would not be aware of the very existence of 
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a difficulty with the exchange rate if that rate remained stable during the first 
years and deteriorated, for example, after four or five years, then entailing serious 
difficulties. 
[…] 
It is therefore also appropriate to stay the proceedings and to refer the following 
question to the CJEU: 
Second question: If the answer to the first question is wholly or partly 
negative, does Directive 93/13, interpreted in the light of the principle of 
effectiveness, preclude, in a case such as that at issue in the main proceedings, 
the application of national case-law which fixes the starting-point of the 
limitation period at the date of acceptance of the loan offer, rather than at the 
date on which serious financial difficulties arise? 
C. The question whether the terms at issue are to be classified as relating or 
not relating to the main subject matter of the contract 
The classification of the terms at issue as relating or not relating to the main 
subject matter of the contract is relevant for the examination of the substance of 
the dispute, since the answer to that question determines whether the unfairness of 
the terms at issue can be examined if they are ‘plain [and] transparent’. [Or. 13] 
1. Relevant elements of Community and national law 
In Community law, there seems to be a tension between, on the one hand, the 
judgment in Kasler, 30 April 2014 (Case C-26/13) and, on the other hand, 
subsequent case-law, in particular the decisions in OTP Bank, 20 September 2018, 
Case C-51/17, and Dunai v Erste Bank, 14 March 2019, Case C-l18/17. 
As stated above, the judgment in Kasler, first of all, established the principle that 
the reduction of the review of the unfairness of contractual terms provided for in 
Article 4(2) is to be interpreted strictly, since it is stated that: 
‘57 In the circumstances, it must be stated, in addition, that the exclusion of the 
assessment of the unfairness of a term being limited to the adequacy of the price 
and the remuneration on one hand as against the services or goods supplied on the 
other, it cannot apply where there is a challenge to the variation between the 
selling rate of exchange of a foreign currency, which must be used in accordance 
with that term in order to calculate the repayment instalments, and the buying rate 
of exchange of that currency, which must be used in accordance with other terms 
of the loan agreement in order to calculate the amount of the loan advanced. 
58 Moreover, that exclusion cannot apply to terms that, like Clause III/2, merely 
determine the conversion rate of the foreign currency in which the loan agreement 
is denominated, in order to calculate the repayment instalments, without however 
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any foreign exchange service being supplied by the lender in making that 
calculation and do not, therefore, constitute “remuneration”, the adequacy of 
which as consideration for a service supplied by the lender could be assessed to 
determine its unfairness pursuant to Article 4(2) of Directive 93/13.’ 
The judgment in Dunai, on the other hand, states (paragraph 48) that: 
‘In that regard, it should be noted, secondly, that, concerning contractual terms 
relating to exchange rate risk, it follows from the Court’s case-law that such 
terms, in so far as they define the main subject matter of the loan contract, come 
within Article 4(2) of Directive 93/13, and escape the assessment as to whether 
they are unfair only in so far as the national court having jurisdiction considers, 
following a case-by-case examination, that they were drafted by the seller or 
supplier in plain intelligible language (see, to that effect, judgment of 
20 September 2018, OTP Bank and OTP Faktoring, C-51/17, EU:C:2018:750, 
paragraph 68 and the case-law cited).’ 
The reasoning employed in the judgment in Kasler does not seem to allow the 
conclusion that, in themselves, the terms relating to the exchange risk constitute 
either a ‘good’ or a ‘service’, or indeed ‘remuneration’ within the meaning of 
Article 4(2), which must be interpreted strictly. 
As regards national law, the First Civil Chamber, in a set [Or. 14] of judgments 
delivered in February 2019 (see, for example, 1st Civ., 12 December 2018 Appeal 
No 17-18.491) considered that the terms in question concerned the main subject 
matter of contracts such as those at issue in the main proceedings. 
2. Question raised by the court 
As this case concerns an agreement in which, like in Kasler but unlike in 
Andriciuc (C-186/16), the sums were to be repaid in national currency, the 
question of the validity of the principles laid down in the judgment in Kasler 
therefore arises. 
Must the reasoning employed in the judgment in Kasler, according to which it 
seems that the term (although very important in the scheme of the agreement) 
does not form part of the ‘main subject matter’ of the agreement within the 
restrictive meaning placed on that term by Article 4(2), since the dispute is not 
over the exchange charges (1.5%), or must it be considered, on the contrary, that, 
as in OTP and Dunai, the terms dealing with the exchange risk come, for that 
reason alone, within the main subject matter of the agreement? 
