OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 14 May 2019 ( 1 ) ( 2 )

Case C‑260/18

Kamil Dziubak,

Justyna Dziubak

v

Raiffeisen Bank International AG z siedziba w Wiedniu, prowadzacy działalność w Polsce w formie oddziału pod nazwą Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA z siedzibą w Warszawie

(Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland))

(Reference for a preliminary ruling — Directive 93/13/EEC — Unfair terms in consumer contracts — Contracts denominated in a foreign currency — Term relating to arrangement of the exchange rate between the currencies — Effects of a declaration that such a term is unfair — Whether it is possible for the court to modify the contract by recourse to general provisions of national law — Assessment of the consumer’s interests — Maintenance of the contract’s validity without unfair terms)

I. Legal framework

A. European Union law

1. Article 3(1) of Directive 93/13/EEC ( 3 ) provides that: ‘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.’

2. Under Article 4 of Directive 93/13: ‘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 supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

3. Article 6(1) of Directive 93/13 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 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.’

4. Article 7 of Directive 93/13 provides that: ‘1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. …’

B. Polish law

5. Article 56 of the Ustawa z 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964, Civil Code) (Official Journal of the Republic of Poland of 2007, item 459, as amended) (‘the Civil Code’) stipulates: ‘A legal transaction shall give rise not only to the effects expressed therein, but also to those that arise from the Law, from the rules of social conduct and from established customs.’

6. Under Article 3531 of the Civil Code: ‘Contracting parties may arrange their legal relationship at their discretion as long as the substance or purpose of the contract is not contrary to the properties (nature) of the relationship, the Law or the rules of social conduct.’

7. Under Article 354 of the Civil Code: ‘1. A debtor should perform his obligation in accordance with its substance and in a manner complying with its social and economic purpose and the rules of social conduct, and if there are established customs in this respect, also in a manner complying with those customs. 2. A creditor should cooperate in the same manner in performing the obligation.’

II. The facts, the main proceedings and the questions referred for a preliminary ruling

8. On 14 November 2008, the applicants in the main proceedings concluded, as consumers, a mortgage loan agreement for a period of 480 months. Pursuant to the contract, the bank granted to the borrowers a loan specified in Polish currency (PLN), but indexed to a foreign currency, in this case the Swiss franc (CHF).

9. The rules for indexing the loan to foreign currency were set forth in the mortgage loan regulations used by the bank and incorporated into the contract.

10. Paragraph 7(4) of the mortgage loan regulations essentially provided that the loan would be disbursed in PLN at a rate not lower than the buying rate for the foreign currency (CHF) in accordance with the exchange rate table in force at the time the loan was disbursed. The loan debt balance, in the foreign currency (CHF), would be calculated at the exchange rate applied at the disbursement of the loan.

11. Furthermore, under Paragraph 9(2) of the mortgage loan regulations the loan payments would be expressed in CHF and on each subsequent loan payment date they would be debited to a bank account maintained in PLN at the selling rate in accordance with the exchange rate table in force at the bank at the end of the business day preceding the loan payment date.

12. The interest rate on the loan was variable and set as the sum of the 3-month LIBOR (CHF) benchmark and the bank’s fixed margin.

13. The borrowers brought an action before the referring court, seeking, primarily, a declaration that the loan contract is invalid on grounds of the purported unfairness of the terms concerning the indexing mechanism referred to in points 11 and 12 above. In particular, they claimed that the terms were unlawful in that they allowed the bank to arrange the currencies’ exchange rates unilaterally and at its discretion. Consequently, the bank fixed unilaterally the outstanding balance of the loan expressed in foreign currency and the result of the conversion of the loan payment amount expressed in foreign currency into Polish currency.

14. Declaring those terms unfair would make it impossible to arrange the relevant exchange rate and should therefore result in the annulment of the contract in its entirety.

15. In the alternative, the borrowers requested that the contract be performed without the unfair terms, on the basis of the loan amount stipulated in Polish currency and the interest rate stipulated in the contract, based on the variable LIBOR and the bank’s fixed margin.

