ratione temporis
30.The original loan agreement, expressed in Swiss francs, was concluded between the applicant in the main proceedings and Zagrebačka banka on 15October 2007. However, it was not until 1July 2013 that the accession of the Republic of Croatia to the EU took effect. On 8January 2016, the parties entered into the annex brought about by the Law of 2015, which retroactively linked the loan to the euro.
31.The Court has jurisdiction to interpret EU law only as regards its application in a Member State with effect from the date of that State’s accession to the European Union.(12) EU law cannot, in principle, be automatically applied to events prior to the accession of a new Member State. At the same time, the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions.(13)Therefore, unless the Treaty concerning the accession of a new Member State provides otherwise, EU law also applies, in principle, to the future effects of situations arising prior to its accession, as from the date of accession.(14)
32.However, as regards Directive 93/13, it contains a specific rule regarding its applicability ratione temporis.
33.According to the second subparagraph of Article10(1) of Directive 93/13, the latter is applicable only to contracts concluded after 31December 1994, the date by which the directive must have been transposed into national law. The Court has concluded from this that the only relevant factor for the applicability ratione temporis of the provisions of Directive 93/13 to a consumer contract is the date of the conclusion of that contract, and the period during which the contract produced effects is not relevant.(15) Accordingly, with regard to Member States which did not accede to the EU until after 31December 1994, and in respect of which Directive 93/13 became binding only upon their accession, that directive applies only to contracts concluded after the date of accession of the Member State concerned.(16)
34.Therefore, Directive 93/13 is not applicable to the original loan agreement of October 2007.
35.Therefore, for the purposes of the application of EU law, only the conclusion of the annex in 2016 or the adoption of the Law of 2015 remains as a connecting factor post-dating the accession of the Republic of Croatia to the EU.
36.However, the subject matter of the main proceedings is precisely not the alleged unfairness of the terms of the annex as such, which are based on the Law of 2015, or the restitution of the advantages derived from that annex.(17) Rather, the form of order sought by the applicant in the main proceedings is the restitution of all the advantages which the bank derived from the alleged unfairness of the terms contained in the agreement of 2007. Against that background, the referring court asks whether the Law of 2015 and the annex to the loan agreement based on that law may restrict the applicant’s rights with regard to the unfairness of those original terms.
37.Therefore, similar to the Dunai and OTP Jelzálogbank and Others cases,(18) the issue is the effects of that annex or the Law of 2015 on the obligation of the Republic of Croatia under Article6(1) of Directive 93/13 to ensure full restitution of all advantages obtained by the bank in connection with the terms originally contained in the loan agreement.
38.However, it is only if the directive is applicable to the original agreement that such an obligation can arise from Article6(1) of Directive 93/13 at all.(19) However, as already stated,(20) this is not the case.
39.This is because, even after the Republic of Croatia’s accession to the EU– and thus at the time of the adoption of the Law of 2015– that Member State was, first, under no obligation from the point of view of EU law to take measures, in respect of consumer contracts concluded before its accession to the EU, to ensure that any unfair terms that those contracts may have contained were not binding on consumers (Article6(1) of Directive 93/13). Second, the Republic of Croatia was not required, in respect of such contracts, to provide adequate and effective means to prevent the continued use of unfair terms by sellers or suppliers (see Article7(1) of Directive 93/13). Without such an obligation, however, the possible restriction of the possibilities of restitution by a new law or the annex based on it cannot fall within the scope of Directive 93/13.
40.Nor does an obligation to guarantee full restitution exist with regard to the advantages which the bank derived from such a contract only after accession, that is to say, in the present case, in the period from 1July 2013 to 8January 2016. This is because those advantages are also based on the potential unfairness of the clauses from the agreement of 2007, for which, however, Directive 93/13 cannot provide a remedy due to the fact that it is not applicable.
