Judgment;Summary — ECLI:EU:C:2023:352
Date: 2023-04-27
Language of the case: Hungarian
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Hungary

summary, this Regional Court of Appeal considers it necessary to submit a 
request for a preliminary ruling for the following reasons. 
Pursuant to Article 6(1) of Council Directive 93/13/EEC on unfair terms in 
consumer contracts (‘the Directive’), Member States must lay down that unfair 
terms used in a contract concluded with a consumer by a seller or supplier are, as 
provided for under their national law, not to be binding on the consumer and that 
REQUEST FOR A PRELIMINARY RULING OF 10. 11. 2021 – CASE C-705/21 
 
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the contract is to continue to bind the parties upon those terms if it is capable of 
continuing in existence without the unfair terms. 
Article 7(1) of the Directive provides that Member States are to 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. 
In its judgment in Case C-618/10, Banco Español de Crédito, S. A., the Court of 
Justice ruled that Article 6(1) of the Directive precludes national legislation which 
allows a national court, in the case where it finds that an unfair term in a contract 
concluded between a seller or supplier and a consumer is void, to modify that 
contract by revising the content of that term. According to the grounds of the 
judgment, the aim of the expression ‘shall … not be binding on the consumer’ in 
Article 6(1) of the Directive is to replace the formal balance which the contract 
establishes between the rights and obligations of the parties with an effective 
balance which re-establishes equality between them (paragraph 63). 
In its judgment in Case C-26/13, Kásler and Káslerné Rábai, the Court of Justice 
held that, in a situation such as that at issue in the main proceedings, in which a 
contract concluded between a seller or supplier and a consumer cannot continue in 
existence after an unfair term has been deleted, that provision does not preclude a 
rule of national law enabling the national court to cure the invalidity of that term 
by substituting for it a supplementary provision of national law. The aim of this is 
to ensure that the consumer is not exposed to particularly unfavourable 
consequences which could mean that the dissuasive effect resulting from the 
annulment of the contract would be jeopardised (paragraph 83). If the outstanding 
balance of the loan were to become due forthwith, in an amount which is likely to 
be in excess of the consumer’s financial capacities, that would penalise the 
consumer rather than the lender which, as a consequence, might not be dissuaded 
from inserting such terms in its contracts (paragraph 84). 
It is apparent from the case-law of the Court of Justice that amendment of the 
content of an unfair term is, in principle, not possible, unless, exceptionally, it is 
in the interests of the consumer. The Court of Justice has also pointed out in a 
number of judgments that the aim of Article 7(1) of the Directive is to dissuade 
sellers and suppliers from using unfair terms. The Court has also made clear on a 
number of occasions that the obligation for the national court to exclude an unfair 
contract term imposing the payment of amounts that prove not to be due entails, in 
principle, a corresponding restitutory effect in respect of those same amounts 
(judgments in Cases C-154/15, C-307/15 to C-308/15, Gutiérrez Naranjo and 
Others, paragraphs 61 and 62, and C-698/18 and C-699/18, SC Raiffeisen Bank SA 
and Others, paragraph 54). That is derived from the fact that, in principle, a 
contractual term that has been declared unfair should be treated as never having 
existed, so that it cannot take effect as against a consumer. 
AXFINA HUNGARY 
 
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In the light of the foregoing considerations, this Regional Court of Appeal 
requests a ruling from the Court of Justice on whether, in order to determine the 
legal consequences of invalidity, the detailed rules described in the operative part 
of this decision constitute an appropriate and effective method of deleting unfair 
terms in contracts concluded between a seller or supplier and a consumer, in the 
light of the other criteria set out in the questions referred for a preliminary ruling.  
On those grounds, this Regional Court of Appeal makes a request to the Court of 
Justice, under Article 267 of the Treaty on the Functioning of the European 
Union, for a preliminary ruling on the questions formulated in the operative part 
of this decision. 
The legal provisions to which question 3 refers are Paragraph 231(1) and 
Paragraph 232(1) and (2) of the old Civil Code, which were in force when the 
contract was concluded. 
[…] [Procedural aspects of national law] 
Győr, 10 November 2021. 
[…] 
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