In spite of the global financial crisis that started in 2008 is
now long behind us, the consequences of this crisis reflected on their loan contracts
are still felt by m European consumers. Their fight for justice continues in national
courts and the CJEU is also kept busy with referrals for preliminary ruling
on the interpretation of Directive
1993/13/EC on Unfair Contract Terms (UCTD). Most of the these confirm earlier
interpretations of the CJEU, however, recently the CJEU was given the chance to
further develop the test of fairness in the UCTD.
According to Article 3(1) of the
UCTD 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.'
The test of fairness is therefore
comprised of two open textured general clauses: 'singificant imbalance' and
'good faith'. The wording of the provision makes it unclear and it was long
debated in academic circles whether a contract term to be unfair must be
contrary to 'good faith' and cause a 'significant
imbalance' between the contracting parties to the detriment of the consumer, or
whether it is enough that the term is either causing 'singificant
imbalance' or that it is contrary to 'good faith' (see
the summary of academic debates here).
Following the minimal character
of the UCTD (Article 8), some Member States clarified the controversy. The
Slovenian Consumer Protection Act, provided for the two conditions alternatively.
Thus under Slovenian law, a contract term could be unfair either because it is causing
a significant imbalance or because it is contrary to good faith. However, when
the Court of Appeal in Maribor was to apply the test, they were unsure in its
compatibility with the UCTD, and since, as the court rightly acknowledged,
there was no previous case-law that would clarify this relationship, in C-405/21 Nova Kreditna Banka Maribor (another case on a consumer loan denominated in Swiss francs) they referred the following question to the
CJEU:
Whether
Article 3(1) and Article 8 must be interpreted as precluding national
legislation which permits a finding that a contractual term is unfair where it
causes a significant imbalance in the parties’ rights and obligations arising
under the contract, to the detriment of the consumer, without, however,
carrying out an examination of the requirement of ‘good faith’.
Acknowledging the unclarity of
the provision and being of the opinion that the Slovenian solution might be
able to provide for a higher level of protection than the UCTD, the CJEU concluded
that such a national provision is not contrary to EU law.
