Provisional text
OPINION OF ADVOCATE GENERAL
WAHL
delivered on 14 September 2017 (1)
Case C‑627/15
Dumitru Gavrilescu
Liana Gavrilescu
v
SC Banca Transilvania SA, formerly SC Volksbank România SA
SC Volksbank România SA – sucursala Câmpulung
(Request for a preliminary ruling from the Judecătoria Câmpulung (Court of First Instance, Câmpulung, Romania))
(Jurisdiction of the Court of Justice — Existence of a dispute pending before the referring court — National provisions that permit the withdrawal of an action after a referral to the Court of Justice for a preliminary ruling — National provisions that permit an appellate court to review an order staying the proceedings at first instance pending a decision from the Court of Justice in the matter referred to it — Unfair terms in consumer contracts — Article 4(2) of Directive 93/13/EEC — Credit agreements denominated in a foreign currency — Terms exempt from assessment as to their fairness)
1.        Dumitru and Liana Gavrilescu (‘Mr and Ms Gavrilescu’) concluded, in Romania, a loan agreement with SC Volksbank România SA (‘Volksbank’ or ‘the bank’) in Swiss francs with an obligation to repay it in the same currency. During the life of their loan, however, the local currency (Romanian leu) experienced a significant depreciation against the Swiss franc. That had a negative impact on the amount of the monthly instalments that Mr and Ms Gavrilescu had to pay to the bank, since they received their remuneration in Romanian lei.
2.        Mr and Ms Gavrilescu decided to bring proceedings against Volksbank before the Judecătoria Câmpulung (Court of First Instance, Câmpulung, Romania), relying, in particular, on an alleged unfair nature of the terms of repayment of the loan in the foreign currency. In their view, because of those terms, they had to bear the risks stemming from possible fluctuations in the currency exchange rate.
3.        In the context of that procedure, the Judecătoria Câmpulung (Court of First Instance, Câmpulung) decided to refer certain questions to the Court on the interpretation of Directive 93/13/EEC. (2) Subsequently, however, Mr and Ms Gavrilescu reached an amicable settlement with Volksbank and, in accordance with the applicable national rules, decided to withdraw their action before the referring court.
4.        In spite of the withdrawal of the action, the referring court informed the Court that it wished, on the one hand, to maintain its questions and, on the other hand, to refer two additional questions to the Court regarding the scope of the Court’s jurisdiction under Article 267 TFEU.
5.        The present case thus offers the Court an opportunity to refine its case-law regarding the requirement, under Article 267 TFEU, that its decision on the questions referred must be necessary in order to enable the referring court to give judgment in the main proceedings.
I.      Legal framework
A.      EU law
6.        Under Article 3(1) of Directive 93/13:
‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’
7.        Article 4 of Directive 93/13 provides:
‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
2. 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 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.’
B.      Romanian law
1.      Law No 193/2000
8.        The Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între comercianţi şi consumatori (Law No 193/2000 on unfair terms in contracts concluded between sellers or suppliers and consumers), of 10 November 2000, in its republished version (3) (‘Law No 193/2000’), is intended to transpose Directive 93/13.
2.      The Code of Civil Procedure
9.        Article 406 of the Codul de procedură civilă (Romanian Code of Civil Procedure) provides:
‘1.      The applicant may at any time withdraw his action, in its entirety or in part, either orally at the hearing or by written request.
2.      That request shall be made in person or through a specially authorised representative.
3. If the withdrawal is made after service of the application, the court, at the request of the defendant, shall order the applicant to pay the costs incurred by the defendant.
4. If the applicant withdraws his action at the first hearing to which the parties are duly called or at a later date, the withdrawal can be made only with the express or tacit agreement of the other party. If the defendant is not present at the hearing during which the applicant declares his withdrawal of the action, the court shall fix a time limit for the defendant to state his position as regards the request for withdrawal. The lack of any response within that time limit shall be deemed to be tacit acceptance of the withdrawal. …’
10.      Article 414 of the Code of Civil Procedure provides:
‘1. The stay of proceedings is determined by order which may be the subject of an appeal, separately, before a higher court. …
2. While the proceedings are stayed, the appeal may be brought both against the order staying the proceedings and against the order dismissing an application for the proceedings to resume.’
II.    Facts, procedure and the questions referred
11.      It is apparent from the facts of the main proceedings, as set out by the referring court, that on 5 September 2008 Mr and Ms Gavrilescu concluded a loan agreement for the sum of 45 000 Swiss francs (CHF) with Volksbank. The term of the loan was 276 months, at an annual interest rate of 3.99%. The contract was amended successively by means of addenda No 1 of 20 August 2010 and No 2 of 25 June 2013.
