Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 2 April 2020(1)

Joined Cases C‑84/19, C‑222/19 and C‑252/19

Profi Credit Polska S.A. z siedzibą w Bielsku- Białej

v

QJ (C‑84/19)

(Request for a preliminary ruling from the Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie (District Court for Szczecin — Prawobrzeże and Zachód, Szczecin, Poland))

and

BW

v

DR (C‑222/19)

and

QL

v

CG (C‑252/19)

(Request for a preliminary ruling from the Sąd Rejonowy w Opatowie (District Court for Opatów, Poland))

(Reference for a preliminary ruling — Consumer protection — Credit agreements for consumers — Directive 93/13/EEC — Unfair terms in consumer contracts — Article 1(2) — Exclusion provided for contractual terms reflecting mandatory legislative or regulatory provisions — National provision instituting a maximum amount of total cost of the credit for the consumer excluding interest — Article 4(2) — Scope — Application to clauses providing fees in addition of an interest — Obligation to draft contract terms in plain, intelligible language — Article 3(1) — Compatibility of a national legislation laying down the maximum amount of non-interest credit cost — Directive 2008/48 — Article 3(g) — Compatibility of a national legislation calculating maximum amount of non-interest credit cost by taking into account the general expenses of the credit institution)

1.        These references for a preliminary ruling once again concern the interpretation of Article 1(2) and Article 4(2) of Council Directive 93/13/EEC (2) as well as Article 3(g) and Article 22 of Directive 2008/48/EC. (3)

2.        Directive 93/13 has already generated much case-law, both in this Court and in the national courts. While that directive has clearly augmented a regime of consumer protection in that it allows courts to declare that contractual terms which have been drawn up for general use by the supplier or producer to be unfair (and, hence, unenforceable), Article 4(2) of that directive provides, however, for two important exceptions to this regime, namely, where the allegedly unfair term relates either to the definition of the main subject matter of the contract or, the adequacy of the price or remuneration in respect of the goods and services. The scope of those exceptions is at the heart of these preliminary references, with one of the principal questions (in Case C‑84/19) being whether non-interest charges paid by a bank customer in respect of a loan agreement fall within the scope of either of those exceptions.

3.        The present issues arise in respect of three different consumer credit agreements. In essence, the consumer in each case has raised a plea of unfairness in relation to certain terms of the contract as a defence to actions for debt and enforcement of the loans brought by a credit institution. Each of these cases raises a distinct — albeit sometimes overlapping — issue concerning the application of the principles contained in Directive 93/13 in the context of credit agreements. Before considering these issues, however, it is first necessary to set out the relevant legal provisions.

I.      The legal framework

A.      Union law

1.      Directive 93/13

4.        Article 1(2) of Directive 93/13 states:

‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

5.        Article 3(1) of Directive 93/13 states:

‘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(2) of the Directive 93/13 reads as follows:

‘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. …’

8.        Under Article 8 of Directive 93/13:

‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’

9.        According to Article 8a(1) of that directive:

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

2.      Directive 2008/48

10.      Article 3 of Directive 2008/48, entitled ‘Definitions’, states:

‘For the purposes of this Directive, the following definitions shall apply:

…

(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’.

11.      Article 22(1) of Directive 2008/48, entitled ‘Harmonisation and imperative nature of this Directive’, specifies:

‘Insofar 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.’

B.      National law

12.      For the presentation of the national legislation, I refer to my Opinion in Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty w Warszawie.(4) In essence, Polish law sets a maximum amount of interest that may be claimed in return for a legal act, that is to say, twice the amount of annual legal interest. However, certain creditors have circumvented this limit by artificially increasing the amount of commission and fees charged. In response, the Polish legislature then introduced, by means of Articles 5(6a) and 36a of the ustawa z dnia 12 maja 2011 r. o kredycie konsumenckim (Law of 12 May 2011 on Consumer Credit) (Dz. U. of 2011, No 126, item 715) (‘the Law on Consumer Credit’), a mechanism to cap the amount of the non-interest credit costs that can be claimed.

II.    Facts and requests for a preliminary ruling

A.      Case C‑84/19

13.      On 19 September 2016, a consumer credit agreement was concluded through an intermediary between Profi Credit Polska and a consumer. In return for the provision of 9 000 zloty (PLN) (approximately EUR 2 090), to be repaid by the borrower over a 36-month instalment period, the contract provides for the payment by the consumer of, first, an interest rate of 9.83% per annum of the borrowed capital; second, an entitled ‘front-end fee’ of PLN 129 (approximately EUR 30); third, a so-called ‘commission’, equal to PLN 7 771 (approximately EUR 1 804); and, fourth, an additional package fee (named ‘Twój Pakiet — Pakiet Extra’ (Your Package — Extra Package)) of PLN 1 100 (approximately EUR 255).

14.      According to the referring court, the non-interest credit costs provided for in the agreement were set at the upper limit laid down in the national legislation under Paragraph 36a of the Law on Consumer Credit. However, the agreement did not specify in what capacity the person with whom the defendant concluded the agreement was acting, nor did it define the terms ‘front-end fee’ and ‘commission’, nor did it indicate to which specific mutual services of the applicant the aforementioned fees corresponded. Only the consideration of the ‘Your Package — Extra Package’ fee could be determined, which corresponded to the consumer’s right, on a one-off basis, to defer the payment of two instalments or to reduce the amount of four instalments, and at the same time to extend the duration of the agreement (in the event of deferral) or to pay the instalments at a later date (in the event of reduction).

15.      Before the end of the instalment period, Profi Credit Polska requested that an order be issued for payment. The referring court granted Profi Credit Polska a judgment in default, against which the consumer lodged a defence raising objections relating to the unfair nature of certain terms of the contract. In the course of these proceedings, the credit institution explained that the ‘front-end fee’ corresponded to actual costs incurred in the conclusion of the contract and that the fees entitled ‘commission’ constituted the consideration for granting the credit, while the interest constituted remuneration for making the funds available to the consumer.

16.      In that context, the referring court has doubts as to whether the clauses setting out these fees should be regarded as excluded from the assessment of the fairness of contractual terms provided for in Directive 93/13. It does so for the following reasons. First, in so far as these costs do not exceed the limit provided for by national legislation, it could be suggested that these clauses simply reflect that legislation and therefore, in accordance with Article 1(2) of Directive 93/13, are not subject to the provisions of that directive. Second, those price clauses could constitute, for Profi Credit Polska, the main subject matter of the contract and, as such, fall outside the scope of the directive by virtue of Article 4(2) of that directive. Third, since examining whether or not these fees are justified would be equivalent to assessing the adequacy of remuneration as against the service supplied in exchange, such assessment could also be excluded by virtue of Article 4(2) of that directive. Finally, the referring court has doubts as to whether a term may be regarded as drafted in plain, intelligible language within the meaning of Article 4(2) of Directive 93/13 where it imposes interest, fees and commission without explaining the difference between these charges, or specifying their nature, and where it does not specify in what capacity the person with whom the consumer concluded the contract was acting.

17.      In those circumstances, the Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie — III Wydział Cywilny (District Court for Szczecin — Prawobrzeże and Zachód (Third Civil Division), Poland) decided to stay proceedings and to refer the following questions to the Court:

‘(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?’

B.      Case C‑222/19

18.      On 8 March 2018, BW and a consumer concluded a consumer credit agreement for a period of two years. The contract, which was not individually negotiated, calls for the provision of PLN 4 500 (approximately EUR 1 048), repayable in 24 monthly instalments, secured by a blank promissory note. In return for making this cash available to the consumer, the agreement provides for the payment of interest at a rate of 10% per annum, which represents a total of PLN 900 (approximately EUR 210), a loan origination fee of PLN 1 125 (approximately EUR 262), and a management fee of PLN 2 700 (approximately EUR 628). According to the national court, the annual percentage rate of charge was determined to be 119.42%. The non-interest credit cost, within the meaning of Article 36a of the Law on Consumer Credit, does not however exceed the upper limit set by that provision.