16. The bank contested the claim that the terms are unfair and contended, in the alternative, that, even if those terms were removed from the contract, the parties would be bound by the other terms of the contract.

17. According to the bank, given the absence of a supplementary provision which would stipulate the manner in which the exchange rate should be set, it would be necessary, for the purposes of interpreting the contract once the unfair terms had been removed, to take into account the general principles arising from the provisions of Articles 56, 65 and 354 of the Civil Code, including, in particular, the principles of interpreting declarations of intent and established customs.

18. The referring court considers that the terms laid down in the contract in question are not binding on the borrowers as they are unfair. It further points out that once those terms have been removed from the contract it becomes impossible to arrange the exchange rate and thus to perform the contract.

19. In that context, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) stayed proceedings and referred the following questions to the Court for a preliminary ruling: ‘(1) Do Articles 1(2) and 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts make it possible — if the determination of certain contractual provisions which stipulate the manner in which an obligation is to be performed by the parties (its amount) as unfair were to result in the contract being annulled in its entirety, which would be unfavourable to the consumer — to fill gaps in the contract not pursuant to a supplementary provision of law which explicitly replaces the unfair term, but rather pursuant to provisions of national law which provide for supplementing the effects of a legal transaction as expressed in its substance to include the effects arising from the principles of equity (rules of social conduct) or established customs? (2) Should the possible assessment of the consequences for the consumer of the contract being annulled in its entirety be conducted on the basis of the circumstances existing at the time of its conclusion or on the basis of those existing at the time when the dispute arose between the parties concerning the effectiveness of the clause in question (at the time when the consumer claimed that the clause was abusive), and what relevance attaches to the position taken by the consumer in such a dispute? (3) Is it possible to uphold provisions which are unfair contractual terms within the meaning of Directive 93/13/EEC if the adoption of this solution would be objectively beneficial to the consumer at the time when the dispute is being settled? (4) In the light of Article 6(1) of Directive 93/13/EEC, could declaring certain contractual provisions stipulating the amount and manner of performance of an obligation by the parties to be unfair result in a situation in which the form of the legal relationship determined on the basis of the contract, except for the effects of unfair terms, may differ from that intended by the parties with respect to the parties’ main obligation? In particular, does declaring a contractual provision to be unfair mean that other contractual provisions related to the consumer’s main obligation which have not been claimed to be abusive may continue to apply where the form of those provisions (their incorporation in the contract) was inextricably linked to the provision challenged by the consumer?’

III. Legal analysis

A. Directive 93/13/EEC and declaration that terms relating to the exchange rate are unfair

20. The present case is one of a series of cases ( 4 ) which have been brought before the Court concerning unfair terms and, in particular, the effects of the finding that the terms regarding ‘exchange difference’ ( 5 ) contained in loan contracts indexed to a foreign currency and repaid in national currency are unfair.

21. The use of this type of loan indexed to a foreign currency is widespread in various countries on account of the lower rate of interest applicable to the foreign currency compared with the currency of the State where the transaction took place.

22. As extensively pointed out in the case-law of the Court, ( 6 ) the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both the negotiations, and thus his bargaining power, and his level of knowledge. ( 7 )

23. The immediate objective of the directive is, therefore, to restore the balance between the position of the consumer and that of the seller or supplier.

24. Article 6(1) of the directive provides that unfair terms ‘shall … not be binding on the consumer’. It takes the form of a ‘mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them’. ( 8 )

25. Therefore, the national court is required to examine, of its own motion, where it has available to it the legal and factual elements necessary, the possible unfairness of a contractual term ( 9 ) and to intervene, by ending that imbalance in order to ensure the effectiveness of the protection intended to be given by Directive 93/13.