That question must also be assessed by reference to the application of the FIM 
Directive (2004/39), since, in the judgment in Lantos shortly after the judgment in 
Kasler (CJEU, 3 December 2015, Case C-312/14), the Court had precluded the 
application of the obligations of the FIM directive in currency agreements, on the 
grounds, in particular, that: 
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‘56 In fact, subject to verification by the referring court, those transactions are 
restricted to converting the amounts of the loan and the monthly instalments 
denominated in the foreign currency in question (the currency in which payment 
obligations are to be met) into the domestic currency (the currency in which the 
payments are actually made), on the basis of the exchange rates for the purchase 
and sale of the foreign currency. 
57 Transactions such as this serve no other function than to be the manner of 
performing the fundamental payment obligations under the loan agreement, 
consisting in the lender’s making the capital available and the borrower’s 
repayment of the capital together with interest. Those transactions do not have as 
their purpose the completion of an investment, as the consumer is seeking only to 
secure funds with a view to purchasing a consumer good or a service, not, for 
example, to manage a foreign exchange risk or speculate on a currency’s 
exchange rate.’ 
If it were now established that terms relating to the exchange risk in loan 
agreements come within the main subject matter of the agreement, the question 
might arise whether the application of obligations analogous to those of the MIF 
Directive, in particular the obligation to ascertain whether the product offered to 
the borrower in those agreements was adequate might arise — even though it 
seems difficult to characterise them as financial products, as certain of the 
applicants seem to envisage. 
A credit agreement like the one at issue in the main proceedings includes a form 
of bet on the development of parity between the account currency and the 
payment currency, in which the bank’s interests and the creditor’s [Or. 15] 
interests are opposed, which strongly resembles speculation (the difference is that 
the currencies were borrowed, not bought). That applies a fortiori because the 
agreement at issue contains not only provisions on the exchange risk but also […] 
options which, at fixed intervals, allow the financial conditions of the agreement 
to be altered according to predetermined conditions. 
Furthermore, since terms without which the agreement could not continue to exist 
(see, for example, judgment in Dunai, Case C-118/17, paragraph 52) generally 
come within the main subject matter of the agreement, the applicants rely on the 
existence of an option to convert the agreement to a euro agreement on specific 
dates and contend that the terms at issue do not constitute the ‘main subject 
matter’ of the agreement, since it is expressly envisaged that the agreement might 
continue in the national currency. It does not appear that the CJEU has been called 
upon to rule on the possible impact on the analysis of such terms. 
It is therefore appropriate to stay the proceedings and to refer the following 
question to the CJEU: 
Third question: Do terms such as those at issue in the main proceedings, 
which provide in particular that the Swiss franc is the account currency and 
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the euro the settlement currency, and have the effect that the exchange risk is 
borne by the borrower, come within the main subject matter of the 
agreement within the meaning of Article 4(2) of Directive 93/13, where there 
is no dispute as to the amount of the exchange charges and where there are 
terms providing for the possibility for the borrower, on fixed dates, to 
exercise an option to convert the loan into euros according to a 
predetermined formula? 
D. The assessment of the ‘plain [and] intelligible’ nature of the term 
The assessment of the ‘plain [and] intelligible’ nature of the term is essential for 
the outcome of the dispute if the terms at issue constitute the main subject matter 
of the agreement, but also if they do not, since the obligation for the seller or 
supplier to provide ‘plain intelligible’ information must also be taken into account 
in the assessment of the existence or absence of a significant imbalance. 
[…] [Or. 16] […]. 
1. The matters to be communicated to the borrower (a specific warning about the 
exchange rise, simulations, and any criteria to be met by such simulations) 
(a) Elements of Community law and of national law 
In Community law, the CJEU has held that, in order for a term to be ‘plain [and] 
intelligible’ within the meaning of Directive 93/13, it must satisfy stringent 
criteria, set out in particular in the decision of the CJEU of 20 September 2018, 
OTP Bank v Ilyes and Kiss, Case C-51/17: 
‘73 In that regard, in the context of loan contracts denominated in a foreign 
currency, it is apparent from the Court’s case-law that Article 4(2) of Directive 
93/13 must be interpreted as meaning that the requirement for a contractual term 
to be drafted in plain intelligible language cannot be reduced merely to it being 
formally and grammatically intelligible (see, to that effect, judgment of 
20 September 2017, Andriciuc and Others, C-186/16, EU:C:2017:703, 
paragraph 44 and the case-law cited). 
74 As regards foreign currency lending, like that at issue in the main proceedings, 
it must be noted, as the European Systematic Risk Board stated in its 
Recommendation ESRB/2011/1 of 21 September 2011 on lending in foreign 
currencies (OJ 2011 C 342, p. 1), that financial institutions must provide 
borrowers with adequate information to enable them to take well-informed and 
prudent decisions and should at least encompass the impact on instalments of a 
severe depreciation of the legal tender of the Member State in which a borrower is 
domiciled and of an increase of the foreign interest rate (Recommendation A — 
Risk awareness of borrowers, paragraph 1) (judgment of 20 September 2017, 
Andriciuc and Others, C-186/16, EU:C:2017:703, paragraph 49). 
