CJEU, 1st chamber, September 3, 2020, No C-84/19

THE COURT (First Chamber),

1 These requests for a preliminary ruling concern the interpretation of Articles 1(2), 3(1) and 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 (OJ 2011 L 304, p. 64) (‘Directive 93/13’) and of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66, and corrigenda at OJ 2009 L 207, p. 14, OJ 2010 L 199, p. 40, and OJ 2011 L 234, p. 46).

2 The requests have been made in three sets of proceedings between, on the one hand, Profi Credit Polska, BW and QL, three credit institutions, and, on the other hand, QJ, DR and CG, three consumers, respectively, concerning the recovery from those consumers of sums claimed by those credit institutions under consumer credit agreements.

Legal context

European Union law

Directive 93/13

3 The 12th, 13th, 16th, and 20th recitals of Directive 93/13 are worded as follows:

‘Whereas, however, as they now stand, national laws allow only partial harmonisation to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive;

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;

…

Whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account;

…

Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail’.

4 Article 1 of that directive provides:

‘1. The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.

2. The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive.’

5 Article 3(1) of that directive provides:

‘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.’

6 Article 4 of that directive provides:

‘1. Without prejudice to Article 7, the unfairness of a contract 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 supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language.’

7 Article 5 of Directive 93/13 provides:

‘In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. The rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).’

8 According to Article 6(1) of that directive:

‘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.’

9 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.’

10 Article 8 of that directive provides:

‘Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions, compatible with the Treaty, to ensure a higher level of consumer protection.’

11 Article 8a(1) of Directive 93/13 provides:

‘Where a Member State adopts provisions in accordance with Article 8, it shall inform the Commission thereof, as well as of any subsequent changes …’

Directive 2008/48

12 Recitals 7, 9 and 20 of Directive 2008/48 are worded as follows:

‘(7) In order to facilitate the emergence of a well-functioning internal market in consumer credit, it is necessary to make provision for a harmonised Community framework in a number of core areas. In view of the continuously developing market in consumer credit and the increasing mobility of European citizens, forward-looking Community legislation which is able to adapt to future forms of credit and which allows Member States the appropriate degree of flexibility in their implementation should help to establish a modern body of law on consumer credit.

…

(9) Full harmonisation is necessary in order to ensure that all consumers in the Community enjoy a high and equivalent level of protection of their interests and to create a genuine internal market. …

…

(20) The total cost of the credit to the consumer should comprise all the costs, including interest, commissions, taxes, fees for credit intermediaries and any other fees which the consumer has to pay in connection with the credit agreement, except for notarial costs. The creditor’s actual knowledge of the costs should be assessed objectively, taking into account the requirements of professional diligence.’

13 Under Article 3 of that directive:

‘For the purpose of this Directive:

(a) “consumer” means a natural person who, in transactions covered by this Directive, is acting for purposes which are outside his trade, business or profession;

…

(g) “total cost of the credit to the consumer” means all the costs, including interest, commissions, taxes and any other kind of fees which the consumer is required to pay in connection with the credit agreement and which are known to the creditor, except for notarial costs; costs in respect of ancillary services relating to the credit agreement, in particular insurance premiums, are also included if, in addition, the conclusion of a service contract is compulsory in order to obtain the credit or to obtain it on the terms and conditions marketed;

(h) “total amount payable by the consumer” means the sum of the total amount of the credit and the total cost of the credit to the consumer;

…’

14 Article 8 of the directive, entitled ‘Obligation to assess the creditworthiness of the consumer’, provides in paragraph 1 thereof:

‘Member States shall ensure that, before the conclusion of the credit agreement, the creditor assesses the consumer’s creditworthiness on the basis of sufficient information, where appropriate obtained from the consumer and, where necessary, on the basis of a consultation of the relevant database. Member States whose legislation requires creditors to assess the creditworthiness of consumers on the basis of a consultation of the relevant database may retain this requirement.’

15 Article 10 of that directive, entitled ‘Information to be included in credit agreements’, provides:

‘1. Credit agreements shall be drawn up on paper or on another durable medium.

All the contracting parties shall receive a copy of the credit agreement. This Article shall be without prejudice to any national rules regarding the validity of the conclusion of credit agreements which are in conformity with Community law.

2. The credit agreement shall specify in a clear and concise manner:

…

(d) the total amount of credit and the conditions governing the drawdown;

…

(g) the annual percentage rate of charge and the total amount payable by the consumer, calculated at the time the credit agreement is concluded; all the assumptions used in order to calculate that rate shall be mentioned;

…

(u) where applicable, other contractual terms and conditions;

…’

16 Article 21 of Directive 2008/48 provides:

‘Member States shall ensure that:

…

(b) the fee, if any, payable by the consumer to the credit intermediary for his services is disclosed to the consumer, and agreed between the consumer and the credit intermediary on paper or another durable medium before the conclusion of the credit agreement;

…’

17 Under Article 22 of that directive, entitled ‘Harmonisation and imperative nature of this Directive’:

‘1. In so far as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive.

