Banif Plus Bank Zrt v Csaba Csipai and Viktória Csipai.

• Jurisdiction: European Union
• Celex Number: 62011CJ0472
• ECLI: ECLI:EU:C:2013:88
• Docket Number: C‑472/11
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 21 February 2013

JUDGMENT OF THE COURT (First Chamber)

21 February 2013 (*1 )

‛Directive 93/13/EEC — Unfair terms in consumer contracts — Examination by the national court, of its own motion, as to whether a term is unfair — Obligation on the national court, once it has found, of its own motion, that a term is unfair, to invite the parties to submit their observations before drawing conclusions from that finding — Contractual terms to be taken into account in the assessment of that unfairness’

In Case C-472/11,

REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi Bíróság (now the Fővárosi Törvényszék) (Hungary), made by decision of 16 June 2011, received at the Court on 16 September 2011, in the proceedings

Banif Plus Bank Zrt

v

Csaba Csipai,

Viktória Csipai,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, M. Ilešič, E. Levits, M. Safjan and M. Berger (Rapporteur), Judges,

Advocate General: P. Mengozzi,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 12 September 2012,

after considering the observations submitted on behalf of:

— Banif Plus Bank Zrt, by E. Héjja, ügyvéd,

— the Hungarian Government, by Z. Fehér and K. Szíjjártó, acting as Agents,

— the Spanish Government, by S. Martínez-Lage Sobredo, acting as Agent,

— the Slovak Government, by M. Kianička, acting as Agent,

— the European Commission, by B. Simon and M. van Beek, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) (‘the Directive’).

2 The request has been made in proceedings between Banif Plus Bank Zrt (‘Banif Plus Bank’) and Mr and Mrs Csipai concerning the payment of sums due under a credit agreement in the event of the early termination of that agreement by the lending institution on grounds of conduct attributable to the borrower.

Legal context

European Union law

3 Article 3(1) of the Directive defines an unfair term as follows: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’

4 With regard to the examination as to the unfairness of a term, Article 4(1) of the Directive states: ‘Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.’

5 As regards the effects of a finding that a term is unfair, Article 6(1) of the Directive provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

6 Article 7(1) of the Directive adds: ‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’

National law

7 Under Paragraph 209(1) of the Civil Code, ‘a standard contractual term or a contractual term not negotiated individually in a consumer contract shall be unfair if it establishes the rights and obligations of the parties arising from the contract unilaterally and unjustifiably, in breach of the requirement of good faith and fairness and to the detriment of the party to the contract who did not draw up that term’.

8 Paragraph 209/A(2) of the Civil Code provides that such terms are invalid.

9 Paragraph 2(j) of Government Decree No 18/1999 of 5 February 1999 on terms to be considered unfair in consumer contracts provides: ‘Contract terms are to be presumed unfair, until proven otherwise, if, in particular, they: … (j) oblige the consumer to pay an excessive amount of money if the consumer does not carry out his obligations under the contract, or does not carry out those obligations in accordance with the contract’.

10 Under Paragraph 3(2) of Law No III of 1952 on the Code of Civil Procedure, the court, unless otherwise provided for by law, is bound by the submissions and legal statements submitted by the parties.

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 On 16 June 2006, Mr Csipai concluded a credit agreement with Banif Plus Bank, the term of which was to expire on 15 June 2012.

12 Clause 29 of the agreement drafted in advance by Banif Plus Bank provided that, if that agreement were to be terminated before its expiry for any reason resulting from breach of contract on the part of the borrower or from conduct attributable to him, the borrower would be obliged to pay the sum total of all outstanding instalments, in addition to default interest and costs. The instalments payable included interest on the transaction and an insurance fee, in addition to the capital amount.

13 Mr Csipai last paid an instalment in February 2008. Consequently, Banif Plus Bank terminated the agreement and requested the borrower to pay the outstanding amounts due pursuant to clause 29 of that agreement. As Mr Csipai did not comply with that request, Banif Plus Bank brought an action against him and, on the basis of the rules governing family law, against his wife.

14 In the context of the proceedings pending before it, the Pesti Központi kerületi bíróság (Pest Central District Court), in its capacity as a court of first instance, informed the parties that it took the view that clause 29 was unfair and invited the parties to comment on that matter. Mr Csipai submitted that he considered Banif Plus Bank’s claims to be excessive and that he accepted that there was a justified claim only in relation to the capital sum. Banif Plus Bank disputed the contention that the clause at issue was unfair.

15 By decision of 6 July 2010, the Pesti Központi kerületi bíróság ordered Mr Csipai to pay Banif Plus Bank a sum calculated without application of clause 29 of the agreement.

16 Banif Plus Bank appealed against that decision. In those circumstances, the Fővárosi Bíróság (Budapest Municipal Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Are the procedures of a national court consistent with Article 7(1) of [the Directive] if, where a contract term is held to be unfair, and the parties did not submit a claim to that effect, the court informs them that it holds sentence 4 of clause 29 of the standard contract terms of the loan agreement between the parties to the proceedings to be invalid? That invalidity arises from breach of the legislation, namely Paragraphs 1(1)(c) and 2(j) of Government Decree No 18/1999 … 2. In the circumstances of the first question, is it permissible for the court to direct the parties to the proceedings to make a statement in relation to the contract term in question, so that the legal implications of any unfairness may be established and so that the aims expressed in Article 6(1) of [the Directive] may be achieved?

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