CJEU, 3e chamber, October 3, 2019, No C-260/18

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THE COURT (Third Chamber)

1 This request for a preliminary ruling concerns the interpretation of Article 1(2), Article 4, 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 the context of proceedings between Mr Kamil Dziubak and Ms Justyna Dziubak (‘the borrowers’) and Raiffeisen Bank International AG, carrying on its activities in Poland in the form of a local branch operating under the name Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA (‘Raiffeisen’) concerning the allegedly unfair terms relating to the indexing mechanism used in a mortgage loan agreement indexed to a foreign currency.

Legal context

European Union law

3 The 13th 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 4 of the Directive provides:

‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

6 Under 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 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.’

7 Article 7(1) of that directive is worded as follows:

‘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.’

Polish law

8 Article 56 of the Kodeks cywilny (Civil Code) provides:

‘A legal transaction shall give rise not only to the effects expressed therein, but also to those that arise from the Law, from the rules of social conduct and from established customs.’

9 Article 65 of the Civil Code provides:

‘1. A declaration of intent should be interpreted in accordance with the principles of social conduct and with established customs, taking into account the circumstances in which the intent was expressed.

2. Regard should be had to the contracts to determine the common intent of the parties and the specified objective of those contracts rather than focussing on the literal meaning of the terms used.’

10 Article 3531 of the Civil Code reads as follows:

‘Contracting parties may arrange their legal relationship at their discretion as long as the substance or purpose of the contract is not contrary to the properties (nature) of the relationship, the Law or the rules of social conduct.’

11 Article 354 of the Civil Code states:

‘1. A debtor should perform his obligation in accordance with its substance and in a manner complying with its social and economic purpose and the rules of social conduct, and if there are established customs in this respect, also in a manner complying with those customs.

2. A creditor shall cooperate in the same manner in performing the obligation.’

12 Under Article 3851 of the Civil Code:

‘1. The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on the consumer if his rights and obligations are set forth in a way that is contrary to good practice and grossly infringes his interests (unlawful terms). This shall not apply to terms setting out the principal obligations to be performed by the parties, including price or remuneration, so long as they are worded clearly.

2. If a contractual term is not binding on the consumer pursuant to paragraph 1, the contract shall otherwise continue to be binding on the parties.

3. The terms of a contract which have not been individually negotiated are those over the content of which the consumer had no actual influence. This shall refer in particular to contractual terms taken from a standard contract proposed to a consumer by a contracting party.

…’

13 Article 3852 of the Civil Code provides:

‘The compliance of contractual terms with good practice shall be assessed according to the state of affairs at the time of conclusion of the contract, taking into account its content, the circumstances in which it was concluded and also other contracts connected with the contract which contains the provisions being assessed.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

14 On 14 November 2008, the borrowers concluded, as consumers, a contract for a mortgage loan with Raiffeisen. That contract was denominated in Polish zloty (PLN), but indexed to a foreign currency, namely the Swiss franc (CHF); the term of that loan was 480 months (40 years).

15 The rules for indexing the loan to the currency at issue were specified in the mortgage loan regulations used by Raiffeisen and incorporated into the agreement.

16 Paragraph 7(4) of those regulations essentially provides that the loan at issue in the main proceedings is disbursed in PLN at an exchange rate not lower than the PLN-CHF buying rate in accordance with the exchange rate table in force at the bank at the time the funds were disbursed; the loan debt balance is expressed in CHF at that rate. Under Paragraph 9(2) of the same regulations, the monthly loan repayments are expressed in CHF and on each subsequent loan repayment date are debited to a bank account in PLN, this time at the PLN-CHF selling rate in accordance with the exchange rate table.

17 The interest rate on the loan at issue in the main proceedings was fixed at a variable rate and set as the sum of the 3-month LIBOR CHF benchmark and Raiffeisen’s fixed margin.

18 The borrowers brought an action before the referring court seeking, primarily, a declaration that the loan contract at issue in the main proceedings is invalid on the ground of the purported unfairness of the terms concerning the indexing mechanism referred to in paragraph 16 of this judgment. In that regard, they claim that those terms are unlawful in that they allow Raiffeisen to arrange the exchange rate at its discretion and arbitrarily. Consequently, that bank unilaterally fixes the outstanding balance of that loan expressed in CHF as well as the amount of the monthly repayments expressed in PLN. Once those terms are removed, it is impossible to arrange a correct exchange rate, such that the contract cannot continue in existence.

