May airlines use T&Cs to prohibit passengers from assigning their rights to claim damages? - CJEU in Air Europa Lineas Aéreas (C-173/23)

In today's Air Europa Lineas Aéreas judgment (C-173/23) the CJEU looked into the application of the Unfair Contract Terms Directive (UCTD) to contracts concluded between air passengers and air carriers. Specifically, the passenger in case suffered damages as a result of a delay in receiving his checked-in baggage. He assigned his claim for damages against the air carrier (Air Europa) to a third party (Eventmedia). The air carrier disputes the transfer of rights to Eventmedia, claiming that assignment of passenger rights is prohibited by a clause in its general conditions of carriage (para 12). The referring court had sufficient evidence to declare this clause unfair ex officio but had doubts whether it could do so procedurally. First, the consumer was not part of the judicial proceedings, as he was represented by the assignee of his rights (whose standing was contested). Second, if the court declared the clause unfair the consumer, still remaining outside the judicial procedure, would not have received a chance to object to the application of this finding. 

Ex officio unfairness testing after consumers assigned their claims

First, the CJEU reminds that it has already previously declared (in the DelayFix case - C-519/19) that the UCTD's application is based on the capacity of the parties when they were concluding a contract (B2C) rather than the identity of parties entering into a dispute (paras 17-18). Therefore, the UCTD applies to more cases than just the ones, in which a dispute is between B2C contractual parties (para 25).

The CJEU reminds further that the ex officio judicial mechanism aims to compensate for the imbalance between consumers and professional parties (para 29). Other procedural issues remain in the discretion of the Member States, provided that they comply with the principles of equivalence and effectiveness (para 31).

To comply with the principle of equivalence here, the national court needs to determine whether national law allows it to ex officio assess whether a contractual term is contrary to national rules of public policy. If the answer is affirmative, the unfairness assessment also needs to take place ex officio (paras 34-35). This conclusion is not impacted by the consumer's presence in the judicial procedure, as if conditions for the applicability of the UCTD have been fulfilled (e.g., contract concluded B2C) its provisions benefit from having been assigned an equivalent status to domestic rules of public policy.

The assessment differs regarding the observance of the principle of effectiveness, as this considers the specifics of each procedure and the role that the contested legal provision plays in it. Specifically, " (...) whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, and, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of proceedings (...)." (para 37). Here then the fact that the procedure occurs between two professional parties weakens the need to provide as much protection against unfair terms, as if a consumer was one of the parties in the dispute, as there should be more balance between parties in the dispute (para 38). The principle of effectiveness does not require then the national court to test unfairness ex officio (para 39), unless the professional assignee of the consumer's claim had no real chance to rely on the unfairness in the procedure (para 40).

Consequences of unfairness in light of audi alterem partem when consumers are not part of the judicial process

When national courts find a term unfair ex officio, they follow the rules of audi alterem partem, of a fair hearing, by apprising parties in the dispute of court's findings and giving them an opportunity to debate these and to be heard (para 44). This applies also in case the dispute is between the assignee of the consumer rights and it is this assignee that needs to be informed of the unfairness finding, alongside the trader (para 46). As the consumer is not a party to the dispute, they do not need to be informed of the court's finding of unfairness and do not need to address it (para 49). It is the assignee of their rights that may object to it instead (para 47), although, obviously, they are unlikely to do so as they would then lose standing in the procedure (para 48).

***

The first part of the judgment has enormous practical relevance, as air passengers commonly assign their rights for compensation to third parties. It is, therefore, important for the effectiveness of passenger protection framework that air carriers could not block this process by prohibiting the transfer of rights in their general terms and conditions. This judgment will help assure this further, following the previous judgment in the DelayFix case (see our comment here), as professional assignees of consumers' claims will be able to raise unfairness of the prohibition of transfer of rights themselves. If this is prohibited or hindered, they could then rely on the breach of the principle of effectiveness and expect national courts to test unfairness ex officio (pursuant to para 40). This way assures more legal certainty than relying on the ex officio unfairness testing due to the principle of equivalence, as it could differ between the Member States whether ex officio testing of measures of public policy was allowed.