…

3. Member States shall further ensure that the provisions they adopt in implementation of this Directive cannot be circumvented as a result of the way in which agreements are formulated, in particular by integrating drawdowns or credit agreements falling within the scope of this Directive into credit agreements the character or purpose of which would make it possible to avoid its application.

…’

Polish law

The Civil Code

18 Under Article 385¹(1) of the kodeks cywilny (Civil Code), in the version in force at the time of the facts in the main proceedings (‘the Civil Code’):

‘Terms of a contract concluded with a consumer which have not been negotiated individually shall not be binding on the consumer if his or her rights and obligations are set forth in a way that is contrary to good practice and grossly infringes his or her interests (unlawful clauses). 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.’

19 Article 720(1) of that code provides that:

‘By a loan agreement, the lender undertakes to transfer to the borrower ownership of a certain amount of money or quantity of items marked only in terms of their type, and the borrower undertakes to return the same amount of money or the same quantity of items of the same type and quality.’

The Law on Consumer Credit

20 The ustawa o kredycie konsumenckim (Law on Consumer Credit) of 12 May 2011 (Dz. U. No 126, item 715), in the version in force at the time of the facts in the main proceedings (‘the Law on Consumer Credit’), transposes Directive 2008/48 into Polish law.

21 Article 5(1) defines the following terms:

‘…

(6) the total cost of the credit – all the costs which the consumer is required to pay in connection with the credit agreement, in particular:

(a) interest, charges, fees, taxes and margins, if known to the creditor; and

(b) costs of ancillary services, in particular insurance, if these must be paid in order to obtain the credit or obtain it on the terms and conditions marketed – except for the costs of notarial fees paid by the consumer;

(6-a) the non-interest credit costs – all the costs borne by the consumer in connection with the consumer credit agreement, excluding interest;

(7) the total amount of the credit – the maximum amount of money, not including credit costs, that the creditor makes available to the consumer under the credit agreement or, in the case of agreements in respect of which no provision has been made regarding that maximum amount, the total amount of money, not including credit costs, that the creditor makes available to the consumer under the credit agreement;

(8) the total amount payable by the consumer – the sum of the total cost of the credit and the total amount of the credit.

…’

22 Article 36a of that law provides:

‘1. The maximum amount of the non-interest credit costs shall be calculated according to the formula:

MPKK ≤ (K × 25%) + (K × N/R × 30%)

where the meaning of each of the symbols is as follows:

MPKK – the maximum amount of the non-interest credit costs;

K – the total amount of the credit;

n – the repayment period, expressed in days;

R – the number of days in a year.

2. Throughout the entire lending period, the non-interest credit costs may not exceed the total amount of the credit.

3. Non-interest credit costs arising from a consumer credit agreement shall not be payable in so far as they exceed the maximum non-interest credit costs calculated in the manner described in paragraph 1 above or the total amount of the credit.’

The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

Case C‑84/19

23 On 19 September 2016, Profi Credit Polska concluded a consumer credit agreement with QJ through an intermediary. That agreement concerned an amount of 9 000 Polish zlotys (PLN) (approximately EUR 2 090) and repayment was to be spread over a period of 36 months. That agreement provided for an interest rate of 9.83% per annum, as well as an initial payment of PLN 129 (approximately EUR 30), a commission fee of PLN 7 771 (approximately EUR 1 804) and a sum of PLN 1 100 (approximately EUR 255) in respect of a financial product called ‘Your Package – Extra Package’.

24 Profi Credit Polska sought an order for payment based on a promissory note issued by QJ before the referring court, the Sąd Rejonowy Szczecin – Prawobrzeże i Zachód w Szczecinie (District Court, Szczecin, Prawobrzeże and Zachód districts, Poland) That court handed down a default judgment, against which QJ lodged an objection and in which context he argued that some provisions of the loan agreement were unfair.

25 The referring court found that that agreement did not define the concepts of ‘initial payment’ or ‘commission fee’ or specify the particular services to which they corresponded. ‘Your Package – Extra Package’ allowed the consumer, on a one-off basis, to defer the payment of two monthly instalments or to reduce the amount of four monthly instalments, with, in the event of deferral, an extension of the duration of the agreement and, in the event of a reduction in the monthly instalment amount, an obligation, on the part of the consumer, to make a payment at a later date.

26 The referring court states that it was only during the proceedings before it that Profi Credit Polska stated that the ‘commission’ constituted consideration for the grant of the loan and that the ‘front-end fee’ corresponded to the costs incurred by the seller or supplier in concluding the contract. The interest, on the other hand, constitutes remuneration for the borrower’s use of the funds lent.

