1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) 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 brought by M.B., U.B. and M.B. against X S.A. concerning the consequences of the invalidation of a mortgage loan agreement concluded between those parties.
3 Article 6(1) of Directive 93/13 provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
4 Article 7(1) of Directive 93/13 states: ‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’
5 On 4 June 2007, M.B., U.B. and M.B. concluded, as consumers, with X’s legal predecessor, a bank, a mortgage loan agreement for a duration of 360 months and in the amount of 339 881.92 Polish zlotys (PLN), indexed to a foreign currency, namely the Swiss franc (CHF).
6 Under the terms of that contract, the monthly instalments and the outstanding amount of that loan were calculated in Swiss francs and paid in Polish zlotys, according to the CHF-PLN rate of exchange applicable to each of those monthly instalments.
7 Before the referring court, the borrowers claim that the terms of that contract relating to that indexation mechanism are unfair since, in the absence of specific rules stipulated in that contract, the exchange rate used to calculate the monthly loan instalments was fixed at the bank’s discretion.
8 M.B., U.B. and M.B. requested that those terms in the loan agreement be removed and claimed that the monthly instalments had to be calculated in Polish zlotys and with an interest rate based on the LIBOR. In that regard, they stated that they accepted the invalidation of the contract by the referring court.
9 The referring court considers, first, that the terms relating to the indexation mechanism at issue should be annulled on the grounds that they are unfair. Second, since the loan agreement at issue cannot continue in existence without those terms, it is for the referring court to grant the consumers’ request for the loan agreement to be declared invalid.
10 Thus, first, the invalidation of that contract, despite the resulting adverse effects for the consumers, is inevitable.
11 The referring court observes that, according to the judgment of 7 November 2019, Kanyeba and Others (C‑349/18 to C‑351/18, EU:C:2019:936), the effects of the nullity of a contract are determined by national law alone. In the present case, it is the general provisions of contract law which apply. However, it points out that the considerations relating to consumer protection and the deterrence of sellers or suppliers with regard to the use of unfair terms, specific to Directive 93/13, are unrelated to the applicable national provisions which provide that the parties to the contract are to bear equally the losses resulting from its invalidation. The applicants in the main proceedings would therefore lose the protection which they enjoy under that directive.
12 Second, recalling that, in the judgment of 29 April 2021, Bank BPH (C‑19/20, EU:C:2021:341), the Court held that the invalidation of a contract on the basis of the use of unfair terms does not depend on the consumer’s express request to that effect, but is a matter of objective application by the national court of the criteria established under national law, the referring court asks whether it must itself establish the consequences of the invalidation of the contract on the consumer’s situation or whether it must confine itself, in that regard, to the evidence submitted to it by applicants in the main proceedings, as it is required to do under Polish procedural law.
13 Third, the referring court considers that the dispute before it is characterised by the fact that there are no relevant supplementary provisions in national law, which would necessarily lead to the invalidation of the contract and would create unfavourable effects for the consumer. Thus, whatever its decision, that court considers that one of the objectives of Directive 93/13 would not be achieved. Either it fills the gaps in the contract resulting from the nullity of the unfair terms, to the detriment of the objective of ensuring a deterrent effect for sellers or suppliers, or it declares the whole contract invalid and exposes the consumer to adverse consequences.