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75 More specifically, the borrower must, first, be clearly informed of the fact that, 
in entering into a loan agreement denominated in a foreign currency, he is 
exposing himself to a certain foreign exchange risk which will, potentially, be 
difficult to bear in the event of a depreciation of the currency in which he receives 
his income in relation to the foreign currency in which the loan was granted. 
Second, the seller or supplier, in this case the bank, must be required to set out the 
possible variations in the exchange rate and the risks inherent in taking out a loan 
in a foreign currency (see, to that effect, judgment of 20 September 2017, 
Andriciuc and Others, C-186/16, EU:C:2017:703, paragraph 50). 
76 Finally, as stated in the twentieth recital of Directive 93/13, it is important that 
the consumer should actually be given an opportunity to examine all the terms of 
the contract. Information, provided in sufficient time before concluding a contract, 
on the terms of the contract and the consequences of [Or. 17] concluding it, is of 
fundamental importance for a consumer in order to decide whether he wishes to 
be bound by the terms previously drawn up by the seller or supplier (see, to that 
effect, judgment of 30 April 2014, Kásler and Káslerné Rábai, C-26/13, 
EU:C:2014:282, paragraph 70 and the case-law cited). 
77 In the present case, in the light of the foregoing, it is for the referring court to 
take into account, inter alia, the presence in the loan contract at issue of 
paragraph 10 thereof, entitled “Declaration of notification of risk”, the wording of 
which was set out in paragraph 19 of the present judgment, read in conjunction 
with any additional information provided before the conclusion of that contract. In 
that last regard, it is apparent from the information before the Court that the 
borrowers received, inter alia, an additional information sheet relating to the 
foreign exchange risk, containing examples of specific calculations of the risk in 
the event of a depreciation of the Hungarian forint in relation to the Swiss franc, 
which it is nonetheless for the referring court to ascertain. 
78 In the light of the foregoing, the answer to the third question is that Article 4(2) 
of Directive 93/13 must be interpreted as meaning that the requirement for a 
contractual term to be drafted in plain intelligible language requires financial 
institutions to provide borrowers with adequate information to enable them to take 
well-informed and prudent decisions. In that regard, that requirement means that a 
term relating to the foreign exchange risk must be understood by the consumer 
both at the formal and grammatical level and also in terms of its actual effects, so 
that the average consumer, who is reasonably well informed and reasonably 
observant and circumspect, would not only be aware of the possibility of a 
depreciation of the national currency in relation to the foreign currency in which 
the loan was denominated, but would also be able to assess the potentially 
significant economic consequences of such a term with regard to his financial 
obligations.’ (emphasis added) 
In domestic law, as regards ‘Helvet Immo’ agreements without simulations, the 
Cour de cassation (Court of Cassation) has delivered, in particular, the following 
decisions: 
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1st Civ., 3 May 2018, Appeal No 17-13.593 […] 
[…] [Or. 18] […] [extract from the judgment] 
To the same effect: 1st Civ., 20 February 2019, Appeal No 17-31.065 […] 
[extract from the judgment] 
As regards offers to which a simulation was attached, the First Civil Chamber has 
delivered, in particular, the following decision: 
1st Civ., 12 December 2018, Appeal No 17-18.491 
[…] [Or. 19] […] [extract from the judgment] 
(b) Questions raised by the court 
In the judgments which it delivered on 20 February 2019, the First Civil Chamber 
of the Cour de cassation (Court of Cassation), approving the analysis of the Cour 
d’appel ( Court of Appeal), considered that the terms at issue were ‘plain [and] 
intelligible’, for the following reasons, in the case of agreements in which there 
was no simulation: 
– the preliminary loan offer sets out the exchange transactions carried out during 
the life of the credit and states that the euro/Swiss franc exchange rate will be the 
rate applicable two working days before the date of the event that determines the 
transaction and which is published on the website of the European Central Bank; 
– it is stated in the offer that the borrower agrees to the Swiss franc/euro and 
euro/Swiss franc exchange transactions necessary for the functioning and 
repayment of the credit, and that the lender will convert the balance of the 
monthly payments after payment of the charges associated with the credit into 
Swiss francs; 
– the offer states that, if the exchange transaction results in a sum lower than the 
amount payable in Swiss francs, the amortisation of the capital will be less rapid 
and any unpaid capital in respect of a repayment period will be entered on the 
debit side of the account in Swiss francs, and that it is made clear that the 
amortisation of the capital of the loan will change according to variations in the 
exchange rate applied to the monthly payments, upwards or downwards, that that 
change may entail the prolongation or reduction of the loan amortisation period 
and, where appropriate, alter the total repayment cost; 
– the articles ‘internal account in euros’ and ‘internal account in Swiss francs’ 
describe the transactions carried out in each payment period to the credit and the 
debit of each account, and the contract explains in transparent terms the actual 
functioning of the foreign currency conversion mechanism in transparent terms; 
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As regards the contracts to which a simulation is annexed, the following ground 
was also set out: [Or. 20]  
– annexed to the loan offer was a simulation, with figures, on the basis of which 
the influence of the exchange rate fluctuations on the capital borrowed and the 
ensuing duration of the loan could be assessed. 