12.      The loan agreement provided that any payment had, in principle, to be made in the currency of the loan. According to the referring court, any difference in the exchange rate was, pursuant to the terms of the loan agreement, borne entirely by the borrower.
13.      Paragraph 4.2 of the general conditions provided that the borrower accepted that where, during the period of validity of the loan, the exchange rate for the currency of the loan fluctuated upwards, exceeding by more than 10% the said rate as at the date of signing of the contract, then, in order to ensure that the exposure to the currency risk did not continue to increase, the bank was entitled, but not obliged, to unilaterally convert the loan into Romanian lei, using the Swiss franc/Romanian leu rate applied by the bank on the date of the conversion. As a consequence, the value of the loan would, from that moment onwards, be the value in Romanian lei calculated in accordance with the conversion. In that connection, the borrowers also undertook to bear all costs generated by such conversion.
14.      In accordance with paragraph 4.3 of the general conditions, the borrowers could, during the term of the loan, request the bank to make such a conversion into Romanian lei, but the bank was not obliged to accede to that request.
15.      Taking the view that the terms requiring the loan to be repaid in Swiss francs and casting the foreign exchange risk on the borrowers were unfair, Mr and Ms Gavrilescu brought an action against Volksbank before the Judecătoria Câmpulung (Court of First Instance, Câmpulung). That court, having doubts as to the correct interpretation of the provisions of Directive 93/13, decided, by order of 22 October 2015, to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Must Article 4(2) of [Directive 93/13] be interpreted as meaning that the terms “main subject matter of the contract” and “adequacy of the price and remuneration, on the one hand, as against the services or goods supplie[d] in exchange, on the other” cover a clause that is included in a loan contract concluded in a foreign currency between a seller or supplier and a consumer and has not been the subject of individual negotiation, pursuant to which, for repayment of the loan instalments, the debtor alone is required to bear the “currency risk”, consisting of the potential adverse impact of an increase in the monthly payment obligation generated by currency exchange-rate fluctuations, which he must bear as a result of entering into the loan contract and as a result of the fact that the amounts advanced under the loan contract are repayable in a currency other than [the] Romanian national currency?
(2)      In accordance with Article 4(2) of [Directive 93/13], must it be understood that the consumer’s obligation, when repaying the loan, to bear the difference resulting from the rise in the exchange rate for the currency in which the loan was granted [Swiss francs] represents remuneration, the appropriateness of which in relation to the service provided may not be examined for the purpose of assessing whether it is unfair?
(3)      If the answer to the foregoing question should be that such a clause does not escape the assessment of unfairness, may it be considered that that clause satisfies the requirements of good faith, balance and transparency set out in [Directive 93/13], enabling the consumer to foresee, on the basis of clear and comprehensible criteria, the consequences of such a clause as far as he is concerned?
(4)      Does a contractual clause — like that referred to in [paragraph] 4.2 of the general contract conditions, according to which the bank, in relation to a loan granted in [Swiss francs], has the right to convert it into national currency if the rate of exchange is experiencing upward fluctuations of more than 10% above the figure for that rate prevailing on the date the contract was signed, in order to ensure that the exposure to the currency risk does not continue, without a similar right being granted to the consumer — fall within the scope of the protection granted by Directive 93/13 or does it escape the assessment of fairness?’
16.      By letter dated 18 March 2016, the referring court informed the Court that the applicants in the main proceedings had submitted a request to withdraw their case. That event led the referring court to express doubts as to the compatibility with Article 267 TFEU of a national provision such as Article 406 of the Romanian Code of Civil Procedure. Against that background, the referring court decided to refer an additional fifth question to the Court for a preliminary ruling:
‘Does Article 267 [TFEU], by virtue of which the national courts are free to bring matters before the [Court], preclude a provision such as that laid down in Article 406 of the Code of Civil Procedure, which does not expressly prohibit withdrawal of an action after referral to the [Court], which withdrawal deprives the national court of the possibility of ruling on the alleged unfair nature of contractual terms[?]’
17.      Subsequently, by order of 2 June 2016, the referring court informed the Court that — on an appeal against the referring court’s order of 22 October 2015 brought by Volksbank — the Tribunalul Argeş (Tribunal, Argeş, Romania) had, by decision of 17 March 2016, quashed that order and referred the case back to the referring court to continue the proceedings.
