Árpád Kásler and Hajnalka Káslerné Rábai v OTP Jelzálogbank Zrt.
Date: 2014-04-30
37. According to settled case-law, the need of the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (see, in particular, Case C‑279/12 Fish Legal and Shirley  EU:C:2013:853, paragraph 42).
38. The same is true for the terms in Article 4(2) of Directive 93/13, since that provision does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope.
39. Moreover, the Court has consistently held that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge, a situation that leads to his agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (see, in particular, Case C‑484/08 Caja de Ahorros y Monte de Piedad de Madrid EU:C:2010:309, paragraph 27 and the case-law cited).
40. As regards such a position of weakness, Directive 93/13 requires Member States to provide for a mechanism ensuring that every contractual term not individually negotiated may be reviewed in order to determine whether it is unfair. In that context, it is for the national court to determine, taking account of the criteria laid down in Articles 3(1) and 5 of Directive 93/13, whether, having regard to the particular circumstances of the case, such a term meets the requirements of good faith, balance and transparency laid down by that directive (see, to that effect, Case C‑472/10 Invitel  EU:C:2012:242, paragraph 22, and Case C‑92/11 RWE Vertrieb EU:C:2013:180, paragraphs 42 to 48).
41. However, Article 4(2) of Directive 93/13, read in conjunction with Article 8 thereof, allows the Member States, provide, in the legislation transposing that directive, that an ‘[a]ssessment of the unfair nature’ is not to apply to the terms to which that provision relates, on condition that they are drafted in plain, intelligible language. It follows from that provision that the terms to which it refers are not the subject of an assessment of their unfairness, but, as the Court stated, come within the area covered by that directive (see, to that effect, Caja de Ahorros y Monte de Piedad de Madrid  EU:C:2010:309, paragraphs 31, 35 and 40).
42. Article 4(2) of Directive 93/13 thus laying down an exception to the mechanism for reviewing the substance of unfair terms, such as that provided for in the system of consumer protection put in place by that directive, that provision must be strictly interpreted.
45. In that regard, although it is for the national court alone to rule on the classification of that term in accordance with the particular circumstances of the case, the fact remains that the Court has jurisdiction to elicit from the provisions of Directive 93/13, in this case the provisions of Article 4(2), the criteria that the national court may or must apply when examining a contractual term (see, to that effect, in particular, RWE Vertrieb  EU:C:2013:180, paragraph 48 and the case-law cited).
46. The Court has already held that Article 4(2) of the Directive is intended solely to establish the detailed rules and the scope of the substantive assessment of contract terms that have not been individually negotiated and that describe the essential obligations of contracts concluded between a seller or supplier and a consumer ( Caja de Ahorros y Monte de Piedad de Madrid  EU:C:2010:309, paragraph 34).
49. However, taking account also of the fact that Article 4(2) of Directive 93/13 represents a derogation and the ensuing necessity of its being interpreted strictly, contractual terms falling within the notion of the ‘main subject-matter of the contract’, within the meaning of that provision, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it.
50. By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within the notion of the ‘main subject-matter of the contract’ within the meaning of Article 4(2) of Directive 93/13.
51. It is for the referring court to determine, having regard to the nature, general scheme and the stipulations of the loan agreement, and its legal and factual context, whether the term setting the exchange rate for the monthly repayment instalments constitutes an essential element of the debtor’s obligations, consisting in the repayment of the amount made available by the lender.
54. In that connection, it is clear from the wording of Article 4(2) of Directive 93/13 that the second category of terms that cannot be examined as regards unfairness is limited in scope, for that exclusion concerns only the adequacy of the price or remuneration as against the services or goods supplied in exchange.
55. As the Advocate General has observed in point 69 of his Opinion, the exclusion of a review of contractual terms as to the quality/price ratio of a supply of goods or services is explained by the fact that no legal scale or criterion exists that can provide a framework for, and guide, such a review.
56. In that context, the Court has previously held that that exclusion does not apply to a term concerning a mechanism for amending the prices of the services provided to the consumer ( Invitel  EU:C:2012:242, paragraph 23).
58. Moreover, that exclusion cannot apply to terms that, like Clause III/2, merely determine the conversion rate of the foreign currency in which the loan agreement is denominated, in order to calculate the repayment instalments, without however any foreign exchange service being supplied by the lender in making that calculation and do not, therefore, constitute ‘remuneration’, the adequacy of which as consideration for a service supplied by the lender could be assessed to determine its unfairness pursuant to Article 4(2) of Directive 93/13.
61. If the referring court were to consider that, having regard to the answer given to the first question, Clause III/2 falls within the ‘main subject-matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, an assessment of the unfairness of that term may be avoided only if it is drafted in clear and intelligible language.
64. In that connection, it must be recalled that a national court, when hearing a case between individuals, is required, when applying the provisions of domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive (Case C‑351/12 OSA  EU:C:2014:110, paragraph 44).
65. In that context, the Court has also stated that this principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation for a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem  ( OSA  EU:C:2014:110, paragraph 45).
