1 This request for a preliminary ruling concerns the interpretation of Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
2 The request has been made in proceedings between UG, a consumer, and SC Raiffeisen Bank SA concerning a finding of unfairness in respect of terms contained in a credit agreement concluded between those parties. Legal context European Union law
3 The thirteenth recital of Directive 93/13 states: ‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’.
4 Article 1(2) of that directive provides: ‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’
5 Article 3 of that directive states: ‘1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. 2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.’ Romanian law The Law on unfair terms
6 Article 3 of Legea nr. 193, privind clauzele abuzive din contractele încheiate între profesioniști și consumatori (Law No 193 on unfair terms in contracts concluded between sellers or suppliers and consumers), of 6 November 2000 (republished in the Monitorul Oficial al României , Part I, No 543 of 3 August 2012; ‘the Law on unfair terms’), provides, in paragraph 2 thereof, that contractual terms stipulated on the basis of other legislation in force are not subject to the provisions of that law. OUG No 50/2010
7 Under Article 37 of the Ordonanța de urgență a Guvernului nr. 50, privind contractele de credit pentru consumatori (Government Emergency Order No 50 concerning consumer credit agreements), of 9 June 2010 ( Monitorul Oficial al României , Part I, No 389 of 11 June 2010), in the version applicable to the dispute in the main proceedings (‘OUG No 50/2010’): ‘The following rules apply to variable-rate credit agreements: (a) the interest rate shall be linked to fluctuations in the Euribor/ROBOR/LIBOR reference indices or the BNR [Banca Națională a României (National Bank of Romania)] benchmark interest rate, depending on the currency of the credit, to which the creditor may add a margin which shall remain fixed for the entire duration of the agreement; (b) the margin of the interest rate may be altered only in response to legislative amendments expressly requiring its alteration; (c) in accordance with the commercial policy of each credit institution, by way of derogation from point (b), the value of the margin and the reference indices may be reduced; (d) the agreement shall expressly indicate the method of calculating the variation in the interest rate, specifying how often and/or under what conditions the interest rate may be adjusted upwards or downwards; (e) the details of the method of calculating the variation in the interest rate and the value thereof shall be published on the websites and in all the premises of the creditors.’
8 In accordance with Article 95 of OUG No 50/2010: ‘1. For ongoing agreements, creditors shall be required, within 90 days of the date of entry into force of this Emergency Order, to ensure that the agreement complies with the provisions of this Emergency Order. 2. Ongoing agreements shall be amended by means of supplementary agreements within 90 days of the date of entry into force of this Emergency Order. 3. The creditor must be able to prove that it exercised all due care to inform the consumer regarding the signing of supplementary agreements. 4. The introduction of terms other than those referred to in this Emergency Order into supplementary agreements shall be prohibited. Any term introduced into supplementary agreements other than those required by this Emergency Order shall be deemed automatically void. 5. Failure on the part of the consumer to sign the supplementary agreements referred to in paragraph 2 shall be deemed to constitute tacit acceptance.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
9 On 23 March 2007, UG concluded a variable rate credit agreement with Raiffeisen Bank for 15 300 Swiss francs (CHF) (approximately EUR 16 048) (‘the credit agreement at issue’). On the date on which the agreement was concluded, the interest rate was 5.9% per year, but, under the terms of that agreement, the seller or supplier had the option to adjust that rate in line with developments in the financial market, by informing the borrower of the new interest rate in accordance with the methods provided for in the general terms and conditions.
10 On 10 September 2010, Raiffeisen Bank notified to UG a supplementary agreement to the credit agreement at issue in order to bring that credit agreement into line with the requirements of OUG No 50/2010. By that notification, Raiffeisen Bank indicated to UG that the national legislature had required amendments to all consumer credit agreements. Some amendments had to be made, in particular, to the contractual terms relating to the determination of the variable rate, by linking it to an objective index depending on the currency in which the credit was agreed, increased by the credit institution by a margin fixed for the entire duration of the agreement. It is apparent from the request for a preliminary ruling that that supplementary agreement was not signed by UG, with the result that he was deemed to have tacitly accepted it, in accordance with Article 95(5) of OUG No 50/2010.
