NG and OH v SC Banca Transilvania SA.
Date: 2020-07-09
23


It should be noted that Article 1(2) of Directive 93/13, which covers terms that reflect mandatory statutory or regulatory provisions, introduces the possibility of exclusion from the scope of the directive (judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 52).
24


That exclusion is to be interpreted strictly and its application requires that two conditions be met, namely that, first, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory (see, to that effect, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraphs 30 and 31 and the case-law cited).
25


As stated in the 13th recital of Directive 93/13, the wording ‘mandatory statutory or regulatory provisions’ in Article 1(2) of that directive also covers rules which, under national law, are to apply between contracting parties provided that no other arrangements have been established (see, to that effect, judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 26, and of 3 April 2019, Aqua Med, C‑266/18, EU:C:2019:282, paragraph 29).
26


The Court has repeatedly held that that exclusion from the application of the rules of Directive 93/13 is justified by the fact that, in principle, it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts (see judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 28, and of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 53).
28


It follows that, in order to establish whether the conditions for applying the exclusion laid down in Article 1(2) of Directive 93/13 are met, the Court has held that it is for the national court to determine whether the contractual term in question reflects mandatory provisions of national law that apply between contracting parties independently of their choice or provisions that are supplementary in nature and therefore apply by default, that is to say, in the absence of other arrangements established by the parties in that respect (see, to that effect, judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 26; of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 79; of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraphs 29 and 30; and of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 32).
33


In that regard, it should be noted that, according to the Court’s settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (judgments of 15 November 2012, Kurcums Metal, C‑558/11, EU:C:2012:721, paragraph 48, and of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 42).