It should be observed, however, that in those cases the Avocat Général attached to 
the First Civil Chamber had delivered the following Opinion […], agreeing with 
this court’s case-law preceding the judgment in OTP: 
‘That difference between the two sets of judgments seems to me to be sufficiently 
important to justify, as the court decided, the two situations being treated 
separately. 
It seems to me that the former judgments, unlike the latter, fail to have regard to 
the European Court’s interpretation of the criteria of plainness and intelligibility in 
Article 4(2) of Directive 93/13, which is applicable to agreements entered into 
previously, in that they specified, solely in the light of the loan offer and the 
information in the projected amortisation table, that the term at issue put the 
consumer in a position to evaluate the economic consequences for his financial 
obligations. 
Although, at the formal and grammatical level, it may be accepted that the 
contractual provisions are accessible to a reasonably well informed and reasonably 
observant and circumspect consumer, they do not in themselves make it possible 
to evaluate sufficiently to which the variations in the exchange rates expose him, 
if he receives his income in the payment currency and not in the foreign currency 
of payment. 
Conversely, provided that that consumer is given a simulation of variations in the 
exchange rate, with examples showing figures, he is in a position to be aware of 
the economic consequences caused by a depreciation in the domestic payment 
currency against the foreign currency.’ 
Those decisions issued by the highest French court, and the partly contrary 
Opinion of the Avocat Général attached to that court, give rise to serious 
difficulties of interpretation for this court, in proceedings which concern more 
than 1 000 cases before the 9th Civil Chamber of the tribunal de Paris (Regional 
Court, Paris) alone. 
Whether or not a simulation was provided, the expression ‘exchange risk’ does 
not appear anywhere in the offer […]. 
The closest reference is found […] in the paragraph ‘Exchange transactions’, 
which deals with the opposite situation to that which has arisen, namely the 
situation in which the borrower no longer received income in euros and would 
have to obtain euros in order to repay the loan, and would thus bear the risk. 
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Mention may also be made of the references, in a different part of the offer, […] 
concerning the fact that the amortisation of the capital will be ‘less rapid’ where 
‘the exchange transaction results in a sum less than the amount payable in Swiss 
francs’. [Or. 21] 
The Community case-law seems to require not only that it is possible to infer from 
references in the agreement and the documentation the existence of an exchange 
risk and its impact, which the Cour de cassation (Court of Cassation) seems to 
have regarded as sufficient, but that those risks are explicit, so that they may be 
understood not only by specialised judges but also by consumers with an average 
level of ability and attention. 
In the judgment in Andriciuc (20 September 2017, Case C-186/16) the Court of 
Justice had ruled that: 
‘Article 4(2) of Directive 93/13 must be interpreted as meaning that the 
requirement that a contractual term must be drafted in plain intelligible language 
requires that, in the case of loan agreements, financial institutions must provide 
borrowers with sufficient information to enable them to take prudent and well-
informed decisions. In that connection, that requirement means that a term under 
which the loan must be repaid in the same foreign currency as that in which it was 
contracted must be understood by the consumer both at the formal and 
grammatical level, and also in terms of its actual effects, so that the average 
consumer, who is reasonably well informed and reasonably observant and 
circumspect, would be aware both of the possibility of a rise or fall in the value of 
the foreign currency in which the loan was taken out, and would also be able to 
assess the potentially significant economic consequences of such a term with 
regard to his financial obligations.’ 