How the CJEU's ruling in C-604/22 may transform online advertising: a closer look at the IAB Europe case

In March, the CJEU issued a ruling (Case C-604/22 IAB Europe) that has sparked a lot of discussion. The ruling addresses certain practices related to online advertising in Europe, particularly the collection of personal data for the purpose of behavioural advertising.

Facts of the case

The Interactive Advertising Bureau Europe (IAB Europe) is a non-profit association that represents digital advertising and marketing businesses at the European level. IAB Europe's members include companies that generate significant revenue by selling advertising space on websites or applications. Several years ago the association developed the Transparency & Consent Framework (TCF) to promote General Data Protection Regulation (GDPR) compliance when using the OpenRTB protocol (a popular system used for "real-time bidding", which means it quickly and automatically auctions off user information to buy and sell ad space on the internet). The TCF consists of guidelines, technical specifications, instructions, protocols, and contractual obligations. The framework is designed to ensure that when users access a website or application containing advertising space, technology businesses representing thousands of advertisers can instantly bid for that space using algorithms to display targeted advertising tailored to the individual's profile.

Image by "storyset" (Freepik)

The TCF was presented as a solution to bring the auction system into compliance with GDPR (para. 21, 22). However, before displaying targeted advertisements, the user's prior consent must be obtained. When a user visits a website or application, a Consent Management Platform (CMP) appears in a pop-up window. The CMP enables users to give their consent to collect and process their personal data for pre-defined purposes, such as marketing or advertising, or to object to various types of data processing or sharing of data based on legitimate interests claimed by providers, as per Article 6(1f) of the GDPR. The personal data relates to the user's location, age, search history, and recent purchase history (para. 24). In other words - the TCF facilitates the capture of user preferences through the CMP. And these preferences are coded and stored in a "TC string" (which is a combination of letters and characters), and then shared with organizations participating in the OpenRTB system, indicating what the user has consented/ objected to. The CMP places a cookie on the user's device, and when combined with the TC string, the IP address of the user can identify the author of the preferences. Thus the TCF plays a crucial role in the architecture of the OpenRTB system as it is the expression of users' preferences regarding potential vendors and various processing purposes, including the offering of tailor-made advertisements (para. 25, 26).

Since 2019, the TCF model has faced numerous complaints to the Belgian Data Protection Authority (DPA) regarding its GDPR compliance. IAB Europe was criticized for providing users with information through the CMP interface that was too generic and vague, preventing users from fully understanding the nature and scope of data processing and thereby maintaining control over their personal data. Furthermore, IAB Europe was accused of failing to fulfil certain obligations of a data controller, including ensuring the lawfulness of processing, accountability, security, and adhering to data protection privacy by design and by default rules (more details about the proceedings can be found on the DPA's website). Consequently, the DPA concluded that IAB Europe did not meet its GDPR obligations and imposed an administrative fine of €250,000. Additionally, it mandated corrective actions to align the TCF with GDPR standards. 

IAB Europe disagreed with the decision and challenged it before the Belgian court. According to IAB Europe, it should not be considered a data controller for recording the consent signal, objection, and preferences of individual users through a TC string. Thus the association should not be obliged to follow data controllers' obligations under GDPR. IAB Europe also disagreed with the DPA's finding that the TC string is personal data within the meaning of Article 4(1) of the GDPR. Specifically, IAB Europe argued that only the other participants in the TCF could combine the TC String with an IP address to convert it into personal data, that the TC String is not specific to a user and that IAB Europe cannot access the data processed in that context by its members (para. 28).

CJ's ruling

The Court has confirmed the key aspects of the DPA’s decision, emphasizing, among other things that:

1. the TC String holds information that pertains to an identifiable user and, thus, qualifies as personal data under Article 4(1) of the GDPR. Even if it doesn't contain any direct factors that allow the data subject to be identified, it does contain the preferences of a specific user relating to their consent to data processing. This information is considered to be related to a natural person (para. 43). If the information in a TC String is linked to an identifier, such as the IP address of the device, it could be possible to create a profile of that user and identify a particular person (para. 44). The fact that IAB Europe cannot combine the TC String with the IP address of a user's device and doesn't have direct access to the data processed by its members is irrelevant. As the Court stated, IAB Europe can require its members to provide it with the necessary information to identify the users whose data is being processed in a TC String (para. 48). This means that IAB Europe has reasonable means to identify a particular natural person from a TC String (para. 49).