11 On 29 December 2017, UG brought an action before the Judecătoria Sighișoara (Court of First Instance, Sighișoara, Romania) seeking, in particular, a finding of unfairness in respect of the terms of the credit agreement at issue relating to the option, for the bank, to alter the interest rate. UG also requested that the court of first instance, on that ground, hold those terms to be absolutely void and order the reimbursement of the sums paid under them.
12 By decision of 10 June 2020, the court of first instance dismissed that action, on the ground that, with regard to the Law on unfair terms, which transposes Directive 93/13 into Romanian law, it was not permitted to examine whether the terms of the credit agreement at issue which stem from the supplementary agreement referred to in paragraph 10 of the present judgment are unfair since, inter alia, they reflect an obligation established by the mandatory provisions of a national regulatory act, namely OUG No 50/2010.
13 UG brought an appeal against that judgment before the Tribunalul Specializat Mureş (Specialised Court, Mureş, Romania), which is the referring court, claiming, in particular, that the provisions of OUG No 50/2010 are intended only to strengthen consumer protection and that, as regards the credit agreement at issue, the amendments made by the supplementary agreement which was notified to him by Raiffeisen Bank did not comply with that national regulatory act.
14 According to Raiffeisen Bank, the term of the credit agreement at issue relating to the determination of the interest rate which was initially included in that agreement ceased to have effect from the date of entry into force of the supplementary agreement, that is to say 10 September 2010, since that term had been replaced, at that moment, by the term in force on the date on which UG brought his action, under which the interest rate is now linked to a verifiable reference index, increased by a fixed margin established by the bank in accordance with the requirements of OUG No 50/2010. Raiffeisen Bank contends that that credit agreement had therefore complied with the applicable legislation by implementing the relevant national provisions.
15 According to the referring court, the question of whether it may proceed with an assessment of whether certain contractual terms which come within the scope of OUG No 50/2010 are unfair must be examined in the light of Directive 93/13 and the relevant case-law of the Court, in particular as regards the strict interpretation to be given to Article 1(2) of Directive 93/13, which constitutes an exception to the rules on the protection of consumers against unfair contractual terms.
16 The referring court admits that the Court has proceeded on the assumption that the national legislature, by requiring parties to accept a contractual term the substance of which reflects a provision of binding national law, intended, in so doing, to strike a balance between all the rights and obligations of the parties to that agreement, with the result that the courts cannot review whether such a term is unfair. However, the referring court is of the opinion that even where a term of a credit agreement meets the requirements of Article 37 of OUG No 50/2010, the consumer is still not in a position to appraise himself or herself of the extent of his or her obligations in so far as that provision merely provides that the variable interest rate must be determined on the basis of not only an objective index but also a fixed margin which reflects the interests of the seller or supplier. In addition, that objective index, although fixed independently of the will of the parties, is subject to considerable fluctuations. According to that court, unlike an average and reasonable consumer, a seller or supplier may exploit such fluctuations because of its experience and greater capacity to anticipate them.
17 Therefore, that court is uncertain as to whether, in the absence of adequate consumer protection mechanisms, the relevant provisions of OUG No 50/2010 can be regarded as capable of being implemented independently of the will of the parties or as being applicable automatically, without any other type of agreement between the parties. The assessment of whether contractual terms which reflect those provisions are unfair should not, therefore, be exempted from review by the courts.
18 Such a conclusion would not comply with the prevailing national case-law according to which contractual terms contained in supplementary agreements implemented by sellers or suppliers under OUG No 50/2010 cannot be subject to such review.
