Consumer mortgage loan agreements denominated in foreign currencies: Does one solution fit all? – commentary on the judgment of the Court of Justice of the European Union of 15 June 2023 in A.S. v Bank M S.A., C-520/21

Abstract

Consumer protection in contracts concluded with credit institutions has received considerable attention in recent years from the national courts of various European countries, as well as from the Court of Justice of the European Union (CJEU). Unsurprisingly, the issue came to the forefront in the wake of the 2008 global financial crisis, when consumers generally struggled with loan repayments. The CJEU has played a leading role in the interpretation of the principal European legal instrument governing standard terms, namely Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Our analysis focuses primarily on the Court’s judgment of 15 June 2023, which we critically assess as being detached from its social, legal, and economic context. In our view, the CJEU’s attempt to bring one solution to fit all is irreconcilable with other national approaches. Moreover, its fundamental reference to the principle of nemo auditor propriam turpitudinem allegans is neither clear nor appropriate in our opinion when taking into consideration its uncodified nature in many national jurisdictions. Accordingly, we respectfully disagree with the CJEU’s judgment of 15 June 2023 that Directive 93/13 bans lenders (in this case, Polish banks) from obtaining any remuneration for the capital advanced to, and enjoyed by, the borrower when a loan contract is declared void since it cannot continue in existence without the terms found to be unfair.