Order — ECLI:EU:C:2022:980
Date: 2022-12-07
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-566/21 – 1 
Case C-566/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 September 2021 
Referring court: 
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
27 May 2021 
Appellant and defendant at first instance: 
S 
Respondent and applicant at first instance: 
AA 
  
Subject matter of the main proceedings 
Appeal brought before the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania) 
by the bank S against AA, a consumer, contesting the appellate decision of the 
Tribunalul Specializat Cluj (Specialist Court, Cluj, Romania), by which a term of 
the credit agreement concluded between the parties was found to be unfair and 
part thereof was found to be absolutely null and void. 
Subject matter and legal basis of the request for a preliminary ruling 
Request for interpretation of Article 6(1) of Directive 93/13. 
Question referred for a preliminary ruling 
Does Article 6(1) of Directive 93/13/EEC on unfair terms in consumer contracts, 
as interpreted in the case-law of the Court of Justice, allow a term to be altered in 
such a way that the purely potestative right of the seller or supplier to convert the 
currency of the credit agreement in fact constitutes an obligation on the seller or 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-566/21 
 
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supplier if that alteration is entirely to the benefit of the consumer and the mere 
removal of the unfair term from the agreement is of no benefit to him or her? 
Provisions of EU law and case-law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, Articles 1, 6(1) and 7(1) 
Judgments of 14 June 2012, Banco Español de Crédito, C-618/10, 
EU:C:2012:349; of 21 January 2015, Unicaja Banco and Caixabank, C-482/13, 
C-484/13, C-485/13 and C-487/13, EU:C:2015:21; of 30 April 2014, Kásler and 
Káslerné Rábai, C-26/13, EU:C:2014:282; of 30 May 2013, Jőrös, C-397/11, 
EU:C:2013:340; and of 25 November 2020, Banca B., C-269/19, EU:C:2020:954 
Provisions of national law relied on 
Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între 
comercianți și consumatori (Law No 193/2000 on unfair terms in contracts 
between traders and consumers): Article 1(3), which prohibits sellers or suppliers 
from inserting unfair terms into contracts concluded with consumers; Article 6, 
under which terms found to be unfair are to have no effect on the consumer, and 
the contract is to continue to produce effects, with the consumer’s consent, only if 
that remains possible after the unfair terms have been removed; and Article 7, 
under which the consumer can request that the contract be terminated if it is 
incapable of producing effects after the unfair terms have been removed. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant at first instance, AA, concluded with the bank, VV, which was 
acquired by merger by the defendant at first instance, S, a credit agreement for the 
amount of Swiss francs (CHF) 117 400, for a period of 300 months. Under 
Article 4.2(1)(a) of the general conditions of the credit agreement, ‘where the loan 
is granted in a currency other than the national currency, the borrower declares 
that he or she acknowledges that if, during the term of the credit agreement, the 
exchange rate of the currency of the loan fluctuates upwards by more than 10% in 
comparison with its value on the date of signature of this agreement, in order to 
avoid continuing/increasing exposure to the exchange rate risk: the Bank is 
entitled, but not obliged, to convert into [Romanian leu] RON, unilaterally, the 
loan granted to the borrower under this agreement, using for that purpose the 
CHF/RON exchange rate which is applied on the date of conversion’. 
2 By an application lodged with the Judecătoria Cluj-Napoca (Court of First 
Instance, Cluj-Napoca, Romania), the applicant at first instance sought a 
declaration that the term contained in Article 4.2(1)(a) was unfair and that the 
defendant at first instance be ordered to implement that term in such a way as to 
BANCA S 
 