14 In those circumstances, the Sąd Rejonowy dla Warszawy-Woli w Warszawie I Wydział Cywilny (District Court for Warszawa-Wola, First Civil Division, Warsaw, Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must [Directive 93/13] on unfair terms in consumer contracts, in the light of its objective of protecting consumers against unfair terms in contracts with sellers or suppliers, be interpreted as meaning that, once a contract is declared invalid by a court under the rules of that directive, that directive, along with the protection of the consumer, ceases to apply and the rules governing settlement for the consumer and the seller or supplier must be sought under the national contract law governing the settlement of an invalid contract? (2) In the light of Articles 6 and 7 of Directive [93/13], where a court finds that the contractual term in question is unlawful and that the contract is not capable of continuing in existence after that term has been removed, in the absence of an agreement by the parties to fill the gap with clauses in accordance with their wishes and in the absence of supplementary provisions (directly applicable to the contract in the absence of an agreement by the parties), must that court declare the contract invalid on the basis of the wishes of the consumer who sought that declaration, or must the court examine, of its own motion, going beyond the form of order sought by the parties, the financial situation of the consumer in order to determine whether declaring the contract invalid would expose the consumer to particularly unfavourable consequences? (3) Must Article 6 of Directive [93/13] be interpreted as meaning that, if the court comes to the conclusion that declaring the contract invalid would be particularly unfavourable to the consumer and, despite having been encouraged to do so, the parties fail to reach an agreement on the fulfilment of the contract, the court may, taking into account the objective interest of the consumer, fill the gap in the contract, created after the unfair terms have been “removed” from it, not with rules of national law which are supplementary within the meaning of the judgment [of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819)] that is to say, rules which are directly applicable to the gap in the contract, but with specific provisions of national law which can be applied to the contract in question mutatis mutandis or by analogy and which reflect a rule of national contract law?’
15 By its first question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 must be interpreted as meaning that, in the event that a contract concluded between a consumer and a seller or supplier is declared invalid because one of its terms is unfair, it is for the Member States, by means of their national law, to make provision for the effects of that invalidation, without regard to the protection granted by that directive to consumers.
16 As a preliminary point, it should be borne in mind that, in accordance with settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives pursued by the legislation of which it forms part (judgment of 2 December 2021, Vodafone Kabel Deutschland, C‑484/20, EU:C:2021:975, paragraph 19 and the case-law cited).
17 First, in accordance with Article 6(1) of Directive 93/13, ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer’.
18 That provision does not itself set out the criteria governing the possibility of a contract continuing in existence without the unfair terms, but rather leaves it to the national legal order to determine those criteria in a manner consistent with EU law. Thus, it is for the Member States, by means of their national law, to define the detailed rules under which the unfairness of a contractual term is established and the actual legal effects of that finding are produced. In any event, such a finding must make it possible to restore the legal and factual situation that the consumer would have been in if that unfair term had not existed (judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 84).
19 Furthermore, the question as from when the invalidation of the contract at issue in the main proceedings produces its effects depends, as is stated, in essence, in Article 6(1) of Directive 93/13, exclusively on national law, provided that the protection guaranteed to consumers by the provisions of Directive 93/13 is ensured (judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 88).
20 In particular, the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope and, therefore, the substance of that protection and thus affect the strengthening of the effectiveness of that protection by the adoption of uniform rules of law in respect of unfair terms (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 65).
21 Second, having regard to the specific context surrounding Article 6(1) of Directive 93/13, the provisions of which are aimed at protecting consumers against the use of unfair terms, the Court has had occasion to hold that the protection granted by that directive cannot be limited solely to the duration of the performance of a contract concluded with a consumer by a seller or supplier, but that it also applies after the performance of that contract (see, to that effect, judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale, C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 73).
22 Thus, where a contract concluded between a consumer and a seller or supplier is declared invalid because one of its terms is unfair, it is for the Member States, by means of their national law, to make provision for the effects of that invalidation, in compliance with the protection granted to the consumer by Directive 93/13, in particular, by ensuring the restoration of the legal and factual situation that the consumer would have been in if that unfair term had not existed.
23 Third, such a conclusion is supported by the objectives pursued by Directive 93/13.
24 Hence, to begin with, the primary and immediate objective of that directive consists in protecting the consumer and restoring the balance between the parties (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 72).
25 In particular, a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer, and that it has the consequence of restoring the consumer to the legal and factual situation that he or she would have been in if that unfair term had not existed (judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraph 41).
26 In addition, Directive 93/13 also pursues a second objective, set out in Article 7 of Directive 93/13, which seeks, in the long term, to prevent the continued use of unfair terms by sellers or suppliers. Thus, the straightforward non-application of unfair terms with regard to the consumer has a dissuasive effect on sellers or suppliers as regards the use of such terms (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 68).