2. IAB Europe, together with its members, is considered a 'joint controller' when it determines the purposes and ways of data processing. Why? According to the Court, the TCF framework aims to ensure that the processing of personal data by certain operators that participate in the online auctioning of advertising space complies with the GDPR. Consequently, it aims to promote and allow the sale and purchase of advertising space on the Internet by such operators. It means that IAB Europe has control over the personal data processing operations for its own purposes and, jointly with its members, determines the purposes of such operations (para. 62-64). Moreover, the TCF contains technical specifications relating to the processing of the TC String, such as how CMPs need to collect users' preferences, how such preferences must be processed to generate a TC String, etc. (para. 66). If any of IAB's members do not comply with the TCF rules, IAB Europe may adopt a non-compliance and suspension decision, which could result in the exclusion of that member from the TCF (para. 65). Therefore, the Court concluded that IAB Europe also determines the means of data processing operations jointly with its members (para. 68), so it meets the criteria of a data controller under Article 4(7) of the GDPR. However, this should not automatically make IAB Europe responsible for the subsequent processing of personal data carried out by operators and third parties based on information about the users' preferences recorded in a TC String (para. 74-76).

What could be the consequences of the ruling? 

The Court confirmed that the IAB Europe, due to the role and significant influence it has over the processing of data by its members for the purposes of creating user profiles and targeting them with personalized advertising, should be held responsible for how this process is organized. And it is organized in a way that is hardly transparent to users. While it is up to the national court to ultimately examine the compatibility of the Belgian DPA's decision, it can be expected that the court will affirm the main conclusions of the Belgian authority's decision. 

It appears unlikely that the CJ's ruling will lead to the elimination of the intrusive pop-ups on many websites, which often rely on dark patterns and manipulative techniques to coerce consent for data processing for marketing purposes. Nevertheless, the advertising industry should place a greater emphasis on enhancing transparency and providing users with more control over their personal data. This could include the development of more user-friendly and informative consent mechanisms, making it easier for users to understand what they are consenting to and how to exercise their rights over their data. The ruling is also expected to impose further restrictions on behavioural advertising practices, particularly those dependent on real-time bidding and the widespread sharing of personal data without explicit, informed consent from users. 

Vouchers, an acceptable reimbursement? - CJEU in C-76/23 (Cobult)

On March 21, the CJEU published the most recent judgment interpreting provisions of Regulation 261/2004 on air passenger rights in the case Cobult (C-76/23) concerning the possibility of reimbursing passenger's ticket cost through a voucher.

By Lu Lettering from Pixabay  

Many of our readers may have experienced a flight cancellation over the past couple of years, not limited to Covid-19-related causes. In case of a cancellation passengers may choose to have their cancelled flight rescheduled (re-routing) or have their ticket costs reimbursed, pursuant to Article 8 of the Regulation 261/2004. Reimbursement could happen via various means, including via a voucher but the latter only upon passenger's "signed agreement", pursuant to Article 7(3). Thus the reimbursement by a travel voucher "is presented as a subsidiary means of reimbursement" (para 20). 

In this case, TAP Air Portugal invited passengers to fill an online form to claim reimbursement of ticket costs, which would lead to them being immediately compensated in travel vouchers. The online form included conditions of acceptance, with text clarifying that acceptance of a travel voucher precluded further reimbursement claims in other forms. An alternative way of reimbursement was available, if passengers contacted their customer service department and allowed them to examine case facts (paras 8-9). 

The CJEU does not exclude a possibility that passengers could have provided a 'signed agreement' in an online reimbursement form. A 'signed' agreement does not need to include the consumer's signature on an online form they are submitting to the air carrier for reimbursement (para 34). However, certain conditions would need to be met. First, passengers need to be able to give their free and informed consent to reimbursement via a travel voucher (para 22). This will require air carriers to provide passengers with "clear and full information on the various means of reimbursement" of ticket costs (para 30). This condition will not be fulfilled if e.g., air carrier (para 32):

• leaves any ambiguity on its website, 
• presents partial information, 
• writes information in a language that passengers may not be proficient in (e.g. information in this case was given only in English - would this be seen as compliant if many passengers were Portuguese-speaking?), or 
• if the procedure for claiming monetary payment is unfair if compared to the procedure of claiming travel vouchers e.g. because it contains additional steps.