19 In those circumstances, the Tribunalul Specializat Mureş (Specialised Court, Mureş) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) When applying the provisions of Article 1(2) of [Directive 93/13] transposed into national law by the provisions of Article 3(2) of [the Law on unfair terms], in the light of, in particular, the twelfth and thirteenth recitals of that directive, but also taking into account the provisions of Articles 80 and 81 of [OUG No 50/2010], must those provisions be interpreted as not precluding national courts from also examining suspicions concerning the unfair nature of contractual terms stipulated in supplementary agreements to credit agreements concluded between sellers or suppliers and consumers before the aforementioned act having the force of law came into effect, that is to say, [supplementary agreements concluded] pursuant to the provisions of Article 95 of OUG No 50/2010, regardless of whether those terms have been expressly accepted by the consumer in the manner provided for by the provisions of Article 40(1) of OUG No 50/2010 or whether they have been considered tacitly accepted by law in the manner provided for by the provisions of Article 40(3) of OUG No 50/2010? (2) If the first question is answered in the affirmative, … in light of the background set out above and the circumstances of the dispute pending before it, [is] a line of case-law of the national courts establishing that express acceptance of a supplementary agreement drawn up in the manner provided for by Article 40(1) of OUG No 50/2010 and pursuant to the provisions of Article 95 thereof automatically leads to the conclusion that [that supplementary agreement] has been negotiated and, consequently, there can be no examination of any suspicions that the terms stipulated within it are unfair[, contrary to EU law]?’ Consideration of the questions referred The first question
20 By its first question, the referring court asks, in essence, whether Article 1(2) of Directive 93/13 must be interpreted as precluding the assessment of whether terms contained in a consumer credit agreement concluded between a consumer and a seller or supplier are unfair in circumstances where that seller or supplier has amended those terms in order to ensure that that agreement complies with mandatory national legislation relating to the methods of determining the interest rate pursuant to which that rate must be replaced by an interest rate determined on the basis of one of the reference indices provided for by that legislation and increased by a fixed margin established by that seller or supplier for the entire duration of the agreement.
21 First of all, it should be noted that Article 1(2) of Directive 93/13 excludes from the scope of that directive contractual terms which reflect mandatory statutory or regulatory provisions.
22 In addition, in light of the objective pursued by that directive, namely the protection of consumers from unfair terms in contracts concluded with a seller or supplier, the exclusion established in Article 1(2) thereof must be interpreted strictly (see, to that effect, judgment of 21 December 2021, Trapeza Peiraios , C‑243/20, EU:C:2021:1045, paragraph 37).
23 First, it is apparent from settled case-law that the expression ‘mandatory statutory or regulatory provisions’, read in the light of the thirteenth recital of that directive, encompasses both provisions of national law which apply between the parties to a contract independently of their choice and those which are supplementary in nature, that is to say, which apply by default in the absence of other arrangements established by the parties (judgment of 21 December 2021, Trapeza Peiraios , C‑243/20, EU:C:2021:1045, paragraph 30 and the case-law cited).
24 Secondly, as regards the question whether a contractual term ‘reflects’, for the purposes of Article 1(2) of Directive 93/13, such a mandatory statutory or regulatory provision of national law, it should be recalled that the exclusion established by that provision is justified by the fact that it is, in principle, legitimate to presume that the national legislature has struck a balance between all the rights and obligations of the parties to certain contracts, a balance which the EU legislature expressly intended to preserve. Moreover, the fact that such a balance has been struck does not constitute a condition for the application of the exclusion laid down in Article 1(2), but the justification for such an exclusion (judgment of 6 July 2023, First Bank , C‑593/22, EU:C:2023:555, paragraph 22 and the case-law cited).
25 Accordingly, in the present case, for the purpose of assessing whether a contractual term which reflects a provision of OUG No 50/2010 is excluded from the scope of Directive 93/13 under Article 1(2) thereof, it is not for the referring court to verify at the outset that, by that act, the national legislature made sure to strike a balance between all the rights and obligations of the parties to the agreement at issue.
26 Next, it is apparent from the case-law of the Court that a term of a contract concluded between a consumer and a seller or supplier which reflects a mandatory provision of national law that is not applicable to that contract, or which merely refers to the whole of a piece of national legislation and not such a provision, cannot be regarded as reflecting a mandatory provision of national law within the meaning of Article 1(2) of Directive 93/13 and cannot, therefore, be exempted from review, by the courts, of whether it is unfair (see, to that effect, judgments of 21 March 2013, RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraph 30, and of 3 April 2019, Aqua Med , C‑266/18, EU:C:2019:282, paragraphs 35 to 38).
