Case C-325/23, Deutsche Bank Polska: Order of the Court (Seventh Chamber) of 30 May 2024 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie – Poland) – JF, OP v Deutsche Bank Polska S.A. (Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Directive 93/13/EEC – Unfair terms in consumer contracts – Loan agreement denominated in a foreign currency with unfair clauses on exchange rate risk and exchange rate difference – Article 3(1) and (2) – Terms which have not been individually negotiated – Article 4 – Assessment of the unfairness of contractual terms – Requirement for a contractual clause to be clearly and comprehensibly drafted – Article 6 – Consequences of a finding that a contractual term is unfair)
Date: 2024-05-30
Institutions: Court of Justice
Subjects: consumer credit, consumer protection, currency adjustment, exchange rate, financial risk, foreign currency, real estate credit, unfair terms of contract








C_202404835EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/4835


12.8.2024






Order of the Court (Seventh Chamber) of 30 May 2024 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie – Poland) – JF, OP v Deutsche Bank Polska S.A.


(Case C-325/23,
                (1)
Deutsche Bank Polska)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Directive 93/13/EEC - Unfair terms in consumer contracts - Loan agreement denominated in a foreign currency with unfair clauses on exchange rate risk and exchange rate difference - Article 3(1) and (2) - Terms which have not been individually negotiated - Article 4 - Assessment of the unfairness of contractual terms - Requirement for a contractual clause to be clearly and comprehensibly drafted - Article 6 - Consequences of a finding that a contractual term is unfair)
(C/2024/4835)
Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings


Applicants: JF, OP

Defendant: Deutsche Bank Polska S.A.

Operative part of the order







1.


Article 3(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as meaning that:
a clause forming part of a loan agreement denominated in a foreign currency concluded with a consumer under which the bank may fix the final amount of the loan denominated in that currency by applying to the sum expressed in national currency, corresponding to the consumer’s request for finance, an exchange rate which it determines unilaterally, where the arrangements for fixing that amount were determined exclusively by the bank prior to the conclusion of the agreement without the consumer thereby having been able to influence the determination of those arrangements.










2.


Article 4(2) of Directive 93/13
must be interpreted as meaning that:
where, in the context of a loan agreement denominated in a foreign currency concluded with a consumer, a clause in that agreement has the effect, first, of transferring to the consumer the exchange risk associated with the appreciation of that currency against the national currency and, secondly, of granting to the bank, at the consumer’s expense, an advantage arising from the difference between the exchange rate chosen by the bank for the purposes of fixing the final amount of the loan denominated in that currency and other rates which it could have used on that occasion, in order to consider that that clause, in so far as it concerns the exchange rate differential, does not meet the requirement of clear and comprehensible wording within the meaning of that provision, it is sufficient to note that the bank has not provided the consumer with any information concerning the inclusion of such a differential, irrespective of the extent of the information provided to the consumer concerning the transfer of the exchange rate risk.










3.


Article 3(1) of Directive 93/13
must be interpreted as meaning that:
where, in the context of a loan agreement denominated in a foreign currency concluded with a consumer, a clause in that agreement has the effect, first, of transferring to that consumer the exchange rate risk associated with the appreciation of that currency against the national currency and, secondly, of granting the bank an advantage linked to an exchange rate differential, that clause, in so far as it relates to the exchange rate differential, may be regarded as capable of creating, to the detriment of the consumer, a significant imbalance in the rights and obligations arising under the agreement, irrespective of whether the clause in so far as it relates to the transfer of the exchange rate risk is unfair within the meaning of that provision.










4.


Article 6(1) of Directive 93/13
must be interpreted as meaning that:
it does not preclude a loan agreement with a consumer denominated in a foreign currency from being declared void and the consumer thereby relieved of the financial consequences arising from the clause in that agreement relating to the transfer of the exchange rate risk, where the national court finds that the clause in that agreement relating to the fixing of the final amount of the loan, in so far as it has the effect of granting the bank an advantage linked to the exchange rate difference, is unfair, even though the clauses of that contract setting out the arrangements for converting the currency for the purposes of repayment of the loan are not unfair or their removal would not entail the annulment of that agreement, if the national court considers, in accordance with the rules of its domestic law and following an objective approach, that the loan agreement cannot survive without the unfair clause, in particular in so far as the latter defines the main subject matter of the agreement.






(1)  Date lodged: 25.5.2023.


ELI: http://data.europa.eu/eli/C/2024/4835/oj
ISSN 1977-091X (electronic edition)