19.      The consumer received the agreed amount and started making payments. Following a default of payment, the lender filed a claim with the referring court against the defendant in which it sought the amount of the outstanding balance together with statutory interest for late payment. At the same time, it lodged a motion for an order for payment to be issued, based on the drawn blank promissory note.

20.      The referring court has doubts, however, as to whether the Polish legislation is compatible with Directive 93/13 in respect of establishing an upper limit for the non-interest credit cost that can be charged by credit institutions, since that limit is calculated by taking into account not only the cost associated with the conclusion or handling of the credit agreement, but also the general expenses of the lender. This would not prohibit the lender from passing on to the consumer costs such as database maintenance, staff remuneration or operational risk management. However, the judgment in Constructora Principado (5) could be read as holding that a situation in which a professional seller or supplier passes on to the consumer, by means of standard terms, a charge which it should have borne, could be considered as causing a ‘significant imbalance’ within the meaning of Article 3(1) of Directive 93/13.

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

‘Must the provisions of [Directive 93/13], 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(6a), 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)?’

C.      Case C‑252/19

22.      On 31 August 2016, a consumer entered into a non-negotiated credit agreement with QL for PLN 5 000 (approximately EUR 1 149), repayable in 36 monthly instalments. As remuneration for the credit institution, the contract provides for the payment of, first, an interest at 9.81% per annum, that is to say, a total of PLN 796 (approximately EUR 182); second, a front-end fee of PLN 129 (approximately EUR 29); third, a fee for a service entitled ‘Twój Pakiet’ (Your Package) of PLN 900 (approximately EUR 206); and, fourth, a commission fee of PLN 3 939 (approximately EUR 905). As a result, the overall effective annual lending rate would be 77.77%. As regards the non-interest cost of that credit, within the meaning of Article 36a of the Law Consumer Credit, it is within the limits set by that provision.

23.      The referring court has doubts, however, as to the compatibility of the national legislation establishing a limit on the amount of fees that can be charged by credit institutions with Directive 2008/48. Indeed, in setting this limit, not only has the cost associated with the conclusion or servicing of a specific agreement to be taken into consideration, but also the general expenses of the lender. However, it would follow from Article 3(g) of Directive 2008/48 that the consumer could be charged costs, but only marginal costs, that is to say those in connection with the credit agreement.

24.      In those circumstances, the Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court for Opatów (First 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 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(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)?’

III. Analysis

A.      On the first question in Case C‑84/19

25.      By its first question, the referring court in Case C‑84/19 asks, in essence, whether Article 1(2) of Directive 93/13 is to be interpreted as meaning that the terms of a non-negotiated credit agreement which provide that charges to be paid by the consumer are excluded from the scope of the directive, where those charges, taken as a whole, do not exceed a certain upper limit established by the national legislation.

26.      In that regard, it should be borne in mind that, by virtue of Article 1(1), read in conjunction with Article 2 and Article 3(1) of Directive 93/13, that directive applies to the terms of any contract concluded between a seller or supplier and a consumer which has not been individually negotiated. However, by way of exception, Article 1(2) of Directive 93/13 provides that contractual terms which reflect mandatory statutory or regulatory provisions are not subject to the provisions of that directive.

27.      Although it is for the referring court to determine whether a specific contractual term, such as the one at issue in the main proceedings, falls within this particular exception, the Court may nevertheless provide the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair. (6) The referring court may therefore be put in a position to examine whether the exception provided for in that provision is likely to apply to the case at issue in the main proceedings.

28.      In the present case, the referring court wonders whether clauses providing for charges which do not exceed a certain upper financial limit laid down by a national provision are capable of falling within the excluding provisions of Article 1(2) of Directive 93/13.

29.      In this regard, it should be noted that the mere fact that contractual clauses comply with a legislative provision does not as such imply that those clauses necessarily ‘reflect’ the wording of that provision.

30.      Here the doubts expressed by the referring court appear to arise from the comments contained in the Court’s case-law to the effect that the rationale for the exception provided in Article 1(2) of Directive 93/13 lies in the fact that it is legitimate to presume that the national legislature has struck a balance between all the rights and obligations of the parties to certain contracts, a balance which the EU legislature has expressly intended to preserve. (7)

31.      For my part, however, I do not consider that these comments from the Court should be understood as meaning that the setting of a maximum limit by the national legislature would also necessarily imply the existence of a balance between all the rights and obligations of the parties made by the national legislature. I take this view for the following reasons.

32.      First, as the Court has held, since Article 1(2) introduces an exception to Directive 93/13 which aims at protecting consumers, that provision must be strictly construed. (8)

33.      Second, when a legislator has set an upper financial limit that does not necessarily imply that, below that limit, any term providing for the payment of a fee should be considered, in all circumstances, to be balanced. If this were to be the case, a Member State could eliminate the protection provided for in Directive 93/13 by setting a very high upper limit.

34.      Third, as the Polish Government points out, Directive 93/13 would be deprived of any useful effect if terms which comply with the national provisions governing contracts were to be regarded as reflecting mandatory statutory or regulatory provisions within the meaning of Article 1(2) of that directive, since it is to be presumed in any event that the terms of a contract will comply with national law.

35.      In my view, by stating the rationale of the exception provided for in Article 1(2) of Directive 93/13, as it did in cases such as RWE Vertrieb  and Banco Santander and Escobedo Cortés, what the Court tried to emphasise is simply that Directive 93/13 is intended to establish a review, not of national legislation, but rather of any disadvantages to the consumer that may result from the asymmetries of information, expertise and bargaining power that exist between him or her and any professional seller or supplier. (9)

36.      In those circumstances, I see no reason to depart from the conclusion that Article 1(2) of Directive 93/13 does not apply to clauses that merely comply with a monetary limit laid down by national legislation. Accordingly, I consider that Article 1(2) of Directive 93/13 should be interpreted as meaning that terms of a non-negotiated agreement which lay down charges to be paid by the consumer are not excluded from the scope of that directive simply because those charges, taken as a whole, do not exceed a certain upper limit laid down by national legislation. (10)

B.      On the second question in Case C‑84/19

37.      By its second question, the referring court in case C‑84/19 asks, in essence, whether Article 4(2) of Directive 93/13 must be interpreted as meaning that clauses of a non-negotiated credit agreement drafted in plain, intelligible language are excluded from any assessment of their potential unfairness by reason of the fact that they provide for the payment of charges other than interest.

38.      In this respect, it should be recalled that Article 4(2) of Directive 93/13 provides for two exceptions in respect of any assessment of the unfair nature of contractual terms. The application of these exceptions is, however, subject to the condition that the clauses concerned are drafted in plain, intelligible language.

39.      Although in principle it is for the national courts to determine precisely the terms which, because they lay down essential obligations of the contract, are to be regarded as related to its main subject matter, (11) or whose assessment would relate to the adequacy of the price as against the services or goods supplied in exchange, this exception must nevertheless be given an autonomous and uniform interpretation throughout the European Union. It follows, therefore, that the Court may specify whether Article 4(2) can apply to a certain category of terms. (12)

40.      In accordance with the first exception, terms relating to the ‘definition of the main subject matter of the contract’ are excluded from any assessment of their potentially unfair nature. According to the Court’s case-law, such terms are those which lay down essential obligations of the contract and, as such, characterise it. In order to determine if that is the case, account must be taken of the nature, general scheme and core obligations of the contract, as well as its legal and factual context. (13)

41.      In this regard, the main subject matter of any contractual agreement is that which characterises its legal nature, that is to say, those terms of a contract which are essential to its formation. As far as credit agreements are concerned, those obligations are those by which a lender agrees to lend a borrower a sum of money subject to the borrower’s obligation to repay that sum either at a certain date or in the form of instalments.