27 In the present case, the referring court states that the provisions of national law which are for it to apply in order to determine the effects of the invalidation of the contract would lead it to distribute the losses resulting from that invalidation equally between the applicants in the main proceedings and X.
28 However, such a consequence, in so far as it would call into question the protection granted by Directive 93/13 to consumers following the invalidation of the contract, would be contrary to the objectives set out in paragraphs 23 to 26 of the present judgment.
29 First of all, the application of the provisions of national law would not, according to the explanations provided by the referring court, ensure the restoration of the legal and factual situation that the consumers would have been in if that unfair term had not existed, thereby undermining the objective of their protection pursued by Directive 93/13.
30 Next, in the absence of the protection guaranteed by Directive 93/13, the application of provisions of national law providing for an equal distribution of losses between the parties would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, since those provisions could ultimately benefit sellers or suppliers by limiting their obligation to repay sums wrongly received on the basis of those terms.
31 Lastly, such an interpretation is not called into question by the judgment of 7 November 2019, Kanyeba and Others (C‑349/18 to C‑351/18, EU:C:2019:936), mentioned by the referring court.
32 Suffice it to recall that, in paragraph 73 of that judgment, the Court stated that the question of the classification of the facts for the purposes of the law governing non-contractual liability does not come within the scope of Directive 93/13, but of national law. In the present case, it is not apparent from the order for reference that the dispute in the main proceedings falls within the scope of non-contractual liability, since the referring court wishes to know whether the protection guaranteed by that directive remains applicable at the stage of the effects of the invalidation of a contract containing unfair terms.
33 In the light of the foregoing, Article 6(1) of Directive 93/13 must be interpreted as meaning that, in the event that a contract concluded between a consumer and a seller or supplier is declared invalid because one of its terms is unfair, it is for the Member States, by means of their national law, to make provision for the effects of that invalidation, in compliance with the protection granted to the consumer by that directive, in particular, by ensuring the restoration of the legal and factual situation that he or she would have been in if that unfair term had not existed.
34 By its second question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that the national court may examine of its own motion the financial situation of a consumer who has sought the invalidation of the contract between him or her and a seller or supplier on account of the presence of an unfair term without which the contract cannot legally continue to exist, and disallow the remedy sought by that consumer where the invalidation of that contract is liable to expose him or her to particularly unfavourable consequences.
35 First, the Court has held, in essence, that both the wording of Article 6(1) of Directive 93/13 and the requirements concerning the legal certainty of economic activities plead in favour of an objective approach in interpreting that provision (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 56).
36 Under Article 7(1) of that directive, Member States are to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.
37 Second, it must be borne in mind that the system of consumer 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 or her bargaining power and his or her level of knowledge. This situation 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 (judgment of 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 36 and the case-law cited).
38 That being said, that system of protection does not apply if the consumer objects to it. The consumer is entitled, after having been informed by the national court, not to assert the unfair and non-binding nature of a term, thus giving free and informed consent to the term in question and thereby avoiding the invalidation of the contract (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 95).
39 In that regard, in order for the consumer to be able to give free and informed consent, it is for the national court to indicate to the parties, in the context of national procedural rules and in the light of the principle of equity in civil proceedings, objectively and exhaustively the legal consequences which the removal of the unfair term may entail, irrespective of whether or not they are represented by a professional representative (judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 97).
40 Such information is, in particular, all the more important where non-application of the unfair term is liable to lead to the invalidation of the contract in its entirety, potentially exposing the consumer to claims for restitution (judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 98).
41 The fact remains that the Court has held that, for the purposes of assessing the consequences for the consumer of a contract being annulled in its entirety, the wishes expressed by the consumer in that regard are the decisive factor (judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 56).
42 In the present case, it is apparent from the order for reference that the applicants in the main proceedings had requested the invalidation of the loan agreement between them and X.