26. The imbalance between the parties requires positive intervention unconnected with the actual parties to the contract, ( 10 ) which is justified by the public interest underlying the protection which the directive confers on consumers. ( 11 )

27. The long-term objective of the directive, which can be deduced from a combined reading of Articles 6 and 7 of Directive 93/13, is to prevent continued use of unfair terms in contracts with consumers though the dissuasive effect on sellers or suppliers ‘of the straightforward non-application … of those unfair terms’. ( 12 )

28. Once a term has been found to be unfair, it is for the national court to exclude the application thereof, since, as the Court has made clear, the wording of Article 6(1), which recognises the autonomy of the Member States as regards the definition of the legal arrangements applicable to unfair terms, requires them to provide that those terms ‘shall … not be binding on the consumer’. ( 13 )

29. It follows that it is a matter for national courts, when they find that contract terms are unfair, to draw all the consequences that follow under national law so that those terms do not produce effects with regard to the consumer, unless the consumer objects to the removal of those terms. ( 14 )

30. Furthermore, according to the second sentence of Article 6(1) and the 21st recital, ( 15 ) the contract ‘shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms’. ( 16 )

31. Therefore, the court is not entitled to intervene as regards the content of the term which it finds to be unfair. Article 6(1) of Directive 93/13 must be interpreted as precluding national legislation which allows a national court to modify the contract by revising the content of that term. ( 17 )

32. Such intervention would in fact be liable to compromise attainment of the long-term objective of the directive, that being to deter sellers or suppliers from using unfair terms, ( 18 ) as was stated in point 27 above. Sellers or suppliers might be tempted to use those terms in the knowledge that, even if they were found to be invalid, the contract could nevertheless be modified, to the extent necessary, by the national court.

33. The only exception to that rule was developed in the judgment in Kásler. ( 19 ) In that judgment the Court identified the conditions which must be met in order for the national court to be justified in modifying the contract.

34. In particular, the Court permitted the substitution of the unfair term by a supplementary provision of national law if two conditions are satisfied: first, non-application of the term declared unfair entails, under national law, the annulment of the contract in its entirety and, secondly, the annulment of that contract exposes the consumer to particularly unfavourable consequences. ( 20 )

35. Therefore, Article 6(1) of Directive 93/13 does not preclude the national court from removing, in accordance with the principles of contract law, an unfair term and replacing it with a supplementary provision of national law in cases where the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, so that the consumer would thus be penalised. ( 21 )

36. The consequence of annulling a loan contract would be that the outstanding balance of the loan would become due forthwith, which would be likely to be in excess of the consumer’s financial capacities and, as a result, would tend to penalise the consumer rather than the lender who, as a consequence, might not be dissuaded from inserting such terms in its contracts. ( 22 )

37. This exception to the rule prohibiting the national court from supplementing the contract in the event that an unfair term is removed is fully justified in the light of the purpose of Directive 93/13, which, as I have said, aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with a real balance which re-establishes equality between them, not to annul all contracts containing unfair terms. ( 23 )

38. For logical and systematic reasons, I consider it necessary to examine the questions referred by addressing the fourth question first, followed by the second, then the first and, finally, the third. If, in response to the fourth question, the contract were deemed to be capable of continuing in existence without the unfair terms, the following questions would lose much of their relevance since they presuppose the annulment of the contract in its entirety. Furthermore, only if the annulment of the contract in its entirety is deemed to be capable of having detrimental effects for consumer, as supposed by the second question, which asks the Court about certain ways in which the contract is annulled in its entirety, could a situation arise where an unfair term was replaced in the manner proposed in the first question. Finally, only if it is not possible either to uphold the contract or to replace the unfair term, is it reasonable to ask, as the third question does, whether the unfair term can be upheld.

B. The fourth question referred

39. By the fourth question, the referring court, in essence, asks the Court of Justice to interpret Article 6(1) in so far as it provides that ‘the contract shall continue to bind the parties upon those terms’. In particular, the referring court asks whether it is possible to uphold a contract following the deletion of an unfair term which is inextricably linked with other terms defining the principal obligation of the contract.

40. In that case the contract resulting from the deletion of the unfair terms would constitute a different contract from that agreed between the parties, which does not comply with their initial intent.

41. If the term regarding ‘exchange difference’ were unfair and, therefore, did not apply, that would have the effect of transforming the type of the contract from one indexed to CHF and subject to the interest rate of that currency, to one indexed to PLN but still subject to the lower interest rate of the CHF.