42.      In a standard loan agreement, the credit supplied is naturally granted on commercial terms. The borrower’s essential obligations are thus those related not only to the repayment of the money made available, but also in respect of the remuneration of that service. Indeed, and quite obviously, the sale of goods or the supply of services necessarily have as part of their main subject matter the obligation of the buyer to pay the agreed price or remuneration. (14)

43.      By virtue of the second exception in Article 4(2), any assessment of the unfair nature of the terms cannot relate to the adequacy of the price and remuneration in respect of the supply of goods or services provided, of course, that those terms are couched in plain, intelligible language. (15)

44.      Since a contractual term can take the form of several clauses, paragraphs or numbers and vice versa, a contract may also stipulate several clauses providing for the payment of charges in return for a single service. (16) Accordingly, these two exceptions overlap when a clause sets out charges that are part of the total price of the goods or service which constitute the main subject matter of the contract at issue.

45.      Here, it seems that the doubts expressed by the referring court stem from the concept of price or remuneration. Indeed, according to the referring court, under Polish law a price clause cannot relate to the main subject matter of a credit agreement if that price is expressed in a form other than that of an interest charge.

46.      As far as European Union law is concerned, however, the concept of price or remuneration is not quite so restrictive, even in the case of a credit agreement. Indeed, there would not appear to be any provision in Union law which stipulates that the payment to be made in respect of a credit agreement can only take the form of interest. (17) Credit institutions can thus ask to be paid by way of interest and/or a fixed charge. (18)

47.      Further support for this conclusion can be found in the text of Directive 2008/48, which provides, in respect of credit agreements covered by that directive, for the obligation for credit institutions to inform consumers of the total cost of such credit, which must be calculated taking into account all types of charges which the consumer is required to pay in relation to the credit agreement. Indeed, if Union law had the effect of prohibiting lenders from remunerating themselves other than by way of an interest charge, then that reference to all types of charges would not have been necessary.

48.      Regarding, more specifically, Directive 93/13, as it does not define the concepts of ‘price’ or ‘remuneration’, those terms must thus be determined by considering their usual meaning in everyday language, while also taking into account the context in which those concepts are used and the purposes of the rules of which they are part. (19)

49.      In ordinary parlance the word ‘price’ corresponds to the total amount of money required to pay for a particular contractual transaction, whereas the word ‘remuneration’ more generally corresponds to the money paid for in respect of certain work or the performance of a service. Those two notions are therefore more or less synonymous, except that the notion of ‘price’ is perhaps more frequently used in relation to the payment for goods, while the word ‘remuneration’ is more usually employed in respect of a service, especially in the context of employment. (20)

50.      Accordingly, any clauses drafted in plain, intelligible language which set out the overall price of the service or good forming the main subject matter of the contract, irrespective of the fact that that those clauses provide for the payment of interest or a fee and regardless of what tasks the credit institution will have to carry out in order to grant the credit, might fall within the first exception of Article 4(2).

51.      In the case at issue in the main proceedings, with the exception of the price clause related to ‘Your Package — Extra Package’, any provisions of the contractual agreement governing the price of credit — be it expressed as fees or interest — should be regarded as simply part of the consideration for the grant of the loan and, therefore, as covered by the first exception laid down in Article 4(2).

52.      Clauses governing the price of credit are, of course, also covered by the second exception in Article 4(2) of Directive 93/13, but only so far as the asking price is concerned. (21) Since the clauses at issue in Case C‑84/19 are not simply related to the main subject matter of the contract, since they actually set out specific fees to be paid and, therefore, fix, in part, the price to be paid for the granting of the credit, those clauses are also covered by the second exception.

53.      This conclusion is not called into question either by the objectives pursued by Article 4(2) or from a contextual reading of that provision.

54.      Concerning their objective, it would seem that the exceptions provided in Article 4(2) reflect a legislative policy choice to consider that the parties are free to shape the main obligations of contracts as they see fit. (22) In a free market economy the general starting point is that individuals are assumed to be rational, with the capacity to protect their own self interests. It follows that consumers are expected to make enquiries as to what they are buying, that is to say, the main subject matter of the contract, as well as the price to be paid in return. (23) The legislative thinking here, therefore, appears to be that, unlike the other terms of a standard form contract which consumers do not necessarily always read, (24) terms related to the main object of the contract or to the price or remuneration are far less likely to catch them unawares. All of this nevertheless presupposes that the main subject matter of the contract and the price or remuneration have been clearly stated in plain and intelligible language.

55.      Regarding the context, since Article 4(2) of Directive 93/13 lays down exceptions to the assessment of unfair terms, such as that provided for in the system of consumer protection put in place by that directive, that provision must be strictly interpreted. (25) Since the wording of Article 4(2) draws no distinction as to whether the price or the remuneration for the service in question was expressed as either a fixed charge or interest, such an interpretation would not justify the exclusion of contractual clauses providing for the payment of charges other than interest from the scope of that provision.

56.      Even if a more restrictive interpretation of Article 4(2) were to be adopted, (26) that would not lead to a different conclusion since, almost by definition, price constitutes an essential element of any contract. Sellers and suppliers are, of course, free to specify payment in the form of either fees or interest. Yet as soon as those charges are part of the consideration for granting the credit — and not in respect of an ancillary service — clauses providing for such charges must be regarded as being within the scope of both the first and the second Article 4(2) exceptions.

57.      It is, therefore, irrelevant for present purposes whether the price or remuneration for a service is expressed in the form of an interest charge or a fee, or whether the contract specifies the tasks that the seller or supplier has to perform in order to provide that service. What is important, as I will explain later, is that the consumer has been able to understand the total price he or she will have to pay and what he or she is buying. It is in that way that the consumer can determine whether the contract meets his or her needs and compare it to any other existing offers.

58.      All of this means that, for the purposes of Case C‑84/19, in order to come within one of the exceptions provided for in Article 4(2), a clause providing for charges in respect of a credit agreement must only clearly and intelligibly set out the amount of that charge. The form of that charge is irrelevant.

59.      Moreover, I do not believe that the application of Article 4(2) of Directive 93/13 should be excluded when the dispute concerns the existence of consideration on the part of the lender for a specific price clause. Indeed, to question the existence of any actual performance on the part of the lender in consideration of a particular charge or to assess the adequacy between part of the price of a service and the tasks necessary to perform that service would be tantamount to questioning the adequacy between the quality of the service offered and the price charged, that is to say, the very thing which Article 4(2) generally precludes.

60.      While I accept that there are certain dicta made by the Court in the Matei and Kiss and CIB Bank cases, that on one view, might suggest otherwise, (27) I believe, in the light of Article 4(2) of Directive 93/13, that, under that directive, the fairness of each price clause does not depend upon the performance, on the part of the lender, of a specific task in consideration for each of those clauses. Indeed, that would amount to the circumvention of the clear wording of Article 4(2) and, therefore, the choice made by the Union legislator: Directive 93/13 does not cover the question of whether the price charged is excessive or not. Accordingly, since the justification of the price is in principle irrelevant for the assessment of the unfair nature of the terms under Directive 93/13, the transparency requirement provided for by that directive should not be interpreted as requiring credit institutions to inform consumers about the tasks involved in granting credit.

61.      Member States are, of course, free, in principle, to enact a contrary provision in their own national law. Article 8 of Directive 93/13 provides that States may adopt or maintain, in the field covered by that directive, more stringent provisions to ensure a higher level of consumer protection, provided that such rules are compatible with all the rules of applicable Union law, and that the Member State in question has complied with the reporting requirement laid down in Article 8a of Directive 93/13.

