Continuation and end of the saga of loans denominated in Swiss francs? – Bank – Credit

Will the saga of loans denominated in Swiss francs finally find a happy end for consumers? It is possible to think so following the judgment rendered by the Court of Justice of the European Union (CJEU) on June 10, 2021 (CJEU June 10, 2021, aff. C-609/19; v. Equal. CJEU June 10, 2021, case C-776/19 to C-782/19, JCP 2021. 689, obs. D. Berlin).

In this case, by notarial deed of March 10, 2009, a couple of borrowers had acquired real estate and subscribed for this purpose with BNP Paribas Personal Finance a mortgage loan contract denominated in foreign currency and called “Helvet Immo”. This contract provided for the subscription of a loan at a rate of 4.95%, repayable, in principle, in 276 fixed deadlines, denominated in Swiss francs and repayable in euros, it being specified that on the day of the conclusion of the said contract, the amount of this loan was € 143,421.53, or 216,566.51 Swiss francs. This same contract provided for the reimbursement of monthly payments at fixed deadlines in euros and the conversion of these into Swiss francs in order to contribute to the payment of interest and the amortization of the capital, the costs associated with credit, such as insurance, being billed in euros. It was also planned that the duration of the credit would be extended by five years, the scheduled maturities in euros being charged in priority to the interest when the evolution of parities increases the cost of credit for the borrower and if the maintenance of the amount of settlements in euros did not make it possible to settle the entire balance of the account over the initial residual term plus five years, the amount of monthly payments would be increased. Following unpaid monthly payments, the forfeiture of the term was pronounced and the execution judge of the high court of Libourne (France) ordered, on January 16, 2015, the forced sale of the property concerned. A dispute followed which led the Lagny-sur-Marne district court to ask the European judges a series of preliminary questions relating to whether the disputed clauses concerned the main subject of the contract and whether they were sufficiently clear.

The Court of Luxembourg considers, in the first place, that “Article 4, paragraph 2, of Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in contracts concluded with consumers, must be interpreted in the sense that the clauses of the loan contract which stipulate that the repayments at fixed deadlines are allocated as a priority to the interests and which provide, in order to pay the balance of the account, the extension of the duration of this contract and the increase the amount of the monthly payments come under this provision in the event that these clauses set an essential element characterizing the said contract ”. On this first point, the Court of Justice fully complies with the terms of Article 4, § 2, of the 1993 Directive, which provides that “the assessment of the unfair nature of clauses does not relate to the definition of ‘main object of the contract or on the adequacy between the price and the remuneration, on the one hand, and the services or goods to be provided in return, on the other hand, provided that these clauses are drafted in a clear and understandable manner ”(See equal. C. consom., Art. L. 212-1, al. 3). We know that only the disputed clauses which do not relate to the main object of the contract or to the adequacy between the price and the remuneration can in principle be the subject of a control (see on this subject J.- D. Pellier, Consumer law, 3^e ed., Dalloz, coll. “Cours”, 2021, n ° 100). However, one of the difficulties in litigation concerning loans in foreign currencies lies precisely in the fact that the disputed clauses very often relate to the main object of the contract (see CJEU 20 Sept. 2017, case C-186/16, D. 2017. 2401 , note J. Lasserre Capdeville ; ibid. 2176, obs. D. R. Martin et H. Synvet ; ibid. 2018. 583, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; AJDI 2018. 208 , obs. J. Moreau ; AJ contract 2017. 484, obs. B. Brignon ; comp. CJEU 30 Apr. 2014, aff. C-26/13, D. 2014. 1038 ; RTD eur. 2014. 715, obs. C. Aubert de Vincelles ; ibid. 724, obs. C. Aubert de Vincelles ; v. equal. Civ. 1^re, March 13, 2019, n ° 17-23.169, Dalloz news, 1^is Apr 2019, obs. J.-D. Pellier; D. 2019. 1033 , note A. Etienney-de Sainte Marie ; ibid. 1784, chron. S. Vitse, S. Canas, C. Dazzan-Barel, V. Le Gall, I. Kloda, C. Azar, S. Gargoullaud, R. Le Cotty and A. Feydeau-Thieffry ; ibid. 2009, obs. D. R. Martin et H. Synvet ; ibid. 2020. 353, obs. M. Mekki ; ibid. 624, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; RTD civ. 2019. 334, obs. H. Barbier ; RTD with. 2019. 463, note D. Legal ; ibid. 465, obs. D. Legeais ; RTD eur. 2020. 768, obs. A. Jeauneau ; Civ. 1^re, 20 Feb 2019, n^you 17-31.065 and 17-31.067, Dalloz actualité, March 5, 2019, obs. J.-D. Pellier; D. 2019. 428 ; AJDI 2019. 708 , obs. O. Poindron and J. Moreau ; Rev. prat. rec. 2020. 23, chron. R. Bouniol ; RTD with. 2019. 463, note D. Legal ; RTD eur. 2020. 768, obs. A. Jeauneau ; Dec 12 2018, n ° 17-18.491, RTD eur. 2019. 410, obs. A. Jeauneau ; May 3, 2018, n ° 17-13.593, Dalloz actualité, May 17, 2018, obs. J.-D. Pellier; D. 2018. 1355 , note D. Mazeaud ; ibid. 2106, obs. D. R. Martin et H. Synvet ; ibid. 2019. 279, obs. M. Mekki ; ibid. 607, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; AJDI 2018. 871 , obs. J. Moreau ; AJ contract 2018. 284, obs. B. Brignon ; RTD with. 2018. 432, note D. Legal ; RTD eur. 2019. 410, obs. A. Jeauneau ; comp. Civ. 1^re, March 29, 2017, n^you 16-13.050 and 15-27.231, Dalloz actualité, 28 Apr. 2017, obs. X. Delpech; D. 2017. 1893 , note C. Smaller ; ibid. 1859, chron. S. Canas, C. Barel, V. Le Gall, I. Kloda, S. Vitse, J. Mouty-Tardieu, R. Le Cotty, C. Roth and S. Gargoullaud ; ibid. 2176, obs. D. R. Martin et H. Synvet ; ibid. 2018. 583, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; AJDI 2017. 596 , obs. J. Moreau ; AJ contract 2017. 278 , obs. B. Brignon ; RTD civ. 2017. 383, obs. H. Barbier ; RTD with. 2017. 409, obs. D. Legal ), even if the opposite thesis has been brilliantly defended (G. Cattalano, Loans in Swiss francs: little hope for borrowers, Defrénois, 15 Nov. 2018, p. 27, considering that “the main object of the contract is the provision of funds and not the way in which the monthly repayment installments are calculated and paid ”).