"(...) the addition of such supplementary steps is liable to render reimbursement by a sum of money more difficult to obtain, and thus to upset the relationship between the two means of reimbursement" (para 33) - this is an interesting conclusion by the CJEU, which follows recent developments in other areas of EU consumer law. For example, when assessing fairness of cancellation process of online subscriptions, we would also check whether there were additional steps included, which made the process more complex than when subscription was concluded.

1st European Conference of the International Association of Consumer Law (IACL)

Good news for European consumer law enthusiasts: The First European Conference of the International Association of Consumer Law (IACL) will take place this September (17-18) in Cambridge, UK, on the topic of "Global challenges for consumer law and policy in contemporary Europe". The event will also honour the work of Prof. Iain Ramsay. There will be 3 streams devoted to 'Digital environments', 'Financial services' and 'Sustainable consumption'. Looking forward to meeting many colleagues in Cambridge this fall! 

Details of the call for papers may be found at this website.

Limitations to the Action for Restitution after Annulment for Unfairness of the Term - The CJEU in Caixabank (C-801/21 to 813/21)

With ruling of January 25th, the Court of Justice (CJEU) ruled on the consequences of the annulment of an unfair term in mortgage loan agreements and in particular on the limitations that an action for restitution may be subjected to. 

The Provincial Court of Barcelona referred to the CJEU three joined cases dealing with the same circumstances. Consumers concluded mortgage loan agreements in the early 2000s with Spanish banking institutions. They were charged for the notarial and administration charges related to those contracts. All of them brought an action for annulment of the term by which they were charged before the court of first instance in Barcelona, after slightly more than ten years. The banks, instead, objected that the action was time-barred because of the ten-year limitation period established under Article 121-20 of the Catalan Civil Code. In all cases but one, the court rejected the plea of limitation (and ordered to pay back the sums) and the cases arrived on appeal before the Provincial Court of Barcelona, the referring court. 

The case law of the Court of Justice does not exclude that an action for restitution may be subjected to some limitations: the question at stake is rather at which limitations. 

In particular, the referring court asks whether Articles 6(1) and 7(1) of the Unfair Contract Terms Directive must be interpreted as precluding a judicial interpretation of national law according to which, after the annulment of the term like the one at stake, an action of restitution is subject to a limitation period of 10 years which starts to run from the moment the term exhausts its effects (i.e., when the last payment is made), without it being relevant that that the consumer is aware of the unfairness of that term and, ‘if so, whether those provisions must be interpreted as meaning that that knowledge must be acquired before the limitation period begins to run or before it expires’ (para 41). 

To address the question, the Court begins by recalling its case law on limitation: provided that consumers are guaranteed equivalence effectiveness in the enforcement of the rights they derive from Directive 93/13 (i.e., it is not impossible in practice to exercise such rights), an action for restitution may well be limited in terms of time (see BNP Paribas Personal Finance, C-776/19 to C-782/19). 

The case law concerning the limitation period at issue in the main proceedings, observes the Court, has established that to assess whether the consumers were given the possibility to exercise the rights conferred to them under EU law it must be evaluated the duration of the limitation period (ten years), and the ‘mechanism adopted to start the period running’ (para 46). For the starting period to be in compliance with the principle of effectiveness the consumer must have had the ‘opportunity to have become aware of his or her rights before that period begins to run or expires’ (para 48). Whenever, like in the cases at issue, the consumer lacks knowledge regarding the unfairness of the term – irrespective of whether the consumer is aware of the existence of the terms, the limitation period cannot begin to run. The legal assessment is thus decisive. The Court proceeds and states that not only must the consumer have knowledge of the rights he or she holds, but that he or she must also have ‘sufficient time to be able effectively to prepare and bring an action in order to assert those rights’. (para 50). 

The Court thus ruled that Articles 6(1) and 7(1) of the UCTD must be interpreted as certainly precluding a judicial interpretation of national law which would allow the limitation period to start running prior to the consumer knowing that the term is unfair. 

The question of the Catalan court comprised of a second part: is the condition relating to the consumer’s knowledge of the unfairness of the term fulfilled when there exists established national case law on the matter? 