62.      Consequently, the fact that, as stated by the referring court, under the national legislation, the adequacy between the price and the supplied service or good is excluded from the assessment of the unfairness of a term only if that price relates to the main service provided for by the contract is in itself not contrary to Directive 93/13. Similarly, that legislation cannot be regarded as infringing Directive 93/13 solely on the ground that it states that a price clause cannot relate to the main service if the price charged does not take the form of interest.

63.      I would stress, however, that while the referring court evidently considers that the price controls introduced by that national legislation are not strict enough, that is an issue that falls outside the scope of Union law, and is thus evidently a matter for the Polish legislature and not for this Court.

64.      I consider, therefore, in response to the second question in Case C‑84/19, that Article 4(2) of Directive 93/13 should be interpreted as excluding clauses of a non-negotiated credit agreement which set out the price or remuneration for that credit from the assessment of their unfairness provided for by that directive where they have been drafted in plain, intelligible language, even when they provide for the payment of charges other than interest. Member States remain free, however, to provide in their own national law for such a price fairness assessment mechanism, provided that its provisions are compatible with applicable Union law and that Member States have also complied with the requirements of Article 8a of Directive 93/13.

C.      On the third question in Case C‑84/19

65.      By its third question, the referring court in Case C‑84/19 asks, in essence, whether Article 4(2) of Directive 93/13 should be interpreted as meaning that a clause in a non-negotiated credit agreement which requires the consumer to pay certain charges is to be regarded as not having been drafted in plain, intelligible language where it does not specify the services in return for which such charges are payable and where it is not possible for the consumer to ascertain this from the information provided by the agreement.

66.      As I have already observed, Article 4(2) of Directive 93/13 establishes two exceptions to any assessment of the fairness of terms contained in non-negotiated credit agreements. Both of these exceptions are in turn subject to the condition that the relevant contractual provisions have been drafted in plain, intelligible language.

67.      According to the Court’s case-law, this requirement of intelligibility implies that the contract should also set out clearly the specific functioning of the mechanism to which the relevant term relates and the relationship between that mechanism and other relevant contractual terms, so that the consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him or her which derive from it. (28)

68.      In determining whether a clause is drafted in plain, intelligible language, account must naturally be taken of the nature, general scheme and the stipulations of the contractual framework of which it forms part, and its legal and factual context. (29) In addition to those elements, other factors, such as the comprehensibility of the individual terms, the clarity of their wording, the specificity of the terminology used or the possible use of visualisation techniques, (30) are all relevant considerations. The particular location of the clause in the contract, or the fact that the relevant provisions are contained in several different clauses, paragraphs or numbers might also constitute relevant factors.

69.      As I explained in my Opinion in Kiss and CIB Bank, the intelligibility requirements of Article 4(2) of Directive 93/13 imply, for example, that where the contract is relatively long and the price to be paid in return for the different services provided has itself been divided into several clauses, then all those clauses need to be grouped together or summarised in one place in the contract and their combined effect brought to the consumer’s attention. (31)

70.      In its judgment in Kásler and Káslerné Rábai this Court inferred from both Article 4(2) and Article 5 of that directive the existence of a more general obligation of transparency. (32) Accordingly, sellers or suppliers are expected to provide consumers with sufficient information to enable them to take prudent and well-informed decisions. (33)

71.      It follows that, where a clause requires that a consumer pay certain charges in consideration for a non-negotiated credit agreement, the fairness of the amount of those charges cannot be judicially assessed under the terms of Article 4(2) if the contractual provisions are intelligible. In essence, this means that, having regard to all the elements of the contract and the information provided by the credit institution, an average, properly informed and reasonably attentive consumer should be in a position to understand before the conclusion of the contract that he or she would also have to pay those charges and, consequently, could have correctly evaluated the economic consequences of signing the contract.

72.      In that context, the referring court in Case C‑84/19 wonders, in essence, whether this requirement of transparency requires sellers and suppliers to specify the services in return for which any charges laid down in a contract are payable or, at least, that the consumer might be able to infer this information from the contract.

73.      To begin with it may be observed that the referring court appears to use the term ‘service’ in the special sense of referring to the tasks to be performed by the seller or the supplier in order to perform its obligations to carry out the service which is the subject matter of the contract.

74.      In this regard, I consider that the requirement in Directive 93/13 that a contractual term must be drafted in plain, intelligible language cannot be interpreted as requiring that the consumer be informed of the tasks to be performed by the seller or the supplier under the contract. It does not matter for this purpose that the consumer cannot deduce this specific information from the information brought to his or her attention, provided, of course, that the general nature of the contract has also been made clear. I reach this conclusion for the following reasons.

75.      First, according to the Court’s case-law, the condition laid down in Article 4(2) of Directive 93/13 only requires that consumers be informed of the consequences of the terms of the contract and not of their raison d’être. (34) In other words, what matters is that no charges have been concealed from the consumer before the conclusion of the contract. The question of whether or not the consumer has given legally valid consent is not covered by Directive 93/13, as that is an issue which remains within the competence of the Member States. (35) The same is true of commercial malpractice, which is covered by Directive 2005/29. (36) That directive rather addresses the effects or the consequences of terms — mainly the ‘small print’, if you will — other than those which generally attract the consumer’s attention.

76.      Second, as Advocate General Saugmandsgaard Øe noted in Ibercaja Banco, (37) the general trend in the Court’s case-law is to ensure, when examining the requirement of transparency laid down by Directive 93/13, that this requirement does not go beyond what can reasonably be expected from a professional person. It is difficult to avoid the impression that it would impose an excessive and unwarranted burden on the seller or supplier to indicate the specific, individualised tasks in consideration of which certain fees have been charged.

77.      Third, requiring the seller or supplier to do that would amount in substance to requiring them to justify each price clause. This would run counter to the entire rationale for the second exception in Article 4(2), which is precisely to avoid the necessity for sellers or suppliers from having to justify their fees and, in doing so, to prevent courts from interfering in a firm’s pricing strategies.

78.      Fourth, as I have already observed, in a market economy the price of a good or service is not as such directly related to the tasks that need to be performed or to the costs of production, but rather to supply and demand. Consequently, when a contract provides for an overall price in respect of the same service, it would be somewhat artificial to expect each of those clauses to reflect a specific task.

79.      It would be even less realistic to expect sellers and suppliers to provide reliable information to consumers in respect of the specific costs attributable to each component of the goods or services supplied. Indeed, when a professional person carries out more than one activity, the allocation of the general expenses between his or her different activities would often involve a complex (and, indeed, expensive) accountancy exercise. (38) That would require at least that professionals engage in cost accounting, the purpose of which is to identify and evaluate the elements constituting their net operating income, even though no rule of Union law which imposes such a general accounting obligation exists. (39)

80.      It seems clear in any event that the present credit agreement falls within the scope of Directive 2008/48. Yet it is also necessary to take account of the relevant provisions of that directive since the latter has, according to the Court’s case-law, completely harmonised the information obligations that may be imposed on credit institutions. (40)

81.      First, since Member States are supposed to have transposed Directive 2008/48 into their national legislation, clauses that reflect the provisions of that directive, in the sense that they set out the information made mandatory by that directive, might be regarded as necessarily excluded from the scope of Directive 93/13, by virtue of Article 1(2) thereof. (41)

82.      Second, there is a clear interpretative rule that when provisions from several EU instruments apply to the same situation, they must be interpreted, as far as possible, in a harmonious fashion. (42)

83.      The requirements of Directive 93/13 in respect of transparency and intelligibility are plainly provisions which exist at a higher level of generality when compared with the more precise requirements of Directive 2008/48. It follows, therefore, that those general words of Directive 93/13 should not be given an interpretation in relation to the disclosure of precise information to consumers, that would derogate from the more specific requirements of Directive 2008/48. (43)

84.      In my view, Directive 2008/48 should be considered as specifying the precise scope of the transparency requirement in relation to the credit agreements covered by that directive. Unless indicated otherwise, that is how the relation between Directive 93/13 and any other EU instruments laying down the obligation to provide more detailed information should be understood in order to prevent a diverging application by national courts of Directive 93/13 from partitioning the internal market and, therefore, jeopardising the harmonisation that those other instruments try to achieve while taking consumer protection into account.

