The European Union directive (93/13) on unfair terms in consumer contracts does not preclude the adoption of national provisions ensuring a higher level of protection for consumers in regard to terms falling outside the scope of the directive, the Court of Justice of the EU (CJEU) said in a judgment on Tuesday 21 December (case C-243/20).
This judgment follows a referral from the Athens High Court concerning a dispute over clauses in a home loan contract between two consumers and the Greek bank Trapeza Peiraios.
While the EU Unfair Contract Terms Directive does not apply if a contractual term reflects a mandatory statutory or regulatory provision, the Greek court noted, firstly, that this exception was not explicitly included in Greek law when transposing the Directive and, secondly, that the disputed terms of the loan contract reflect the content of a statutory provision of a default nature, i.e. a provision that applies when no other arrangement has been agreed between the contracting parties in this respect.
Greek case law is thus divided as to whether the exception provided for in the Directive can be considered to have been transposed.
In today’s judgment, the Court holds that the Unfair Contract Terms Directive excludes from its scope a contractual term which reflects a national default provision.
It goes on to state that in the absence of formal transposition of the provision on the scope of the Directive, the national courts cannot consider that this provision has been incorporated into national law indirectly by means of transposition of other provisions of the Directive.
However, the Court clarified that Member States may apply provisions of the Directive to situations which do not fall within its scope (e.g. in the case of a clause reflecting the content of a national provision of a default nature), provided that this is compatible with the objectives pursued by the Directive and with the Treaties.
Consequently, it concludes that the Unfair Contract Terms Directive does not preclude the adoption or maintenance of national provisions having the effect of applying the consumer protection system to terms which are excluded from the scope of that Directive because they reflect mandatory national provisions.
See the judgment: https://bit.ly/3EeZaXh (in French) (Original version in French by Damien Genicot)