JZ v OTP Jelzálogbank Zrt. and Others.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:673
• Date: 02 September 2021
• Docket Number: C-932/19
• Celex Number: 62019CJ0932
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

2 September 2021 (*)

(Reference for a preliminary ruling – Consumer protection – Unfair terms – Directive 93/13/EEC – Article 1(2) – Article 6(1) – Loan denominated in foreign currency – Difference between the exchange rate applicable when the loaned funds are released and when they are repaid – Member State legislation providing for the replacement of an unfair term by a provision of national law – Possibility for the national court to invalidate the entire agreement containing the unfair term – Possible consideration of the protection offered by that legislation and of the consumer’s wishes regarding its application)

In Case C‑932/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Győri Ítélőtábla (Győr Regional Court of Appeal, Hungary), made by decision of 10 December 2019, received at the Court on 20 December 2019, in the proceedings

JZ

v

OTP Jelzálogbank Zrt.,

OTP Bank Nyrt.,

OTP Faktoring Követeléskezelő Zrt.,

THE COURT (Sixth Chamber),

composed of L. Bay Larsen, President of the Chamber, C. Toader and N. Jääskinen (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– JZ, by L. Marczingós, ügyvéd,

– OTP Jelzálogbank Zrt., OTP Bank Nyrt. and OTP Faktoring Követeléskezelő Zrt., by A. Lendvai, ügyvéd,

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

– the European Commission, by L. Havas and N. Ruiz García, 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 Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 The request has been made in proceedings between JZ and OTP Jelzálogbank Zrt., OTP Bank Nyrt. and OTP Faktoring Követeléskezelő Zrt. (together, ‘OTP Jelzálogbank and Others’) concerning an application for cancellation of loan agreements based on the unfairness of certain terms in those agreements.

Legal context

European Union law

3 According to the thirteenth recital of Directive 93/13:

‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’.

4 Article 1(2) of that directive provides:

‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

5 Article 3 of that directive is worded as follows:

‘1. 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.

2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

…’

6 Article 4(2) of the same directive states:

‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

7 Article 6(1) of Directive 93/13 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.’

Hungarian law

8 Article 1(1) of the Kúriának a pénzügyi intézmények fogyasztói kölcsönszerződéseire vonatkozó jogegységi határozatával kapcsolatos egyes kérdések rendezéséről szóló 2014. évi XXXVIII. törvény (Law No XXXVIII of 2014 regulating specific matters relating to the decision of the Kúria (Supreme Court, Hungary) to safeguard the uniformity of the law concerning loan agreements concluded by financial institutions with consumers; ‘Law DH 1’) provides:

‘This Law shall apply to loan agreements concluded with consumers between 1 May 2004 and the date of entry into force of this Law. For the purposes of this Law, loan or leasing agreements based on foreign currencies (registered in a foreign currency or granted in a foreign currency and repaid in forint) or on forint and concluded between a financial institution and a consumer shall be regarded as loan agreements concluded with consumers if a general term or a non-individually negotiated term within the meaning of Article 3(1) or Article 4(1) is incorporated into that agreement.’

9 Under Article 3(1) and (2) of that law:

‘1. In loan agreements concluded with consumers, terms – with the exception of contractual terms which have been individually negotiated – pursuant to which the financial institution stipulates that, for the purpose of paying out the amount of finance granted for the purchase of the subject of the loan or financial leasing, the buying rate is to apply, and that, for the purpose of repayment of the debt, the selling rate, or a different exchange rate from that set when the loan was paid out, is to apply, are to be void.

2. Without prejudice to the provision contained in subparagraph 3, instead of the void term referred to in subparagraph 1, the official exchange rate set by the National Bank of Hungary for the foreign currency concerned is to apply in relation to the disbursement and repayment of the loan (including payment of the instalments and all the costs, fees and commissions expressed in foreign currency).’

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

10 The applicant in the main proceedings is a consumer domiciled in Hungary. The defendants in the main proceedings are three financial institutions whose registered office is also in Hungary.

11 On 16 May 2007, the applicant in the main proceedings concluded a personal loan agreement with OTP Bank. On 4 June 2007, he concluded, with OTP Jelzálogbank and OTP Bank, a housing loan agreement secured by a mortgage. On 4 September 2008, he entered into a loan agreement with OTP Bank with a view to repaying an earlier debt. The loans granted under those three agreements were all denominated in foreign currency.

12 Subsequently, the first two agreements were terminated by OTP Bank and OTP Jelzálogbank, which assigned their claims to OTP Faktoring Követeléskezelő. By contrast, the third agreement came to an end following its performance by the applicant in the main proceedings.

13 In the action which he brought before the Veszprémi Törvényszék (Court of Veszprem, Hungary) ruling at first instance, the applicant in the main proceedings claimed that the three abovementioned loan agreements were void, pleading, more specifically, the unfairness of the terms of those agreements which stipulated that the exchange rate applicable when the loaned funds were released was different from that applicable in respect of their repayment. By judgment of 3 July 2019, the court of first instance dismissed that action as unfounded.

14 The applicant in the main proceedings brought an appeal against that judgment before the referring court, the Győri Ítélőtábla (Győr Regional Court of Appeal, Hungary), claiming in particular, first, that the consequences of the unfairness of such terms relating to an exchange difference had to be determined in accordance with the judgment of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819), and, secondly, that the information which had been provided to him by the lenders regarding the exchange risk was insufficient.

15 It is apparent from the order for reference that, in 2014, the Hungarian legislature adopted various provisions designed to remedy terms which fix, in an unfair manner, the exchange rate in loan agreements denominated in foreign currency concluded with consumers. Thus, under Article 3(1) of Law DH 1, a term in such an agreement which stipulates that, as regards the release of funds, the buying rate of exchange of the currency concerned is applicable, whereas, as regards the repayment, it is the selling rate of exchange for that currency which is to be applied, or any other exchange rate different from that applied at the time of that release, is to be void, unless it has been individually negotiated. In addition, paragraph 2 of that article states that the term relating to the exchange difference thus declared void is to be replaced, under that law, by a provision intended to apply a single exchange rate, which is fixed by the National Bank of Hungary, for the currency concerned.

16 The order for reference also states that, following the judgments of 14 March 2019, Dunai (C‑118/17, EU:C:2019:207), and of 3 October 2019...