ZH and KN v AxFina Hungary Zrt.

• Jurisdiction: European Union
• Celex Number: 62023CJ0630
• ECLI: ECLI:EU:C:2025:302
• Date: 30 April 2025
• Docket Number: C-630/23
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

30 April 2025 (*)

( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Leasing agreement denominated in a foreign currency – Articles 6 and 7 – Unfair term placing the exchange rate risk on the consumer – Effects of a finding that the term is unfair – Invalidity of the contract – Effects of the annulment of the contract in its entirety )

In Case C‑630/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Kúria (Supreme Court, Hungary), made by decision of 26 September 2023, received at the Court on 17 October 2023, in the proceedings

ZH,

KN

v

AxFina Hungary Zrt.,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, E. Regan and B. Smulders (Rapporteur), Judges,

Advocate General: D. Spielmann,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– ZH and KN, by L. Marczingós, ügyvéd,

– AxFina Hungary Zrt., by G. Stanka, ügyvéd,

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

– the European Commission, by P. Kienapfel and Zs. Teleki, 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 1(2), Article 6(1) and Article 7(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 ZH and KN (together, ‘the two consumers’) and AxFina Hungary Zrt. (‘AxFina’) concerning the legal consequences of the removal of a term relating to exchange rate risk in a leasing agreement denominated in a foreign currency made between AxFina and ZH (‘the term relating to exchange rate risk’).

Legal context

European Union law

3 The twenty-first and twenty-fourth recitals of Directive 93/13 state:

‘Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions;

…

Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.

4 As provided in Article 1(2) of that directive:

‘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 [European] Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

5 Article 6(1) of that 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 that directive is worded as follows:

‘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.’

Hungarian law

The previous Civil Code

7 Paragraph 209/A of the Polgári Törvénykönyvről szóló 1959. évi IV. törvény (Law No IV of 1959 establishing the Civil Code), in the version applicable to the dispute in the main proceedings (‘the previous Civil Code’), provides that, in consumer contracts, unfair terms which are included as standard contract terms, or which the seller or supplier has pre-formulated unilaterally and without individual negotiation, are to be invalid. Under that Paragraph 209/A, invalidity may be invoked only in favour of the consumer.

8 Under Paragraph 237(1) of the previous Civil Code, if the contract is invalid, the situation prevailing prior to the conclusion of that contract is to be restored.

9 Under Paragraph 237(2) of that code:

‘If it is impossible to restore the situation prevailing prior to the conclusion of the invalid contract, the court may declare the contract applicable until it has given a ruling. The contract may be declared valid if the cause of invalidity can be eliminated, in particular by eliminating the disproportionate advantage where there is a lack of proportionality between the performance required of each of the parties and in usurious contracts. In such cases, the restitution of any performance outstanding shall be ordered, if need be without consideration.’

10 It is apparent from Paragraph 361(1) of that code that any person who obtains an economic advantage at the expense of another is to be obliged to restore that advantage.

11 Under Paragraph 363 of that code, ‘the provisions on possession without title … shall apply to the restoration of economic advantages related to financial gains; the person obliged to restore the advantage shall be entitled to demand reimbursement of expenses necessarily incurred in relation thereto’.

The DH1 Law

12 Paragraph 3(1) and (2) 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 on specific matters relating to the decision of the Kúria (Supreme Court, Hungary) to ensure consistency in the interpretation of civil-law provisions concerning loan agreements concluded by credit institutions with consumers), in the version applicable to the dispute in the main proceedings (‘the DH1 Law’), provides:

‘1. In loan 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 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, shall be void.

2. … instead of the void term referred to in subparagraph 1, the official exchange rate set by the Magyar Nemzeti Bank [(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).’

The DH2 Law

13 Paragraph 3(1) of the Kúriának a pénzügyi intézmények fogyasztói kölcsönszerződéseire vonatkozó jogegységi határozatával kapcsolatos egyes kérdések rendezéséről szóló 2014. évi XXXVIII. törvényben rögzített elszámolás szabályairól és egyes egyéb rendelkezésekről szóló 2014. évi XL. törvény (Law No XL of 2014 on the rules governing the settlement of accounts provided for in Law No XXXVIII of 2014 on specific matters relating to the decision of the Kúria (Supreme Court) to ensure consistency in the interpretation of civil-law provisions concerning loan agreements concluded by credit institutions with consumers and miscellaneous other provisions), in the version applicable to the dispute in the main proceedings (‘the DH2 Law’), provides:

‘In the case of performance in respect of a term that is void under Paragraph 3(1) of [the DH1 Law], the difference between the amount of credit granted pursuant to that term and that resulting from a conversion in accordance with subparagraph 2, and between the sums reimbursed pursuant to that term and those resulting from a conversion in accordance with subparagraph 2, shall be counted in favour of the consumer as an overpayment attributable to an exchange rate difference.’

14 Paragraph 37(1) of the DH2 Law provides:

‘In relation to contracts falling within the scope of this Law, the parties may apply to the court for a declaration of invalidity of the contract or of certain contractual terms … – irrespective of the grounds for such invalidity – only if they also apply for a determination of the legal consequences of invalidity (namely, a declaration of validity or effectiveness of the contract up to the time of adoption of the [invalidity] decision). …’

The DH7 Law

15 Paragraph 3 of the egyes fogyasztói kölcsönszerződésekből eredő követelések forintra átváltásával kapcsolatos kérdések rendezéséről szóló 2015. évi CXLV. törvény (Law No CXLV of 2015 on matters relating to the conversion into forint of certain debts resulting from consumer loan agreements), in the version applicable to the dispute in the main proceedings (‘the DH7 Law’), provides:

‘The credit institution shall be required

(a) to convert debts owed to it under loan agreements denominated in foreign currencies and falling within the scope of this Law into debts denominated in forint (“conversion into forint”) in accordance with Chapter 4,

(b) to convert debts owed to it under loan agreements denominated in foreign currencies and falling within the scope of this Law that have been concluded with consumers, and that have already been dissolved, into debts denominated in forint in accordance with Chapter 5.’

16 Paragraph 9(1) of the DH7 Law provides:

‘A loan agreement denominated in a foreign currency in accordance with this Chapter may not be altered to the detriment of the consumer concerned as regards the level of interest, fees and costs related to the transaction.’

17 Under Paragraph 12(1) of that law:

‘The exchange rate to be applied for the conversion into forint shall be the exchange rate officially set by the...