85.      In view of the fact that Article 10 of Directive 2008/48, which states the information to be included in credit agreements, does not require credit institutions to supply detailed information in relation to their costs, the provisions of a credit agreement must not be regarded as having been drafted in unintelligible language for the purposes of Article 4(2) and Article 5 of Directive 93/13 simply because they do not specify the specific services in return for which such charges are payable.

86.      If the question referred is to be understood as relating to the need to mention the services — in the usual sense of the term — and provided in return for each price clause and to the tasks that the supplier needs to perform to provide the service at issue, then, at the risk of repetition, it may thus be said that the requirement of transparency laid down in Article 4(2) of Directive 93/13, relates, according to the case-law of the Court, to the economic consequences of the contract and its main subject matter and not to the monetary value of each contractual term. Thus, when a consumer purchases a bundle of goods or services closely linked to one another, what is important is the total price he or she will have to pay, (44) as well as the scope of the services provided in return, so that he or she can compare where necessary the different available offers for the same bundle of goods or services. It is not, however, necessary for the overall price of that bundle to be broken down into individual sets of charges.

87.      Indeed, as the concept of service is quite vague (45) and, accordingly, given that a service may be potentially divided into many separate ones, requiring credit institutions to specify a price for each ‘service’ may turn out to be unworkable in practice.

88.      I consider, therefore, that the principle of transparency in Article 4(2) of Directive 93/13 should be interpreted as not requiring, in principle, that the specific costs pertaining to specific services be itemised in the manner suggested by the referring courts’ question. It is only in certain specific circumstances that such information might be necessary to comply with the requirement of transparency.

89.      In my view, this is obviously the case where the contract relates to several services that can be easily separated, (46) in the sense that each service listed could be provided to consumers independently of the others.

90.      This is also the case where the consumer is entitled to terminate one of those services before the others, in which case he or she must be able to assess the commercial impact of making use of that option. The same applies where the contract mentions optional services in respect of which it fixes the price in advance. In the latter situation, in order for the consumer to be able to assess the economic consequences of the contract, it is essential that the price of these services can be precisely determined, which presupposes that the consumer may determine the fee to be paid if he or she chooses to use each specific service.

91.      That kind of information may again be necessary when the contract itself mentions the existence of several services — some primary, others ancillary — and when the clause or clauses at issue do not lay down the price of one of those services as such, but might have an impact on that price. Since the second exception provided for in Article 4(2) of Directive 93/13 would not apply, it may be necessary to determine to which service the clause relates in order to ascertain whether it falls nevertheless within the main subject matter of the contract, as that term might still be covered by the first exception laid down in Article 4(2). (47)

92.      In the main proceedings in Case C‑84/19, it is true that the credit agreement mentions a service which is described as ancillary, that is, ‘Your Package — Extra Package’. While, for my part, I do not think that Profi Credit Polska was obliged to treat it as a separate service, it is unnecessary to express any conclusive view on this, as it appears from the description of the facts made by the referring court that in any case the credit agreement at issue included a separate price in respect of that service. (48)

93.      The only remaining issue is whether the contract should have specified more clearly whether the overall price charged covered the remuneration of the intermediary. It is a matter for the referring court to determine whether or not the contract was ambiguous in this regard or if, in the absence of a reference to the intermediary in that clause, it was unclear that that commission was part of the credit price. However, even if such an ambiguity in respect of the remuneration of the intermediary were to be found, I am not sure that that circumstance would necessarily render the contract between the credit institution and the consumer unintelligible within the meaning of Article 4(2) of Directive 93/13. Indeed, that article determines the scope of Article 3(1) of that directive, which in turn provides that any unfair term in a non-negotiated contract does not bind the consumer. Accordingly, the intelligibility referred to in Article 4(2) must be imputable to a specific clause of the contract. In the situation under consideration here, it is unclear to me which terms could be considered unfair. Either the intermediary’s commission is included in the overall price, or it is not. If it is not so included, then that which could eventually be considered as unfair is not the price mentioned in the contract, but rather any additional commission that the consumer may be asked to pay in addition to the price mentioned in the contract.

94.      In my opinion, that issue might be solved simply by applying the general principles of Polish contract law. Indeed, in the case where the remuneration of the intermediary is not included in the overall price, that intermediary will only be entitled to request the payment of fees if a contract providing for such remuneration was concluded with that consumer (thus establishing a vinculum juris). If this is the case, the consumer, however, necessarily knows that he or she will have to pay additional fees.

95.      In any case, I note that Article 21 of Directive 2008/48 provides for specific information obligations when a credit agreement is concluded through an intermediary. Accordingly, due to the complete harmonisation achieved by that directive, if those obligations are fulfilled, no lack of transparency in the relationship between the credit institution and the consumer can be established.

96.      In the light of the foregoing, I propose to answer the third question in Case C‑84/19 as such: Article 4(2) of Directive 93/13 should be interpreted as meaning that the terms of non-negotiated credit agreements which provide for the payment of charges are not, in principle, to be regarded as not having been drafted in plain, intelligible language merely because they do not specify the tasks which the trader must perform, or the costs which it must bear, in order to provide the agreed service. It is only if the financial consequences of the contract, considered as a whole or as to the subject matter of the contract, are not clear from the contract, in particular due to the existence of an excessive number of price clauses, that such clauses can be considered as not fulfilling that condition.

D.      On the question raised in Case C‑222/19

97.      By its question, the referring court in Case C‑222/19 asks, in essence, whether the provisions of Directive 93/13 in general, and those of Article 3(1) thereof in particular, should be interpreted as meaning that that directive precludes a Member State from introducing a price control mechanism based on the concept of ‘maximum non-interest credit cost’ to the extent that to calculate that cost, account must be taken of the general expenses of the lender.

98.      As is clear from Article 3(1) of Directive 93/13, the provisions of that directive do not seek to regulate national provisions, but rather to address potential imbalances and unfairness contained in the terms of contracts concluded between a seller or supplier and a consumer where those contracts have not been individually negotiated.

99.      In those circumstances, in order to give a helpful answer to the referring court, I consider that the present question must be reformulated as seeking to ascertain whether Article 3(1) of Directive 93/13 must be interpreted as meaning that, in a non-negotiated credit agreement, a clause creates a ‘significant imbalance’ because it provides for the payment, in addition to interest, of fees and those fees may serve as a way that a seller or supplier passes on its general expenses to the consumer.

100. In that regard, it should be recalled that, under Article 3(1) of Directive 93/13, any contractual term of a non-negotiated contract, which, contrary to the requirement of good faith, causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, is to be regarded as unfair. (49)

101. Although I consider that the term ‘contrary to the requirements of good faith’ simply describes the situation that would have prevailed in the absence of a significant imbalance and, therefore, does not, as such, constitute a separate condition in its own right, it must be acknowledged that the Court has ruled that Article 3(1) of Directive 93/13 lays down two criteria to define the notion of unfair terms, namely, on the one hand, that the terms are ‘contrary to the requirement of good faith’ and, on the other hand, the ‘existence of a significant imbalance, to the detriment of the consumer, between the rights and obligations of the parties under the contract’. (50)

102. Even if, with respect, one is not necessarily convinced by that distinction, (51) in practice it probably has little significance. In view of the interpretation of those two criteria given by the Court in practice when the second criterion is met, the first one is necessarily met as well. (52)

103. Indeed, according to the Court’s case-law, the first criterion involves examining if the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term. Under the second criterion, consideration should be given to whether the obligations introduced by the term placed the consumer in a situation significantly less favourable than the one that would have prevailed, under national law, in the absence of that term, without that disadvantage having been compensated for. (53)

104. A seller or a supplier must logically expect that if treated fairly and equitably, consumers will refuse to accept any term placing them in a situation significantly different from the one that would have prevailed, under national law, in the absence of that term, except if that difference is compensated for, mainly by appropriate differences in price. (54) Accordingly, if a term provides for duties or obligations that depart conspicuously from an average generally informed and reasonably attentive consumer’s legitimate expectations as to the content of a contract, that term might be declared to be unfair. (55)

105. However, I do not believe that a credit agreement clause may be regarded as unfair simply because it provides for the payment of fees, in addition to interest, or that those fees may serve, for the seller or supplier, as a way to pass on its general expenses to the consumer.