However, even if the clause relates to the main object of the contract, there is always a place for an abuse control in the event that said clause is not drafted in a clear and understandable manner, assumption that the aforementioned text reserves. In this regard, the Court of Justice of the European Union considers, secondly, that “Article 4 (2) of Directive 93/13 must be interpreted as meaning that, in the context of a contract of loan denominated in foreign currency, the requirement of transparency of the clauses of this contract which stipulate that the payments at fixed deadlines are charged in priority to the interests and which foresee, in order to pay the balance of the account, the extension of the duration of the said contract. contract and the increase in the amount of monthly payments, is satisfied when the trader has provided the consumer with sufficient and accurate information enabling an average consumer, normally informed and reasonably attentive and informed, to understand the concrete operation of the financial mechanism in question and to d ‘thus assess the risk of the potentially significant negative economic consequences of such clauses on its financial obligations throughout the duration of this same contract ”(see already CJEU Sep 20, 2018, aff. C-51/17, Dalloz actualité, September 26, 2018, obs. J.-D. Pellier; D. 2018. 1861 ; ibid. 2019. 279, obs. M. Mekki ; ibid. 607, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; ibid. 2009, obs. D. R. Martin et H. Synvet ; AJ contract 2018. 431, obs. E. Bazin ). It also considers that “Article 3 (l) of Directive 93/13 must be interpreted as meaning that the clauses of a loan contract which stipulate that payments at fixed dates are set off as a priority against interest and which provide, in order to pay the account balance, which may increase significantly as a result of variations in the parity between the account currency and the payment currency, the extension of the duration of this contract and the increase in the amount monthly payments, are likely to create a significant imbalance between the rights and obligations of the parties arising from the said contract to the detriment of the consumer, since the professional could not reasonably expect, while respecting the requirement of transparency with regard to the consumer, that the latter accepts, following an individual negotiation, a disproportionate risk of exchange resulting from such clauses ”.

This brings a singular denial to the case law of the Court of Cassation (see the previous judgments), which should no doubt henceforth evolve in favor of consumers. It is true that the latter had won their case on criminal grounds last year, the bank having been found guilty of deceptive commercial practices in their regard (T. corr. Paris, 13^e ch. corr., Feb. 26 2020, No. 12290076010; v. on this subject G. Cattalano, New episode in the affair Hell Immo : the bank found guilty of deceptive commercial practice, DRC n ° 2020/3, p. 90). Therefore, it would be difficult to accept that they could not finally triumph on the civil plane.

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