Bogdan Matei and Ioana Ofelia Matei v SC Volksbank România SA.
Date: 2015-02-26
38. In that connection, it is clear from the case-law of the Court that if it finds that there is in fact no dispute pending before the referring court, so that an answer to the question would be of no use to that court for the resolution of a dispute, the Court must rule that there is no need to give a ruling on the request for preliminary ruling (see to that effect, in particular, judgments in Djabali , C‑314/96, EU:C:1998:104, paragraphs 16, 21 and 22; García Blanco , C‑225/02, EU:C:2005:34, paragraphs 23 and 29 to 31, and order in Mohammad Imran , C‑155/11 PPU, EU:C:2011:387, paragraphs 14 and 19 to 21).
47. Second, the exact scope of ‘main subject-matter’ and ‘price’ within the meaning of Article 4(2) of Directive 93/13 cannot be determined by the concept of ‘the total cost of the credit to the consumer’ within the meaning of Article 3(g) of Directive 2008/48.
49. However, Article 4(2) of Directive 93/13 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 (judgment in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 42).
50. Furthermore, the expressions ‘main subject-matter of the contract’ and ‘the adequacy of the price and remuneration on the one hand, as against the services or goods supplied, on the other’ 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 ( Kásler and Káslerné Rábai , EU:C:2014:282, paragraphs 37 and 38).
51. In its case-law, the Court has also set out criteria for the interpretation of those concepts, which specifically take account of the specific objective of Directive 93/13, that is to say, to require 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 for the purposes the protection granted to a consumer on account of the fact that he is in a position of weakness vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (see, to that effect, judgment in Kásler and Káslerné Rábai , EU:C:2014:282, paragraphs 39 and 40).
53. In that regard, although it is for the national court alone to rule on the classification of those terms 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 ( Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 45).
54. The Court has held that contractual terms falling within the notion of the ‘main subject-matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it. 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’. 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 concerned constitutes an essential element of the debtor’s obligations, consisting in the repayment of the amount made available by the lender ( Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 49 to 51).
55. The Court has also stated that it follows from the wording of Article 4(2) of Directive 93/13 that the second category of terms which 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, that exclusion being explained by the fact that no legal scale or criterion exists that can provide a framework for, and guide, such a review (see, to that effect, Kásler and Káslerné Rábai , EU:C:2014:282, paragraphs 54 and 55).
58. It should be noted, first of all, that the Court has already held that a similar term relating to a mechanism for amending the prices of the services provided to the consumer does not fall within Article 4(2) of Directive 93/13 (judgment in Invitel , C‑472/10, EU:C:2012:242, paragraph 23).
70. Whilst the matter is once again subject to verification by the referring court, some of that information suggests that the subject-matter of the dispute in the main proceedings does not concern the adequacy of amount of that commission as compared with a service provided by the lender (of whatever kind) since it is submitted that the lender does not provide any actual service which could constitute consideration for that charge, so that the question of the adequacy of that charge does not arise (see, by analogy, Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 58).
72. Finally, it must be held that, if the referring court were to consider that, in the light of the information provided by the Court in answer to the question referred, that the relevant terms none the less fall within the ‘main subject-matter of the contract’ or that they are in fact challenged with regard to the adequacy of the price or the remuneration, the fact remains that those terms must, in any event, be subject to an assessment of their unfairness if it was found, which is also for the referring court to verify, that they are not drafted in clear and intelligible language (see, to that effect, Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 61).
73. In that connection, it should be recalled that the requirement of transparency of contractual terms laid down by Articles 4(2) and 5 of Directive 93/13, which, moreover, have identical scope, cannot be reduced merely to their being formally and grammatically intelligible (see, to that effect, Kásler and Káslerné Rábai , EU:C:2014:282, paragraphs 69 and 71).
74. It follows, in particular from Articles 3 and 5 of Directive 93/13 and Paragraph 1(j) and (l) and Paragraph 2(b) and (d) of the annex to that directive that it is of fundamental importance, for the purpose of complying with the requirement of transparency, to determine whether the loan agreement sets out transparently the reasons for and the particularities of the mechanism for altering the interest rate and the relationship between that mechanism and the other terms relating to the lender’s remuneration, so that the consumer can foresee, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it (see, to that effect, Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 73).
75. That question must be examined by the referring court, in the light of all the relevant facts, including the promotional material and information provided by the lender in the negotiation of the loan agreement and the level of attention to be expected of the average consumer, who is reasonably well informed and reasonably observant and circumspect (see, to that effect, Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 74).
77. Second, as regards the terms providing for the ‘risk charge’, the question arises whether the loan agreement concerned sets out transparently the reasons justifying the remuneration corresponding to that charge, since it is disputed that the lender is required to provide real consideration in order to obtain payment of that charge, apart from the fact of assuming the risk of non-repayment, which it is argued is already guaranteed by a mortgage. The lack of transparency, in the agreements at issue in the main proceedings, of the statement of the grounds justifying those terms also appears to be confirmed by the fact, noted in paragraph 29 of this judgment, that, in the present case, the lender proposed to the borrowers to replace the heading of those terms with ‘credit management charge’, without at the same time changing their content.