# C_2022064EN.01001901.xml

| 7.2.2022 | EN | Official Journal of the European Union | C 64/19 |
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7.2.2022

EN

Official Journal of the European Union

C 64/19

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Request for a preliminary ruling from the Győri Ítélőtábla (Hungary) lodged on 23 November 2021 — MJ v AxFina Hungary Zrt.

(Case C-705/21)

(2022/C 64/30)

Language of the case: Hungarian

Referring court

Győri Ítélőtábla

Parties to the main proceedings

Appellant: MJ

Respondent: AxFina Hungary Zrt.

Questions referred

| 1. | Do Article 6(1) and Article 7(1) of Council Directive 93/13/EEC on unfair terms in consumer contracts preclude an interpretation of national law to the effect that the legal consequences of invalidity derived from an unfair term in a consumer contract, where the unfair term relates to the principal subject of the transaction and, as a result, the (loan) contract cannot continue to exist without the term considered to be unfair, are that, after it has declared that the contract as a whole is invalid — in other words, that the contract as a whole cannot (1) continue in existence and cannot create binding legal effects for the consumer — the national court






  (a) | declares that the contract is valid and in so doing converts into Hungarian forints the account currency of the loan granted, which constitutes the main subject matter of the contract, and replaces that sum denominated in the account currency with the amount in forints that the consumer has effectively received from the lender, and at the same time calculates (replaces) the ordinary interest on the principal amount so determined in a different manner from the method that was used to calculate that interest in the contract declared invalid, such that the ‘initial’ interest rate at the time when the contract was concluded is equal to the value of the Budapest interbank lending rate in forints (BUBOR), used as a reference rate, which was in force at the time when the contract was concluded, plus the interest rate differential set in the original contract (denominated in foreign currency), |
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1.

Do Article 6(1) and Article 7(1) of Council Directive 93/13/EEC on unfair terms in consumer contracts preclude an interpretation of national law to the effect that the legal consequences of invalidity derived from an unfair term in a consumer contract, where the unfair term relates to the principal subject of the transaction and, as a result, the (loan) contract cannot continue to exist without the term considered to be unfair, are that, after it has declared that the contract as a whole is invalid — in other words, that the contract as a whole cannot (1) continue in existence and cannot create binding legal effects for the consumer — the national court

(a)

declares that the contract is valid and in so doing converts into Hungarian forints the account currency of the loan granted, which constitutes the main subject matter of the contract, and replaces that sum denominated in the account currency with the amount in forints that the consumer has effectively received from the lender, and at the same time calculates (replaces) the ordinary interest on the principal amount so determined in a different manner from the method that was used to calculate that interest in the contract declared invalid, such that the ‘initial’ interest rate at the time when the contract was concluded is equal to the value of the Budapest interbank lending rate in forints (BUBOR), used as a reference rate, which was in force at the time when the contract was concluded, plus the interest rate differential set in the original contract (denominated in foreign currency),

| (b) | declares that the contract is valid and in so doing sets a ceiling on the conversion rate between the foreign currency and the Hungarian forint, in other words, reduces the exchange rate risk actually assumed by the consumer as a result of the unfair term in the contract to a level which the court considers reasonable and which the consumer may have taken into consideration when the contract was concluded, leaving the interest rate set in the contract unchanged until the date of the mandatory conversion into forints stipulated by a subsequent law? |
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(b)

declares that the contract is valid and in so doing sets a ceiling on the conversion rate between the foreign currency and the Hungarian forint, in other words, reduces the exchange rate risk actually assumed by the consumer as a result of the unfair term in the contract to a level which the court considers reasonable and which the consumer may have taken into consideration when the contract was concluded, leaving the interest rate set in the contract unchanged until the date of the mandatory conversion into forints stipulated by a subsequent law?

| 2. | For the purposes of answering question 1, is it significant that the declaration of validity which is made under Hungarian law






  (a) | is made in a factual situation in which a contract between the parties still exists, in other words, in which the continuation of the contract is intended to enable the legal relationship between the parties to continue to exist in the future by means of a retroactive correction of the terms considered to be unfair — while also recalculating, by means of the amended terms, the performance carried out up to that point — and thereby also protects the consumer from the particularly harmful effects of an obligation to repay the total amount immediately; |
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2.

For the purposes of answering question 1, is it significant that the declaration of validity which is made under Hungarian law

(a)

is made in a factual situation in which a contract between the parties still exists, in other words, in which the continuation of the contract is intended to enable the legal relationship between the parties to continue to exist in the future by means of a retroactive correction of the terms considered to be unfair — while also recalculating, by means of the amended terms, the performance carried out up to that point — and thereby also protects the consumer from the particularly harmful effects of an obligation to repay the total amount immediately;

| (b) | or is made in a factual situation in which the contract between the parties to be examined in the proceedings relating to an unfair contract term no longer exists — because the contract has expired, because the creditor terminated the contract early on the ground of non-payment of instalments or on the ground that the amount paid is insufficient, or, in any event, because the real situation is that neither party considers the contract to be valid or because the issue of the invalidity of the contract can no longer be raised on account of a previous judicial decision — in other words, a situation in which the declaration of validity of the contract with retroactive effect does not serve to keep the contract in existence in the interests of the consumer but rather to enable the discharge of mutual obligations and the termination of the legal relationship by means of correction of the term(s) declared unfair? |
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(b)

or is made in a factual situation in which the contract between the parties to be examined in the proceedings relating to an unfair contract term no longer exists — because the contract has expired, because the creditor terminated the contract early on the ground of non-payment of instalments or on the ground that the amount paid is insufficient, or, in any event, because the real situation is that neither party considers the contract to be valid or because the issue of the invalidity of the contract can no longer be raised on account of a previous judicial decision — in other words, a situation in which the declaration of validity of the contract with retroactive effect does not serve to keep the contract in existence in the interests of the consumer but rather to enable the discharge of mutual obligations and the termination of the legal relationship by means of correction of the term(s) declared unfair?

| 3. | In the event of an affirmative reply to question 1(a) or (b), and taking account also of the matters set out in question 2, do the relevant provisions of Directive 93/13/EEC preclude, in the factual situation described in question 2(a), the continued existence of the contract, effected through substitution of the unfair term, until the date of the amendment laid down by the legislature in the Law on conversion into forints, by means of national statutory provisions pursuant to which:






  — | unless otherwise provided (which is not the case in the present instance), monetary debts must be paid in the legal tender of the place of performance of the obligation; |
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3.

In the event of an affirmative reply to question 1(a) or (b), and taking account also of the matters set out in question 2, do the relevant provisions of Directive 93/13/EEC preclude, in the factual situation described in question 2(a), the continued existence of the contract, effected through substitution of the unfair term, until the date of the amendment laid down by the legislature in the Law on conversion into forints, by means of national statutory provisions pursuant to which:

—

unless otherwise provided (which is not the case in the present instance), monetary debts must be paid in the legal tender of the place of performance of the obligation;

| — | interest is chargeable in contractual relationships, subject to the exception laid down by the provision; |
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—

interest is chargeable in contractual relationships, subject to the exception laid down by the provision;

| — | the interest rate is to be equal to the central bank base rate, subject to the exception laid down in the provision. |
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—

the interest rate is to be equal to the central bank base rate, subject to the exception laid down in the provision.

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(1)  OJ 1993 L 95, p. 29, Special edition in Hungarian Chapter 15 Volume 002 P. 288.

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