The Court answers the question negatively, by referring to the principle that is at the very core of consumer protection law, namely the asymmetry of information between consumers and businesses. While businesses, by virtue of their profession, are presumed to be highly informed including on the case law concerning the contracts and the specific term at issue, the same cannot apply to consumers ‘given the occasional, or even exceptional, nature of the conclusion of a contract containing such a term’ (para 60).

'Teaching Consumer Law in a Changing Environment' conference - call for papers

The Teaching Consumer Law conference returns to Santa Fe this year on 17-18 May. You may reply to the call for papers for another week, with the deadline set on February 15.

Further details of the call for papers may be found here and of the conference - here. 

Passengers acting to avoid flight delay = no compensation

In two judgments issued on 25 January, the CJEU addressed questions related to the passengers’ right to claim compensation for a long flight delay. The unusual aspect of both cases is that in neither of them passengers actually experienced the delay, having decided to forego the delayed flight. Unsurprisingly, the CJEU decided in both cases that they could not then claim compensation from Regulation 261/2004.

C-474/22 - Laudamotion 

In this case, a passenger in expectation of the delay, which would have led him to not make the business meeting he was to travel for, decided to stay home rather than go to the airport. His flight arrived at the final destination with a delay of 3 hours 22 minutes.

The CJEU emphasised that the loss of time that the compensation aims to alleviate is „not damage arising out of delay” but an inconvenience (para 27). All passengers experience it the same way, which allowed to standardise the compensatory measure. Contrary, however, to cancelled flights in case of a flight delay to be eligible for claiming compensation passengers need to present to check-in at the airport (para 30). In this case, the passenger was then not eligible for compensation as he did not present himself for check-in. However, the Court reminded that the passenger could claim further compensation pursuant to Art. 12 Regulation 261/2004 for individual damage, e.g., arising due to having missed the business meeting (paras 32-33).

C-54/23 - Laudamotion and Ryanair 

Here, the passenger avoided the flight delay of 6 hours by booking themselves on an alternative flight, which arrived at the final destination with a delay of fewer than 3 hours.

The CJEU focuses on the fact that the passenger did not experience the inconvenience of a long delay, the loss of time, and therefore is also not eligible for the compensation (para 22). The Court notes that the passenger could have experienced an inconvenience as they had to find an alternative means of transport themselves, but that is not a serious inconvenience pursuant to the Court (para 23). It should be mentioned that also in this case the passenger received some form of redress as they could claim reimbursement for the flight ticket pursuant to national law. 

Both cases then limit the application of the Regulation 261/2004 but in a way consistent with the objective of high level of passenger protection. Passengers are not left without a recourse for claiming compensation for individual damages.

Consumer law and automated decision making: the work of ELI

At the end of 2023, the European Law Insitute published its Interim Report on EU Consumer Law and Automated Decision Making, answering whether EU Consumer Law is ready for automated decision-making, and observing this question through the lens of a relationship between the consumer, the digital assistant and the trader. The Report sets out eight Principles that should be followed to make EU consumer law ready for automated decision-making. 

On the 31st of January 2024, ELI will host a webinar that is open to everyone. 

For more information, follow this link.

Facilitating enforcement of unfairness control - CJEU in Getin Noble Bank and Others (C-531/22)

Happy 2024 Dear Readers!

We are starting a new year of reporting with the reference to the last week's judgment in the Polish case referred to the CJEU as Getin Noble Bank and Others (C-531/22 - not yet available in English, but accessible in other languages). This judgments continues to provide guidance on the application of the Unfair Contract Terms Directive to terms in mortgage contracts indexed in Swiss Francs. The CJEU considered two questions/issues: 

1. Ex officio judicial authority to test unfairness while overseeing enforcement of a final payment order with res judicata status

To not keep you in suspense: The CJEU decided that national courts may ex officio assess unfairness in such circumstances, provided that: 1) national law did not allow for unfairness test at the moment of issuing of a payment order, or 2) if such unfairness test is only allowed if a consumer would have objected to the issued payment order, provided that there is a significant risk that a given consumer is not going to issue an objection. This risk could result from: the short time allowed for filing the objection, objection's costs compared to the debt amount, or the lack of obligation to provide consumer with all the information necessary to determine their rights in this respect (para 61). This is, in large extent, confirming Court's previous judgment in Leasing România judgment (C-725/19) (paras 50-51).

