I.W. and R.W. v Bank BPH S.A. and Rzecznik Praw Obywatelskich.
Date: 2021-04-29
It should be noted that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale, C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 46).
In addition, questions on the interpretation of EU law referred by a national court in the legislative and factual context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the dispute or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (judgment of 19 September 2019,  Lovasné Tóth, C‑34/18, EU:C:2019:764, paragraph 40 and the case-law cited).
It should be noted that, under Article 6(1) of Directive 93/13, Member States are to lay down that unfair terms in a contract concluded with a consumer by a seller or supplier are not to be binding on consumers, as provided for under their national law (judgment of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 22 and the case-law cited).
Thus, a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer (judgment of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 23 and the case-law cited).
Consequently, under Article 6(1) of Directive 93/13, it is for the national courts to exclude the application of unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (judgments of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 24 and the case-law cited, and of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 29).
In that context, it should be stressed that the right to effective consumer protection includes the option to waive the exercise of one’s rights, with the consequence that, where appropriate, account must be taken of the intention expressed by the consumer where, although aware of the non-binding nature of an unfair term, that consumer states nevertheless that he or she is opposed to that term being disregarded, thus giving his or her free and informed consent to the term in question (judgment of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 25).
Directive 93/13 does not go as far as making the system of protection against the use of unfair terms by suppliers or sellers, a system which it introduced for the benefit of consumers, mandatory. Accordingly, where the consumer prefers not to rely on it, that system of protection is not applied (judgment of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 26 and the case-law cited).
Similarly,  a consumer may waive the right to rely on the unfairness of a contractual term by means of a novation agreement, whereby the consumer waives the effects that would result from that term being declared to be unfair, provided that that waiver is the result of free and informed consent. (judgment of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 28).
If the referring court were to consider, in the present case, that the consumers were not aware of the legal consequences arising for them from such a waiver, it would be necessary to note, as stated in paragraph 43 of the present judgment, that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer, and that it has the consequence of restoring the consumer to the legal and factual situation that he or she would have been in in the absence of that term (judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraph 41 and the case-law cited).
The obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 62).
Next, according to the Court’s settled case-law, Directive 93/13 does not require, in addition to the term declared unfair, the national court to set aside those terms which have not been classed as such. The objective pursued by that directive consists in protecting the consumer and restoring the balance between the parties by not applying those contractual terms held to be unfair, whilst maintaining, in principle, the validity of the other terms of the contract at issue (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 et C‑94/17, EU:C:2018:643, paragraph 75).
In that regard, the objective pursued by the EU legislature in the context of that directive is not to annul all contracts containing unfair terms (judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 31).
Finally, 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, so that the situation of one of the parties to the contract cannot be regarded as the decisive criterion determining the fate of the contract (judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 32).
Thus, when assessing whether a contract containing one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for the consumer of the annulment of the contract as a whole (judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 33).
It must be recalled that, in accordance with Article 6(1) of Directive 93/13, national courts are merely required to refrain from applying an unfair contractual term in order that it may not produce binding effects with regard to the consumer, without being empowered to revise, in principle, the content of that term. That contract must continue in existence, in principle, without any amendment other than that resulting from the removal of that term, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 et C‑94/17, EU:C:2018:643, paragraph 73).
Thus, if the national court finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, Article 6(1) of Directive 93/13 must be interpreted as prohibiting the national court from modifying that contract by revising the content of that term (judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 53 and the case-law cited).
If it were open to the national court to revise the content of unfair terms included in such a contract, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. Accordingly, that power would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 54 and the case-law cited).
The Court has previously held that the provisions of Directive 93/13 preclude a term that has been found to be unfair from being maintained in part, with the elements which make it unfair removed, where that removal would be tantamount to revising the content of that term by altering its substance (judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 64).
Directive 93/13 does not require that the national court set aside, in addition to the term declared unfair, those not classed as such, since the objective pursued by that directive consists in protecting the consumer and restoring the balance between the parties by not applying those contractual terms held to be unfair, whilst maintaining, in principle, the validity of the other terms of the contract at issue (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 et C‑94/17, EU:C:2018:643, paragraph 75).