106. From the outset, since such a clause is nonetheless related to the price of the credit, I would point out that, by virtue of Article 4(2), it is only if it has not been drafted in plain and intelligible language, or is not sufficiently explicit as to its economic consequences, that the amount of fees to be paid by the consumer might be subject to the assessment provided for by Directive 93/13.

107. Subject to this exception, I find it hard to consider that a clause creates a ‘significant imbalance’ merely because it provides for the payment of fees in addition to interest. Indeed, as I have explained previously, credit institutions are free to determine the terms of their remuneration, provided that the overall price is clear to the consumer. In the case of a credit agreement falling within the scope of Directive 2008/48, that is necessarily the case if the obligations laid down in that directive, transposed into national law, have been satisfied.

108. Similarly, in my view a significant imbalance cannot result simply from the fact that the price charged for a service might serve, for its supplier, as a convenient method of passing on its general expenses. Indeed, as I explained in my Opinion in Kiss and CIB Bank, (56) the fact that businesses pass on all their costs to consumers, including their general expenses, is simply an economic reality. Therefore, the price of any service or good necessarily serves, in part, to offset expenses related to the general business of the lender.

109. Admittedly, in Constructora Principado (57) the Court did not rule out the possibility that a clause which had the effect of passing on to the purchaser of an apartment a municipal property tax and some charges for individual connection to the various utilities, such as water, gas, electrical power and drainage, might be declared unfair.

110. I do not, however, think that that principle is applicable to the credit agreement at issue in the main proceedings in Case C‑222/19, since the issue addressed in Constructora Principado did not concern the passing on of certain costs to customers, but rather related to the transparency of the disputed clause. Indeed, the amount of the charges concerned by that clause was not quantified and, having regard to the municipal property tax, was not even determinable at the time of conclusion of the contract. It was instead to be calculated later by the tax authorities. Consequently, that clause did not simply pass on to the consumer certain costs borne by the seller, but also transferred to the consumer the uncertainty as to the total amount of those costs, an uncertainty which constituted a risk that in principle was for the seller to bear as an entrepreneur. (58)

111. For my part, in relation to clauses providing for the payment of a charge, I believe, having regard to Articles 4(2) and 3(1) of Directive 93/13, that such clauses, whatever form they take, may only be declared unfair if they satisfy two conditions, namely, first, that that charge has been effectively concealed from the consumer, thus opening up the possibility of an assessment of its adequacy, and, second, if the overall price of the service or good at issue is manifestly excessive.

112. Indeed, Directive 93/13 provides for only one test of the unfairness of terms, namely, that set out in Article 3(1) thereof, which requires the existence of a significant imbalance between the rights and obligations of the parties. (59) Accordingly, if the requirement of intelligible language and of transparency flowing from Article 4(2) and Article 5 of Directive 93/13 needs to be taken into account to assess whether a particular term of a contract is unfair, (60) a lack of clarity or transparency is not in itself sufficient to declare a term to be unfair. (61) That term must, despite the requirement of good faith, create a significant imbalance between the rights and obligations of the parties. (62) Any other interpretation would deprive the test set out in Article 3(1) of its useful effect.

113. In the case of an unintelligible price clause, however, this condition might be easily established, as such a significant imbalance might be inferred from the excessiveness of the amount of the charges paid. (63) Indeed, a seller or a supplier must logically expect that, if treated fairly and equitably, the consumer could have refused to pay such a price.

114. Accordingly, I propose that the Court answer the question referred in Case C‑222/19 as follows: Article 3(1) of Directive 93/13 should be interpreted as meaning that, in a non-negotiated credit agreement, a clause does not create a ‘significant imbalance’ solely because it provides for the payment, in addition to interest, of fees and those fees may serve as a way for a seller or supplier to pass on its general expenses to the consumer. Rather, such unfairness for the purpose of Directive 93/13 is established only if, first, the overall price to be paid is not transparent, in particular due to the existence of an excessive number of price clauses, thus opening the possibility of an assessment of its fairness in the manner which, by way of exception, Article 4(2) of Directive 93/13 actually allows and second, that the overall price is manifestly excessive.

E.      On the question in Case C‑252/19

115. By its question, the referring court in Case C‑252/19 asks, in essence, whether the provisions of Directive 2008/48 and, in particular, Articles 3(g) and 22(1) thereof are to be interpreted as precluding the introduction into national legislation of the concept of ‘maximum non-interest credit costs’ such as the one mentioned in Article 36a of the Law on Consumer Credit, in so far as that concept includes, for the calculation of those costs, costs relating to the creditor’s entire economic activity.

116. In this respect, it should be noted that Article 10 of Directive 2008/48 harmonises national provisions on information to be included in credit agreements. Since, pursuant to Article 22 of Directive 2008/48, Member States may not maintain or introduce in their national law provisions diverging from those laid down in that directive, that harmonisation is to be regarded as full and mandatory. (64)

117. As I explained in my Opinion in Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty w Warszawie, (65) and as the Court held in essence in that case, (66) that does not mean, however, that Member States may not use, in relation to credit covered by Directive 2008/48, concepts other than those provided by that directive, such as ‘maximum non-interest credit costs’ referred to by Article 36a of the Law on Consumer Credit. Indeed, although Directive 2008/48 achieves complete harmonisation, that harmonisation is nonetheless limited to the aspect of credit agreements which are referred to in that directive, namely the obligations of information, the assessment of creditworthiness, the access to databases, the right of withdrawal and the right to make early repayment of the credit.

118. Since, accordingly, the harmonisation achieved by Directive 2008/48 does not cover national provisions providing for control of the price or of the remuneration charged in exchange for the grant of credit, that aspect remains within the competence of the Member States. Therefore, Member States may use concepts other than those mentioned in Article 3 of Directive 2008/48 in respect of such regulatory control, provided that the use of these concepts does not infringe EU law.

119. It is for the referring court to ascertain in the main proceedings in Case C‑252/19 whether the concept of ‘maximum non-interest credit costs’ used in Paragraph 36a of the Law on Consumer Credit leads to imposing on a seller or supplier any obligations falling under the scope of Directive 2008/48.

120. In the light of the foregoing, I believe that the question in case C‑252/19 should be answered as follows: provisions of Directive 2008/48 and, in particular, Articles 3(g) and 22(1) thereof are to be interpreted as not precluding the introduction, into national legislation, of the concept of ‘maximum non-interest credit costs’, even if such costs include the general expenses of the lender, in so far as that concept is not used for the purpose of applying a national provision which would fall within the scope of Directive 2008/48.

IV.    Conclusion

121. In light of the foregoing considerations, I propose that the Court answer the questions asked by the Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie (District Court for Szczecin — Prawobrzeże and Zachód, Szczecin, Poland) and the Sąd Rejonowy w Opatowie (District Court for Opatów, Poland) as follows:

(1)      Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts should be interpreted as meaning that terms of a non-negotiated agreement which lay down charges to be paid by the consumer are not excluded from the scope of that directive simply because those charges, taken as a whole, do not exceed a certain upper limit laid down by national legislation.