67. In that connection, it must be held that that requirement appears in Article 5 of Directive 93/13, which provides that contractual terms in writing must ‘always’ be drafted in plain, intelligible language. The twentieth recital in the preamble to Directive 93/13 states in that regard that the consumer should actually be given an opportunity of examining all the terms of the contract.
68. It follows that that requirement of plain, intelligible language applies in all cases, including that in which a term falls within Article 4(2) of Directive 93/13 and therefore avoids the assessment of its unfairness referred to in Article 3(1) thereof.
69. It also follows that that requirement as it appears in Article 4(2) of Directive 93/13 has the same scope as that referred to in Article 5 of that directive.
70. As regards Article 5, the Court has already held that information, before concluding a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is on the basis of that information in particular that he decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier (see, RWE Vertrieb  EU:C:2013:180, paragraph 44).
71. The requirement of transparency of contractual terms laid down by Directive 93/13 cannot therefore be reduced merely to their being formally and grammatically intelligible.
72. On the contrary, as has already been recalled out in paragraph 39 of this judgment, the system of protection introduced by Directive 93/13 being based on the idea that the consumer is in a position of weakness vis-à-vis  the seller or supplier, in particular as regards his level of knowledge, the requirement of transparency must be understood in a broad sense.
73. As regards a contractual term, such as Clause III/2, which allows the seller or supplier to calculate the level of monthly repayment instalments owed by the consumer in accordance with the selling rate of exchange of the foreign currency applied by that seller or supplier, which has the effect of increasing the costs of the financial service at the consumer’s expense, apparently without an upper limit, it follows from Articles 3 and 5 of Directive 93/13 and Points 1(j) and (l) and 2(b) and (d) of the annex thereto, that it is of fundamental importance for the purpose of complying with the requirement of transparency, to determine whether the contract sets out transparently the reason for and the particularities of the mechanism for converting the foreign currency and the relationship between that mechanism and the mechanism laid down by other terms relating to the advance of the loan, so that the consumer can foresee, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it (see, by analogy, RWE Vertrieb  EU:C:2013:180, paragraph 49).
74. As regards the particularities of the mechanism for conversion of the foreign currency such as those set out in Clause III/2, it is for the referring court to determine whether, having regard to all the relevant information, including the promotional material and information provided by the lender in the negotiation of the loan agreement, the average consumer, who is reasonably well informed and reasonably observant and circumspect, would not only be aware of the existence of the difference, generally observed on the securities market, between the selling rate of exchange and the buying rate of exchange of a foreign currency, but also be able to assess the potentially significant economic consequences for him resulting from the application of the selling rate of exchange for the calculation of the repayments for which he would ultimately be liable and, therefore, the total cost of the sum borrowed.
75. Having regard to all the foregoing, the answer to the second question is that Article 4(2) of Directive 93/13 must be interpreted as meaning that, as regards a contractual term such as that at issue in the main proceedings, the requirement that a contractual term must be drafted in plain intelligible language is to be understood as requiring not only that the relevant term should be grammatically intelligible to the consumer, but also that the contract should set out transparently the specific functioning of the mechanism of conversion for the foreign currency to which the relevant term refers and the relationship between that mechanism and that provided for by other contractual terms relating to the advance of the loan, so that that consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it.
The third question
77. In that connection, the Court has held that Article 6(1) of Directive 93/13 must be interpreted as precluding a rule of national law which allows a national court, if it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to adjust that contract by revising the content of that term ( Banco Español de Crédito  EU:C:2012:349, paragraph 73).
78. Thus, given the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers, Directive 93/13 requires Member States, as is apparent from Article 7(1) thereof, read in conjunction with the twenty-fourth recital in the preamble thereto, to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’ ( Banco Español de Crédito  EU:C:2012:349, paragraph 68).
79. If it were open to the national court to revise the content of unfair terms included in such contracts, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect for 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 adjusted, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers ( Banco Español de Crédito  EU:C:2012:349, paragraph 69).
80. However, it does not follows, in a situation such as that in the main proceedings, that Article 6(1) of Directive 93/13 precludes the national court, in accordance with the principles of the law of contract, from deleting an unfair term and substituting for it a supplementary provision of national law.
81. On the contrary, replacing an unfair term with such a provision which, as is clear from the thirteenth recital in the preamble to Directive 93/13, is presumed not to contain unfair terms, in that it leads to the result that the contract may continue in existence in spite of the fact that Clause III/2 has been deleted and continues to be binding for the parties, is fully justified in the light of the purpose of Directive 93/13.
82. The substitution of an unfair term for a supplementary provision of national law is consistent with the objective of Article 6(1) of Directive 93/13, since, according to settled case-law, that provision is intended 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, not to annul all contracts containing unfair terms (Case C‑453/10 Pereničová and Perenič EU:C:2012:144, paragraph 31, and Banco Español de Crédito  EU:C:2012:349, paragraph 40 and case-law cited).
83. However, if, in a situation such as that at issue in the main proceedings, 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.
84. In general, the consequence of an annulment is that the outstanding balance of the loan becomes due forthwith, which is likely to be in excess of the consumer’s financial capacities and, as a result, tends to penalise the consumer rather than the lender who, as a consequence, might not be dissuaded from inserting such terms in its contracts.