42. The assessment as to whether or not the contract can continue to be binding on the parties on the same terms, where it is legally possible ( 24 ) under national law, is left to the national court.

43. As the Court has already held, ( 25 ) to ensure the effectiveness of the directive, both the finding that the term is unfair and the determination of the effects following from that finding must be assessed in the light of national law.

44. As is clear from the court files and the questions referred by the national court, it is the terms regarding ‘exchange difference’ which are at issue and alleged to be unfair.

45. The assessment of the nature of contractual terms alleged to be unfair and then possibly found to be so is obviously a preliminary one since Article 4(2) of Directive 93/13 precludes the court assessing any terms relating to the definition of the main subject matter of the contract, provided that they are in plain intelligible language.

46. The national court is thus called upon, first, to decide whether the contested term falls within the definition of the main subject matter of the contract and, if that is the case, it assesses whether it is in plain intelligible language. Only if that assessment is negative and, therefore, the court finds that the contractual term falling within the definition of the main subject matter of the contract is not in plain intelligible language, is it possible to assess the unfair nature thereof. ( 26 )

47. Secondly, the national court is called upon to assess the effects of the finding of unfairness in order to ascertain whether the contract can continue to be binding even in the absence of that term. If the clause falls within the concept of the main subject matter of the contract it is less likely that the continued existence of the contract is legally possible under national law. However, it is an assessment which may be made by the referring court alone.

48. The national court must assess whether the continued existence of the contract without the unfair terms is legally possible ( 27 ) under national and EU law.

49. According to the Court, ‘the normal consequence of an unfair term in a contract is for that term alone to have no effect and for the remainder of the contract to stand and, after the imbalance to the detriment of the consumer has been removed, continue to bind the parties. It is possible to depart from this general rule only when that contract is objectively incapable of continuing in existence without the unfair term’. ( 28 )

50. As clarified by the case-law of the Court, ‘as regards the criteria for assessing whether a contract can indeed continue to exist without the unfair terms, it must be noted that both the wording of Article 6(1) of Directive 93/13 and the requirements concerning the legal certainty of economic activities plead in favour of an objective approach in interpreting that provision’. Therefore, the interests of the parties to the contract ‘cannot be regarded as the decisive criterion determining the fate of the contract’. ( 29 )

51. Such an objective approach is consistent with the directive’s objective to restore balance between the parties by removing unfair terms, and not to eliminate any contract containing unfair terms.

52. The objective of the directive is neither to eliminate entirely a contract, some terms of which have been declared unfair, nor to uphold it at any cost and, even less, to uphold it because it is favourable to one of the two parties.

53. Rather, the objective is to restore the balance between the parties ( 30 ) and have a future dissuasive effect on the seller or supplier.

54. Article 6(1) of the directive is therefore neutral as regards whether the contract, stripped of the unfair terms, should be cancelled or upheld, and the national court must assess, on the basis of national law and the general criteria proposed above, whether the unfair term relates to the subject matter of the contract and whether or not the contract stripped of the unfair terms is capable of continuing in existence.

C. The second question referred

55. The second question is divided into two parts. The Court is called upon, first, to decide at what time the consequences of the annulment of the contract in its entirety is to be assessed and, secondly, to establish what importance is to be attached to the wishes of the consumer.

56. Whilst Article 4(1) makes it clear that the unfairness of the term is to 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 it’, ( 31 ) the directive provides no express indication as to the time when the consequences of the declaration of the term’s unfairness in relation to the contract are to be assessed.

57. As I have said, it is thus for the national court, on the basis of national law, to draw all the consequences that follow from a finding that the term is unfair.

58. Therefore, the national court is required to determine, on the basis of national law, whether it is legally possible for the contract to continue in existence following the deletion of the unfair terms and the time at which the effects of the finding that the term is unfair must be assessed on the basis of national law.

59. However, in my view, in the absence of express indications in that regard which can inferred from national law, there are two reasons why the time at which the effects of the declaration that the terms are unfair and the consequences of a possible annulment of the contract in its entirety — and whether it is possible for the court to modify the contract — must be assessed at the time the dispute is being settled.