43 Consequently, in so far as the referring court has objectively and exhaustively informed the consumers of the legal consequences and of the particularly unfavourable financial consequences which the invalidation of the contract may have with respect to them, that court cannot, after taking note of their wish to have the contract declared invalid, disallow their waiver of the protection granted to them by that directive.
44 Furthermore, in the light of the case-law referred to in paragraphs 38 to 41 of the present judgment, the objective of consumer protection pursued by Directive 93/13 cannot allow the national court, without any prerogative conferred on it by national law in that regard, to examine of its own motion the financial situation of a consumer who has sought the invalidation of a contract between him or her and a seller or supplier on account of the presence of an unfair term in order to determine whether such an invalidation is liable to expose him or her to particularly unfavourable consequences.
45 In the light of the foregoing considerations, Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding a national court, first, from examining of its own motion, without any prerogative conferred on it by national law in that regard, the financial situation of a consumer who has sought the invalidation of the contract between him or her and a seller or supplier on account of the presence of an unfair term without which the contract cannot legally continue to exist, even if that invalidation is liable to expose the consumer to particularly unfavourable consequences and, second, refusing to declare that invalidation where the consumer has expressly sought it, after being objectively and exhaustively informed of the legal consequences and the particularly unfavourable financial consequences which it may have for him or her.
46 By its third question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 must be interpreted as precluding a national court, after it has found that a term in a contract concluded between a seller or supplier and a consumer is unfair, from being able to fill the gaps resulting from the removal of the unfair term contained therein by the application of a provision of national law which cannot be characterised as a supplementary provision.
47 The European Commission expresses doubts as to the admissibility of that question, which is of a hypothetical nature. It submits that if the Court were to hold that, where the removal of an unfair term leads to the invalidation of a contract between a seller or supplier and a consumer, the national court is required to inform that consumer objectively and exhaustively of the legal and factual consequences of that invalidation, without being able to examine of its own motion the financial situation of the consumer who has sought it and overrule the consumer’s wish to have the contract annulled, there would be no need to answer the third question. In addition, it is apparent from the order for reference that the consumer gave his or her consent, where appropriate, to the invalidation of the contract in its entirety.
48 In that regard, according to the Court’s settled case-law, the justification for a request for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute concerning EU law (judgment of 31 May 2018, Confetra and Others, C‑259/16 and C‑260/16, EU:C:2018:370, paragraph 63 and the case-law cited).
49 It should be noted that, although it is apparent from the order for reference that, in the dispute in the main proceedings, the consumers consented to the invalidation of the contract, that order does not state whether that consent was given after the consumers concerned had been informed objectively and exhaustively of the legal consequences and the particularly unfavourable financial consequences that that invalidation might have for them.
50 On that basis, since the referring court has not yet ruled on the application for invalidation of the contract, because of, inter alia, the questions as to the extent of the information which it must provide to consumers, the question of whether it may, in the event that that invalidation is not to be declared, remedy the gaps resulting from the removal of the unfair term by the application of a provision of national law which cannot be characterised as a supplementary provision cannot be regarded as being hypothetical.
51 The third question is therefore admissible.
52 Under Article 6(1) of Directive 93/13, it is for the national court to exclude the application of unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects. However, the contract must continue in existence, in principle, without any amendment other than that resulting from the removal of the unfair terms, in so far as, in accordance with the rules of national law, such continuity of the contract is legally possible (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 29 and the case-law cited).
53 As a result, when the 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 the contract by revising the content of that term (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 30 and the case-law cited).
54 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 unfair 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 (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 31 and the case-law cited).
55 Conversely, where a contract concluded between a seller or supplier and a consumer is not capable of continuing in existence following the removal of an unfair term, the Court has acknowledged that Article 6(1) of Directive 93/13 does not preclude the national court from removing, in accordance with the principles of contract law, the unfair term and replacing it with a supplementary provision of national law in cases where the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, so that the consumer would thus be penalised (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 32 and the case-law cited).
