Order of the Court (Sixth Chamber) of 14 October 2021 – NSV and NM

(Case C‑87/21) ( 1 )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Scope – Article 1(2) – Contractual terms which reflect mandatory statutory or regulatory provisions – Credit agreements denominated in a foreign currency – Terms relating to the exchange rate risk which reproduce a supplementary provision of national law – Alleged failure to fulfil the obligation of information borne by the banking institution providing the loan – Requirement of good faith – Examination to be carried out by the national court as a matter of priority in the light of Article 1(2) of Directive 93/13)

1. Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Exclusion provided for contractual terms reflecting mandatory statutory or regulatory provisions – Verification a matter for the national court (Council Directive 93/13, Art. 1(2)) (see paras 24-27, 31)

2. Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Exclusion provided for contractual terms reflecting mandatory statutory or regulatory provisions – Term relating to the exchange rate risk which has not been individually negotiated and which reflects a provision of national law that is supplementary in nature – Provision applicable in the absence of another arrangement between the contracting parties – Inapplicability of the directive – Scope (Council Directive 93/13, Art. 1(2)) (see paras 29, 33, 42, operative part)

3. Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Scope – Exclusion provided for contractual terms reflecting provisions of national law that are supplementary in nature – The national court is required to examine, as a matter of priority, the effect of the exclusion and not the effect of the exception to the assessment of whether such terms are unfair (Council Directive 93/13, Art. 1(2), Arts 3, 4 and 5) (see paras 38-41)

Operative part

Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a term inserted into a credit agreement denominated in a foreign currency that has been concluded between a consumer and a seller or supplier, which reflects a provision of national law that is supplementary in nature, does not fall within the scope of that directive, even if:

– that provision of national law has not been assessed by the national legislature with a view to create a balance between the interests of the consumer and of the seller or supplier, in the specific context of bank credit agreements concluded with consumers;

– the seller or supplier inserted that term into the agreement concerned without fulfilling its information and transparency obligations;

– there is evidence which supports the view that the seller or supplier concerned inserted the term in question into that agreement in bad faith, it not being possible for that seller or supplier to be unaware of the fact that the application of that same term was liable to cause a significant imbalance in the rights and obligations of the parties to that agreement, to the detriment of the consumer.

( 1 ) OJ C 206, 31.5.2021.