The CJEU, on 20 September 2018, in its judgment in OTP Bank v Ilyes and Kiss, 
Case C-51/17), had provided important clarification of the actual requirements 
which that entails: 
‘74 financial institutions must provide borrowers with adequate information to 
enable them to take well-informed and prudent decisions and should at least 
encompass the impact on instalments of a severe depreciation of the legal tender 
of the Member State in which a borrower is domiciled and of an increase of the 
foreign interest rate; 
75 [the consumer] must, first, be clearly informed of the fact that, in entering into 
a loan agreement denominated in a foreign currency, he is exposing himself to a 
certain foreign exchange risk which will, potentially, be difficult to bear in the 
event of a depreciation of the currency in which he receives his income in relation 
to the foreign currency in which the loan was granted. Second, the seller or 
supplier, in this case the bank, must be required to set out the possible variations 
in the exchange rate and the risks inherent in taking out a loan in a foreign 
currency.’ (emphasis added) 
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Although, in OTP, the borrowers had received (paragraph 77) a sheet constituting 
‘notification of the risk’, that is not the case here. The offer does not use — except 
in the paragraph mentioned above — the word ‘risk’ or any equivalent expression, 
such as ‘danger’ or ‘difficulty’, that might alert an average consumer to the 
consequences of an unfavourable variation in the Swiss France exchange rate if he 
receives his income in euros. [Or. 22] 
It is therefore appropriate to stay the proceedings and to submit the following 
question to the CJEU: 
Fourth question: Does Directive 93/13, interpreted in the light of the principle 
of effectivity of Community law, preclude national case-law in which a term 
or set of terms, such as those at issue in the main proceedings, are considered 
to be ‘plain [and] intelligible’ for the purposes of the directive, on the 
grounds that: 
– the preliminary loan offer sets out in detail the exchange transactions 
carried out during the life of the credit and makes clear that the euro/Swiss 
franc exchange rate will be that applicable two working days before the date 
of the event that determines the transaction and which is published on the 
website of the European Central Bank; 
– it is stated in the offer that the borrower agrees to the Swiss franc/euro and 
euro/Swiss franc exchange transactions necessary for the transaction and 
repayment of the credit, and that the lender will convert the balance of the 
monthly payments after payment of the charges associated with the credit 
into Swiss francs; 
– the offer states that, if the exchange transaction results in a sum lower than 
the amount payable in Swiss francs, the amortisation of the capital will be 
less rapid and any unpaid capital in respect of a repayment period will be 
entered on the debit side of the account in Swiss francs, and that it is made 
clear that the amortisation of the capital of the loan will change according to 
upwards or downwards variations in the exchange rate applied to the 
monthly payments that that change may result in the extension or reduction 
of the loan amortisation period and, where appropriate, alter the total 
repayment cost; 
– the articles ‘internal account in euros’ and ‘internal account in Swiss 
francs’ describe the transactions carried out in each payment period to the 
credit and the debit of each account, and the contract explains in transparent 
terms the actual functioning of the foreign currency conversion mechanism in 
transparent terms; 
and although there is no express reference in the offer to the ‘exchange risk’ 
which is borne by the borrower since he does not receive income in the 
account currency, or any explicit reference to the ‘interest rate risk’? 
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If that fourth question should be answered in the affirmative, the question then 
arises of the effect of the simulations attached to the offer in certain cases 
(including this case), in particular the simulation entitled ‘information relating to 
the exchange transactions which will be carried out in the course of managing 
your credit’, which simulate the variations of those elements in the event of an 
appreciation of the euro against the Swiss franc and a depreciation of the euro by 
reference to the exchange rate on the date of the agreement […]. Those 
simulations seem to be absent in the present case (although the agreement was 
concluded at a time when they were generally attached). 
In fact, the Avocat Général in the abovementioned cases, applying case-law of this 
court that preceded the judgment in OTP, had considered that that simulation was 
sufficient in itself to satisfy the conditions laid down in that judgment (Case 
C-51/17). [Or. 23] 
However, while it cannot be disputed that that information, in particular the 
duration of the credit and the total cost of the credit, provides useful additional 
information by comparison with agreements in which that information does not 
appear, it should be observed at the outset that those simulations, too, do not use 
terminology of such a kind as to alert borrowers to the existence of ‘risks’, 
‘dangers’ or ‘difficulties’ within the meaning of paragraphs 74, 75 and 77, in 
particular, of the judgment in OTP (Case C-51/17). 
Nor does the very neutral title of the simulation relating to the exchange rate 
(‘information relating to the exchange transactions which will be carried out in the 
course of managing your credit’) reveal that the page in question includes 
simulations of variations in the exchange rates, unlike the preceding page 
(‘simulation of changes in the interest rate of your credit’ […]). 
[…] 
It is therefore appropriate to stay proceedings and to submit the following question 
to the CJEU: 
Fifth question: If the answer to the fourth question is in the affirmative, does 
Directive 93/13, interpreted in the light of the principle of effectiveness of 
Community law, preclude national case-law according to which a term or set 
of terms, such as those at issue in the main proceedings, are ‘plain [and] 
intelligible’ for the purposes of the directive, when in addition to the elements 
referred to in the fourth question there is only a simulation of a reduction of 
5.29% of the payment currency by reference to the account currency, in an 
agreement having an initial duration of 25 years, without any reference to 
terms such as ‘risk’ or ‘difficulty’? 