56 However, the Court has also ruled that Article 6(1) of Directive 93/13 precludes 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 have not been subject to a specific assessment by the legislature with a view to establishing a balance between all the rights and obligations of the parties to a contract and as a result are not covered by the presumption that they are not unfair, 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 (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 35 and the case-law cited).
57 In the present case, the referring court states that the provisions of national law which it intends to apply are not supplementary provisions within the meaning of the case-law of the Court cited above. Having regard, to the fact that, in the dispute in the main proceedings, the loan agreement at issue cannot continue to exist without the removed terms, that there are no supplementary provisions of national law and that the invalidation of the contract would be particularly detrimental to consumers, that court asks which of the objectives of Directive 93/13 it must favour, between, on the one hand, that relating to the protection of consumers as regards the particularly unfavourable consequences of the invalidation of the contract, and, on the other hand, that of deterring sellers or suppliers from using unfair terms.
58 In that regard, the Court, faced with that same question, has already held that Directive 93/13 is not intended to advocate uniform solutions as regards the consequences to be drawn from a finding that a contractual term is unfair. Thus, since, under Article 6(1) of Directive 93/13, unfair terms cannot bind consumers, those objectives can be achieved, depending on the case and the national legal framework, by simply disapplying the unfair term in question with regard to the consumer or, where the contract cannot continue to exist without that term, by replacing that term with supplementary provisions of national law (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 39).
59 However, it pointed out, in paragraph 40 of that judgment, that the consequences of a finding that a contractual term is unfair are not exhaustive.
60 Thus, where the national court takes the view that the loan agreement at issue cannot, in accordance with contract law, legally continue to exist after the unfair terms in question have been removed, and where there are no supplementary provisions of national law or provisions applicable where the parties to the contract at issue so agree which may replace those terms, it must be held that, in so far as the consumer has not expressed his or her wish to retain the unfair clauses, and/or annulling the contract would expose the consumer to particularly unfavourable consequences, the high level of consumer protection which must be ensured under Directive 93/13 demands that, in order to restore the effective balance between the reciprocal rights and obligations of the parties, the national court must, while taking into account all of its national law, take all the measures necessary to protect the consumer from the particularly unfavourable consequences which could result from the annulment of the loan agreement in question, notably the fact that the seller or supplier could immediately claim the debt from the consumer (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 41).
61 In those circumstances, there is nothing precluding the national court from inviting the parties to negotiate with the aim of establishing the method for calculating the interest rate, provided that it sets out the framework for those negotiations and that those negotiations seek to establish an effective balance between the rights and obligations of the parties to the contract taking into account in particular the objective of consumer protection underlying Directive 93/13 (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 42).
62 As the Court has already noted, the national court must, so far as possible, apply its national law in such a way as to draw all the consequences which, under national law, result from a finding that the term at issue is unfair, in order to achieve the result laid down in Article 6(1) of the directive, namely that the consumer is not bound by an unfair term. The same applies when determining, following a finding that a term is unfair, the consequences that should follow from that finding in order to ensure, in accordance with the purpose of that directive, a high level of protection for the consumer (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 43).
63 However, the court’s powers cannot extend beyond what is strictly necessary to restore the contractual balance between the parties and thus to protect the consumer from the particularly unfavourable consequences which could result from annulment of the loan agreement in question. If the court were permitted to change or restrict freely the content of the unfair terms, that power could undermine the achievement of all the objectives referred to in paragraphs 24 to 26 above (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 44).
64 In the light of the foregoing, Article 6(1) of Directive 93/13 must be interpreted as precluding a national court, after it has found that a term in a contract concluded between a seller or supplier and a consumer is unfair, from being able to fill gaps resulting from the removal of the unfair term contained therein by the application of a provision of national law which cannot be characterised as a supplementary provision. However, it is for the national court, taking account of its domestic law as a whole, to take all the measures necessary to protect the consumer from the particularly unfavourable consequences which annulment of the contract might entail for him or her.
65 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.