Saturday, 8 June 2019

Intransparency of transparency case law? CJEU in C-38/17 GT v HS

Last Wednesday the Court of Justice delivered a judgment in case C-38/17 GT v HS. On the face of it, the case seems like just another dispute concerning a credit agreement with potentially intransparent terms, specifically terms defining the applicable exchange rate for the loan denominated in foreign currency. On a closer look, a more peculiar picture emerges: the questions asked by the referring court seem to miss the harmonized EU rules, the Commission argues for inadmissibility, Advocate-General decides not to present a written opinion, and at the end of that messy process the Court issues a judgment which might raise at least several eyebrows (for a context see one of the earlier posts published on this blog Forward to the past...).

Facts of the case

The case involved a consumer who concluded a currency-denominated loan agreement and the precise amount of the loan in foreign currency was established only after the agreement had been concluded. Specifically, at the time of contract conclusion the amount of the loan was established on the basis of the sum required in Hungarian forints, applying the exchange rate in force at the time the funds were released. The relevant rate was communicated to the consumer approximately 1.5 month later. There is nothing in the case as to whether the consumer knew in advance about the way in which the exchange rate was to be calculated. In these roughly sketched circumstances, the referring court was wondering whether an array of EU rules and principles, including Articles 4(2) and 5 Directive 93/13 on unfair terms, can be read as obliging the trader to inform the consumer, in clear and intelligible language, before entering into an agreement, about core contractual terms, as a condition of validity of the agreement. The Court of Justice read the reference made by the national court as inquiring whether Articles 3(1), 4(2) and 6(1) of Directive 93/13 preclude the legislation of a Member State, as interpreted by the Supreme Court of that Member State, under which a loan agreement is not invalid where it is denominated in foreign currency and does not indicate the exchange rate applicable to the loan sum for the purpose of determining the definitive amount of the loan, but at the same time stipulates, in one of its terms, that that rate will be set by the lender in a separate document after the agreement has been concluded. In the process of reformulating the question the Court dropped a reference to Article 5 UCTD, which concerns the transparency of terms formulated in writing and establishes a rule that, in the case of doubts, interpretation most favourable to the consumer shall prevail.

Judgment of the Court

In its judgment the Court follows a sequence of steps: since we are talking about a core term, the first question is whether the relevant term is phrased in plain intelligible language in line with Article 4(2) UCTD. If it is, our job is done, no consequences can be drawn against such a term on the basis of the analysed directive. If it is not, we move to the second step and carry out a substantive assessment on the basis Article 3(1). If unfairness is established, the sanction of invalidity, as a matter of principle, only applies to the term in question. Only if the agreement cannot function without the relevant term it can be deemed invalid in its entirety.

Let us first focus on the assessment whether a term is phrased in "plain intelligible language". The Court first recalls some of it earlier case law highlighting that the transparency requirement cannot be reduced merely to the terms being "formally and grammatically intelligible" (see eg our earlier post on the Court's judgment in Andriciuc). Rather, due to the consumer's weaker position vis-à-vis the trader, the requirement must be understood in a broad sense. In particular, according to the Court, "the contract should indicate transparently and specifically how the mechanism to which the relevant term relates is to function and, where appropriate, the relationship between that mechanism and that provided for by other contractual terms", so that that consumer "is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him of entering into the contract".

Applied to the case at hand the requirement implies that "the mechanism for calculating the amount lent, expressed in foreign currency, and the exchange rate applicable must be indicated transparently, so that a reasonably well-informed and reasonably observant and circumspect consumer may evaluate, on the basis of clear, intelligible criteria, the economic consequences for him of entering into the agreement, including, in particular, the total cost of the loan" (para. 34). So far so good. Note, however, that the question is to be examined "in the light of all relevant facts" including promotional material and information provided to consumers during negotiations (para. 35). Surely, the contextual background seems important and indeed follows from the earlier case law, but what does it mean exactly in the case like the one at hand? Can information provided during negotiations make an otherwise intransparent term transparent? If so, how does this relate to Article 5 of the UCTD? The Court does not say. 

What may worry consumer advocates even more is the point in time, at which an appropriate level of transparency should be achieved. In particular, as noted by the Court in para. 36: the seller or supplier cannot be expected to have specified all the relevant details at the time the agreement was concluded. Again, it is not clear which "relevant details" can be skipped at the time of entering into a contract. Understandably, the exact exchange rate will often not be known in advance. But what about the way in which the exchange rate is to be calculated? 

Because the assessment is left to the national court, the Court then moves to the second stage, that is whether the relevant term can be considered unfair. In this respect, the focus of the Court remains on the wording of Article 3(1): whether, contrary to the requirement of good faith, a term causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer concerned. Also here the Court does not offer much of a clarification, besides noting that the assessment should consider "the nature of the goods or services" as well as, again, "the circumstances attending the conclusion of the agreement ... which could have been known to the seller or supplier at that time the agreement was concluded and ... could affect the future performance of the agreement (paras. 39 and 40). 

Concluding thought

While the reference to the circumstances attending the conclusion of the agreement may, at the end of the day, work in consumer's advantage ("a contractual term which manifests itself only during the performance of the agreement term may give rise to an imbalance between the parties", para. 40), the judgment leaves more questions open than it answers. It is not clear, in particular, whether the Court retracts on its earlier judgment in VKI, where it found that "the unfairness of ... a term may result from a formulation that does not comply with the requirement of being drafted in plain and intelligible language set out in Article 5 of Directive 93/13" (para. 68). Does the resulting imbalance already relate to the consumer's uncertainty about the scope of his obligations? Or should it rather be established by looking at the relevant rights and duties and comparing them on the merits? 

Finally, we should not forget that all the rules we are talking about in here are minimum harmonisation rules. To recall, in Ahorros the Court made it clear that Member States may adopt national legislation which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language. The same is true for additional rules concerning bringing terms to consumers' attention (eg German rules on Einbeziehungskontrolle) or the consequences of intransparency (eg intransparency as a self-standing ground for invalidity). Of course, the judgment does not say otherwise - and let us not be fooled that it does. 

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