27 According to that court, the non-interest credit costs provided for in the agreement signed by QJ were set at the upper limit laid down in Article 36a of the Law on Consumer Credit. First of all, that court has doubts as to whether or not the review of the unfairness of the contractual terms relating to the payment of those various sums in respect of the cost of the credit is excluded from the scope of Directive 93/13, in accordance with Article 1(2) thereof.

28 Next, if such contractual terms were to fall within the scope of Directive 93/13, the referring court asks whether an assessment of their unfairness is possible in the light of the wording of Article 4(2) of that directive. In particular, according to that court, the issue of the amount of the payments could fall within the exception of the ‘main subject matter of the contract’ or ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods supplie[d] in exchange, on the other’, within the meaning of that provision.

29 In that regard, the referring court notes that there are significant differences between the wording of Article 4(2) of Directive 93/13 and that of Article 385¹(1) of the Civil Code, which transposed the former provision into national law. It follows from that article of the Civil Code that the assessment of unfairness by the national court is excluded only as regards the adequacy of the price and remuneration of the parties’ main service.

30 Finally, as regards the requirement of transparency laid down in Article 4(2) of Directive 93/13, the referring court has doubts as to whether an agreement which introduces interest, a fee and a commission, without explaining the differences between those elements and the services to which those payments correspond, can be regarded as having been drafted in intelligible language. Furthermore, the way in which the terms are worded could give the impression that certain drawdowns stem from a legal obligation. Furthermore, the use of the concept of ‘commission’ might suggest that it is a matter of remunerating the intermediary, whose relationship with the lender was not specified.

31 In those circumstances, the Sąd Rejonowy Szczecin – Prawobrzeże i Zachód w Szczecinie (District Court, Szczecin, Prawobrzeże and Zachód districts) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 1(2) of [Directive 93/13] be interpreted as precluding the application of the provisions of the directive in regard to the examination of the fairness of individual contractual terms concerning non-interest credit costs, in the case where the legislative provisions in force in a Member State impose an upper limit on those costs by providing that non-interest credit costs arising from a consumer credit agreement are not payable in excess of the maximum non-interest credit costs calculated in the manner prescribed by law or the total amount of the credit?

(2) Must Article 4(2) of [Directive 93/13] be interpreted as meaning that a non-interest cost incurred and paid by a borrower together with a loan, in addition to interest, related to the conclusion of the agreement and the granting of the loan itself (in the form of a fee, commission or otherwise), as a term of that agreement, is, if expressed in plain intelligible language, not subject to the assessment expressed in that provision in the context of its unfairness?

(3) Must Article 4(2) of [Directive 93/13] be interpreted as meaning that contractual terms which introduce various types of costs associated with the granting of a loan are not expressed “in plain intelligible language” if they do not explain in return for what specific services they are charged and do not allow the consumer to determine the differences between them?’

Case C‑222/19

32 On 8 March 2018, BW and DR concluded a consumer credit agreement for a total sum of PLN 9 225 (approximately EUR 2 148) and a term of two years, repayable in 24 monthly instalments. The contract was secured by a blank promissory note, signed by DR.

33 That sum consisted of a capital sum of PLN 4 500 (approximately EUR 1 048), contractual interest of PLN 900 (approximately EUR 210), fees for the grant of the loan of PLN 1 125 (approximately EUR 262) and a management fee for the entire term of the loan of PLN 2 700 (approximately EUR 628). The interest payable under the contract was calculated at a variable rate of 10% per annum when the contract was concluded. The annual percentage rate of charge was set at 119.42%.

34 The maximum non-interest credit costs, consisting of the loan grant fee and the administration fee calculated according to the formula laid down in Article 36a of the Law on Consumer Credit amounted to PLN 3 825 (around EUR 867). The referring court states that that amount was not individually negotiated and that the contract was drawn up in accordance with a pre-existing model.

35 DR received the amount of the loan and made payments in the amount of PLN 1 913.10 (approximately EUR 445), which were deducted from the sums due by way of repayment, with regard to capital and contractual default interest. Following DR’s failure to pay, BW terminated the contract and brought before the referring court, the Sąd Rejonowy w Opatowie (District Court, Opatów, 1st Civil Division, Poland) an application for an order for payment based on the blank promissory note previously signed by DR.

36 In the proceedings before that court, BW stated that the commission for granting the loan consisted, inter alia, of remuneration paid to a financial intermediary, representing 12% of the total amount of the credit, the costs of access to the system with a view to checking the borrower’s creditworthiness, the remuneration costs of the employees responsible for granting the loans, and the costs of checking documents, including costs of calls for the purpose of verifying the declared income. The sum amounted to a total of 25% of the total amount of the loan within the meaning of Article 5(1)(7) of the Law on Consumer Credit.