(2)      Article 4(2) of Directive 93/13 should be interpreted as excluding clauses of a non-negotiated credit agreement which set out the price or remuneration for that credit from the assessment of their unfairness provided for by that directive where they have been drafted in plain, intelligible language, even when they provide for the payment of charges other than interest. Member States remain free, however, to provide in their own national law for such a price fairness assessment mechanism, provided that its provisions are compatible with applicable Union law and that Member States have also complied with the requirements of Article 8a of Directive 93/13.

(3)      Article 4(2) of Directive 93/13 should be interpreted as meaning that the terms of non-negotiated credit agreements which provide for the payment of charges are not, in principle, to be regarded as not having been drafted in plain, intelligible language merely because they do not specify the tasks which the trader must perform, or the costs which it must bear, in order to provide the agreed service. It is only if the financial consequences of the contract, considered as a whole or as to the subject matter of the contract, are not clear from the contract, in particular due to the existence of an excessive number of price clauses, that such clauses can be considered as not fulfilling that condition.

(4)      Article 3(1) of Directive 93/13 should be interpreted as meaning that, in a non-negotiated credit agreement, a clause does not create a ‘significant imbalance’ solely because it provides for the payment, in addition to interest, of fees and those fees may serve as a way that a seller or supplier passes on its general expenses to the consumer. Rather, such unfairness for the purpose of Directive 93/13 is established only if, first, the overall price to be paid is not transparent, in particular due to the existence of an excessive number of price clauses, thus opening the possibility of an assessment of its fairness in the manner which, by way of exception, Article 4(2) of Directive 93/13 actually allows and second, in that event, that the overall price is manifestly excessive.

(5)      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 and, in particular, Articles 3(g) and 22(1) thereof should be interpreted as not precluding the introduction, into national legislation, of the concept of ‘maximum non-interest credit costs’, even if such costs include the general expenses of the lender, in so far as that concept is not used for the purpose of applying a national provision which would fall within the scope of Directive 2008/48.

1      Original language: English.

2      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).

3      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.

4      (C‑779/18, EU:C:2019:1146, points 10 to 17).

5      Judgment of 16 January 2014, Constructora Principado (C‑226/12, EU:C:2014:10).

6      See, to that effect, judgment of 16 January 2014, Constructora Principado (C‑226/12, EU:C:2014:10, paragraph 20).

7      See judgments of 21 March 2013, RWE Vertrieb (C‑92/11, EU:C:2013:180, paragraph 28), and of 7 August 2018, Banco Santander and Escobedo Cortés (C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 43).

8      See, to that effect, judgment of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 31).

9      See judgments of 3 September 2015, Costea (C‑110/14, EU:C:2015:538, paragraph 27), and of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen (C‑147/16, EU:C:2018:320, paragraph 59). More generally, I believe that Article 1(2) of Directive 93/13 must be read in the light of Article 3(1) thereof. Accordingly, I understand Article 1(2) as seeking to exclude from the scope of Directive 93/13 terms which, in so far as they merely reproduce mandatory statutory or regulatory provisions, do not in practice alter the legal position of the parties, which remains entirely determined by national legislation. By contrast, the fact that a term is below a certain limit or, more generally, complies with a certain legislative standard, does not rule out the possibility that such a term may alter the legal position of the parties and thus may fall within the scope of Directive 93/13.

10      See, also, in this respect, Opinion of Advocate General Szpunar in Gómez del Moral Guasch (C‑125/18, EU:C:2019:695, point 83), in which he considers that a contractual clause whereby the supplier chooses, from a range of several legislatively recognised reference indices, one of them to apply to the contract, does not fall within the exception of Article 1(2) of Directive 93/13.

11      Judgment of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 33).

12      See, to that effect, judgment of 26 February 2015, Matei (C‑143/13, EU:C:2015:127, paragraph 50).

13      See judgment of 30 April 2014,  Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraphs 49 and 51).

14      See, to that effect, judgment of 5 June 2019, GT (C‑38/17, EU:C:2019:461, paragraph 30).

15      As stated in recital 19 of Directive 93/13, this excludes clauses describing the price/quality ratio.

16      See my Opinion in Kiss and CIB Bank (C‑621/17, EU:C:2019:411, footnote 17), and Commission Notice on Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ 2019 C 323, p. 4), at 4.3.1.

17      Admittedly, the concept of ‘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, in so far as that total cost also covers payments made to third parties. See judgment of 26 February 2015, Matei (C‑143/13, EU:C:2015:127, paragraph 47). However, it would not have been necessary for the Union legislature to specify that the concept of the ‘total cost of the credit to the consumer’, within the meaning of that directive, includes all the costs which a consumer may be required to pay for the grant of a contract, if sellers or suppliers were prohibited from remunerating themselves in a form other than through the charging of interest.

18      See my Opinion in Kiss and CIB Bank (C‑621/17, EU:C:2019:411, point 37).

19      See, by analogy, judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, paragraph 28).

20      Although employment contracts do not fall under the scope of Directive 93/13. As for the notions of ‘service’ and ‘good’, those refer to what constitutes the subject matter of the contract, that is, what is purchased by the consumer, and not, as I will explain later, to the tasks that the professional seller or supplier has to perform in order to sell the good or provide the service at issue.

21      According to the case-law, terms which do not state the price of the service or of the goods at issue, but relate in general ‘to the consideration due by the consumer to the lender or hav[e] an impact on the actual price to be paid to the latter by the consumer’ do not, in principle, fall within the second exception, but rather within the first, except as regards the question whether the amount of consideration or the price as stipulated in the contract is adequate when compared with the service provided in exchange by the lender. See, to that effect, 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).

22      The Court has never clearly ruled on the objective of the first exception in Article 4(2) (‘… definition of the main subject matter of the contract …’). In so far as the second exception in Article 4(2) (‘… adequacy of the price and remuneration …’) is concerned, it has held, in essence, that that exception is explained by the absence of cognisable or objective legal standards by which the adequacy of the price and remuneration could be properly judicially assessed. See, to that effect, judgment of 30 April 2014,  Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 55).

23      According to Michael Schillig, Article 4(2) of Directive 93/13 reflects a compromise between two (sometimes conflicting) approaches, namely, the consumer rights approach and the free market approach. Schillig, M., ‘Directive 93/13 and the “price term exemption”: A comparative analysis in the light of the “market for lemons” rationale’, International and Comparative Law Quarterly, vol. 60, Cambridge University Press, 2011, pp. 933-963.

24      As I underlined in my Opinion in Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty w Warszawie (C‑779/18, EU:C:2019:1146, point 69), behavioural studies show that people do not read contracts in full but rather focus on headline elements such as the price or on the part they believe to be the most important. As Schillig, op. cit., observes (at p. 936) ‘consumers often accept standard contract terms unread because reading, searching for and negotiating better terms is just not worth the effort’.

25      See judgments of 30 April 2014,  Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 42), and of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 34).

26      Strict interpretation is not to be confused with restrictive interpretation, which consists in identifying, with the help of elements external to the text, such as the objective and its context, a narrower meaning of that provision than a simple strict interpretation, that is, one based on the text alone, would allow.

27      Judgments of 26 February 2015, Matei (C‑143/13, EU:C:2015:127, paragraph 70), and of 3 October 2019, Kiss and CIB Bank (C‑621/17, EU:C:2019:820, paragraph 40).

28      See, for example, judgments of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 45), and of 19 September 2019, Lovasné Tóth (C‑34/18, EU:C:2019:764, paragraph 62).

29      Judgment of 23 April 2015, Van Hove (C‑96/14, EU:C:2015:262, paragraph 50).

30      See Barton, T., Berger-Walliser, G., and Haapio, H., ‘Visualization: Seeing Contracts for What They Are, and What They Could Become’, Journal of Law, Business & Ethics, vol. 19, 2013, pp. 47-64.