41.Such a division into a pre-accession period and a post-accession period, as was done, for example, in the Milivojević case with regard to the applicability of the fundamental freedoms,(21) is not possible for the purposes of the application of Directive 93/13. Such an approach would run counter to the purpose of the second subparagraph of Article10(1) of the directive. Accordingly, the directive is either to apply to a contract overall, including all its legal effects, or– in the case of a contract concluded before 1January 1995 or before the accession of the Member State concerned– not to apply at all, even if that contract continues to produce effects after that date.(22)
42.In that connection, the second subparagraph of Article10(1) of Directive 93/13 makes clear that the legislature did not intend that a contract already concluded between a seller or supplier and a consumer must comply with the provisions of that directive from the date on which that directive has full legally binding force in the Member States or even retroactively. Facts preceding that date should not be subject to a retrospective substantive reassessment.(23)
43.In that respect, the Commission’s argument that the only decisive factor is that the Law of 2015 was adopted after the date from which the Republic of Croatia was bound by Directive 93/13 and that that law must therefore comply with the requirements of the directive, in particular Article6(1) thereof, cannot be accepted. This is because the main proceedings do not concern the abstract compatibility of the Law of 2015 with the provisions of the directive. Such a matter in isolation could not in fact be the subject of a question of interpretation concerning Directive 93/13; rather, there must always be a connection with a consumer contract in that regard.(24)
44.Accordingly, the Court ruled in SKP that the purpose of Directive 93/13 is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer. Consequently, it covers only the terms contained in contracts and not, for instance, national (procedural) provisions.(25) However, since the only contract which played a role in those proceedings had been concluded before the accession of the Slovak Republic to the EU, the Court declared the question referred for a preliminary ruling to be manifestly inadmissible.(26)
45.In conclusion, having regard to the form of order sought by the applicant in the main proceedings and the subject matter of the questions referred for a preliminary ruling, it is therefore only the applicability of Directive 93/13 to the original loan agreement that is relevant. Since it is not applicable in the present case, the Court does not have jurisdiction to answer the questions referred.
B.In the alternative: the applicability of Directive 93/13 to the annex
46.It is true that the questions referred for a preliminary ruling relate only to the obligation to return all advantages derived from the terms originally contained in the loan agreement. However, it follows from the order for reference that the applicant in the main proceedings also claims that unfair variable interest rates were applied in the conversion effected by the annex.
47.It is true that, in so far as the main proceedings therefore (also) concern the unfairness of the terms contained in the annex itself– a matter which is for the referring court to assess– they fall within the temporal scope of Directive 93/13. However, a review of the content of the terms in question is nevertheless excluded.
48.This is because the annex based on the Law of 2015 is excluded from the scope of Directive 93/13 pursuant to Article1(2) of that directive. According to that provision, the contractual terms which reflect mandatory statutory or regulatory provisions are not to be subject to the provisions of that directive.
49.The Court interprets Article1(2) of Directive 93/13 as meaning that the scope of that directive does not cover terms which reflect mandatory provisions of national law, inserted in that contract by virtue of a law after it had been concluded with a consumer, and intended to remove a term which is null and void from that contract.(27)
50.It is true that, in the present case, unlike in the cases cited in the previous point, the replacement of the terms is not brought about directly by the Law of 2015. Rather, it is subject to the consumer’s consent. In that respect, the law provides the parties with the options of entering into either a new loan agreement or an annex to the existing loan agreement. However, the mere requirement of the consumer’s consent does not mean that the clauses are not to be regarded as reflecting a mandatory statutory or regulatory provision. In the present case, the Law of 2015 requires banks to make such an offer to consumers within a prescribed period of time. For consumers, the only alternative to consent is to maintain the original agreement, including the terms which the legislature deems to be unfair and detrimental to them. In addition, the content of the potential annex is entirely determined by the law and is not set by the sellers or suppliers.
51.As follows from the thirteenth recital of Directive 93/13, Article1(2) thereof is based on the presumption that the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts do not contain unfair terms, but strike a balance between the rights of consumers and sellers or suppliers.(28) As is apparent from the order for reference, this was also precisely the aim of the Croatian legislature. In those circumstances, it must be assumed that the terms in question ‘reflect’ a mandatory statutory or regulatory provision within the meaning of Article1(2) of Directive 93/13.
52.It follows that the matter does not fall within the material scope of Directive 93/13 either.
VI.Conclusion
53.Having regard to the foregoing considerations, I propose that the Court answer the questions referred by the Općinski građanski sud u Zagrebu (Municipal Civil Court, Zagreb, Croatia) as follows:
The Court of Justice of the European Union does not have jurisdiction to answer the questions referred by the Općinski građanski sud u Zagrebu (Municipal Civil Court, Zagreb, Croatia), in its order for reference of 15October 2020.
1Original language: German.
2Council Directive 93/13/EEC of 5April 1993 on unfair terms in consumer contracts (OJ 1993 L95, p.29).
3Judgments of 21December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs61 and 62); of 14March 2019, Dunai (C‑118/17, EU:C:2019:207, paragraphs41 and 44); and of 29April 2021, Bank BPH (C‑19/20, EU:C:2021:341, paragraphs77 and 78).
4OJ 2012 L112, p.14.
5OJ 2012 L112, p.21; ‘the 2012 Act of Accession’.
6Narodne novine, br. 102/2015.