37 The loan administration costs, amounting to 30% of the amount of credit for each year of administration, consist of the costs of remuneration for the staff responsible for processing the monthly payments, office maintenance, upkeep of lines of communication, accounting, management of individual accounts, debt management IT systems, correspondence including payment reminder text messages, office equipment and access to databases.

38 As regards, in the present case, the costs connected with the conclusion and administration of DR’s consumer credit agreement, BW refused to indicate the exact amounts on the ground that this would require significant resources in excess of the amounts allegedly due and could also infringe banking secrecy and personal data protection rules.

39 The referring court states that, according to the method of calculation set out in Article 36a of the Law on Consumer Credit, the ‘total non-interest credit cost’ may amount to sums between 25% and 100% of the total amount of the credit, depending on the repayment period: 55% for repayment over one year, 85% for repayment over two years and 100% beyond two years.

40 The national court expresses doubts with regard to the compatibility of that provision of national law with Directive 93/13. It notes in particular that the upper limit set by the national legislature is calculated taking into account costs actually linked not only to the conclusion and administration of a specific credit agreement, but also to the creditor’s general business activity. Consequently, that mandatory upper limit enables costs connected with the creditor’s general business activity to be passed on to the consumer.

41 In those circumstances, the Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court, Opatów, 1st Civil Division) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must the provisions of [Directive 93/93], in particular Article 3(1) of that directive, and the principles of EU law concerning consumer protection and the balance between contracting parties be interpreted as precluding the introduction into national law of the concept of “maximum non-interest credit costs” and the mathematical formula for calculating those costs set out in Article 5(1)(6)(a), in conjunction with Article 36a, of [the Law on Consumer Credit], which allow the costs of the business activity of a seller or supplier to be included in the costs related to a credit agreement that are to be borne by the consumer (the total costs of the credit)?’

Case C‑252/19

42 On 31 August 2016, QL and CG concluded a consumer credit agreement for a total sum of PLN 10 764 (approximately EUR 2 474), including interest at 9.81% per annum, and a term of three years, with repayment to be made in 36 monthly instalments. The percentage rate of charge for the loan was 77.77%. As a guarantee of repayment, CG signed a blank promissory note.

43 The total sum of PLN 10 764 (approximately EUR 2 474) consisted of the capital made available to CG by QL, that is to say PLN 5 000 (approximately EUR 1 149), administrative fees of PLN 129 (approximately EUR 29), costs relating to the ‘Your Package’ product amounting to PLN 3 939 (approximately EUR 905) and interest of PLN 796 (approximately EUR 182). Consequently, the total non-interest credit cost was PLN 4 968 (approximately EUR 1 142). The latter was calculated using the mathematical formula referred to in Article 36a of the Law on Consumer Credit and was not negotiated individually.

44 CG made payments of PLN 5 783 (approximately EUR 1 347). QL brought order for payment proceedings before the referring court, the Sąd Rejonowy w Opatowie (District Court, Opatów, 1st Civil Division), on the basis of the promissory note completed in its favour.

45 That court has doubts as to whether a national provision such as Article 36a of the Law on Consumer Credit is compatible with Directive 2008/48. Those doubts are, inter alia, linked to the way in which the Polish legislature apparently calculated that upper limit, by including in its calculation not only the credit costs usually associated with the conclusion and administration of a specific consumer credit agreement but also costs linked to creditors’ business activity in general.

46 In the light of the full harmonisation achieved by Directive 2008/48 in certain areas of consumer credit, the Member States cannot include new categories of costs which are not compatible with the areas harmonised by that directive. By the method of calculating the maximum amount of the ‘total cost of the contract excluding interest’, the Polish legislature allowed creditors to impose on consumers financial charges higher than those provided for in Article 3(g) of that directive. That legislation is therefore liable to undermine consumer protection, contrary to the intentions of the national legislature.

47 In those circumstances, the Sąd Rejonowy w Opatowie (District Court, Opatów, 1st Civil Division) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the provisions of [Directive 2008/48], and in particular Article 3(g) and Article 22(1) of that directive, be interpreted as precluding the introduction into national law of the concept of “maximum non-interest credit costs” and the mathematical formula for calculating those costs set out in Article 5(1)(6-a) in conjunction with Article 36a of the [Law on Consumer Credit], which allow the costs of the business activity of a seller or supplier to be included in the costs related to a credit agreement that are to be borne by the consumer (the total costs of the credit)?’

48 By decision of the President of the Court of 14 May 2019, Cases C‑222/19 and C‑252/19 were joined for the purposes of the written procedure and the judgment.

49 By order of the President of the Court of Justice of 10 December 2019, Cases C‑84/19, C‑222/19 and C‑252/19 were joined for the purposes of the judgment.

Consideration of the questions referred

The question in Case C‑252/19

50 By its question in Case C‑252/19, which it is appropriate to examine first, the referring court asks, in essence, whether Article 3(g) and Article 22 of Directive 2008/48 must be interpreted as precluding national legislation on consumer credit which lays down a method of calculating the maximum amount of non-interest credit costs that may be charged to the consumer, since that method of calculation allows the seller or supplier to have the consumer bear a proportion of the general costs connected with the exercise of his or her business activity.