27 Therefore, in order for a contractual term to ‘reflect’ a mandatory statutory or regulatory provision within the meaning of Article 1(2) of Directive 93/13, that term must reproduce the normative content of a mandatory provision applicable to the relevant contract so that it may be regarded as expressing in concrete terms the same legal rule as that envisaged in that mandatory provision (judgment of 6 July 2023, First Bank , C‑593/22, EU:C:2023:555, paragraph 25).
28 In the present case, it is for the referring court to carry out the necessary assessments, for the purpose of determining whether the contractual term at issue in the main proceedings reflects, within the meaning of Article 1(2) of Directive 93/13, the relevant provisions of OUG No 50/2010.
29 Nevertheless, in the light of the material in the file before the Court, it appears that the contractual terms contained in the credit agreement at issue in the main proceedings stem from the provisions of OUG No 50/2010. Those provisions obliged banks to make certain amendments to all consumer credit agreements. That legal obligation concerned, in particular, terms relating to the methods of determining the variable interest rate. Moreover, it appears that OUG No 50/2010 deprived consumers of the option to accept or refuse those amendments. OUG No 50/2010 provided that, if consumers did not sign the supplementary agreement notified by the bank, they were deemed to have tacitly accepted the terms thereof.
30 However, while Article 37(a) of OUG No 50/2010 provided that the interest rate for credit agreements had to be replaced by an interest rate determined on the basis of a reference index and a fixed margin, applicable for the entire duration of the agreement, it is nevertheless apparent from the file before the Court that the banks have a margin of discretion as to both the choice of reference index and the size of that fixed margin.
31 In those circumstances, it appears, though it is for the referring court to ascertain, that the national legislation has established a general framework and the conditions to be met for fixing the new variable interest rate, while leaving the calculation of that new rate at the discretion of credit institutions.
32 In its judgment of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138, paragraphs 33 to 37), the Court held that the exclusion provided for in Article 1(2) of Directive 93/13 did not apply to a contractual term which provided that the interest rate applicable to the loan is based on one of the official reference indices provided for by the national legislation, where that national legislation did not provide for the mandatory application of that index, but left the bank the option to determine the variable interest rate in another way.
33 It follows that the exclusion provided for in Article 1(2) of Directive 93/13 does not apply in a situation where amendments have been made by a seller or supplier to terms of a consumer credit agreement to ensure that that agreement complies with national legislation that has been adopted after that agreement was concluded, if that legislation merely establishes a general framework for fixing the interest rate for that credit agreement, while leaving a margin of discretion to that seller or supplier as regards both the choice of reference index for that rate and the size of the fixed margin that can be added to that rate.
34 Lastly, in the light of the referring court’s doubts, it should be recalled, so far as is relevant, that the application of Article 1(2) of Directive 93/13 is objective in nature and does not depend, for example, on the information provided to the consumer by the seller or supplier or on the consumer’s knowledge of the applicable legal provisions (judgment of 6 July 2023, First Bank , C‑593/22, EU:C:2023:555, paragraph 31).
35 Therefore, whether or not the consumer has expressly or tacitly accepted the amendments to the agreement at issue cannot have any bearing on the question of whether the contractual terms concerned by those amendments are excluded from the scope of Directive 93/13 pursuant to Article 1(2) thereof.
36 In the light of the foregoing considerations, the answer to the first question is that Article 1(2) of Directive 93/13 must be interpreted as not precluding the assessment of whether terms contained in a consumer credit agreement concluded between a consumer and a seller or supplier are unfair in circumstances where that seller or supplier has amended those terms in order to ensure that that agreement complies with mandatory national legislation relating to the methods of determining the interest rate, if that legislation merely establishes a general framework for fixing the interest rate for that agreement, while leaving a margin of discretion to that seller or supplier as regards both the choice of reference index for that rate and the size of the fixed margin that can be added to the latter. The second question
37 According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (judgment of 15 July 2021, Ministrstvo za obrambo , C‑742/19, EU:C:2021:597, paragraph 31 and the case-law cited).
38 It is for the Court to extract from the body of material provided by the referring court, and in particular from the statement of reasons for the order for reference, the elements of EU law which require interpretation in the light of the subject matter of the dispute (judgment of 21 March 2024, Profi Credit Bulgaria (Services ancillary to a credit agreement) , C‑714/22, EU:C:2024:263, paragraph 48 and the case-law cited).
