# C_2013156EN.01001801.xml

| 1.6.2013 | EN | Official Journal of the European Union | C 156/18 |
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1.6.2013

EN

Official Journal of the European Union

C 156/18

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Request for a preliminary ruling from the Kúria (Hungary) lodged on 21 January 2013 — Kásler Árpád, Káslerné Rábai Hajnalka v OTP Jelzálogbank Zrt.

(Case C-26/13)

2013/C 156/28

Language of the case: Hungarian

Referring court

Referring court

Kúria

Parties to the main proceedings

Parties to the main proceedings

Applicants: Kásler Árpád, Káslerné Rábai Hajnalka

Applicants:

Defendant: OTP Jelzálogbank Zrt.

Defendant:

Questions referred

Questions referred

| 1. | Must Article 4(2) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘the Directive’) be interpreted as meaning that, in the case of a debt in respect of a loan which is denominated in a foreign currency but, in reality, is advanced in the national currency, and which is repayable by the consumer solely in national currency, the contractual clause concerning the rate of exchange of the currency, which was not individually negotiated, may form part of the ‘definition of the main subject matter of the contract’?
  If that is not the case, on the basis of the second indent of Article 4(2) of the Directive, must it be considered that the difference between the buying rate of exchange and the selling rate of exchange constitutes remuneration whose equivalence with the service provided cannot be analysed from the viewpoint of unfairness? In this regard, does the question whether there has in fact been a foreign exchange operation between the financial entity and the consumer have any impact? |
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1.

Must Article 4(2) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘the Directive’) be interpreted as meaning that, in the case of a debt in respect of a loan which is denominated in a foreign currency but, in reality, is advanced in the national currency, and which is repayable by the consumer solely in national currency, the contractual clause concerning the rate of exchange of the currency, which was not individually negotiated, may form part of the ‘definition of the main subject matter of the contract’?

1

If that is not the case, on the basis of the second indent of Article 4(2) of the Directive, must it be considered that the difference between the buying rate of exchange and the selling rate of exchange constitutes remuneration whose equivalence with the service provided cannot be analysed from the viewpoint of unfairness? In this regard, does the question whether there has in fact been a foreign exchange operation between the financial entity and the consumer have any impact?

| 2. | If it were necessary to interpret Article 4(2) of the Directive as meaning that the national court is also entitled to examine, regardless of the provisions of its national law, the unfairness of the contractual clauses referred to in that article, provided that such clauses are not drafted in a clear and intelligible manner, must it be considered, in the light of the latter requirement, that the contractual clauses must in themselves appear to be clear and intelligible to the consumer from the grammatical point of view or, in addition, must the economic reasons for using the contractual clause and its relationship with the other contractual clauses also be clear and intelligible? |
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2.

If it were necessary to interpret Article 4(2) of the Directive as meaning that the national court is also entitled to examine, regardless of the provisions of its national law, the unfairness of the contractual clauses referred to in that article, provided that such clauses are not drafted in a clear and intelligible manner, must it be considered, in the light of the latter requirement, that the contractual clauses must in themselves appear to be clear and intelligible to the consumer from the grammatical point of view or, in addition, must the economic reasons for using the contractual clause and its relationship with the other contractual clauses also be clear and intelligible?

| 3. | Must Article 6(1) of the Directive and paragraph 73 of the judgment of the Court of Justice in Case C-618/10 Banco Español de Crédito be interpreted as meaning that the national court is not entitled to eliminate, for the benefit of the consumer, [the causes] of ineffectiveness of an unfair clause included in the general conditions of a loan contract concluded with a consumer, amending the contractual clause in question and completing the contract, not even where, otherwise, if such a clause is eliminated, the contract cannot be performed on the basis of the remaining contractual clauses? In that regard, is it relevant that national law contains a provision which, in the event of omission of the ineffective clause, governs [in its place] the legal question at issue? |
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3.

Must Article 6(1) of the Directive and paragraph 73 of the judgment of the Court of Justice in Case C-618/10 Banco Español de Crédito be interpreted as meaning that the national court is not entitled to eliminate, for the benefit of the consumer, [the causes] of ineffectiveness of an unfair clause included in the general conditions of a loan contract concluded with a consumer, amending the contractual clause in question and completing the contract, not even where, otherwise, if such a clause is eliminated, the contract cannot be performed on the basis of the remaining contractual clauses? In that regard, is it relevant that national law contains a provision which, in the event of omission of the ineffective clause, governs [in its place] the legal question at issue?

Banco Español de Crédito

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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