51 It should first of all be borne in mind that, according to Article 1, the purpose of Directive 2008/48 is to harmonise certain aspects of the Member States’ rules concerning agreements covering credit for consumers.

52 Next, it follows from Article 22(1) of that directive that, in so far as that directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in that directive.

53 Lastly, in order to guarantee extensive consumer protection, in Article 3(g) of that directive the EU legislature broadly defines the ‘total cost of the credit to the consumer’ as covering all the costs, including interest, commissions, taxes and any other kind of fees which the consumer is required to pay in connection with the credit agreement and which are known to the creditor, except for notarial costs (judgment of 26 March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty, C‑779/18, EU:C:2020:236, paragraph 39 and the case-law cited).

54 It should be noted that that definition does not contain any limitation concerning the type or justification of costs which may be imposed on the consumer in the context of such a credit agreement (see, to that effect, judgment of 26 March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty, C‑779/18, EU:C:2020:236, paragraphs 40 and 42). Therefore, it cannot be inferred from the wording of that definition that costs associated with the lender’s business activity, such as infrastructure or staff costs, may not be imposed on a consumer.

55 Consequently, as the Advocate General observed in point 118 of his Opinion, Directive 2008/48 does not seek to harmonise the allocation of costs in the context of a credit agreement, with the result that the Member States remain competent to provide for mechanisms for regulating those costs, provided that they are not contrary to the rules harmonised by that directive.

56 In that regard the Court has previously held that it is for the competent national court to ascertain whether such a national rule does not impose information obligations other than those listed in Article 10(2) of Directive 2008/48, which provides for full harmonisation as regards information which must be included in the credit agreement (see, to that effect, judgment of 26 March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty, C‑779/18, EU:C:2020:236, paragraphs 45 and 47).

57 It follows from the foregoing that Article 3(g) and Article 22 of Directive 2008/48 must be interpreted as not precluding a national provision on consumer credit that establishes a method of calculating the maximum non-interest credit cost which may be charged to the consumer, even if that calculation method allows the seller or supplier to have the consumer bear a proportion of the general costs relating to the exercise of his or her business activity, provided that, by means of its provisions relating to that maximum amount, that legislation is not contrary to the rules harmonised by that directive.

First question in Case C‑84/19

58 By the first question in Case C‑84/19, which it is appropriate to examine in the second place, the referring court asks, in essence, whether Article 1(2) of Directive 93/13 must be interpreted as meaning that a contractual term which sets the non-interest credit cost according to the maximum upper limit laid down by national legislation on consumer credit, where that legislation provides that the non-interest credit costs are not payable in respect of the part exceeding that upper limit or the total amount of credit is excluded from the scope of that directive.

59 The case which gave rise to the judgment of 26 March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty (C‑779/18, EU:C:2020:236), concerned, inter alia, Article 36a of the Law on Consumer Credit. In paragraph 50 of that judgment, the Court noted, first of all, that Article 1(2) of Directive 93/13, which refers to terms which reflect mandatory statutory or regulatory provisions, introduces the possibility of exclusion from the scope of that directive, provided that, according to the case-law of the Court, two conditions are satisfied. First, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory.

60 Next, it is apparent from paragraph 55 of the judgment referred to in the preceding paragraph that, although the Court has, in its case-law, identified the criteria for interpreting Article 1(2) of Directive 93/13, it is nevertheless for the competent national court to apply the provisions of national law to the circumstances of the case before it and to draw specific consequences from those criteria.

61 Finally, in paragraph 57 of the judgment, the Court held, subject to verification by the referring court in that case, that a national provision such as Article 36a of the Law on Consumer Credit does not appear, in itself, to determine the rights and obligations of the parties to the contract, but confines itself to restricting their freedom to set the non-interest credit costs above a certain level and in no way prevents the national court from reviewing the potential unfairness of the way in which such costs are set, even below the statutory upper limit.

62 Those considerations may be applied to Case C‑84/19, which concerns the same national legislation, and are relevant for the purpose of answering the present question referred for a preliminary ruling. Thus, the fact that, under Article 36a of the Law on Consumer Credit, the non-interest credit costs are not payable in respect of the part exceeding the statutory upper limit or the total amount of the credit does not have the effect of excluding that contractual term from the scope of Directive 93/13.

63 In the light of the foregoing considerations, Article 1(2) of Directive 93/13 must be interpreted as meaning that a contractual term which sets the non-interest credit cost in accordance with the maximum upper limit laid down by national legislation on consumer credit, where that legislation provides that non-interest credit costs are not payable in respect of the part exceeding that upper limit or the total amount of credit, is not excluded from the scope of that directive.