18.      As I understand it, the decision of the Tribunalul Argeş (Tribunal, Argeş) admonished the referring court for failing to draw, under national law, the appropriate conclusions from the request for withdrawal of the case lodged by Mr and Ms Gavrilescu. In accordance with the provisions of national law, the referring court ought to have terminated the proceedings and, consequently, the request for a preliminary ruling to the Court would have become devoid of purpose. Against that background, the referring court decided to refer a new and additional sixth question to the Court for a preliminary ruling:
‘Does Article 267 [TFEU] preclude a provision of national law, such as Article 414 of the Romanian Code of Civil Procedure, which permits an appellate court to review, in the context of an appeal, an order staying proceedings in the case where, by that order, the lower court decided to submit questions for a preliminary ruling to the Court of Justice of the European Union?’
19.      Written observations have been submitted by Volksbank, the Polish and Romanian Governments and the Commission. Volksbank, the Romanian Government and the Commission also presented oral argument at the hearing held on 8 June 2017.
III. Analysis
20.      From the outset, I must state my agreement with Volksbank, the Romanian Government and the Commission that this case falls, to a large extent, outside the Court’s jurisdiction under Article 267 TFEU.
21.      However, since the fifth and sixth questions referred — which the Judecătoria Câmpulung (Court of First Instance, Câmpulung) subsequently added to the original four questions — concern precisely the scope of the Court’s jurisdiction under Article 267 TFEU, I shall address those questions without further delay. In the light of the answers given to those questions, it will become apparent that, in circumstances such as those in the main proceedings, the Court does not have — or no longer has — the power to give a ruling as concerns the first to fourth questions.
A.      The fifth and sixth questions
22.      By its fifth and sixth questions, the referring court asks the Court whether Article 267 TFEU precludes (i) national procedural rules that permit withdrawal of an action after referral to the Court, thereby depriving the national court of the possibility of ruling on the alleged unfair nature of contractual terms, and (ii) national procedural rules that permit an appellate court to review, in the context of an appeal, an order staying proceedings in the case where, by that order, the lower court decided to submit questions for a preliminary ruling to the Court.
23.      In essence, those questions seek to determine whether the national provisions, which oblige the referring court to terminate the main proceedings following the withdrawal of the action by the applicants, are compatible with EU law. From another angle, those questions raise the issue of whether the dispute in the main proceedings may be still considered pending for the purposes of Article 267 TFEU.
1.      The Court’s jurisdiction under Article 267 TFEU
24.      As I had the opportunity to emphasise in Gullotta, (4) the role and functions of the Court are regulated, just like those of any other institution of the European Union, by the principle of conferral. In that regard, Article 13(2) TEU provides: ‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.’ Accordingly, the Court’s jurisdiction is framed by the system of judicial remedies established by the Treaties, which are available only when the conditions set out in the relevant provisions are fulfilled.
25.      As concerns the preliminary ruling procedure, Article 267 TFEU expressly makes the jurisdiction of the Court subject to a number of conditions. More specifically, under the first paragraph of that provision, the questions referred must concern provisions of EU law, the interpretation or validity of which is in doubt in the main proceedings. Furthermore, under the second paragraph of that provision, the body making the reference must be a court or tribunal of a Member State and a decision on the question referred must be necessary in order to enable it to give judgment in the main proceedings.
26.      Those conditions must be fulfilled not only at the moment when the Court is seised by the national court, but also throughout the proceedings. If those conditions are not fulfilled, or are no longer fulfilled, the Court must decline jurisdiction, and it may do so at any time in the procedure. (5)
27.      What is of central importance in the present proceedings is the condition that the Court’s decision on the questions referred must be necessary in order to enable the referring court to give judgment in the main proceedings. That condition implies, in particular, that there must be a genuine dispute pending before the referring court, and that the answer to be provided by the Court has to be relevant for the resolution of that dispute. Indeed, the Court has consistently stated that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. (6)
28.      The reason lies in the very function conferred on the Court by Article 267 TFEU: to assist in the administration of justice in the Member States, (7) by contributing to the effective resolution of disputes concerning EU law, and not to deliver advisory opinions on general or hypothetical questions (8)
29.      It is against that background that I shall examine in more detail the fifth and sixth questions referred by the Judecătoria Câmpulung (Court of First Instance, Câmpulung).
2.      National provisions that permit withdrawal of an action after referral to the Court
30.      The referring court has expressed doubts that, in circumstances such as those in the main proceedings, national rules — such as Article 406 of the Romanian Code of Civil Procedure — that permit withdrawal of an action after referral to the Court comply with EU law. The stated reason is that the withdrawal of the action has the effect of depriving the national court of the power to rule on claims relating to the existence of unfair terms in consumer contracts.
31.      I do not share those doubts. For the reasons which I shall explain below, I do not see any ground to consider that a national procedural rule that permits withdrawal of an action after referral to the Court, thereby causing the preliminary ruling procedure to lose its object, might be incompatible with Article 267 TFEU. Quite to the contrary, such a national rule appears very much in line with the spirit of Article 267 TFEU.