31      Opinion of Advocate General Hogan in Kiss and CIB Bank (C‑621/17, EU:C:2019:411, point 41).

32      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 40). The first judgment to refer to this requirement was the judgment of 21 March 2013, RWE Vertrieb (C‑92/11, EU:C:2013:180, paragraph 45). However, in that judgment, the Court was asked about the combined reading of Directive 93/13 and Directive 2003/55, and Article 3(3) of the latter expressly provides for a transparency requirement. It is only in Kásler and Káslerné Rábai that the Court referred to that requirement solely in relation to Directive 93/13.

33      See, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, (C‑26/13, EU:C:2014:282, paragraphs 73 to 74), and of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 51). For this reason, in order to assess whether a clause satisfies the requirement of transparency, only information provided no later than the signature of the contract should be taken into consideration.

34      Judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 75); judgment of 23 April 2015, Van Hove (C‑96/14, EU:C:2015:262, paragraph 50), and of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 45). Accordingly, the requirement laid down in Article 4(2) entails informing the consumer, not of whether, to carry out its obligations, the seller or the supplier will have to make 5, 10 or 15 photocopies, but of the effects of the contract. The economic performance of the seller or supplier, that is to say, its ability to minimise its costs, is not the primary concern of consumers. The underlying economic assumption motivating consumers is getting the best price for a particular good or service. That presupposes that consumers be informed of the total price that they will have to pay for the good or service that they intend to buy or, at the very least, how that price will be calculated in order to get an idea of it, and what that good or service consists of.

35      See, to that effect, Article 3(1) and recital 13 of Directive 2011/83.

36      Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

37      See Opinion of Advocate General Saugmandsgaard Øe in Ibercaja Banco (C‑452/18, EU:C:2020:61, footnote 77).

38      For example, in the field of VAT, see judgment of 9 June 2016, Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft GbR(C‑332/14, EU:C:2016:417, paragraphs 32 to 34).

39      See my Opinion in Lexitor (C‑383/18, EU:C:2019:451, point 55).

40      See judgments of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 61), and of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraph 41).

41      Since Directive 2008/48 fully harmonises the information obligations incumbent on credit institutions, the solution reached by the Court in its judgment of 6 July 2017, Air Berlin (C‑290/16, EU:C:2017:523, paragraphs 44 to 46), does not seem transposable to me, as the legislation at issue in that case, namely Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) (OJ 2008 L 293 p. 3), only seeks to achieve a minimum harmonisation.

42      See, to that effect, judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 47).

43      See, to that effect, judgment of 7 November 2019, Profi Credit Polska (C‑419/18 and C‑483/18, EU:C:2019:930, paragraphs 58 to 60).

44      See, to that effect, judgment of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 47), and Article 10(g) of Directive 2008/48. See, also, to that effect, Article 4(1) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

45      This is well illustrated by the fact that Article 2(6) of Directive 2011/83 defines the concept of ‘service contract’ as ‘any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof’. It can therefore be inferred that a service is simply what constitutes the subject matter of a service contract.

46      See, by analogy, judgment of 19 December 2019, Airbnb Ireland (C‑390/18, EU:C:2019:1112, paragraph 53).

47      See judgment of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraphs 37 and 38).

48      Indeed, the so-called ‘Your Package’ service does not constitute a ‘service’, since it cannot be detached from the granting of the credit, but is rather an adjustment of the conditions for the performance of the credit, which is presented for commercial purposes as a service.

49      Article 3(3) refers to the Annex to Directive 93/13 that contains an indicative and non-exhaustive list of the terms that might be regarded as unfair.

50      See, to this effect, judgments of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraphs 59 and 60) and of 3 October 2019, Kiss and CIB Bank (C‑621/17, EU:C:2019:820, paragraph 50 and 51).

51      For a criticism of this separation of the two criteria, see my Opinion in Lovasné Tóth (C‑34/18, EU:C:2019:245, points 56 to 67). I also note that in certain judgments the Court did not assess those two elements separately. See, for example, judgment of 16 January 2014, Constructora Principado (C‑226/12, EU:C:2014:10, paragraph 23).

52      See, to that effect, the position expressed by the Commission in its Notice on Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts, at 3.4.1.

53      See judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraphs 68 and 69); of 3 October 2019, Kiss and CIB Bank (C‑621/17, EU:C:2019:820, paragraph 50 and 51); and of 7 November 2019, Profi Credit Polska (C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 55).

54      But not exclusively. For example, in the case of a clause conferring the possibility for the supplier to change the price, the consumer must, in return, be given the possibility to terminate the contract. See, for example, judgment of 26 April 2012, Invitel (C‑472/10, EU:C:2012:242, paragraph 24).

55      In accordance with the requirement of transparency referred to above, where a term belongs to the main subject matter of the contract in that it is essential to the seller or supplier, that term may remain out of that assessment only if the consumer’s attention has been specifically drawn to the existence of that term, pursuant to Article 4(2) of Directive 93/13. In my view, it is in that sense that that requirement plays a role in the application of Article 3(1) of that directive. See, to that effect, judgment of 5 June 2019, GT (C‑38/17, EU:C:2019:461, paragraph 37).

56      C‑621/17, EU:C:2019:411, point 36.

57      Judgment of 16 January 2014, Constructora Principado (C‑226/12, EU:C:2014:10).

58      In its judgment of 16 January 2014, Constructora Principado (C‑226/12, EU:C:2014:10, paragraphs 27 and 28) the Court did not conclude that that kind of clause was unfair, but left it to the national court to determine whether or not such a clause constituted ‘a sufficiently serious impairment of the legal situation which national law confers on that consumer as a party to the contract’ and, accordingly, might be declared unfair.

59      This explains why the transparency requirement is only about the consequence or the effect of terms.

60      If the contract’s transparency is of crucial importance, that will not in itself remedy the problem of asymmetric bargaining power since consumers seldom read contracts, especially on the internet. For example, a firm called PC Pitstop included a provision in its End User License Agreement that awarded a ‘special consideration which may include financial compensation to a limited number of authorised licensees to read this section of the license agreement and contact PC Pitstop’. Four months passed before a user noticed the clause and claimed the prize of 1 000 United States dollars. See, Ayres, I. and Schwartz, A., ‘The No Reading Problem in Consumer Contract Law’, Stanford Law Review, vol. 66, 2014, pp. 545-610. In that context, I believe one of the major advances of Directive 93/13 which has, in my view, not been genuinely acknowledged due in part to the overemphasis put hitherto on transparency, is to have provided a minimum protection for consumers against the unexpected effects of terms, other than those defining the price or the subject matter of the contract, which consumers could legitimately expect to be standard.

61      For example, in my view, a clause cannot be declared unfair simply because it implies the sending of a letter by post and therefore the purchase of a stamp, even if this is a hidden charge.

62      See Commission Notice on Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts, at 3.4.6 and, to that effect, judgments of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 62), and of 14 March 2019, Dunai (C‑118/17, EU:C:2019:207, paragraph 49). The only exception that I am aware of is the judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 69), where the Court seems to have accepted that a term may be declared unfair because of a lack of transparency. As I explained in my Opinion in Lovasné Tóth (C‑34/18, EU:C:2019:245, points 87 to 89), if contractual transparency is indeed fundamental, I believe that in Verein für Konsumenteninformationthe Court somewhat exaggerated the scope of the transparency requirement under Directive 93/13. In addition, other EU instruments that also deal with that issue provide for more nuanced approaches. See, for example, Article 7 of Directive 2005/29.

63      See, to that effect, judgment of 3 October 2019, Kiss and CIB Bank (C‑621/17, EU:C:2019:820, paragraph 51).

64      See judgments of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 61), and of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraph 41).

65      (C‑779/18, EU:C:2019:1146).

66      See, to that effect, judgment of 26 March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty w Warszawie (C‑779/18, EU:C:2020:236, paragraphs 45 to 48).

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