60. First, on a systematic level, in order to fully attain the immediate objectives of the directive which, as I have said, are aimed at restoring an effective balance between the parties, it is necessary for the effects of removing the unfair terms to be assessed in relation to the actual and current situation, that is to say the circumstances existing at the time the national court is settling the dispute. The parties’ interests could be different at that time compared with at the time the contract was concluded.

61. Secondly, the assessment of those effects at the time at which the dispute is being settled is compatible with what the Court held in the case of Kásler. ( 32 )

62. The Court made it clear that a contract — which under national law should be annulled in its entirety following the deletion of the unfair terms — may be modified by the court by replacing the unfair term with a supplementary term only where the annulment of the contract is ‘particularly unfavourable’ ( 33 ) to the consumer.

63. This means that the consumer’s interests which must be taken into consideration by the national court are those which exist at the time of the judgment and not those on the basis of which the consumer had decided to conclude the contract.

64. Moving on to the second aspect of the second question, for the purposes of assessing the importance to be attributed to the consumer’s wishes when faced with a choice between annulment of the contract in its entirety and modification thereof, it is appropriate to examine what the Court held in Kásler, with particular regard to the objectives pursued by the directive.

65. As I have stated, Article 6(1) of the directive precludes national legislation which allows a national court, when it finds a term in a contract concluded between a seller or supplier and a consumer to be unfair, to modify that contract by revising the content of that term. ( 34 )

66. The only case in which intervention by the court is permitted is the exceptional case where, if ‘it was not permissible to replace an unfair term with a supplementary provision, requiring the court to annul the contract in its entirety, the consumer might be exposed to particularly unfavourable consequences, so that the dissuasive effect resulting from the annulment of the contract could well be jeopardised’. ( 35 )

67. It seems reasonable to hold that if the consumer, when asked by the national court to make a choice between annulment of the contract in its entirety as a result of the deletion of the unfair term and modification by another provision for the purposes of keeping that contract in force, expresses his preference for annulment of the contract in its entirety, the second of the conditions required by the judgment in Kásler is not satisfied. The court could not consider the annulment of the contract in its entirety to be particularly unfavourable to the consumer in the face of the conscious and repeated expression of the wishes of the consumer himself.

68. To conclude on the second question, the national court is required to determine, on the basis of national law, at what time the effects of the finding that the term is unfair must be assessed, bearing in mind, where there are no express indications in law, that the consumer’s interests to be taken into consideration are those which exist at the time of the judgment. Furthermore, the consumer’s wishes must be considered to prevail over the implementation of a system of protection such as that of replacing the unfair term for the purposes of upholding the contract without the term deemed to be unfair.

D. The first question referred

69. By the first question, the national court asks the Court of Justice whether, after it has been found that a contractual term is unfair, it is possible to modify the contract by recourse to provisions of national law which provide that the contents of a legal transaction may be modified by the principles of equity or established customs.

70. The referring court asks the Court whether it is possible to modify the contract by non-supplementary provisions containing general terms referring to rules of social conduct.

71. For the purpose of replying to the question, it is necessary, first, for the national court to ascertain whether the general provisions which it has identified as an instrument potentially capable of supplementing the contract with regard to the terms which have been declared unfair, fall within the category of ‘mandatory statutory or regulatory provisions’ ( 36 ) which ‘shall apply between the contracting parties provided that no other arrangements have been established’. ( 37 )

72. Under the directive, those terms enjoy a presumption that they are not unfair which stems from the fact they reflect a mandatory statutory or regulatory provision. Therefore, it can be assumed that the national legislature struck a balance between the rights and obligations of the parties to certain contracts. ( 38 )

73. In the present case, according to the case file, the general provisions mentioned by the referring court, which refer to the principles of established customs, have not been assessed by the legislature as regards balance between the rights and obligations of the parties and, therefore, appear not to be covered by the presumption required by the directive that they are not unfair.

