Opinion of Advocate General Tanchev delivered on 3 May 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0051
• ECLI: ECLI:EU:C:2018:303
• Date: 03 May 2018
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-51/17

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 3 May 2018(1)

Case C‑51/17

OTP Bank Nyrt.

OTP Faktoring Követeléskezelő Zrt.

v

Teréz Ilyés

Emil Kiss

(Request for a preliminary ruling from the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary))

(Consumer protection — Unfair terms in consumer contracts — Credit agreements denominated in a foreign currency — Member State statutory measures passed to remedy unfair contractual terms — Article 4(2) of Directive 93/13/EEC and ‘plain intelligible language’ — Article 1(2) of Directive 93/13 and ‘mandatory statutory or regulatory provisions’ — Powers of Member State courts to assess contractual terms for unfairness of their own motion)

1. This reference for a preliminary from the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary) concerns another dispute (2) following up from the ruling of the Court of 30 April 2014 in Kásler and KáslernéRábai (‘ Kásler’), (3) which addressed the compatibility with EU law of clauses of consumer credit agreements in Hungary which were denominated in foreign currency, and notably Swiss Francs.

2. There the Court ruled, inter alia, on the meaning of the term the ‘main subject matter of the contract’ under Article 4(2) of Council Directive 93/13/EEC on unfair terms in consumer contracts. (4) It was then for the Kúria (Supreme Court of Hungary), the national referring court in that case, to decide whether the contractual terms in issue fell, in principle, outside of the protection provided by Directive 93/13. At the same time the Court supplied criteria for the Kúria to apply to determine whether such clauses were drafted in ‘plain intelligible language’ which, also pursuant to Article 4(2) of Directive 93/13, provides an exception to this exclusion.

3. In essence, Téréz Ilyés and Emil Kiss, the applicants at first instance in the main proceedings (‘the applicants’) take issue with the remedial regime put in place by the Hungarian legislature in the light of the Court’s ruling in Kásler, and the ensuing judgment of the Kúria, contending that this regime leaves the exchange rate risk with consumers in circumstances that lead to violation of transparency obligations imposed by Directive 93/13.

I. Legal framework

A. EU law

4. The second paragraph of Article 1(2) of Directive 93/13 states:

‘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(1) of Directive 93/13 states:

‘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.’

6. Article 4 of Directive 93/13 states:

‘1. 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.

2. 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 3(3) of Directive 93/13 states that the Annex to Directive 93/13 supplies an indicative and non-exhaustive list of clauses that may be regarded as unfair. Point 1(i) of the Annex refers to:

‘Terms which have the object or effect of:

irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract’.

8. Article 6(1) of Directive 93/13 states:

‘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.’

9. Article 7(1) of Directive 93/13 states:

‘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.’

B. Hungarian law

1. Law a hitelintézetekről és pénzügyi vállalkozásokról szóló 1996. évi CXII törvény (Law CXII of 1996 on credit institutions and financial institutions , ‘the Hpt’)

10. Paragraph 203 of the Hpt states:

‘1. The financial institution must inform both its current and potential clients, in a plain and intelligible manner, of the conditions for using the services they provide, and the amendments to those conditions …

6. In the case of contracts concluded with retail clients granting a foreign currency loan or containing an option to purchase real property, the financial institution must explain to the client the risk he bears in the contractual operation and the client shall append his signature to confirm that he is aware thereof.’

2. Law DH1

11. Article 1(1) of A Kúriának a pénzügyi intézmények fogyasztói kölcsönszerződéseire vonatkozó jogegységi határozatával kapcsolatos egyes kérdések rendezéséről szóló 2014. évi XXXVIII. törvény (Law XXXVIII of 2014 governing specific matters relating to the decision of the Kúria to harmonise the case-law on loan agreements concluded between credit institutions and consumers; ‘Law DH1’) states:

‘[This law is to apply] to consumer loan agreements concluded between 1 May 2004 and the date of entry into force of this Law. In the application of this Law the concept of “consumer loan agreement” shall cover any foreign exchange based (linked to, or denominated in, a foreign currency and repaid in forint) or forint based credit or loan agreement, or any financial leasing agreement, concluded between a financial institution and a consumer, if it incorporates standard contract terms or any contract term which has not been individually negotiated, containing a clause provided for in Article 3(1) or Article 4(1).’

12. Article 3 of Law DH1 states:

‘1. In credit agreements concluded with consumers, terms — with the exception of contractual terms which have been individually negotiated — pursuant to which the credit institution stipulates that, for the purpose of paying out the amount of finance granted for 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, shall be void.

2. Instead of the void term referred to in paragraph 1 … the official exchange rate set by the [National Bank of Hungary] for the foreign currency concerned shall 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).

…

5. The financial institution must clear accounts with the consumer in accordance with the provisions of a special law.’

3. Law DH3

13. Article 3(1) of Az egyes fogyasztói kölcsönszerződések devizanemének módosulásával és a kamatszabályokkal kapcsolatos kérdések rendezéséről szóló 2014. évi LXXVII. törvény (Law LXXVII of 2014 governing various matters relating to alteration of the foreign currency in which loan agreements with consumers are denominated and the provisions relating to interest; ‘Law DH3’) states that:

‘loan agreements concluded with consumers shall be amended by operation of this Law, in accordance with its provisions.’

14. Article 10 of Law DH3 states:

‘As regards foreign currency mortgage loan agreements and foreign currency based mortgage loan agreements concluded with consumers, the credit institution to which the debt is owed shall be required, within the period laid down for fulfilment of the obligation to settle accounts under [Law DH2], to convert into a loan denominated in forint the debt under a foreign currency mortgage loan agreement or a foreign currency based mortgage loan agreement concluded with a consumer, or the total debt derived from that agreement (also including interest, fees, commissions and costs charged in the foreign currency), both of which must be calculated on the basis of the settlement of accounts under [Law DH2]. For the purposes of that conversion, whichever of the following two interest rates is the most favourable to the consumer on the reference date shall apply:

(a) the average exchange rate for the foreign currency concerned officially set by the National Bank of Hungary in the period from 16 June 2014 to 7 November 2014, or

(b) the exchange rate for the foreign currency concerned officially set by the National Bank of Hungary on 7 November 2014.’

II. Facts, procedure and the questions referred.

15. On 15 February 2008 the applicants concluded a contract for a loan denominated in Swiss Francs at an interest rate of 1.9 % with ELLA Első Lakáshitel Kereskedelmi Bank Zrt. On 1 November 2016 the loan was transferred from an intermediary to OTP Bank Nyrt., who then assigned to OTP Faktoring Követléskezelő Zrt. (the defendents at first instance, ‘the defendants’).

16. Under this contract, the creditor was to disburse a maximum amount of 30 075 000 Hungarian forint (HUF), an amount which included a disbursement commission of HUF 75 000 and which at the time the contract was concluded was equivalent to 212 831 Swiss francs...