19 In the alternative, they claim that the loan contract at issue in the main proceedings can be performed without those terms on the basis of the loan amount stipulated in PLN and the interest rate provided for in that contract based on the variable LIBOR and the bank’s fixed margin.

20 Whilst denying that the terms concerned are unfair, Raiffeisen contends that, once any of those terms are removed, the parties remain bound by the other provisions of the loan contract at issue in the main proceedings. In place of the terms removed, and given the absence of supplementary rules stipulating the manner in which the exchange rate is to be set, the general principles provided for in Articles 56, 65 and 354 of the Civil Code should be applied.

21 In addition, that bank contests that the removal of the terms can have the effect of the loan contract at issue in the main proceedings being performed as a loan expressed in PLN, applying to it the interest rate determined on the basis of the LIBOR. In its view, use of the LIBOR CHF as agreed by the parties, rather than the higher interest rate laid down for PLN, namely the WIBOR, was the result solely of the inclusion of the indexing mechanism provided for in the terms in question.

22 The referring court observes that loan contracts indexed to a foreign currency, such as that in question, have developed in practice. The concept of such a loan contract was introduced into Polish legislation only in the course of 2011; however, that legislation simply provides that the specific rules governing, inter alia, the conversion mechanism must be defined in the contract.

23 With regard to the terms laid down in the loan agreement in question, the referring court clarifies that it takes as starting point the fact that those terms are unfair and are therefore not binding on the borrowers.

24 That court observes that, without those terms, it is impossible to determine the exchange rate and therefore to perform the loan agreement at issue. In this regard, it asks, first of all, with reference to the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), whether, in the event that annulling that contract would be unfavourable to the consumer, the gap in that contract may be filled on the basis of national provisions not of supplementary law but of a general nature, which refer to rules of social conduct and established customs, such as those provided for in Articles 56 and 354 of the Civil Code. Although, on the basis of those rules and established customs, the view may be taken that the relevant exchange rate is that applied by Raiffeisen, as follows from the contested terms, it could likewise be accepted, in the referring court’s opinion, that the relevant rate is the market exchange rate or the rate set by the central bank.

25 If that question is answered in the negative, the referring court further asks whether, if the court takes the view that annulling a contract would have unfavourable effects for the consumer, it is open to it to uphold the unfair term contained in that contract, even though the consumer has not expressed his will to be bound by that term.

26 Next, the referring court observes that, in order to establish whether annulling a contract produces unfavourable effects for the consumer, it is necessary to determine the criteria for assessing those effects and, in particular, the appropriate point in time for assessing them. The referring court also asks whether it may carry out the assessment of the effects produced by the annulment of the contract concerned contrary to the wishes of the consumer, that is to say whether the consumer may object to that contract being supplemented or to the manner in which that contract is performed being determined on the basis of rules containing general terms where, contrary to the consumer’s opinion, the court takes the view that it may be more favourable for that consumer for the contract to be supplemented rather than annulled.

27 Finally, the referring court asks about the interpretation of the words ‘if it is capable of continuing in existence without the unfair terms’, contained in Article 6(1) of Directive 93/13. The court points out that the continuation of the loan agreement at issue in the main proceedings in a modified form such as that described in paragraph 19 of this judgment, even if such continuation is not objectively impossible, may be at odds with the general principles limiting the freedom of contract laid down in Polish law and, in particular, in Article 3531 of the Civil Code, since there can be no doubt that the indexing of that loan is the sole basis of the interest rate based on the LIBOR CHF rate as agreed by the parties when the contract was concluded.

28 In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Do Articles 1(2) and 6(1) of [Directive 93/13] make it possible — if the determination of certain contractual provisions which stipulate the manner in which an obligation is to be performed by the parties (its amount) as unfair were to result in the contract being annulled in its entirety, which would be unfavourable to the consumer — to fill gaps in the contract not pursuant to a supplementary provision of law which explicitly replaces the unfair term, but rather pursuant to provisions of national law which provide for supplementing the effects of a legal transaction as expressed in its substance to include the effects arising from the principles of equity (rules of social conduct) or established customs?

