Dexia Nederland BV v XXX and Z.
Date: 2021-01-27
Next, in accordance with the Court’s case-law, it is necessary to determine whether the average consumer, normally informed and reasonably attentive and circumspect, could have accepted, when concluding the contract concerned, that, in the event of premature termination of that contract, Dexia’s advantage would be, by way of derogation from the applicable rules, determined pursuant to Articles 6 and 15 of the specific terms and  conditions of the contracts at issue in the main proceedings, taking into account the expertise and knowledge of that bank with regard to possible changes in interest rates and being aware that, in the event that the provisions of Article 6:277 of the BW are applied, no such advantage would be prescribed (see, to that effect, judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraphs 68 and 69, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraphs 57 and 58).
In that regard, it is sufficient to recall that, according to settled case-law, 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 8 June 2016, Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 36). The Court must take account, under the division of jurisdiction between the Court and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (judgment of 6 December 2018, Preindl, C‑675/17, EU:C:2018:990, paragraph 24).
Furthermore, it is important to note that, according to settled case-law, the relevant jurisdiction of the Court extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of that directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case. It is thus clear that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (judgment of 3 September 2020, Profi Credit Polska, C‑84/19, C‑222/19 and C‑252/19, EU:C:2020:631, paragraph 91 and the case-law cited).
In referring to concepts of ‘good faith’ and ‘significant imbalance’ in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, Article 3(1) of Directive 93/13 however merely defines in a general way the factors that render unfair a contractual term that has not been individually negotiated (judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 67 and the case-law cited).
The Court has thus held that, in order to determine whether a term causes a ‘significant imbalance’ in the parties’ rights and obligations under a contract to the detriment of the consumer, particular account must be taken of which rules of national law would apply in the absence of an agreement by the parties in that regard. Such a comparative analysis will enable the national court to evaluate whether and, as the case may be, to what extent, the contract places the consumer in a legal situation less favourable than that provided for by the national law in force. Similarly, it is appropriate, to that end, to carry out an assessment of the legal situation of that consumer having regard to the means at his disposal, under national legislation, to prevent continued use of unfair terms (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 59 and the case-law cited).
Moreover, the assessment of whether any  ‘significant imbalance’ exists cannot be limited to a quantitative economic evaluation based on a comparison between the total value of the transaction which is the subject of the contract and the costs charged to the consumer under that clause. A significant imbalance can result solely from a sufficiently serious impairment of the legal situation in which the consumer, as a party to the contract in question, is placed by reason of the relevant national provisions, whether this be in the form of a restriction of the rights which, in accordance with those provisions, he enjoys under the contract, or a constraint on the exercise of those rights, or the imposition on him of an additional obligation not envisaged by the national rules (judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 51).
Furthermore, the Court has held that the contract should set out transparently the specific functioning of the mechanism to which the relevant term relates and, where appropriate, the relationship between that mechanism and that provided for by other contractual terms, 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 the contract (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 45 and the case-law cited).
It follows from that provision, and from Article 3 of that directive, as interpreted by the Court, that the assessment of the unfairness of a contractual term must be carried out by reference to the date of conclusion of the contract concerned (see, to that effect, judgment of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 48).
According to settled case-law, the circumstances referred to in Article 4(1) of that directive are those which could have been known to the seller or supplier at that time the agreement was concluded and which were of such a nature that they could affect the future performance of the agreement, since a contractual term may give rise to an imbalance between the parties which only manifests itself during the performance of the contract (see, to that effect, judgments of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 54, of 5 June 2019, GT, C‑38/17, EU:C:2019:461, paragraph 40, and of 9 July 2020, Ibercaja Banco, C‑452/18, EU:C:2020:536, paragraph 48).
Furthermore, it should also be recalled that it is clear from the Court’s settled case-law that the national court must, in order to determine whether the contractual term on which the claim brought before it is based is unfair, take account of all the other terms of the contract in question (judgment of 10 September 2020, A (Sub-letting of social housing), C‑738/19, EU:C:2020:687, paragraph 25).
According to settled case-law, it is for the national court, under Article 6(1) of Directive 93/13, to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (see, to that effect, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 58 and the case-law cited). However, that contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of national law, such continuity of the contract is legally possible (see, to that effect, judgment of 5 June 2019, GT, C‑38/17, EU:C:2019:461, paragraph 42 and the case-law cited).
Consequently, where a national court finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, that court cannot modify that contract by revising the content of that term (see, to that effect, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 59 and the case-law cited).
The Court has held that 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. 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 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 (judgments of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 69; of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 79; of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 54, and of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 60).