(a)    Principles of individual autonomy and of sound administration of justice
32.      At the outset, it should be borne in mind that rules which allow applicants to discontinue or withdraw all or part of their actions — particularly in civil and commercial matters — are absolutely crucial for the sound administration of justice. Those rules are the expression of the principle of individual autonomy (also referred to in certain jurisdictions as the dispositive principle): whether and to what extent an individual decides to assert his rights before the courts ultimately depends on that individual’s intent. (9)
33.      Indeed, in many jurisdictions — including in proceedings before the Courts of the European Union (10) — the power to withdraw an action can be exercised unilaterally by the applicant and the defendant cannot oppose it. An obligation (or even a mere possibility) for a court to continue the procedure when there is no longer a dispute pending before it would serve no useful purpose: there are no claims to be ruled upon by the judges. In fact, it would only increase any judicial backlog (a problem common to many jurisdictions) and increase public expenditure.
34.      A ‘forced’ continuation of the proceedings might, furthermore, discourage parties from concluding amicable settlements, either within or outside the courtroom, an objective pursued by many legal systems. (11) In that regard, I would point out that, according to Article 147(1) of the Rules of Procedure of the Court, unless otherwise stated, ‘if, before the Court has given its decision, the parties reach a settlement of their dispute and inform the Court of the abandonment of their claims, the President shall order the case to be removed from the register and shall give a decision as to costs in accordance with Article 141, having regard to any proposals made by the parties on the matter’.
35.      The interpretation of Article 267 TFEU suggested by the referring court is inconsistent with the above principles.
(b)    No need to reply to hypothetical questions
36.      More importantly, the Court has consistently stated that it cannot give an answer to questions referred for a preliminary ruling where the procedure before the court making the reference has already been terminated. (12) The same principle applies where, even if the procedure at the national level has not yet been formally closed, the interpretation of EU law sought from the Court would no longer serve any use because the main proceedings have de facto lost their purpose. (13)
37.      For example, the Court has held that there was no need to reply to certain questions referred when, in spite of the fact that the referring court had not withdrawn its request under Article 267 TFEU, the claims of the applicant in the main proceedings had been satisfied in their entirety. (14) The Court has also recognised that, in principle, the applicant in the main proceedings is in a position to render a reference devoid of purpose by simply discontinuing his action before the referring court. (15)
38.      In all those cases the questions referred became hypothetical given that the EU rules which the national court sought to have interpreted could not subsequently be applied in the main proceedings. The mere wish of the referring court to maintain one or more questions, in spite of the fact that the main proceedings had become devoid of purpose, could not have any bearing in that regard. (16) It hardly needs to be pointed out that the desire of the national court to maintain its request for a preliminary ruling cannot have the effect of expanding the Court’s jurisdiction beyond the boundaries set in Article 267 TFEU. Nor is it of any relevance that an answer from the Court might be useful for the referring court (or other national courts) in the context of other pending cases which raise similar issues, (17) or of future cases which may be connected to the main proceedings. (18)
39.      Indeed, the answer to be provided by the Court must be applicable, with unquestionably binding force, (19) in the very procedure from which those questions originated. (20) The Court’s response to a request under Article 267 TFEU, even when formulated in an abstract manner, is always anchored in the factual and legal background of the actual case before the referring court. Different cases may, despite their similarity, still display certain differences which may be relevant for the answer to be given by the Court.
40.      It is for that reason that, in its ‘Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings’, the Court has stated that ‘where the outcome of a number of cases pending before the referring court or tribunal depends on the reply to be given by the Court to the questions submitted by that court or tribunal, it may be appropriate for that court or tribunal to join those cases in the request for a preliminary ruling in order to enable the Court to reply to the questions referred notwithstanding any withdrawal of one or more cases’.(21)
(c)    Consequences for the procedure before the Court
41.      The interpretation of Article 267 TFEU suggested by the referring court would also have certain important consequences for the procedure before the Court.
42.      First, it can be expected that the parties in the main proceedings would often not submit observations to the Court (they would have no interest in doing so) or would do so only to point out that the main proceedings have become devoid of purpose. That situation is illustrated by the present proceedings: the applicants in the main proceedings (Mr and Ms Gavrilescu) have neither submitted written observations nor appeared at the oral hearing, and the defendant in the main proceedings (Volksbank Romania) has submitted written and oral observations which are largely focused on the Court’s jurisdiction. In such a case, the Court would thus rule on the substantive issues raised by the referring court, despite hearing limited or no arguments on those issues from the parties to the main proceedings. It is fair to say that that is not an ideal course of action.