7Narodne novine, br. 35/05, 41/08, 125/11, 78/15 and 29/18.
8For the content of that law, see points12 and 13 of this Opinion.
9See, in that regard, judgments of 21December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs61 and 62); of 14March 2019, Dunai (C‑118/17, EU:C:2019:207, paragraphs41 and 44); and of 29April 2021, Bank BPH (C‑19/20, EU:C:2021:341, paragraphs77 and 78).
10In that regard, the referring court refers in particular to the judgment of 14March 2019, Dunai (C‑118/17, EU:C:2019:207).
11See, to that effect, judgments of 17July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph26); of 30January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph26); and of 26March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs31 to 33).
12Orders of 3April 2014, Pohotovosť (C‑153/13, EU:C:2014:1854, paragraph24); and of 3July 2014, Tudoran (C‑92/14, EU:C:2014:2051, paragraph27); and judgment of 9July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph41).
13Judgment of 9March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph24).
14See judgments of 29January 2002, Pokrzeptowicz-Meyer (C‑162/00, EU:C:2002:57, paragraph50), and of 14February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraphs42 and 43).
15Order of 3July 2014, Tudoran (C‑92/14, EU:C:2014:2051, paragraph28), and judgment of 9July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph42).
16See orders of 8November 2012, SKP (C‑433/11, EU:C:2012:702, paragraphs33 to 35); and of 3July 2014, Tudoran (C‑92/14, EU:C:2014:2051, paragraph28); and judgment of 9July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraphs43 to 44).
17In any event, it is not apparent from the order for reference that, from the applicant’s point of view, the obligation to repay, in kuna, the balance of the loan now expressed in euro and adjusted accordingly causes, in itself, a significant and unjustified imbalance to her detriment. Regarding the question of the unfairness of the interest rate adjustment clause, asserted in the alternative, see immediately below, point46 et seq. of this Opinion.
18Judgments of 14March 2019, Dunai (C‑118/17, EU:C:2019:207, paragraph38), and of 2September 2021, OTP Jelzálogbank and Others (C‑932/19, EU:C:2021:673, paragraph30).
19Accordingly, in, for example, its judgment of 21December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph58), in its statements regarding the protection provided by Directive 93/13, the Court proceeds on the assumption that the decisive factor is ‘whether a contractual term falling within the scope of Directive 93/13 is unfair’. See also the order of 8November 2012, SKP (C‑433/11, EU:C:2012:702, paragraph35), in which the Court refers to ‘the only contract concluded by a seller or supplier with a consumer with which the main proceedings are concerned, referred to in the order for reference’. That problem did not arise in the cases cited in point37 of this Opinion.
20See points33 and 34 of this Opinion.
21Judgment of 14February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraphs41 to 43).
22See, to that effect, order of 3July 2014, Tudoran (C‑92/14, EU:C:2014:2051, paragraphs26 to 28), and judgment of 9July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph42).
23See, to that effect, Opinion of Advocate General Bobek in Pula Parking (C‑551/15, EU:C:2016:825, point35), in accordance with which the jurisdiction of the Court is to be excluded if otherwise there would be a substantive reassessment of past, pre-accession events.
24The matter underlying the abovementioned judgment of 14February 2019, Milivojević (C‑630/17, EU:C:2019:123), which concerned the question of the applicability of the fundamental freedoms to a law adopted after the accession of the Republic of Croatia, was therefore different. In that case, the Court declared that it had jurisdiction, even though the main proceedings concerned the effects of that law on a loan agreement concluded before accession. The fact that that law also applied to loan agreements concluded before accession cannot give rise to a situation where it is not necessary to comply with fundamental freedoms. As the law in question also modified the effects of the loan agreement at issue that it produced after accession, the main proceedings fell within the scope of EU law, namely the fundamental freedoms concerned.
25See order of 8November 2012, SKP (C‑433/11, EU:C:2012:702, paragraphs33 and 34).
26Order of 8November 2012, SKP (C‑433/11, EU:C:2012:702, paragraphs35 and 37).
27See judgments of 20September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750, paragraphs62 to 64 and 70); of 14March 2019, Dunai (C‑118/17, EU:C:2019:207, paragraph37); and of 2September 2021, OTP Jelzálogbank and Others (C‑932/19, EU:C:2021:673, paragraphs28 and 29 and the case-law cited).
28See, to that effect, judgments of 21March 2013, RWE Vertrieb (C‑92/11, EU:C:2013:180, paragraph28); of 3April 2019, Aqua Med (C‑266/18, EU:C:2019:282, paragraph33); and of 26March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty (C‑779/18, EU:C:2020:236, paragraph54).