The second and third questions in Case C‑-84/19

64 By its second and third questions in Case C‑84/19, which it is appropriate to examine together and in the third place, the referring court asks, in essence, whether Article 4(2) of Directive 93/13 must be interpreted as meaning that terms of a consumer credit agreement, which impose on the consumer costs other than the payment of contractual interest, fall within the exception provided for in that provision, where those terms do not specify either the nature of those charges or the services which they are intended to reimburse.

65 It must be noted in that regard that, according to Article 4(2) of that directive, the assessment of the unfair nature of contractual terms relates 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 supplied in exchange, on the other, in so far as those terms are drafted in plain intelligible language.

66 However, since Article 4(2) of Directive 93/13 lays down an exception to the mechanism for reviewing the substance of unfair terms, such as that provided for in the system of consumer protection put in place by that directive, the Court has held that that provision must be strictly interpreted (judgment of 23 April 2015, Van Hove, C‑96/14, EU:C:2015:262, paragraph 31 and the case-law cited).

67 As regards, in the first place, the concept of the ‘main subject matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, the Court has previously stated that that concept seeks only to establish the detailed rules and the scope of the substantive review of contractual terms which have not been individually negotiated and which describe the essential obligations of contracts concluded between a seller or supplier and a consumer and which characterise those contracts. By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within that concept (see, to that effect, judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 32).

68 In that regard, in the context of a loan agreement, the lender undertakes, in particular, to make available to the borrower a certain sum of money and the latter undertakes, in particular, to repay that sum, usually with interest, on the scheduled payment dates. Therefore, the essential obligations of such a contract relate to a sum of money which must be determined by the stipulated currency in which it is paid and repaid (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 38).

69 Yet, the exact scope of ‘main subject matter’ and ‘price’ within the meaning of Article 4(2) of Directive 93/13 cannot be determined by the concept of ‘the total cost of the credit to the consumer’ within the meaning of Article 3(g) of Directive 2008/48 (judgment of 26 February 2015, Matei, C‑143/13, EU:C:2015:127, paragraph 47). Thus, the fact that different types of costs or a ‘commission’ are included in the total cost of consumer credit is not decisive for the purposes of establishing that those costs fall within the essential obligations of the credit agreement.

70 In the present case, the contractual terms which, according to the referring court in Case C‑84/19, were not individually negotiated concern payments owing by the consumer, other than the repayment of the capital loan and interest. These are, in particular, clauses relating to an additional service entitled ‘Your Package – Special Package’, a commission and a front-end fee.

71 It is for the referring court in this case to determine, having regard to the nature, requirements and general scheme of the credit agreement at issue in the main proceedings and the factual and legal context of which it forms part, whether the terms in question relate to services which constitute an essential element of that agreement, and more particularly to the debtor’s obligation to repay the amount made available to him or her by the lender.

72 In particular, plain, intelligible terms may be classified as falling within the main subject matter of the contract, given that the same requirement of transparency as referred to in Article 4(2) of Directive 93/13 also appears in Article 5, which provides that contractual terms in writing must ‘always’ be drafted in plain, intelligible language. The requirement of transparency as referred to in the first of those provisions has the same scope as that referred to in the second (see, to that effect, judgments of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 36, and of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 46).

73 In that regard, as the system of protection introduced by that directive is based on the idea that consumers are in a position of weakness vis-à-vis sellers or suppliers, in particular as regards their level of knowledge, that requirement of transparency must be understood in a broad sense, that is to say as requiring not only that the clause concerned should be grammatically intelligible for the consumer, but that the consumer should also be in a position to assess, on the basis of specific intelligible criteria, the economic consequences deriving therefrom (see, to that effect, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 50).

74 Therefore, in order to assess whether or not the terms in question relating to the costs charged to the consumer form part of the main subject matter of the agreement, it is, in the present case, for the referring court in Case C‑84/19 to determine whether, in the light of all the relevant facts submitted for its assessment, including the promotional material and information provided by the lender in the negotiation of the loan agreement and, more generally, all the terms of the consumer credit agreement signed by QJ, an average consumer who is reasonably well informed and reasonably observant and circumspect could not only be aware of the amounts due for the ‘front-end fee’, ‘commission’ and ‘Your package – Special package’ but would also be able to assess the potentially significant economic consequences, for him or her (see, by analogy, judgment of 23 April 2015, Van Hove, C‑96/14, EU:C:2015:262, paragraph 47).

75 It is true that the seller or supplier is not obliged to specify the nature of each service provided in return for the costs imposed on the consumer under the terms of the contract, such as the ‘commission’ or ‘front-end fee’. However, in order to comply with the obligation of transparency, it is important that the nature of the services actually provided can be reasonably understood or inferred from the contract considered as a whole. In addition, the consumer must be able to ascertain that there is no overlap between those various costs or the services for which those costs are paid (judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 43).