43.      Second, and what is more, the parties to the proceedings in which the judgment of the Court would be applied (by the referring court or by other courts) would essentially be deprived of the possibility of participating in the proceedings before the Court. That would seem to me to constitute a misuse, or at the very least an unorthodox handling, of the procedure provided for in Article 267 TFEU. Until such similar or future cases are brought before the Court, those cases are not — from the Court’s perspective — ‘ripe’ for adjudication. (22)
(d)    Principle of procedural autonomy
44.      The interpretation of Article 267 TFEU proposed here is also more in keeping with the principle of procedural autonomy. According to settled case-law, if there are no EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (23)
45.      In the present case, both principles seem to me fulfilled. As far as I understand, Article 406 of the Romanian Code of Civil Procedure is applicable without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law. (24) Moreover, that provision can hardly be regarded as making impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order: the persons claiming a breach of Directive 93/13 need only continue the proceedings already commenced to have their claim examined by the competent national courts.
46.      It is true that, in the field of consumer protection, the Court has introduced a number of limitations to the principle of procedural autonomy, in order to adequately safeguard the rights of consumers, since they are generally in a position of weakness vis-à-vis sellers or suppliers. (25) However, those exceptions concerned instances in which the national procedural rules made it difficult or impossible, in the context of existing judicial procedures, to protect consumers’ rights. That was so, in particular, because the consumer was unaware of his rights or could encounter difficulties in enforcing those rights (26) (for example, he was not heard, or was barred from invoking the provisions of Directive 93/13, or the judge was prevented from raising ex officio issues under that directive). (27) Thus, the positive action of the national court ‘compensated’ the consumer’s inability to properly defend his rights in the context of judicial procedures.
47.      Conversely, in the present case, Mr and Ms Gavrilescu were well aware of the rights that Directive 93/13 grants to consumers, since they started proceedings to enforce their alleged rights under that directive. Subsequently, however, they consciously decided to withdraw their action because — it may be assumed — they considered the bank’s offer of a settlement satisfactory. Thus, in this case, there is no unawareness or difficulty of enforcement by the consumer that the positive action of the national court should ‘compensate’.
48.      In addition, the active intervention of the national court in the main proceedings would result in disregarding and reversing the clear will of the consumer. Yet, the Court has consistently stated that the national court’s action in this context cannot go against the clear will of the consumers concerned. (28)
49.      In that context, I should point out that what happened in the main proceedings is by no means unusual or abnormal: applicants often bring proceedings with the very intent of forcing the defendants to satisfy their claims, or at least to encourage them to enter into negotiations for a possible settlement. The withdrawal of an application is, accordingly, often due to the fact that the applicant’s requests have been met in full, or to a satisfactory extent in the context of an out-of-court settlement. Withdrawal may also be the consequence of an assessment, by the applicant, of the costs of litigation against the potential benefits, in the light of the chances of success.
50.      It is clear that, in some cases, the consumer may realise, in the course of the procedure, that he is likely to lose his case, whether in whole or in large part. In those circumstances, the ‘forced’ continuation of the proceedings — resulting from the refusal of the national court to take into account the will of the parties — would risk having a ‘perverse’ effect: should the consumer eventually lose his case, the bank would be entitled to withdraw what it initially offered and, possibly, recover its legal costs from the consumer (including the extra costs entailed by the ‘forced’ continuation of the proceedings).
51.      In fact, that may well be the situation in the present proceedings. Indeed, from the documents in the case file, it is by no means clear that the two sets of contractual terms challenged as unfair by the applicants in the main proceedings are truly in breach of the provisions of Directive 93/13. As concerns the terms requiring the loan to be repaid in the same currency as it was taken, and which thus subjected the consumers to some ‘foreign exchange risk’, several elements indicate that those terms might escape an assessment as to their unfairness because they relate to the ‘main subject matter of the contract’ within the meaning of Article 4(2) of Directive 93/13. (29) In addition, as regards the clause giving the bank the right to convert the loan into the local currency under certain conditions — despite in all likelihood not falling within the scope of Article 4(2) of Directive 93/13 (30) — its potential unfairness is nonetheless far from evident. (31)
52.      Since, according to the information provided by the referring court, Mr and Ms Gavrilescu’s demands were largely accepted by the bank in a negotiated settlement, one can only speculate on whether it would have been wise, from their perspective, to continue the judicial procedures. Although it is not for this Court to take a position on that issue, it is undeniable that, in many cases, the ex officio intervention of the national court would go against the will of the parties and ultimately risk frustrating, rather than achieving, the goal of protecting the weaker party.
53.      Thus, the interpretation of Article 267 TFEU suggested by the referring court not only goes against the wording and purpose of that provision, but it also appears to be inconsistent with some general principles of EU law. Furthermore, far from correcting the imbalance which exists between the consumer and the seller or supplier, the positive action of the national judge might, at least in some cases, be counterproductive for the consumer.