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2. Status of the elements of the criminal proceedings, in particular of the training 
pamphlets and the arguments, and the burden of proof 
a) Elements of Community law and of national law 
In Community law, it has been held that whether or not a term is unfair must be 
assessed by reference, ‘at the time of conclusion of the contract, to all the 
circumstances attending the conclusion of the contract’ [Or. 24] (CJEU, 
20 September 2018, OTP Bank v Ilyes and Kiss, Case C- 51/17, paragraph 83). 
Furthermore, it was stated in that judgment that ‘financial institutions must 
provide borrowers with adequate information to enable them to take well 
informed and prudent decisions’ (paragraph 74). 
That choice of words suggests that the burden of proving the plain and intelligible 
nature of the term is borne by the professional party; however, it does not appear 
that the CJEU has taken a clear stance on that point. 
In the related field of consumer credit, on the other hand, it has been held that, in 
application of Directive 2008/48/EC (see CJEU, CA CF v Bakkaus, 18 December 
2014, Case C-449/13 paragraphs 27 to 32, especially paragraph 28), the burden of 
proving that the lender’s obligations under that directive had been fulfilled was 
borne by the lender, which was required to retain evidence that such obligations 
had been fulfilled. 
In national law, it should be borne in mind that a judicial investigation resulted in 
two investigating judges considering, in an order of 29 August 2017 […], that 
there was ‘sufficient evidence’ against BNPPF for them to be guilty of misleading 
commercial practices (within the meaning of Directive 2005/29/EC, transposed in 
Article L. 121-2 of the Consumer Code in the version applicable), concerning, 
specifically, the exchange risk. 
The prosecution produced, in a number of civil cases, documents […] suggesting, 
for example, that warnings about the exchange risk were removed from the bank’s 
internal training documents and that the marketing material was designed to play 
down or even deny the existence of exchange risks. 
The Cour d’appel de Paris ( Court of Appeal, Paris), notably in a judgment of 
6 January 2017 (RG No 15/14128) […], held that it was not proved that those 
documents and leaflets had been conveyed to the borrowers by the bank, rather 
than by the firm of wealth management advisers, and therefore did not take them 
into account. 
(b) Questions raised by the court 
The sixth question concerns the burden of proof, since the communication of 
certain information likely to influence the ‘plain [and] intelligible’ nature of the 
terms at issue is disputed: 
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Sixth question: Is the burden of proving the ‘plain [and] intelligible’ nature of 
a term for the purposes of Directive 93/13 borne, including in respect of the 
circumstances attending the conclusion of the contract, by the professional 
party or by the consumer? [Or. 25] 
Now that that background has been established, the question arises whether the 
professional seller or supplier bears the burden of proving the probative value of 
the evidence relating to the sales techniques, which are part of the ‘circumstances 
attending the conclusion of the contract’ (testimony of former employees, 
advertising material, training documents, etc.). 
The reasoning followed by the Cour d’appel de Paris ( Court of Appeal, Paris), 
notably in its judgment of 6 January 2017, requires applicants to prove, apart from 
the existence of sales strategies intended for the bank’s marketing personal and for 
intermediaries, that they were the addressees of the arguments in question — as 
that type of communication is general made orally, and that it was the bank, rather 
than the intermediary (financial investment or other adviser) that communicated 
them. 
In civil proceedings before the tribunal de grande instance (Regional Court) in 
France, it is very rare for parties or witnesses to be heard, for reasons mainly to do 
with the courts’ workload, and such proof is in practice therefore very difficult or 
indeed impossible to adduce. 
Different reasoning would consist in considering, first, that those elements give 
rise to a rebuttable presumption that the information contained in those documents 
was supplied, including orally, to borrowers and, second, that the fact that the 
information was communicated by a wealth management or other adviser is 
immaterial, since the professional seller or supplier must be responsible for the 
acts of the intermediaries whom it has chosen. 
In fact, the professional seller or supplier is supposed to control the distribution 
channels for its products, whether with respect to the choice of intermediaries or 
of marketing material in the wide sense, and is in a position to have at its disposal 
evidence (for example, an instruction to remove a particular sheet that causes 
problems) that the evidence produced by the applicants was not actually used or 
was no longer used at the time of conclusion of the agreement. 