(2) Should the possible assessment of the consequences for the consumer of the contract being annulled in its entirety be conducted on the basis of the circumstances existing at the time of its conclusion or on the basis of those existing at the time when the dispute arose between the parties concerning the effectiveness of the term in question (at the time when the consumer claimed that the term was unfair), and what relevance attaches to the position taken by the consumer in such a dispute?

(3) Is it possible to uphold provisions which are unfair contractual terms within the meaning of Directive [93/13] if the adoption of this solution would be objectively beneficial to the consumer at the time when the dispute is being settled?

(4) Could declaring certain contractual provisions stipulating the amount and manner of performance of an obligation by the parties to be unfair result, on the basis of Article 6(1) of Directive 93/13, in a situation in which the form of the legal relationship determined on the basis of the contract, except for the effects of unfair terms, may differ from that intended by the parties with respect to the parties’ main obligation; without limitation, does declaring a contractual provision to be unfair mean that other contractual provisions related to the consumer’s main obligation which have not been claimed to be unfair may continue to apply where the form of those provisions (their incorporation in the contract) was inextricably linked to the provision challenged by the consumer?’

Procedure before the Court

29 By document lodged at the Court Registry on 24 June 2019, Raiffeisen applied for the oral part of the procedure to be reopened. By document lodged at the Court Registry on 4 September 2019, that party set out the grounds underlying its application for reopening.

30 In that regard, Raiffeisen contends, in essence, that the Advocate General wrongly assumed in his Opinion, first, that Polish law does not contain any supplementary legal rule directly laying down the rules of currency conversion, even though such a rule was inserted into Article 358(2) of the Civil Code; next, that the national court is being called upon to ‘shape’ the contract and to engage in ‘interpretation or creativity’ in determining the content of the contract, even though in Poland the practice in force consists in applying the central bank’s average rate; and, finally, that the consequence of annulling a loan contract would be that the outstanding balance of the loan would become payable forthwith, even though Polish law provides for other kinds of consequences of annulling such a contract which are much more onerous for the consumer. This party also states that, if it were accepted, as the Advocate General suggests in point 41 of his Opinion, that a loan contract indexed to CHF, such as that in the main proceedings, can be transformed into a contract which would no longer be indexed to that currency whilst remaining subject to the interest rate applicable to that currency, this would give rise to disproportionately negative consequences for the Polish banking sector.

31 Under Article 83 of the Rules of Procedure of the Court of Justice, the Court may, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union.

32 In the present case, the Court considers, after hearing the Advocate General, that it has all the information necessary to give a ruling. It observes, in this regard, that the information put forward by Raiffeisen does not constitute new facts which are of such a nature as to be decisive factors for the decision of the Court within the meaning of Article 83 of the Rules of Procedure. In so far as it concerns the interpretation of Polish law, that information could at the very most be relevant for the purposes of the decision to be made by the referring court. It is, however, irrelevant in the light of the answers to be given to the questions as submitted by that court. In addition, the information relating to the disproportionality of the transformation of the contract as described by Raiffeisen merely expands upon the written observations which it had already submitted.

33 In those circumstances, there is no need to reopen the oral part of the procedure.

The questions referred for a preliminary ruling

The fourth question

34 By its fourth question, which should be answered first, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to modify the nature of the main subject matter of the contract.

35 In that regard, it follows from the order for reference that the terms contested by the borrowers concern the mechanism whereby the loan at issue in the main proceedings is indexed to the currency concerned in such a way that the borrowers must bear the costs associated with the exchange difference between the buying rate of that currency used for the disbursement of the funds and the selling rate of that currency used for the monthly repayments. Having found those terms to be unfair, the referring court asks whether it is possible for the loan contract at issue in the main proceedings to continue in existence without those terms, in so far as the performance of that contract, once the indexing mechanism chosen is removed, would amount to performing a different type of contract from that concluded by the parties.

36 According to that court, the loan contract at issue in the main proceedings would then no longer be indexed to that currency, whereas the interest rate would remain based on the (lower) rate of that same currency. Such modification, which affects the main subject matter of that contract, may be at odds with the general principles limiting the freedom of contract laid down in Polish law and, in particular, in Article 3531 of the Civil Code.