(e)    The present case should be distinguished from Matei
54.      Finally, I would simply point out that the present case should be distinguished from Matei, (32) a case repeatedly mentioned in the order for reference. In that case, the referring court informed the Court that, despite the fact that a settlement had been reached by the parties, that court could not confirm that settlement because it was not consistent with national law. Consequently, the case was considered to be still pending before the referring court. Conversely, in the present case, as the referring court acknowledged in its letters to the Court, the applicant has withdrawn the actions in conformity with national law.
55.      In addition, whereas in Matei the settlement of the parties would have been crystalised in the decision of the national court (thereby potentially becoming res judicata), in the present case Mr and Ms Gavrilescu remain free to commence fresh proceedings if they were to consider that the contractual terms agreed in the settlement with Volksbank breach the provisions of Directive 93/13.
(f)    Intermediate conclusion
56.      Against that backdrop, there seems to be nothing before the Court that casts doubts on the conformity with EU law of a national procedural rule such as the one at issue. In the light of the above, I take the view that Article 267 TFEU does not preclude national procedural rules that permit withdrawal of an action after referral to the Court, even if that deprives the national court of the possibility of ruling on the alleged unfair nature of contractual terms.
57.      The proposed answer to the fifth question referred would seem sufficient to dispose of the present case: since there is no longer a dispute before the Judecătoria Câmpulung (Court of First Instance, Câmpulung), there is no need to answer any other question referred by that court. However, since the sixth question is intimately linked to the fifth question, I shall, for reasons of completeness, turn now to the issue raised by that question.
3.      National provisions that permit an appellate court to review an order staying proceedings
58.      According to settled case-law, Article 267 TFEU does not preclude decisions of courts or tribunals, against whose decisions there is a judicial remedy under national law, and which have referred a matter to the Court for a preliminary ruling, from remaining subject to the remedies normally available under national law, which allow the higher court to adjudicate the dispute that was the subject matter of the reference and thus to assume responsibility for ensuring compliance with EU law. (33)
59.      In line with that principle, the Court has already found — for example in Pohotovosť (34) and BNP Paribas Personal Finance and Facet (35)— that a procedure may become devoid of purpose if an appellate court decides, in accordance with the applicable national rules of procedure, to annul the referring court’s refusal to take note of the withdrawal of the applicant in the main proceedings’ action and to order that the referring court’s request for a preliminary ruling be withdrawn.
60.      Although the formulation of the judgment in Pohotovost’ (36) may, at first sight, seem to leave some discretion to the Court as to whether, in that type of situation, it may nonetheless decide to continue the procedure, that would obviously be an erroneous reading of the judgment.
61.      The margin of manoeuvre that the Court enjoys in that context — and to which the judgment in Pohotovost’ refers — can only concern the evaluation of the significance, weight and credibility of the information that it may receive, from the parties or from courts other than the referring court, regarding the fact that the main proceedings have been terminated or become devoid of purpose.
62.      Indeed, so far as concerns the Court’s jurisdiction under Article 267 TFEU, we are faced with a ‘black-or-white’ situation: either the Treaty gives the Court the power (and the obligation) to hear the case, or it does not. On the one hand, provided that it has jurisdiction, and that the request is admissible, the Court is bound to treat all cases referred to it under Article 267 TFEU.(37) On the other hand, the Court cannot decide that it will hear a case even if that case falls outside its jurisdiction.
63.      Thus, when the information received by the Court shows unequivocally that the main proceedings no longer have a purpose, the Court is bound to decline jurisdiction. That is precisely the case in the present procedure since it is the referring court itself which has informed the Court of the applicants’ withdrawal — lawful, under national law — of the action.
64.      Importantly, it is because of the refusal to draw the consequences from the applicants’ withdrawal of the action that the appellate court censured the referring court’s order to stay the proceedings. The decision of the appellate court did not concern — as the Romanian Government has pointed out — the aspects of that order which related to the request for a preliminary ruling under Article 267 TFEU.
65.      The situation in the main proceedings is thus similar to that examined by the Court, for example, in Nationale Loterij (38) and in Cloet and Cloet: (39) the appellate court has interpreted and applied the national provision at issue in such a way as to merely adjudicate the dispute itself, on the basis of rules which did not involve any interpretation of EU provisions. Unlike in the situation examined in Cartesio, (40) the national procedural rule at issue in the main proceedings was not interpreted or applied so as to deprive the referring court of the freedom to refer a question for a preliminary ruling.
