Order;Information — ECLI:EU:C:2025:1023
Date: 2025-12-16
Language of the case: Hungarian
Court formation: Tenth Chamber
Procedure: Reference for a preliminary ruling
Origin: Hungary

Anonymised version 
Translation C-565/23 – 1 
Case C-565/23 
Request for a preliminary ruling 
Date lodged: 
14 September 2023 
Referring court: 
Fővárosi Törvényszék (Hungary) 
Date of the decision to refer: 
13 September 2023 
Appellant: 
AF 
Respondent: 
Cofidis Magyarországi Fióktelepe 
  
[…] 
The Fővárosi Törvényszék (Budapest High Court, Hungary), hearing at second 
instance proceedings initiated by […] AF […], as the appellant, 
against Cofidis Magyarországi Fióktelepe […], as the respondent, 
seeking a declaration of invalidity in respect of a contract denominated in foreign 
currency, makes the following 
ORDER: 
The court of second instance […] refers the following questions to the Court of 
Justice for a preliminary ruling: 
1. In the event that the invalidity (unfair nature of the information 
regarding exchange rate risk) affects the main subject matter of the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2023 – CASE C-565/23 
 
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contract and that an unfair term must be disapplied, is a legal provision 
(Paragraph 37(1) of the DH2 Law) in accordance with Directive 
93/13/EEC […] where, without any examination of whether it is 
possible to perform the contract having been carried out, that provision 
obliges the consumer, in advance, from the moment in which he or she 
makes a claim, to seek a declaration of validity or applicability in 
respect of the contract? 
2. If the court concludes from its examination that it is not possible to 
perform the contract, is it justified in asking the consumer, in the event 
of the total invalidity of the contract, to specify whether he or she 
seeks the restoration of the original situation (C-126/17 and C-472/20) 
or the application of the rules relating to unjust enrichment (C-520/21) 
and to provide the corresponding settlement provided for in procedural 
law? 
[…] [matters of national procedural law] […] GROUNDS 
1. Facts 
On 26 October 2007, the appellant entered into a loan agreement denominated in 
foreign currency […] with the predecessor in law of the respondent (Banif Plus 
Bank Zrt.). In the agreement, the appellant undertook to pay the predecessor in 
law a monthly instalment of 34 572 Hungarian forints (HUF) for sixty months, 
which, with an interest rate of 20.07% and an AER of 24.02%, equates to a total 
of HUF 2 074 320 at the end of the sixty months. The Swiss franc (CHF) was 
designated as the financing currency. It was put in writing that ‘the client is aware 
and accepts that, where a foreign currency is chosen, the principal still to be repaid 
and the repayment instalments may vary due to fluctuations in exchange rates and 
it is the client who assumes the risk relating to such fluctuations’. According to 
point 8 of the General Conditions of Contract, ‘where a loan in foreign currency is 
chosen, the principal amount expressed in forints will vary during the life of the 
agreement according to the fluctuations in the rate of exchange between the forint 
and the foreign currency, determined on a daily basis by OTP Bank Nyrt., as 
stated in the General Conditions of Contract applicable to the loan and in the 
company’s internal regulations’. 
In his claim, the appellant sought to have the agreement declared invalid on the 
basis of the criteria established in the judgment of the Court of Justice in Case 
C-51/17. He relied on the unfair nature of transferring the risk relating to the 
exchange rate to the debtor […]. As a legal consequence of what was ruled in the 
judgment in C-472/20, he sought the restoration of the original situation by means 
of the payment to the appellant, by the respondent, of HUF 1 590 033, a figure 
which represents the difference between the HUF 3 664 353 that he had paid to 
the respondent and the HUF 2 074 320 that he would have had to pay it under the 
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agreement. He also sought the suspension of the of the enforcement procedure 
currently under way […] until the conclusion of these proceedings. 
In its order […] of 24 April 2023, the court of first instance urged the appellant to 
bring a claim pursuant to Paragraph 37 of the DH2 Law, seeking the continued 
existence [of the agreement] inherent in the declaration of validity or applicability 
in respect of the invalid agreement. 
In his submission of 18 May 2023, the appellant referred to the judgment given in 
Case C-705/21, according to which Directive 93/13/EEC precludes the agreement 
from being declared valid or applicable and the settlement of accounts must take 
place according to the rules relating to unjust enrichment. 
The court of first instance made an order declaring the claim inadmissible. In its 
reasoning, it stated that the appellant had not complied with the provisions of the 
DH2 Law and continued to seek the restoration of the original situation, and that, 
[moreover] he had not enclosed a settlement of accounts setting out the details and 
methodology of the revised settlement. 
2. Position of the parties 
The appellant lodged an appeal against the order made at first instance, asking that 
it be set aside and that the court of first instance be obliged to hear the substance 
of the case. Once again, he relied on the fact that, on the basis of the judgment 
given in Case C-705/21, the agreement should not be declared valid or applicable. 
He added that the court must effect the settlement of accounts in accordance with 
that directive and the relevant case-law of the Court of Justice. He emphasised that 
the national judge cannot modify the content of the unfair term. He rejected the 
notion that the obligation to bear the exchange rate risk lay with him, since, prior 
to concluding the agreement, the respondent did not comply with its obligation to 
inform him regarding that risk and, therefore, the unfair nature of the contractual 
term that defines the main obligation to be performed results in the entire 
agreement being invalid. He maintains that it is also incumbent on the national 
court to examine whether the national rules allow the consumer to be restored to 
the legal and factual situation that he or she would have been in, had the 
agreement not been concluded 
The respondent has not made any submission in response to the appeal. 
3. National and European Union legislation applicable to the proceedings 
Relevant Hungarian legislation: 
The Polgári Törvénykönyvről szóló 1959. évi IV. törvény (Law No IV of 1959 
establishing the Civil Code), in the version in force at the time when the 
agreement was concluded, on 26 October 2008. 
REQUEST FOR A PRELIMINARY RULING OF 13. 9. 2023 – CASE C-565/23 
 