Thus, the Court has held, as regards terms of a loan agreement relating respectively to ordinary interest and default interest, that the annulment of the term in a loan agreement fixing the default rate of interest, on the ground of the unfairness of that term, cannot also bring about that of the term in that contract fixing the ordinary rate of interest, particularly as those different terms must be clearly distinguished (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 et C‑94/17, EU:C:2018:643, paragraph 76).
Those considerations apply regardless of the way in which the contractual term determining the default interest rate and that fixing the ordinary rate of interest are worded. In particular, they apply not only when the default interest rate is fixed independently of the ordinary interest rate, in a separate contractual term, but also when the default interest rate is fixed in the form of an increase in the ordinary interest rate by a certain number of percentage points. In the latter case, as the unfair term consists in that increase, Directive 93/13 requires solely that that increase be annulled (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 et C‑94/17, EU:C:2018:643, paragraph 77).
The Court has previously held that, although Article 7(1) of Directive 93/13 does not preclude the Member States from using legislation to put an end to the use of unfair terms in contracts concluded with consumers by sellers or suppliers, the fact remains that the legislature must, in that context, respect the requirements deriving from Article 6(1) of that directive (judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraph 42).
The fact that a contractual term was, on the basis of national legislation, declared unfair and void and replaced by a new term, cannot have the result of weakening the protection guaranteed to consumers, as set out in paragraph 54 of the present judgment (see, by analogy, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraph 43).
Thus, the purpose of that provision, and in particular of its second part, is not to cancel all contracts containing unfair terms but to substitute for the formal balance established by the contract between the rights and obligations of the parties real balance re-establishing equality between them, it being specified that the contract at issue must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms. Provided that the latter condition is satisfied, the contract at issue may, pursuant to Article 6(1) of Directive 93/13, be continued as long as, in accordance with the rules of domestic law, such continuity of the contract is legally possible without the unfair terms, which is to be determined objectively (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 39 and the case-law cited).
It follows that the second part of Article 6(1) of Directive 93/13 does not itself set out the criteria governing the possibility of a contract continuing in existence without the unfair terms, but rather leaves it to the national legal order to determine those criteria in a manner consistent with EU law. Thus, it is for the Member States, by means of their national law, to define the detailed rules under which the unfairness of a contractual term is established and the actual legal effects of that finding are produced. In any event, such a finding must make it possible to restore the legal and factual situation of the consumer in the absence of that unfair term (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 66).
It follows from the above factors that, first, where a national court considers that, pursuant to the relevant provisions of its domestic law, it is impossible to uphold a contract without the unfair terms which it contains, Article 6(1) of Directive 93/13 does not in principle preclude that contract from being annulled (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 43).
Moreover, as regards, in particular, time limits for bringing an action, the Court has already held that in the interests of legal certainty it is compatible with EU law to lay down reasonable time limits for bringing proceedings (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 69).
In that regard, it follows from settled case-law that it is for the national court, which has found a term to be unfair and must draw the legal conclusions therefrom, to comply with the requirements of effective judicial protection of an individual’s rights under EU law, as guaranteed by Article 47 of the Charter. Among those requirements is the principle of audi alteram partem, as part of the rights of defence and which is binding on that court, in particular when it decides a dispute on a ground that it has identified of its own motion (judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 29 and the case-law cited).
In addition, the Court has held that, where the national court, which has established, on the basis of the elements of fact and of law available to it, that a term falls within the scope of directive 93/13, finds that that term is unfair, it is, as a general rule, required to inform the parties to the dispute of that fact and to invite them to set out their views on that matter, with the opportunity to challenge the views of the other party, in accordance with the formal requirements laid down by the national rules of procedure (judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 31).
Therefore, since the system of protection against unfair terms does not apply if the consumer objects to it, that consumer must a fortiori be entitled to object to being protected, under that same system, against the unfavourable consequences caused by the contract being invalidated in its entirety where he or she does not wish to rely on that protection (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 55).
In that context, the consumer is entitled, after having been informed by the national court, not to assert the unfair and non-binding nature of a term, thus giving free and informed consent to the term in question (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 66).