74. In that case, the use of a contractual term which reflects such general provisions would constitute ‘creative’ intervention capable of altering the balance of interests sought by the parties and excessively encroaching on contractual autonomy.

75. Secondly, with reference to what I said in points 31 to 37, I consider that the situation described by the referring court cannot be covered by the situation set out in Kásler which, as it is an exception, cannot be interpreted broadly.

76. The rationale underlying the exception, which limits the possibility of intervention by the court to terms which reflect supplementary provisions of law, is in line with Article 1(2) and the 13th recital of the directive, as set out in point 71 above.

77. In order to avoid excessively unfavourable effects for the consumer resulting from the annulment of the contract in its entirety, the exception established in Kásler allows the court to intervene to modify the contract, however only to the extent of replacing the unfair term with a term which reflects the supplementary provision of law, with no room for interpretation or ‘creativity’.

78. By contrast, if the court had to have recourse to a general clause, it would be called on to make an assessment of the content of the general clause and the application thereof within the contract.

79. That situation goes against the general rule, oft-quoted by the Court, which requires the national court to exclude the application of an unfair term, however without it being authorised to revise the content thereof.

80. In the light of the foregoing considerations, Article 1(2) and Article 6(1) of Directive 93/13 must be considered as precluding the national court from modifying the contract — as regards the unfair term — by recourse to general provisions of national law which are not supplementary provisions.

E. The third question referred

81. By the third question, the national court asks the Court of Justice whether it is possible to maintain the unfair contractual term where that solution is more favourable to the consumer.

82. That possibility arises only where the national court considers, in accordance with national law and EU law, that it is not legally possible to uphold the contract without the term found to be unfair and it is not possible to replace the unfair term under the conditions laid down in the Court’s judgment in Kásler.

83. Article 6(1) of Directive 93/13 expressly provides that unfair terms are not to be binding on the consumer and the Court’s settled case-law does not permit departure from that assumption. ( 39 )

84. The only exception to that rule was acknowledged in Pannon, ( 40 ) which allowed the term that had been declared unfair to continue to be binding on the consumer at his express request.

85. Therefore, it must be held that, according to the case-law of the Court, the role of the court is to be limited to the declaration that the term is unfair and the obligation to inform the consumer of the consequences of that finding, including the non-binding nature of that term.

86. It thus follows that, unless the consumer, after having been duly informed by the national court that the term is not binding, gives his free and informed consent and expresses his intention not to rely on the unfair and non-binding nature of that term, ( 41 ) it will not, under Article 6(1), be binding upon him.

87. In the absence of an express wish on the part of the consumer, the court cannot, therefore, maintain the unfair term even if it considers that that solution is more favourable to the consumer.

88. In the present case the consumer expressly objects to the unfair term being maintained and therefore the exception laid down in Pannon cannot be applied.

IV. Conclusion

89. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) as follows: (1) Article 1(2) and Article 6(1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) preclude a national court from modifying a contract — as regards unfair terms which stipulate the manner in which an obligation is to be performed and the amount of that obligation, [the removal of which] would entail annulment of the contract to the detriment of the consumer — by recourse to general provisions of national law which provide that the contents of a legal transaction are to be modified by the effects arising from the principles of equity or established customs which, therefore, are not supplementary provisions. (2) The national court is required to determine, on the basis of national law, at what time the effects of the finding that the term is unfair must be assessed, bearing in mind, in the absence of any express indications in law, that the consumer’s interests to be taken into consideration are those which exist at the time of the judgment. Furthermore, the desire of the consumer, who does not consider that the annulment of the contract in its entirety is prejudicial to him, prevails over the implementation of a system of protection such as that of replacing the unfair term and thereby upholding the contract. (3) Directive 93/13/EEC precludes the maintenance of unfair terms which are objectively beneficial to the consumer at the time the dispute is being settled where there is no express desire on the part of that consumer to maintain those terms. (4) It is for the national court to assess, on the basis of national law and in conformity with EU law, whether the term is unfair and the precise definition of the subject matter of the contract, for the purposes of determining whether the contract is capable of continuing in existence if the unfair terms are removed.

