Unfair Terms in Loan Agreements Connected with Foreign Currency. Comment to the Judgement in Case C-186/16 Ruxandra Paula Andriciuc e.a. contre Banca Românească SA release_hjg2t3vpojcfbeugsvwdgejpku

by Małgorzata Sieradzka

Published in Polish Review of International and European Law by Uniwersytet Kardynala Stefana Wyszynskiego.

2020   p201-214


In the judgment under appeal, the referring court asked the Court in the context of proceedings between a banking institution and several individual borrowers, the interpretation to be given to Article 3(1) and Article 4(2) of Directive 93/13/EEC Council Directive of 5.4.1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29–34). The Court indicated that a term such as that at issue in the main proceedings, incorporated into a loan agreement concluded in a foreign currency between a seller or supplier and a consumer without being individually negotiated, on terms by which the loan must be repaid in the same currency, is covered by the notion of 'main subject matter of the contract' within the meaning of Article 4(2) of Directive 93/13. Furthermore, it is for the national court, upon considering all the circumstances surrounding the conclusion of the contract, to ascertain whether, in the case concerned, all the information likely to have a bearing on the extent of this commitment had been communicated to the consumer, enabling him/her to estimate in particular the total cost of his/her loan. The Court accepted in a judgment that Article 3(1) of Directive 93/13 must be interpreted as meaning that the assessment of the unfairness of a contractual term must be made by reference to the time of conclusion of the contract at issue, taking account all of the circumstances which could have been known to the seller or supplier at that time, and which were such as to affect the future performance of that contract. 
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