62020CO0288_INF
Order of the Court (Eighth Chamber) of 24 March 2022 – BNP Paribas Personal Finance
(Case C‑288/20) (
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)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Loan agreement denominated in a foreign currency (Swiss francs) – Terms exposing the borrower to a foreign exchange risk – Article 4(2) – Requirements of intelligibility and transparency – Burden of proof – Article 3(1) – Significant imbalance – Article 5 – Contractual term that is in plain, intelligible language)
1.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Terms defining the main subject matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration – Meaning – Terms of the loan agreement providing that the foreign currency is the account currency and the euro the settlement currency, exposing the consumer to the foreign exchange risk – Included – Terms to lay down an essential element characterising the agreement – A matter for the national court to ascertain
(Council Directive 93/13, Art. 4(2))
(see paras 23-32, operative part 1)
2.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Terms defining the main subject matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration – Meaning – Terms of the loan agreement providing that the foreign currency is the account currency and the euro the settlement currency, exposing the consumer to the foreign exchange risk – Included – Conditions – Obligation to satisfy the requirements of intelligibility and transparency – Scope
(Council Directive 93/13, Arts 4(2) and 5)
(see paras 34-37, 43, 47-50, operative part 2)
3.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Terms defining the main subject matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration – Conditions – Contractual term that is in plain, intelligible language – Burden of proof on the consumer – Not permissible
(Council Directive 93/13, Art. 4(2))
(see paras 54, 58, 61, operative part 3)
4.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Unfair term within the meaning of Article 3 – Meaning – Terms of the loan agreement providing that the foreign currency is the account currency and the euro the settlement currency, exposing the consumer to the foreign exchange risk without providing for an upper limit to that risk – Included – Existence of a significant imbalance between the rights and obligations of the parties under the contract – Disproportionate foreign exchange risk for the consumer – A matter for the national court to ascertain
(Council Directive 93/13, Arts 3(1) and (5))
(see paras 70-75, operative part 4)
Operative part
1.
Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the concept of the ‘main subject matter of the contract’, within the meaning of that provision, covers terms of the loan agreement which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect that the foreign exchange risk is borne by the borrower, where those terms lay down an essential element characterising the agreement.
2.
Article 4(2) of Directive 93/13 must be interpreted as meaning that, in the context of a loan agreement denominated in a foreign currency, the requirement of transparency of the terms of that agreement, which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect that the foreign exchange risk is borne by the borrower, is satisfied where the seller or supplier has provided the consumer with sufficient and accurate information to enable the average consumer, who is reasonably well informed and reasonably observant and circumspect, to understand the specific functioning of the financial mechanism in question and thus to evaluate the risk of potentially significant adverse economic consequences of such terms on his or her financial obligations throughout the term of the agreement.
3.
Directive 93/13 must be interpreted as precluding the burden of proving that a contractual term is plain and intelligible, for the purposes of Article 4(2) of that directive, from being borne by the consumer.
4.
Article 3(1) of Directive 93/13 must be interpreted as meaning that terms of a loan agreement which provide that the foreign currency is the account currency and the euro the settlement currency and which have the effect of placing the foreign exchange risk on the borrower, without providing for an upper limit to that risk, are liable to cause a significant imbalance in the parties’ rights and obligations arising under that agreement, to the detriment of the consumer, where the seller or supplier could not reasonably expect, in compliance with the requirement of transparency in relation to the consumer, that the consumer would have agreed to a disproportionate foreign exchange risk resulting from those terms.
(
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)	OJ C 297, 7.9.2020.