The preliminary question addressed to the Court had the following content: “Considering that, in accordance with Article 4 (2) of Directive 93/13 / EEC, the fairness of the terms, cannot may relate either to define the object of the contract nor to the adequacy of the price or remuneration, on one hand, as to the services or goods supplies in exchange, on the other hand, to the extent to which these terms are in plain, intelligible, (…) then the notions of “object” and / or “price” from Article 4 (2) of Directive 93/13 / EEC may be interpreted as meaning that these notions include, through the elements forming the counter payment of the credit institution, and AEI of the loan agreement secured by a mortgage, consists mainly of fixed or variable interest, bank fees and other costs included and defined in the credit agreement? “
This question was raised on the existence of two contracts concluded by consumers loans with the bank, in which, contractual clauses provided that the bank could review the current interest rate, in case a major change in the money market rate, the updated rate being communicated to the consumers, as well as taking a risk monthly commission.
Following the entry into force of GEO no. 50/2010, which banned charging the risk commissions, the bank requested consumers to sign an addendum through which the risk commission was replaced with a management fee, without changing the clauses which stipulated that commission. Basically it was not removed the risk commission, it was only replaced with the administration commission.
Given these issues, the consumers, considering these clauses to be unfair, filed a legal action against the bank, in order to establish the nullity of unfair terms.
The Court of Justice, analyzing the preliminary question with which it has been invested, decided that “Article 4 (2) of Directive 93/13 / EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted in the sense the terms “subject (main) of the contract” and “adequacy of the price and remuneration, on the one hand, towards the services or goods supplies in exchange, on the other hand” does not cover, in principle, types of clauses appearing in the credit agreements concluded between a seller or supplier and consumers, such as those in question, which, on the one hand, allow, under certain conditions, for the creditor to unilaterally modify the interest rate and, on the other hand, provide a ” risk fee ” taken by them. It is however for the referring court to verify this qualification of the contractual clauses mentioned, considering the nature and general stipulations of the covered contracts and legal and factual context in which they are registered. “