39 In the present case, according to the referring court, the contractual terms included in the supplementary agreement at issue in the main proceedings were established in advance by Raiffeisen Bank and the applicant in the main proceedings did not have the opportunity to negotiate the terms thereof or influence their substance. It is apparent from the order for reference that the prevailing national case-law holds that the contractual terms contained in supplementary agreements implemented by sellers or suppliers on the basis of OUG No 50/2010 cannot be subject to an examination of whether they are unfair, even if those terms have not been negotiated with the consumer.
40 In those circumstances, it must be held that, by its second question, the referring court asks, in essence, whether Article 3 of Directive 93/13 must be interpreted as precluding national case-law under which amendments made by a seller or supplier to the terms of a consumer credit agreement in order to ensure that that agreement complies with national legislation that leaves a margin of discretion to the seller or supplier cannot be subject to an examination of whether they are unfair, even if those terms have not been negotiated with the consumer.
41 In that regard, under Article 3(1) of Directive 93/13, only a term of a contract concluded between a seller or supplier and a consumer which has not been individually negotiated may be subject to a review, by the courts, of whether it is unfair.
42 Article 3(2) of that directive specifies, in addition, that a term is always to be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, as is the case, in particular, in the context of a pre-formulated standard contract.
43 While it is for the referring court to take account of all the circumstances in which such a term was presented to the consumer for the purpose of determining whether the consumer was able to influence its substance (see, to that effect, judgment of 9 July 2020, Ibercaja Banco , C‑452/18, EU:C:2020:536, paragraph 35), the Court has already held that the mere signing of a contract concluded by a consumer with a seller or supplier which provides that, by signing the contract, the consumer accepts all of the contractual terms drafted in advance by the seller or supplier, does not lead to a rebuttal of the presumption that such terms had not been individually negotiated (order of 24 October 2019, Topaz , C‑211/17, EU:C:2019:906, paragraph 51).
44 The Court has also held that an amendment made to a term relating to interest rates which forms part of a general policy of renegotiating mortgage loan agreements subject to a variable interest rate for the purpose of making that term compliant with a decision of a supreme court could be an indication that the consumer was unable to influence the substance of that term. Moreover, the fact that the consumer preceded his or her signature by a handwritten statement indicating that he or she had understood the mechanism of that term is not sufficient to establish that that term was individually negotiated (see, to that effect, judgment of 9 July 2020, Ibercaja Banco , C‑452/18, EU:C:2020:536, paragraphs 36 and 38).
45 If follows that the negotiated quality of a term contained in a credit agreement concluded between a seller or supplier and a consumer cannot be based on a mere presumption without it being proved that the consumer was, in actual fact, able to negotiate that term and thus influence its substance.
46 In the light of the foregoing considerations, the answer to the second question is that Article 3 of Directive 93/13 must be interpreted as precluding national case-law under which amendments made by a seller or supplier to the terms of a consumer credit agreement in order to ensure that that agreement complies with national legislation that leaves a margin of discretion to the seller or supplier cannot be subject to an examination of whether they are unfair, even if those terms have not been negotiated with the consumer. Costs
47 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Eighth Chamber) hereby rules: 1. Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding the assessment of whether terms contained in a consumer credit agreement concluded between a consumer and a seller or supplier are unfair in circumstances where that seller or supplier has amended those terms in order to ensure that that agreement complies with mandatory national legislation relating to the methods of determining the interest rate, if that legislation merely establishes a general framework for fixing the interest rate for that agreement, while leaving a margin of discretion to that seller or supplier as regards both the choice of reference index for that rate and the size of the fixed margin that can be added to the latter. 2. Article 3 of Directive 93/13 must be interpreted as precluding national case-law under which amendments made by a seller or supplier to the terms of a consumer credit agreement in order to ensure that that agreement complies with national legislation that leaves a margin of discretion to the seller or supplier cannot be subject to an examination of whether they are unfair, even if those terms have not been negotiated with the consumer. [Signatures] * Language of the case: Romanian.