Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 1 February 2019 — NG, OH v SC Banca Transilvania SA
(Case C-81/19)
Language of the case: Romanian
Referring court
Curtea de Apel Cluj
Parties to the main proceedings
Applicants: NG, OH
Defendant: SC Banca Transilvania SA
Questions referred
Must Article 1 [paragraph 2] of Directive 93/13/EEC 1 be interpreted as not precluding any analysis, with regard to unfairness, of a contractual term that reproduces a supplementary rule from which the parties could have derogated, but did not in fact do so as there was no negotiation in that regard, as in the present case analysed here with regard to the clause requiring repayment of the loan in the same foreign currency as that in which it was granted?
In a context where, when being granted a loan in a foreign currency, the consumer was not given calculations/estimates relating to the economic impact that any exchange rate fluctuation would have as regards the overall payment obligations arising under the agreement, can it reasonably be maintained that such a term, under which the exchange risk is borne entirely by the consumer (in accordance with the nominalist principle) is clear and intelligible and that the seller or supplier/bank has complied in good faith with the obligation to provide information to the other party to the agreement, in circumstances in which the maximum degree of indebtedness of consumers established by the Banca Națională a României (National Bank of Romania) has been calculated by reference to the exchange rate prevailing on the date when the loan was granted?
Do Directive 93/13/EEC and the case-law based on it and the principle of effectiveness preclude a contract from continuing unchanged after a term relating to the party that bears the exchange rate risk has been declared unfair? What change would make it possible to disapply the unfair term and comply with the principle of effectiveness?
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1 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29, Special edition Chapter 15 Vol. 2 p. 273)