76 In the present case, and subject to verification by the referring court in Case C‑84/19, as regards the costs entitled ‘front-end fee’ and ‘commission’, it was legitimate for QJ to raise questions both with regard to the services that those costs were intended to pay for and a possible overlap between them. First, the contract contained two clauses providing for administrative costs, entitled respectively ‘front-end fee’ and ‘commission’, which suggest that both are sums to be paid for the grant of the loan.

77 Secondly, it is for the referring court to ascertain whether a charge item called ‘commission’ might, according to its usual meaning in Polish law, suggest that it was the remuneration for a credit intermediary, such as the person involved when the contract signed by QJ was concluded, and whether, in such a situation, the consumer was not in a position, contrary moreover to Article 21(b) of Directive 2008/48, to assess whether he was paying for the services of the seller or supplier with which he concluded the contract or those of the supplier

78 In such circumstances, it is not guaranteed that the consumer would have an overall understanding of his payment obligations and of the economic consequences of the terms providing for those charges.

79 In the second place, as regards the review of ‘the adequacy of the price and remuneration’ on the one hand, and the good and service, on the other hand, it is settled case-law that that category of terms, whose potentially unfair nature cannot be the subject of assessment, has a reduced scope, since it concerns only the balance between the price or remuneration provided for and the services or goods to be supplied in return, that exclusion being explained by the fact that there is no objective legal scale or criterion that can provide a framework for and guide a review of that balance (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 55, and of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 34).

80 In the light of that strict interpretation, the Court has stated that terms relating to the consideration payable by the consumer to the lender or having an effect on the actual price to be paid to the lender by the consumer do not, in principle, fall within that second category of terms, except as regards the question whether the amount of consideration or price as stipulated in the contract is adequate as compared with the service provided in return by the lender (judgments of 26 February 2015, Matei, C‑143/13, EU:C:2015:127, paragraph 56, and of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 35).

81 As regards the assessment of the ‘adequacy’ of the contractual terms at issue in Case C‑84/19, that is to say, the relationship between the payments required and the service to which they relate, it is apparent from the order for reference that those clauses did not specify the service to which the charges referred to as ‘front-end fee’ and ‘commission’ related.

82 In addition, the referring court states that the wording of Article 385¹(1) of the Civil Code, which transposed into Polish law the exception relating to the verification of the adequacy of the price and the consideration for it, laid down in Article 4(2) of Directive 93/13, refers only to the terms relating to the main subject matter of the contract.

83 As the Advocate General observed, in essence, in point 62 of his Opinion, in so far as Article 385¹(1) of the Civil Code, which transposed Article 4(2) of Directive 93/13 into Polish law, confers a stricter scope on the exception established by that provision of EU law, by ensuring a higher level of protection for the consumer, which is, however, for the referring court to determine, it allows for a more extensive review of the possible unfairness of contractual terms that fall within the scope of that directive.

84 In that regard, Article 8 of Directive 93/13 provides that Member States may adopt or retain the most stringent provisions compatible with the FEU Treaty in the area covered by that directive, to ensure a maximum degree of protection for the consumer. That reflects the idea set out in the 12th recital of that directive, according to which that directive brings about only a partial and minimum harmonisation of national legislation concerning unfair terms.

85 In its case-law, the Court has held that a provision of national law, which confers a stricter scope on the exception laid down in Article 4(2) of Directive 93/13, contributes to the objective of consumer protection pursued by that directive (see, by analogy, judgment of 2 April 2020, Condominio di Milano, via Meda, C‑329/19, EU:C:2020:263, paragraph 36).

86 In the light of all the foregoing considerations, the answer to the second and third questions in Case C‑84/19 is that Article 4(2) of Directive 93/13 must be interpreted as meaning that terms of a consumer credit agreement which impose on the consumer costs other than repayment of the principal loan amount and the payment of interest do not fall within the exception provided for in that provision, where those terms do not specify either the nature of those costs or the services which they are intended to remunerate and where they are formulated in such a way as to give rise to confusion on the part of the consumer as to his or her obligations and the economic consequences of those terms, which is for the referring court to ascertain.

The question in Case C‑222/19

87 By its question, which it is appropriate to answer last, the referring court in Case C‑222/19 asks, in essence, whether Article 3(1) of Directive 93/13 must be interpreted as precluding a national provision which sets an upper limit on the total cost of the credit that may be imposed on the consumer, within which expenditure connected with the creditor’s general economic activity may be included.

88 As a preliminary point, it is apparent from Article 1(1) of Directive 93/13 that the purpose of that directive is to approximate national provisions of the Member States relating to unfair terms in consumer contracts. As is apparent from Article 1(2) of that directive, read in the light of the 13th recital and Article 3(1) thereof, that directive is not intended to establish a review of national provisions as regards whether they are potentially disadvantageous for the consumer, but only a review of terms in consumer contracts which are not individually negotiated (see, to that effect, judgment of 3 April 2019, Aqua Med, C‑266/18, EU:C:2019:282, paragraph 28).