It is therefore appropriate to stay proceedings and to submit the following question 
to the CJEU: 
Seventh question: If the burden of proving the plain and intelligible nature of 
the term is borne by the professional party, does Directive 93/13 preclude 
national case-law in which it was held that, in the presence of documents 
relating to sales techniques, it is for the borrowers to prove, first, that they 
were the addressees of the information contained in those documents and, 
second, that it was the bank that communicated that information to them, or, 
conversely, does it require that that evidence constitutes a presumption that 
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the information contained in those documents was transmitted, including 
orally, to borrowers, a rebuttable presumption that it is for the professional 
party, which must assume responsibility for the information communicated 
by the intermediaries which it has chosen, to rebut? [Or. 26] 
E. The concept of significant imbalance 
On the assumption that (a) the terms at issue do not come within the main subject 
matter of the agreement or (b) although they come within the main subject matter 
of the agreement, they are not drafted in a ‘plain [and] intelligible’ manner, the 
court would then be required to ascertain whether or not a significant imbalance 
exists. 
1. Relevant elements of Community law and of national law 
The assessment of the existence of a ‘significant imbalance’ in the rights and 
obligations of the parties must be carried out even if the court has held that the 
term was not ‘plain [and] intelligible’ — in other words, the fact that the term is 
not plain and intelligible does not suffice to characterise the existence of a 
significant imbalance, but is among the factors to be taken into account (see, by 
implication, CJEU, order in Lupean, Case C-119/17). 
In order to assess the existence of such an imbalance, it is appropriate to take into 
account ‘the expertise and knowledge of the seller or supplier’, and also of 
imbalances which become apparent only during the performance of the agreement 
(CJEU, 20 September 2017, Andriciuc, Case C-186/16, paragraph 54). 
The CJEU has stated, in particular, that: 
‘56 In that connection, it is for the referring court to assess, having regard to all of 
the circumstances of the case in the main proceedings, taking account in particular 
of the expertise and knowledge of the seller or supplier, in the present case the 
bank, as far as concerns the possible variations in the rate of exchange and the 
inherent risks in contracting a loan in a foreign currency, first, the possible failure 
to observe the requirement of good faith and second, the existence of a significant 
imbalance within the meaning of Article 3(1) of Directive 93/1. 
57 In order to ascertain whether a term, such as that at issue in the main 
proceedings, causes a ‘significant imbalance’ in the parties’ rights and obligations 
arising under the contract to the detriment of the consumer, contrary to the 
requirement of good faith, the national court must assess for those purposes 
whether the seller or supplier, dealing fairly and equitably with the consumer, 
could reasonably assume that the consumer would have agreed to such a term in 
individual contract negotiations (see, to that effect, judgment of 14 March 2013, 
Aziz, C-415/11, EU:C:2013:164, paragraphs 68 and 69).’ 
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Because of its positions on the ‘clear [and] intelligible’ nature of the terms at 
issue, the Cour de cassation [Court of Cassation] did not adopt a stance on that 
question. [Or. 27] 
2. Question of the court 
It is indisputable […] [that] the bank has much greater means at its disposal than a 
consumer to foresee economic developments and the exchange risk. 
In the present agreement, each of the parties bears a part of the exchange risk: the 
bank is the winner if the Swiss franc appreciates and the loser in the opposite 
situation. 
However, there might be an imbalance in the exposure to the exchange risk: 
BNP’s exposure is limited to the amount borrowed (at worst, the entire sum 
remaining payable would be repaid, at the end of five years, by a single euro ….) 
the borrower’s exposure does not seem to be limited in the same way, even if the 
interpretation that the total amount of the repayments would be subject to an upper 
limit by the duration of the extension, which is very much open to debate, were 
accepted. That imbalance may be aggravated by the fact that the bank receives 
more interest the more the repayment is delayed. 
It is not possible for [this] court, moreover, owing to the structure of the 
agreement and the number of variables involved, to model the consequences of 
variations in the exchange rates and the interest rates and the likelihood that such 
variations will occur. 
Conversely, the possible gain for the consumer is limited to the capital borrowed, 
less the capital sums repaid during the first five years. The bank also maintains 
that the borrowers have enjoyed a more favourable interest rate. 
It is therefore appropriate to stay the proceedings and to submit the following 
question to the CJEU: 
Eighth question: May the existence of a significant imbalance be 
characterised in an agreement such as that at issue in the main proceedings 
in which both parties bear an exchange risk, when, first, the professional 
party has greater means than the consumer to foresee the exchange risk and 
when, second, the risk borne by the professional party is subject to an upper 
limit while that borne by the consumer is not? 