( 1 ) Original language: Italian.

( 2 ) The wording of the paragraph 4 of point 19 has been modified after it was first put online.

( 3 ) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

( 4 ) See judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, and judgments of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367; of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750; of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207; and of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250. See also the cases GT, C‑38/17, Bankia, C‑92/16, and Banco Bilbao, C‑167/16 still pending before the Court.

( 5 ) That definition is considered to cover a term which forms part of a loan contract indexed to a foreign currency, concluded with consumers by a seller or supplier, that has not been individually negotiated and which concerns the method for determining the amount of the borrower’s debt in a foreign currency. In this regard, see the Opinion of Advocate General Wahl in Dunai, C‑118/17, EU:C:2018:921, point 32.

( 6 ) See, in particular, judgment of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 25, and, to the same effect, judgments of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 25; of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 44; and of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 39.

( 7 ) Judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 49.

( 8 ) Judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 45, and of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 40 and the case-law cited.

( 9 ) It should be noted that while, initially, the Court gave the national court the power to determine of its own motion whether a term is unfair, with a view to attaining the objective of Article 6 of the directive, that being to prevent an individual consumer from being bound by an unfair term (see, in particular, judgments of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraphs 27 and 28; of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraphs 26 and 28; and of 21 November 2002, Cofidis, C‑473/00, EU:C:2002:705, paragraphs 32 to 34), since the judgment of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 32, the court has been under an ‘obligation to examine that issue of its own motion’; in this regard, see also, inter alia, judgments of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 44; of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 44; of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraphs 40, 41 and 44; and of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 53.

( 10 ) Judgment of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 26.

( 11 ) Judgment of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 38.

( 12 ) Judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 69.

( 13 ) Judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 62.

( 14 ) Judgments of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 52; of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 63 and 65; and of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 35. See, more generally, judgments of 6 October 2009, Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 58, and of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 30, and order of 16 November 2010, Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 62.

( 15 ) The 21st recital of Directive 93/13 states that ‘whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions’.

( 16 ) Article 6(1) of Directive 93/13.

( 17 ) Judgments of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 53; of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 73; and of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 77.

( 18 ) Judgments of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 54, and of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 69 and 70, and order of 16 November 2010, Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 41 and the case-law cited.

( 19 ) Judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282.

( 20 ) Judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 83.

( 21 ) Judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 56.

( 22 ) Judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 58.

( 23 ) Judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 57.

( 24 ) See, to that effect, judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 71 and the case-law cited.

( 25 ) See the case-law cited in footnote 13.

( 26 ) See, to that effect, judgments of 23 April 2015, Van Hove, C‑96/14, EU:C:2015:262, paragraphs 37 to 39; of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid, C‑484/08, EU:C:2010:309, paragraph 32; and of 30 April 2014, Kásler andKáslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 41 and the case-law cited.

( 27 ) Judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 71 and the case-law cited. See, to that effect, most recently, judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 63.

( 28 ) Opinion of Advocate General Tizzano in Ynos, C‑302/04, EU:C:2005:576, point 79.

( 29 ) Judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 32.

( 30 ) Judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 31.

( 31 ) Judgments of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 39; of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 42; of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 71; of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 61; and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 36; and Opinion of Advocate General Szpunar in Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2018:724, point 70.

( 32 ) Judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282.

( 33 ) Judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 83.

( 34 ) Judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 73; of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 77; and of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 53.

( 35 ) Judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 83.

( 36 ) Article 1(2) and the 13th recital of Directive 93/13.

( 37 ) 13th recital of Directive 93/13.

( 38 ) Judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraphs 52 and 53.

( 39 ) Judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 62.

( 40 ) Judgment of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 33, which states that ‘in carrying out that obligation, the national court is not, however, required under the Directive to exclude the possibility that the term in question may be applicable, if the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status’. See, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 52, and Opinion of Advocate General Szpunar in Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2018:724, point 135.

( 41 ) See, to that effect, Opinion of Advocate General Szpunar in Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2018:724, point 136.