Kamil Dziubak and Justyna Dziubak v Raiffeisen Bank International AG, prowadzący działalność w Polsce w formie oddziału pod nazwą Raiffeisen Bank International AG Oddział w Polsce, anciennement Raiffeisen Bank Polska SA.
Date: 2019-10-03
It should be recalled, in this regard, that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. As regards such a position of weakness, that directive 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 (see, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraphs 49 and 50).
According to settled case-law, 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 (see, to that effect, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraphs 40 and 51, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 57).
With regard to the limits drawn by EU law and which must be respected, in this context, by national law, it should be made clear, inter alia, that, in accordance with the objective approach referred to in paragraph 39 of this judgment, the situation of one of the parties to the contract cannot be regarded, under national law, as the decisive criterion determining the fate of the contract (see, to that effect, judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 32).
It follows from the considerations contained in paragraphs 40 and 41 of this judgment that 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.
This applies a fortiori, in circumstances such as those at issue in the main proceedings, where it appears to follow from the information provided by the referring court, as summarised in paragraphs 35 and 36 of this judgment, that annulling the terms contested by the borrowers would lead not only to the removal of the indexing mechanism and the exchange difference but also, indirectly, to the disappearance of the exchange rate risk, which is directly linked to the indexing of the loan at issue in the main proceedings to a currency. The Court has already held that terms relating to the exchange rate risk define the main subject matter of a loan contract such as that at issue in the main proceedings, such that the objective possibility of continuing the loan agreement at issue in the main proceedings appears, in those circumstances, uncertain (see, to that effect, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraphs 48 and 52 and the case-law cited).
However, the Court has found that Article 6(1) of that directive does not preclude the national court from substituting for an unfair term a supplementary provision of national law or one which is applicable where the parties to the contract at issue so agree; that possibility is, however, limited to situations in which the removal of that unfair term would require the court to annul that contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, with the result that the consumer would thus be penalised (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 80 to 84, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 64).
With regard, in the first place, to the time at which those consequences must be assessed, it must be recalled that that possibility of substitution falls wholly within the scope of the objective of Article 6(1) of Directive 93/13 which consists, as observed in paragraph 39 of this judgment, in protecting the consumer by re-establishing equality between him and the seller or supplier (see, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 57).
In the second place, as regards the significance to be attributed to the wishes expressed by the consumer in this regard, it should be recalled that the Court has made clear, in connection with the obligation on the national court to remove, if necessary of its own motion, unfair terms pursuant to Article 6(1) of Directive 93/13, that that court is not required to exclude the possibility that the term in question may be applicable if the consumer, after having been informed of it by the court, does not intend to assert its unfair or non-binding status, thus giving his free and informed consent to the term in question (see, to that effect, judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraphs 23, 27 and 35 and the case-law cited).
Thus, 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.
Similarly, 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 annulled in its entirety where he does not wish to rely on that protection.
It should be noted that that possibility of substitution, which derogates from the general rule that the contract at issue can remain binding on the parties only if it can continue in existence without the unfair terms that it contains, is limited to supplementary provisions of national law or those which are applicable where the parties so agree and is based, in particular, on the ground that such provisions are presumed not to contain unfair terms (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 81, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 59).
However, in the present case, even assuming that provisions such as those to which the national court refers, given their general nature and the need to make them effective, can in practice replace the unfair terms concerned by the mere act of substitution by the national court, they do not appear, in any event, to have been subject to a specific assessment by the legislature with a view to establishing that balance, such that those provisions are not covered by the presumption set out in paragraph 59 of this judgment that they are not unfair, as the Advocate General likewise observed, in essence, in point 73 of his Opinion.
In the light of the foregoing, the answer to the first question is that Article 6(1) of Directive 93/13 must be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract from being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree.
The Court has interpreted that provision as meaning that, where the national court considers a contractual term to be unfair, it is required not to apply it, an obligation from which there is no derogation unless the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status, thus giving his free and informed consent to the term in question, as observed in paragraph 53 of this judgment.