89 In those circumstances, in order to give a useful answer to the referring court in Case C‑222/19, it is necessary to reformulate the question referred for a preliminary ruling as seeking, in essence, to ascertain whether Article 3(1) of Directive 93/13 must be interpreted as meaning that a contractual term which has not been individually negotiated and which imposes on the consumer non-interest credit costs, including costs of the lender’s economic activity, below a statutory maximum upper limit, may be regarded as unfair, within the meaning of that provision.

90 It should be noted that, under Article 3(1) of Directive 93/13, a non-negotiated contract term is to 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.

91 In that regard, according to the Court’s settled case-law, the relevant jurisdiction of the Court extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of that directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case. It is thus clear that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 66 and the case-law cited).

92 As regards the examination of the significant imbalance created by terms requiring the consumer to bear costs other than interest, such an examination cannot be limited to a quantitative economic assessment based on a comparison between the total value of the transaction which was the subject of the contract and the costs charged to the consumer under that term. The Court has previously held that a significant imbalance can result solely from a sufficiently serious impairment of the legal situation in which the consumer, as a party to the contract in question, is placed by reason of the relevant national provisions, whether this be in the form of a restriction of the rights which, in accordance with those provisions, he enjoys under the contract, or a constraint on the exercise of those rights, or the imposition on him of an additional obligation not envisaged by the national rules (judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 51).

93 As regards the question concerning the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the 16th recital of Directive 93/13, the Court has indicated, in its case-law, that it is for the national courts to assesses whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in contract negotiations (judgment of 7 November 2019, Profi Credit Polska, C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 55 and the case-law cited).

94 In the present case, it should be noted, as is apparent from the order for reference, that, under national law, the costs associated with the granting of the credit already include those connected with the pursuit of the seller or supplier’s economic activity.

95 Thus, the non-interest credit cost to the consumer, which is subject to an upper limit under national law, could nevertheless give rise to a significant imbalance within the meaning of the Court’s case-law, even though it is set below that upper limit, if the services provided in return were not reasonably covered by the services provided in connection with the conclusion or management of the credit agreement, or if the amounts charged to the consumer in respect of the costs of granting and managing the loan are clearly disproportionate in relation to the amount of the loan. It is for the referring court to take account, in that regard, of the effect of other contractual terms in order to determine whether those terms create a significant imbalance to the borrower’s detriment.

96 In such circumstances, taking into account the requirement of transparency arising from Article 5 of Directive 93/13, it cannot be considered that the seller or supplier could reasonably expect, when dealing with the consumer in a transparent manner, that the consumer would agree to such a term in contract negotiations.

97 It follows from the foregoing that Article 3(1) of Directive 93/13 must be interpreted as meaning that a contractual term relating to non-interest credit costs, which sets that cost below a statutory upper limit and which passes on, to the consumer, the costs of the lender’s economic activity, is liable to cause a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, where it imposes on that consumer costs which are disproportionate to the services provided and to the amount of the loan received, which it is for the referring court to ascertain.

Costs

98 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 (First Chamber) hereby rules:

1. Article 3(g) and Article 22 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as not precluding a national provision on consumer credit that lays down a method of calculating the maximum non-interest credit cost which may be charged to the consumer, even if that calculation method allows the seller or supplier to have the consumer bear a proportion of the general costs relating to the exercise of his or her business activity, provided that, by means of its provisions relating to that maximum amount, that legislation is not contrary to the rules harmonised by that directive.

2. Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, must be interpreted as meaning that a contractual term which sets the non-interest credit cost in accordance with the maximum upper limit laid down by national legislation on consumer credit, where that legislation provides that non-interest credit costs are not payable in respect of the part exceeding that upper limit or the total amount of credit, is not excluded from the scope of that directive.

3. Article 4(2) of Directive 93/13, as amended by Directive 2011/83, must be interpreted as meaning that terms of a consumer credit agreement which impose on the consumer costs other than repayment of the principal loan amount and payment of interest do not fall within the exception provided for in that provision, where those terms do not specify either the nature of those costs or the services which they are intended to remunerate and where they are formulated in such a way as to give rise to confusion on the part of the consumer as to his or her obligations and the economic consequences of those terms, which it is for the referring court to ascertain.

4. Article 3(1) of Directive 93/13, as amended by Directive 2011/83, must be interpreted as meaning that a contractual term relating to non-interest credit costs, which sets that cost below a statutory upper limit and which passes on, to the consumer, the costs of the lender’s economic activity, is liable to cause a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, where it imposes on the consumer costs which are disproportionate to the services provided and to the amount of the loan received, which it is for the referring court to ascertain.

[Signatures]