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convert the loan into RON, using the exchange rate in force at the date of 
signature of the agreement, increased by 10%. The applicant at first instance also 
sought repayment of sums wrongly received by the bank after the date on which 
the CHF appreciated by 10% in comparison with the exchange rate in force on the 
date on which the credit was granted, plus the relevant statutory interest. 
3 The Court of First Instance, Cluj-Napoca, dismissed the action as unfounded, 
finding that questions at issue had already been resolved by a final judgment given 
in another case. 
4 In the appeal against that decision brought before the Specialist Court, Cluj, AA 
submitted, on the one hand, that the earlier final decision did not concern the term 
contained in Article 4.2(1)(a) of the general conditions of the credit agreement, 
but rather other terms, and, on the other, that what AA had sought was not the 
removal of that term from the agreement, but rather the recognition by the court of 
its right also, as a consumer, to apply that term on exactly the same conditions as 
the bank, thus creating a situation of equality between the contracting parties. 
5 The Specialist Court, Cluj, allowed the appeal, rejected the objection based on res 
judicata, held that the term at issue is unfair, and found that it is partly null and 
void in so far as S was only entitled, but not also required, to convert the loan 
granted to AA into RON if, during the term of the credit agreement, the 
CHF/RON rate of exchange varied upwards by more than 10% in comparison 
with that in force on the date of signature of the agreement. At the same time, that 
court ordered the bank S to apply the term contained in Article 4.2(1)(a) of the 
general conditions of the credit agreement as from 3 October 2008, the date on 
which the 10% increase on the initial exchange rate was recorded, and to repay to 
the applicant at first instance, AA, the overpaid amounts, plus statutory interest. 
6 Taking the view that AA’s application for an order requiring the lender to convert 
the loan into RON was not founded on any legal or contractual basis, S brought an 
appeal before the referring court, on 28 January 2021, claiming that the decision 
of the Court of First Instance, Cluj, should be upheld. 
7 AA lodged a defence against the appeal brought by the bank, requesting that it 
should be dismissed as unfounded and that the decision of the appellate court 
should be upheld as well-founded and lawful. In AA’s view, the term at issue is 
unfair since the bank reserved the right to rely thereon and to apply it unilaterally 
and on a discretionary basis, thus creating a significant imbalance between the 
rights and obligations of the contracting parties. The contractual balance can be 
restored only if the right to convert the currency of the loan from CHF to RON, 
where the latter depreciates by more than 10% in comparison with the initial value 
of the loan, is conferred also on the consumer, and not just on the bank. 
8 In order to rule on the appeal, the Court of Appeal, Cluj, ruling at final instance, 
decided to refer a question to the Court of Justice for a preliminary ruling. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-566/21 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The referring court considers that it is necessary to refer the matter to the Court of 
Justice in order to establish, if it finds that the term at issue is unfair, the 
consequences arising from that finding and the way in which the contract is able 
to continue in existence. 
10 With reference the judgment of the Court of Justice of 25 November 2020, Banca 
B (C-269/19), paragraph 29 and the case-law cited therein, the referring court 
considers that, following any finding that the contract is unfair, its intervention 
must be minimal, in other words it must be limited to removing the unfair terms 
from the contract, with the exclusion of any other alteration thereof. This is also 
apparent from other decisions of the Court of Justice, such as the judgments of 
14 June 2012, Banco Español de Crédito (C-618/10), paragraph 65, and of 
30 May 2013, Jőrös (C-397/11), paragraphs 2 and 3 of the operative part. 
11 It is also apparent from the case-law of the Court of Justice that alteration of an 
unfair term and the adaptation thereof, so that the contract is able to continue in 
existence in a form satisfactory to both parties, is also to be excluded. The Court 
of Appeal, Cluj, recalls to that effect the judgments of the Court of Justice of 
25 November 2020, Banca B (C-269/19), paragraph 30, and of 3 March 2020, 
Gómez del Moral Guasch (C-125/18), paragraph 59 and the case-law cited 
therein. 
12 The rationale behind that case-law is to dissuade sellers or suppliers from 
incorporating unfair terms into contracts, as the Court of Justice pointed out in 
paragraph 31 of its judgment of 25 November 2020, Banca B (C-269/19), and in 
various earlier decisions (judgments of 14 June 2012, Banco espanol de Crédito, 
C-618/10, paragraph 69; of 30 April 2014, Kásler and Káslerné Rábai, C-26/13, 
paragraph 79; of 26 March 2019, Abanca Corporación Bancaria and Bankia, 
C-70/17 and C-179/17, paragraph 54, and of 3 March 2020, Gómez del Moral 
Guasch, C-125/18, paragraph 60). 
13 The sole exception to the rule relating to the removal of the unfair term from the 
contract concerns the case where the contract is not capable of continuing in 
existence following the removal of the unfair term, in which case it can be 
replaced with a supplementary provision of national law, as is apparent from 
paragraph 32 of the judgment of 25 November 2020 and various earlier decisions 
of the Court of Justice (judgments of 30 April 2014, Kásler and Káslerné Rábai, 
C-26/13, paragraphs 80 and 83; of 26 March 2019, Abanca Corporación Bancaria 
and Bankia, C-70/17 and C-179/17, paragraph 56; of 3 October 2019, Dziubak, 
C-260/18, paragraph 48, and of 3 March 2020, Gómez del Moral Guasch, 
C-125/18, paragraph 61). 
14 In the light of that case-law, the referring court goes on to consider the two 
options available if it is found that the term at issue is unfair. 
BANCA S 
 
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15 The first option is to replace the removed term with a supplementary provision of 
national law, if the contract is unable to continue in existence without the term 
which has been removed. 
16 The second option is that which forms the subject of the question referred for a 
preliminary ruling, that is to say where the contract is able to continue in existence 
even after the unfair term has been removed from it. 
17 If the contract is able to continue in existence, the specific situation of the contract 
under consideration differs from the case-law of the Court of Justice referred to 
above in that the lawfulness of a term whose removal from the contract would not 
bring any clear and practical benefit to the consumer – the applicant at first 
instance – is examined specifically. This is because, by removing the unfair term 
from the contract, a unilateral and discretionary right of the bank is excluded, but 
not also any corresponding obligation on the consumer. 
18 In conclusion, if the term under consideration is found to be unfair, it cannot be 
altered in such a way as to confer a similar, corresponding right on the consumer. 
The inability to alter the term as requested by the consumer, since the contract is 
able to continue in existence and, in that context any alteration or replacement of 
the term is excluded, deprives the consumer of any practical benefit arising from a 
finding of unfairness and the removal of the unfair term from the contract. The 
removal of the bank’s unilateral right does not amount to conferring on the 
consumer a similar right not laid down in the contract. 
19 The Court of Appeal, Cluj, also notes that there are a number of cases pending 
before the national courts for the resolution of which the answer to the question 
raised is of relevance.