[…] 
ON THOSE GROUNDS: 
The Tribunal (Regional Court), […] [Or. 28] 
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STAYS proceedings until the Court of Justice of the European Union has given a 
preliminary ruling on the following question: 
First question: Does Directive 93/13, interpreted in the light of the principle of 
effectiveness, preclude, in a case such as that in the main proceedings, the 
application of limitation rules, in the following cases: (a) for a declaration 
that a term is unfair; (b) for any restitutions; (c) where the consumer is the 
applicant; and (d) where the consumer is the defendant, including to a 
counter-claim? 
Second question: If the answer to the first question is wholly or partly 
negative, does Directive 93/13, interpreted in the light of the principle of 
effectiveness, preclude, in a case such as that at issue in the main proceedings, 
the application of national case-law which fixes the starting-point of the 
limitation period at the date of acceptance of the loan offer, rather than at the 
date on which serious financial difficulties arise? 
Third question: Do terms such as those at issue in the main proceedings, 
which provide in particular that the Swiss franc is the account currency and 
the euro the settlement currency, and have the effect that the exchange risk is 
borne by the borrower, come within the main subject matter of the 
agreement within the meaning of Article 4(2) of Directive 93/13, where there 
is no dispute as to the amount of the exchange charges and where there are 
terms providing for the possibility for the borrower, on fixed dates, to 
exercise an option to convert the loan into euros according to a 
predetermined formula? 
Fourth question: Does Directive 93/13, interpreted in the light of the principle 
of effectivity of Community law, preclude national case-law in which a term 
or set of terms, such as those at issue in the main proceedings, are considered 
to be ‘plain [and] intelligible’ for the purposes of the directive, on the 
grounds that: 
– the preliminary loan offer sets out in detail the exchange transactions 
carried out during the life of the credit and makes clear that the euro/Swiss 
franc exchange rate will be that applicable two working days before the date 
of the event that determines the transaction and which is published on the 
website of the European Central Bank; 
– it is stated in the offer that the borrower agrees to the Swiss franc/euro and 
euro/Swiss franc exchange transactions necessary for the transaction and 
repayment of the credit, and that the lender will convert the balance of the 
monthly payments after payment of the charges associated with the credit 
into Swiss francs; 
– the offer states that, if the exchange transaction results in a sum lower than 
the amount payable in Swiss francs, the amortisation of the capital will be 
less rapid and any unpaid capital in respect of a repayment period will be 
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entered on the debit side of the account in Swiss francs, and that it is made 
clear that the amortisation of the capital of the loan will change according to 
upwards or downwards variations in the exchange rate applied to the 
monthly payments that that change may result in the extension or reduction 
of the loan amortisation period and, where appropriate, alter the total 
repayment cost; 
– the articles ‘internal account in euros’ and ‘internal account in Swiss 
francs’ describe the transactions carried out in each payment period to the 
credit and the debit of each account, and the contract explains in transparent 
terms the actual functioning of the foreign currency conversion mechanism in 
transparent terms; 
and although there is no express reference in the offer to the ‘exchange risk’ 
which is borne by the borrower since he does not receive income in the 
account currency, or any explicit reference to the ‘interest rate risk’? 
Fifth question: If the answer to the fourth question is in the affirmative, does 
Directive 93/13, interpreted in the light of the principle of effectiveness of 
Community law, preclude national case-law according to which a term or set 
of terms, such as those at issue in the main proceedings, are ‘plain [and] 
intelligible’ for the purposes of the directive, when in addition to the elements 
referred to in the fourth question there is only a simulation of a reduction of 
5.37% of the payment currency by reference to the account currency, in an 
agreement having an initial duration of 25 years, without any reference to 
terms such as ‘risk’ or ‘difficulty’? 
Sixth question: Is the burden of proving the ‘plain [and] intelligible’ nature of 
a term for the purposes of Directive 93/13 borne, including in respect of the 
circumstances attending the conclusion of the contract, by the professional 
party or by the consumer? 
Seventh question: If the burden of proving the plain and intelligible nature of 
the term is borne by the professional party, does Directive 93/13 preclude 
national case-law in which it was held that, in the presence of documents 
relating to sales techniques, it is for the borrowers to prove, first, that they 
were the addressees of the information contained in those documents and, 
second, that it was the bank that communicated that information to them, or, 
conversely, does it require that that evidence constitutes a presumption that 
the information contained in those documents was transmitted, including 
orally, to borrowers, a rebuttable presumption that it is for the professional 
party, which must assume responsibility for the information communicated 
by the intermediaries which it has chosen, to rebut? 
Eighth question: May the existence of a significant imbalance be 
characterised in an agreement such as that at issue in the main proceedings 
in which both parties bear an exchange risk, when, first, the professional 
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party has greater means than the consumer to foresee the exchange risk and 
when, second, the risk borne by the professional party is subject to an upper 
limit while that borne by the consumer is not? 
[…]