37 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).

38 In that context, Article 6(1) of Directive 93/13 provides that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer and that the contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.

39 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).

40 It follows that the second part of Article 6(1) of Directive 93/13 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, as the Advocate General likewise observed, in essence, in point 54 of his Opinion. It is thus in principle in the light of the criteria laid down in national law that it is necessary to examine, in a specific situation, the possibility of upholding a contract some terms of which have been declared invalid.

41 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).

42 In the dispute in the main proceedings, the referring court appears not to rule out the possibility, after the straightforward removal of the terms relating to the exchange difference, of the loan contract at issue in the main proceedings continuing to exist, in principle, in a modified form, as described in paragraph 36 of this judgment, but rather to doubt whether its domestic law allows that contract to be so modified.

43 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.

44 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).

45 In the light of the foregoing considerations, the answer to the fourth question is that Article 6(1) of Directive 93/13 must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract.

The second question

46 By its second question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), must be assessed having regard to the circumstances existing at the time of that contract’s conclusion rather than those existing or foreseeable at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor.

47 In that regard, as follows from the answer to the fourth question, if the referring court takes the view, in accordance with its domestic law, that it is impossible to continue the loan contract concerned following the removal of the unfair terms which it contains, that contract cannot in principle continue in existence, within the meaning of Article 6(1) of Directive 93/13, and must therefore be annulled.

48 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).

49 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).

50 Since that possibility of substitution serves to ensure that consumer protection is implemented, by safeguarding the consumer’s interests against the potentially unfavourable consequences which may follow from the contract at issue being annulled in its entirety, it is clear that those consequences must necessarily be assessed in relation to the circumstances existing or foreseeable at the time when the dispute arose.

51 Consumer protection can be assured only if account is taken of his actual and therefore current interests, and not his interests in the circumstances existing when the contract at issue was concluded, as the Advocate General also observed, in essence, in points 62 and 63 of his Opinion. Similarly, the consequences against which those interests must be protected are those which would actually occur, in the circumstances existing or foreseeable at the time when the dispute arose, if the court were to annul that contract, and not those which would result from the annulment of the contract on the date of its conclusion.

52 That finding is not called into question by the fact asserted by Raiffeisen that Article 4(1) of Directive 93/13 links the assessment of the unfairness of a contractual term to ‘the time of conclusion of the contract’, to all the circumstances attending its conclusion, since the purpose of this assessment is fundamentally different from the assessment of the consequences resulting from a contract being annulled.

53 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).

54 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.

55 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.

56 In the light of the foregoing considerations, the answer to the second question is that Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor.

The first question

57 By its first question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract 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.

58 In this regard, as observed in paragraph 48 of this judgment, the Court has interpreted Article 6(1) of Directive 93/13 as not precluding the national court, when a contract being annulled in its entirety would expose the consumer to particularly adverse consequences, from remedying the invalidity of the unfair terms contained in that contract by substituting for them a supplementary provision of national law or one which is applicable where the parties to the contract so agree.

59 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).

60 Those provisions are meant to reflect the balance that the legislature intended to establish between all the rights and obligations of the parties to certain contracts in cases where the parties have not departed from a standard rule provided for by the national legislature in relation to the contracts concerned, or indeed have expressly opted for a rule introduced by the national legislature to that end to be applicable.

61 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.

62 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 third question

63 By its third question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 is to be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer.

64 As a preliminary point, it must be clarified that this question concerns the situation in which the unfair terms could not be replaced as set out in paragraph 48 of this judgment.

65 It should be recalled that the first clause of Article 6(1) of Directive 93/13 requires Member States to lay down that unfair terms ‘shall … not be binding on the consumer’.

66 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.

67 Accordingly, where the consumer does not consent to, or even expressly objects to, the unfair terms concerned being upheld, as appears to be the case in the main proceedings, that exception is not applicable.

68 In the light of the foregoing, the answer to the third question is that Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld.

Costs

69 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.

On those grounds, THE COURT (Third Chamber) hereby rules:

1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract.

2. Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor.

3. 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.

4. Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld.

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