- A preliminary ruling was requested in a proceedings between Ms Ruxandra Paula Andriciuc and 68 other persons and Banca Românească SA (‘the Bank’)
- The European Court of Justice has no doubt that a Fx Loans can be unfair and imbalance for the consumer.
The problem of Fx Loans in Romania, as well as in other European Countries, is well known. Banks have been misselling this kind of loans, specially in Swiss Francs (CHF), to European families with a terrible impact in their economy. After Arpad Kasler ruling in 2014, the European Court had dictaminated that there was no derivative in these contracts (see Case C312-14, 2015). All European affected were looking forward to a new court ruling to give them the reason: these Fx loans are abusive and unbalanced.
Today is a great day for all the consumers wtih FX Loans, the Case number = C-186/16 – Andriciuc and Others is clear:
1. Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must interpreted as meaning that the concept of ‘main subject matter of the contract’ within the meaning of that provision, covers a contractual term, such as that at issue in the main proceedings, incorporated into a loan agreement denominated in a foreign currency which was not individually negotiated and according to which the loan must be repaid in the same foreign currency as that in which it was contracted, as that terms lays down an essential obligation characterising that contract. Therefore, that clause cannot be regarded as being unfair, provided that it is drafted in plain intelligible language.
2. Article 4(2) of Directive 93/13 must be interpreted as meaning that the requirement that a contractual term must be drafted in plain intelligible language requires that, in the case of loan agreements, financial institutions must provide borrowers with sufficient information to enable them to take prudent and well-informed decisions. In that connection, that requirement means that a term under which the loan must be repaid in the same foreign currency as that in which it was contracted must be understood by the consumer both at the formal and grammatical level, and also in terms of its actual effects, so that the average consumer, who is reasonably well informed and reasonably observant and circumspect, would be aware both of the possibility of a rise or fall in the value of the foreign currency in which the loan was taken out, and would also be able to assess the potentially significant economic consequences of such a term with regard to his financial obligations. It is for the national court to carry out the necessary checks in that regard.
3. 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. It is for the referring court to assess, having regard to all of the circumstances of the case in the main proceedings, and taking account, in particular of the expertise and knowledge of the seller or supplier, in the present case the bank, with regard to the possible variations in the exchange rate and the risks inherent in taking out a loan in a foreign currency, of the existence of a possible imbalance within the meaning of that provision.