This is an important judgment to address some inefficiencies of the Polish civil law procedure that may limit the scope of the unfairness testing. Specifically, payment orders may be issued by Polish courts upon an electronic request by creditors, without the courts having either legal or technical access to contractual documents, on the basis of which this payment order is issued. If the debtor does not file an objection to the issued payment order within 2 weeks from its delivery, they become final with the res judicata status. This means that they may not be further questioned in enforcement proceedings (para 49). As the CJEU previously considered a 2 week timeframe too short to reasonably give a chance to consumers to file an objection (paras 54-55), this judgment clearly indicates the lack of compliance of the Polish civil procedural rules with the effective consumer protection framework against unfair contract terms. This finding is not weakened by the inertia of the consumer during previous judicial proceedings with them as a party, as the option to file an objection to the payment order is the only opportunity for the consumer to procedurally stop the enforcement proceedings, and as such the consumer needs to be given a real chance to do so (considering the timeframe, costs etc.) (para 60).

2. Recognition of an unfair character of a contract term, upon it having been entered into a register of unfair contract terms, also in subsequent judicial proceedings against a given consumer, even with a different trader involved and when the term has been differently drafted, but when it retained the same substance and led to the same consequences.

The CJEU first (paras 69-73) recalls the conditions for the validity of a register of unfair contract terms in national legal systems, which were first discussed in the Biuro case (see our comment here). Pursuant to the Court, the opportunity for national courts to compare a given contract term to a term already entered into a register after previous judicial proceedings, may lead to a more efficient and faster enforcement of the unfairness control, freeing consumers from harmful consequences of unfair terms in many contracts simultaneously (para 75). The finding of unfairness of a given term could then indeed be recognised and applied also in subsequent judicial proceedings - even with a different trader involved, and when the term has been differently drafted, but when it retained the same substance and led to the same consequences (para 78).

Consequences of unfair core terms - CJEU in mBank (C-140/22)

Last Thursday the CJEU issued a new judgment in the saga of Swiss francs mortgage loan contracts (C-140/22 - there is no English language text available yet). It was a Polish court who asked for a clarification of a few issues related to voiding such contracts as a result of them containing an unfair contract term, the removal of which would not enable the contract to remain in force.

Declaring unfairness 

The CJEU recalls its past judgment emphasising the obligation of national courts to assess (un)fairness of contract terms and ensure that any finding of unfairness results is fully remedied (Karel de Grote-Hogeschool Katholieke Hogeschool Antwerpen C-147/16 - with our comment - and Abanca C-70/17 - with our comment) (paras 53-55). Previous case law mentioned that consumers could, however, object to national courts attaching all the consequences resulting from finding of an unfair contract term, pursuant to the UCTD. Namely, when consumers are informed by courts about the presence of an unfair contract term in their contract, they could then decide, while fully informed, to still be bound by that term, which would give effect to the freedom of contract  and the UCTD's protection (para 57). The CJEU rightly emphasises now that this right for consumers to object to courts applying the UCTD provisions should not be interpreted as placing an obligation on consumers to declare that they do not object to the UCTD's application (para 56). This could deter consumers from benefiting from the scope of the UCTD's protection and further discourage traders from agreeing to consumers' out-of-court settlement claims (para 61). The CJEU reminds also that even if consumers are not present at court, the CJEU has an obligation to ex officio assess the unfairness of a contract term and apply the consequences following from the UCTD (para 60).

In short, the CJEU decided that the Unfair Contract Terms Directive should not be interpreted by national courts as requiring consumers to declare: 1) their consent to voiding an unfair contract term; 2) their awareness of the consequences that this voidness would have (voiding the whole contract); and 3) their consent to voiding the whole contract.

Financial consequences of unfairness

The CJEU recalls that when a mortgage loan contract is declared void, due to the finding of an unfair core term, consumers should only reimburse the bank by the amount of a borrowed loan, and possibly also statutory interest if they delay this reimbursement (para 62; also Bank M, C-520/21 - see our comment). Any further claims for reimbursement by banks would limit the deterrent effect of the UCTD (para 63).

Consequently, if as the result of finding an unfair core contract term the entire mortgage loan contract is voided, the UCTD prohibits national courts from calculating the impact of that voidness in a way that deducts from the consumer compensation of loan amounts paid to the bank, amounts of interest that the bank would have received if the contract remained in force.