The CJEU has decided. The Bank is not entitled to additional remuneration for the use of the capital.


In today’s judgment, i.e. June 15th, 2023 the Court of Justice decided that the directive nr 93/13 precludes the bank from being able to claim from the consumer compensation going beyond reimbursement of the capital paid together with the payment of statutory default interest.

The Court takes the view that granting such a right would contribute to eliminating the deterrent effect on sellers or suppliers. Moreover, the effectiveness of the protection conferred on consumers by the directive would be undermined if they were, when relying on their rights under that directive, exposed to the risk of having to pay such compensation. That interpretation would risk creating situations in which it would be more advantageous for the consumer to continue the performance of the contract containing an unfair term rather than exercising his or her rights under that directive.

The Court points out that, in the present case, any annulment of the mortgage loan agreement is a consequence of Bank M.’s use of unfair terms. Therefore, it can neither be accepted that the bank derive economic advantages from its unlawful conduct, nor that it be compensated for the disadvantages caused by such conduct.

On the other hand, the Court observes that the possibility for a consumer to rely against the bank on claims going beyond reimbursement of the monthly instalments paid does not appear to undermine the abovementioned objectives. In particular, such a possibility may help to deter sellers of suppliers from including unfair terms in contracts concluded with consumers inasmuch as their inclusion, leading to the nullity of those contracts, could lead to financial consequences exceeding the restitution of the amounts paid by the consumer and, where  appropriate, the payment of default interest. Nevertheless, it is for the national court to examine, in the light of all the facts of the dispute, whether upholding such claims on the part of the consumer is in accordance with the principle of proportionality

Moreover, in its judgment also delivered today in case C-287/22, the Court held that the provisions of Directive 93/13 must be interpreted as precluding national case-law according to which a national court may dismiss an application for the grant of interim measures lodged by a consumer seeking the suspension, pending a final decision on the invalidity of the loan agreement concluded by that consumer on the ground that that loan agreement contains unfair terms, of the payment of the monthly instalments due under that loan agreement, where the grant of those interim measures is necessary to ensure the full effectiveness of that decision.