66.      In the light of the above, I take the view that Article 267 TFEU does not preclude national procedural rules that permit an appellate court to review, in the context of an appeal, an order staying proceedings so as to determine whether the case is still pending, even if by that order the lower court had decided to submit questions for a preliminary ruling to the Court.
4.      Final remarks
67.      In conclusion, I propose that the Court answer the fifth and sixth questions referred to the effect that Article 267 TFEU does not preclude national procedural rules that permit withdrawal of an action after referral to the Court, even if that deprives the national court of the possibility of ruling on the alleged unfair nature of contractual terms. That provision does not, moreover, preclude national procedural rules that permit an appellate court to review, in the context of an appeal, an order staying proceedings so as to determine whether the case is still pending, even if by that order the lower court had decided to submit questions for a preliminary ruling to the Court.
68.      From that it follows that the Court no longer has jurisdiction to answer the first to fourth questions referred. Since the national rules permitting the withdrawal of the action are not incompatible with EU law, there is no longer a dispute pending before the referring court for the purpose of Article 267 TFEU. Consequently, those questions have become hypothetical. Accordingly, I propose that, in conformity with Article 100(2) of the Rules of Procedure, the Court declares that there is no need to provide an answer to the first, second, third, and fourth questions referred.
IV.    Conclusion
69.      In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Judecătoria Câmpulung (Court of First Instance, Câmpulung, Romania) as follows:
–        Article 267 TFEU does not preclude national procedural rules that permit withdrawal of an action after referral to the Court, even if that deprives the national court of the possibility of ruling on the alleged unfair nature of contractual terms;
–        Article 267 TFEU does not preclude national procedural rules that permit an appellate court to review, in the context of an appeal, an order staying proceedings so as to determine whether the case is still pending, when by that order the lower court had decided to submit questions for a preliminary ruling to the Court.
1      Original language: English.
2      Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
3      Most recently republished in Monitorul Oficial al României, Part I, No 543, of 3 August 2012.
4      Opinion in Gullotta and Farmacia di Gullotta Davide & C., C‑497/12, EU:C:2015:168, points 16 to 19 and further references.
5      See Article 100(2) of the Rules of Procedure of the Court of Justice.
6      See, in particular, order of 5 June 2014, Antonio Gramsci Shipping and Others, C‑350/13, EU:C:2014:1516, paragraph 10 and the case-law cited.
7      See, among many, judgment of 15 September 2011, Unió de Pagesos de Catalunya, C‑197/10, EU:C:2011:590, paragraph 18 and the case-law cited.
8      See, inter alia, judgment of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 29 and the case-law cited.
9      Cf., recently, the Opinion of Advocate General Mengozzi in British Airways v Commission, C‑122/16 P, EU:C:2017:406, points 84 and 85 and further references. Generally on the importance of that principle, see also the Opinion of Advocate General Kokott in Belov, C‑394/11, EU:C:2012:585, point 45, footnote 39: ‘The dispositive principle, according to which it is for the parties to initiate, terminate and organise proceedings, applies in the (civil) procedural orders of many Member States and enables the parties, for example, to terminate legal proceedings without a judgment being delivered, by means of a settlement.’
10      See, in particular, Article 148 of the Rules of Procedure of the Court. For an application, see order of the President of the Court of 19 March 1996, Commission v Greece, C‑120/94, EU:C:1996:116, paragraphs 5 to 13.
11      To give but one example, the rules of the World Trade Organization (‘WTO’) provide: ‘A solution mutually acceptable to the parties to a dispute and consistent with the [WTO] agreements is clearly to be preferred [to bringing a case under the dispute settlement mechanism]’ (emphasis added) (see Article 3.7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes).
12      See, notably, judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraphs 10 and 11, and of 16 July 1992, Lourenço Dias, C‑343/90, EU:C:1992:327, paragraph 18.
13      See, to that effect, judgment of 15 June 1995, Zabala Erasun and Others, C‑422/93 to C‑424/93, EU:C:1995:183, paragraph 30.
14      See judgments of 12 March 1998, Djabali, C‑314/96, EU:C:1998:104, paragraphs 15 to 23, and of 20 January 2005, García Blanco, C‑225/02, EU:C:2005:34, paragraphs 29 to 32.
15      See, to that effect, judgment of 17 May 2001, TNT Traco, C‑340/99, EU:C:2001:281, paragraph 34.
16      See to that effect orders of 10 June 2011, Mohammad Imran, C‑155/11 PPU, EU:C:2011:387, paragraphs 16 to 22, and of 22 October 2012, Šujetová, C‑252/11, not published, EU:C:2012:653, paragraph 10 et seq.
17      See judgment of 20 January 2005, García Blanco, C‑225/02, EU:C:2005:34, paragraphs 22 to 24 and 30 to 32. See also the Opinion of Advocate General Kokott in the same case, EU:C:2004:669, point 34.
