Non-binding opinion of Advocate general WAHL for the Court of Justice regarding an abusive clause of a loan agreement denominated in a foreign currency (case 189/16)

 

European Law establishes that a contractual term which has not been individually negotiated shall be regarded as unfair if causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. The judgement if a clause is abusive is not specifically aimed at the definition of the main object provided that the contracts are drafted in plain and intelligible language. The Advocate General considers that in the absence of any indication as to the currency in which a loan is to be repaid, it is presumed that it must be repaid in the same currency as that in which the loan was granted, because the interest rate is normally lower in order to prevent a currency devaluation. Regarding consumer knowing requirement, the Advocate General claims that a medium consumer, well informed and reasonably sensible, should not only be informed in relation to the possibility of currency appreciation and depreciation but also is able to evaluate the consequences of that clause regarding financial responsibilities. The requirement for a contractual term to be drafted in plain intelligible language cannot implies that the seller or supplier must anticipate and inform the consumer of subsequent changes which were not foreseeable, such as those manifested in the fluctuations of the exchange rates, and to bear the consequences of such changes. For evaluating whether there is an imbalance between the parties, this question only makes sense when it comes to conclude if a clause is not related to the agreement main object or it is not written in a clear and comprehensible way. He considers that a professional cannot be responsible of any circumstances beyond her control and that can took place once the agreement has been signed, for instance exchange rates. Therefore, the significant imbalance cannot be considered regarding circumstances that an entrepreneur cannot control, like the exchange rate which will be in force after the conclusion of the contract.