18      See, in particular, order of 10 June 2011, Mohammad Imran, C‑155/11 PPU, EU:C:2011:387, paragraphs 19 and 20.
19      See, to that effect, judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 12 and the case-law cited.
20      See, to that effect, judgment of 3 July 2014, Da Silva, C‑189/13, not published, EU:C:2014:2043, paragraph 34.
21      Point 25 (emphasis added) (OJ 2016 C 439, p. 1).
22      I am here borrowing a term commonly used in US law. As the US Court of Appeal for the Second Circuit wrote in a judgment, ‘constitutional ripeness is a doctrine that … is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. … Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial’ (see Simmonds v. Immigration and Naturalization Service, 326 F.3d 351, 357 (2d Cir. 2003). These considerations seem to me to be, mutatis mutandis, valid in the present context.
23      See, among many, judgment of 17 March 2016, Bensada Benallal, C‑161/15, EU:C:2016:175, paragraph 24 and the case-law cited.
24      See, similarly, judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 30.
25      See, to that effect, judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 56.
26      See judgment of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 28 and the case-law cited.
27      See, for example, judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164; of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349; and of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659.
28      See, for example, judgments of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 33 and the operative part, and of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 35. See also the Opinion of Advocate General Kokott in Duarte Hueros, C‑32/12, EU:C:2013:128, point 53, and the Opinion of Advocate General Szpunar in Joined Cases Sales Sinués and Drame Ba, C‑381/14 and C‑385/14, EU:C:2016:15, points 69 and 70.
29      On this issue, see my Opinion in Andriciuc and Others, C‑186/16, EU:C:2017:313, points 34 to 59.
30      First, a clause such as that at issue would not seem to concern the core of the contractual relationship between the bank and the consumer, but rather an aspect of secondary importance in that relationship. That clause appears, indeed, accessory in the overall scheme of the contract: it merely grants the lender the power to convert the sum of money borrowed from one currency into another. The clause appears also separable from the rest of the contract: had that clause not been there, the essential features of the loan agreement would have remained unaltered. Second, the clause at issue does not appear to relate to the adequacy of the price and remuneration on one hand, as against the services or goods supplied, on the other. The clause at issue does not provide for any service to be supplied by the bank in exchange for the obligation borne by the consumers. The power granted to the bank — that can be exercised unilaterally at the bank’s own discretion and is not matched by any similar power given to the consumers — cannot, therefore, constitute ‘remuneration’, the adequacy of which as consideration for a service supplied by the lender could be assessed. On these issues, see generally judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 36 to 59, and of 23 April 2015, Van Hove, C‑96/14, EU:C:2015:262, paragraphs 33 to 39.
31      In that regard, the national court would have to verify, inter alia, whether the possible imbalance between the parties created by that clause is, pursuant to Article 3(1) of Directive 93/13, ‘to the detriment of the consumer’. That is not obvious: the stated objective of paragraph 4.2 of the general conditions of the loan agreement in the case at hand was to ‘ensure that the exposure to the currency risk did not continue to increase’. Accordingly, the effect of that clause is, at least indirectly, also to protect the consumer. It is, arguably, also in the bank’s interest that the consumer avoids a default in the event of a significant depreciation of the local currency vis-à-vis the foreign currency in which the loan was taken.
32      Judgment of 26 February 2015, Matei, C‑143/13, EU:C:2015:127, paragraphs 37 to 42.
33      See judgment of 9 September 2015, X and van Dijk, C‑72/14 and C‑197/14, EU:C:2015:564, paragraph 62 and the case-law cited.
34      Judgment of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 33.
35      Order of the President of the Court of 25 September 2013, BNP Paribas Personal Finance and Facet, C‑564/12, EU:C:2013:642.
36      Paragraph 33 of the judgment reads as follows: ‘It is only if the appeal court were to decide, in accordance with the applicable national rules of procedure, to annul the referring court’s refusal to take note of the withdrawal of the applicant in the main proceedings’ action and to order that the referring court’s request for a preliminary ruling be withdrawn, that the Court could consider drawing the inferences from the appeal court’s decision and potentially removing the case from the register, after seeking, if necessary, the observations of the referring court in that regard’ (emphasis added).
37      See judgments of 19 December 1968, De Cicco, 19/68, EU:C:1968:56, p. 478, and of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 29.
38      Judgment of 15 December 2016, Nationale Loterij, C‑667/15, EU:C:2016:958.
39      Order of 4 June 2009, Cloet and Cloet, C‑129/08, EU:C:2009:347.
40      Judgment of 16 December 2008, Cartesio, C‑210/06, EU:C:2008:723.