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Paragraph 237. ‘(1) If the contract is invalid, the situation prevailing prior 
to the conclusion of that contract shall be restored. 
(2) If it is impossible to restore the situation prevailing prior to the conclusion of 
the contract, the court may declare the contract applicable until it has given a 
ruling. An invalid 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 in usurious contracts. In such cases, the restitution of any performance 
outstanding shall be ordered, if need be without consideration.’ 
Paragraph 361. ‘(1) A person who obtains an economic advantage to 
which he or she is not legally entitled to the detriment of a third party is obliged to 
restore that advantage. 
(2) A person who has lost that enrichment prior to a claim being made for 
restitution is not obliged to make good the enrichment except where: 
a) he or she ought to have anticipated the obligation to make good and can be 
held to be responsible for the loss of the enrichment, or 
b) he or she obtained the enrichment in bad faith. 
(3) If the person to whom the enrichment must be returned has himself or 
herself caused that enrichment through his or her own illicit or immoral conduct, 
the court may, at the request of the prosecutor, award the economic advantage to 
the State. 
2014. évi XL. törvény a 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 (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, Hungary) 
to ensure consistency in the interpretation of civil law provisions concerning loan 
agreements concluded by financial institutions with consumers and other 
miscellaneous provisions; ‘the DH2 Law’). 
Paragraph 37. ‘(1) 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 (“partial invalidity”) – 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 decision). If they do not – and if 
the parties fail to act on a request to remedy the defects – the court may not 
examine the substance of the case. If the parties apply to the court for a 
determination of the legal consequences of total or partial invalidity, they shall 
also state what legal consequences the court should apply. As regards the 
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application of the legal consequences, the parties shall submit a specific, 
quantified claim which also includes the settlement of the accounts between 
them.’ 
1/2010. (VI. 28.) PK vélemény Az érvénytelenség jogkövetkezményeiről 
(Opinion 1/2010, of 28 June, of the full bench of the Civil Division of the 
Supreme Court on the legal consequences of invalidity). 
‘1. The Legfelsőbb Bíróság Polgári Kollégiuma (Supreme Court (Civil 
Division), Hungary) considers opinion PK 32 to be unworkable. 
2. The general legal consequence of invalidity is that that transaction cannot 
create rights; that is, the legal effects intended by the parties cannot be achieved. 
That is the legal consequence which the court must apply of its own motion in the 
case of nullity and which, apart from any exception established by law, may be 
invoked by any person and without any time limit. Nevertheless, where a contract 
is capable of being annulled, that general legal consequence may only be applied 
if the contract is challenged successfully by someone with a legitimate interest in 
doing so. 
Both in the case of nullity and where a contract is capable of being annulled, the 
court will only apply the other legal consequences of invalidity (Paragraph 237 of 
Law No IV of 1959) at the request of a party and respecting the limits as regards 
limitation periods and adverse possession. 
3. The restoration of the original situation may only be effected in kind. Where 
one of the parties is only able to return the thing received by means of the 
payment of its equivalent in money, that does not constitute restoration of the 
original situation. 
4. The return of the benefits received reciprocally under an invalid contract 
may only be effected reciprocally and simultaneously. Only a person who, in turn, 
undertakes to return the benefit received and is capable of doing so may demand 
the return of the benefit provided. 
5. If the cause of the invalidity can be eliminated or is subsequently 
extinguished, the court may declare the invalid contract to be valid, with 
retroactive effect from the date of its conclusion. The possibility of declaring the 
contract valid is equivalent to restoring the original situation. If both are 
applicable, it will be for the judge to decide, exercising his or her discretion, 
which of the two legal consequences of invalidity applies. 
6. Where, on account of irreversibility inherent in the contract from the start or 
arising subsequently, it is not possible or appropriate to restore the situation 
pertaining prior to the conclusion of the contract and the contract cannot be 
declared valid, the court will declare the contract applicable until it gives its 
decision and will order the payment in money of the value of any performance 
completed for which no consideration has been supplied. 
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7. The court may apply a legal consequence of invalidity different from that 
requested by the party, but not one to which all of the parties are opposed. 
8. When the court determines the legal consequences of invalidity, it must 
ensure that it maintains the balance, in terms of value, between the originally 
equivalent benefits, preventing unjust enrichment by either of the parties. 
9. Interest and taxes are ancillary credits that do not fall within the scope of the 
restoration of the original situation and which are based, as an additional factual 
element, on the possession and on the use, for a certain period of time, of the 
amount of money or the thing that must be returned. 
10. Where the parties each enjoy equivalent benefits, neither of them may be 
obliged to pay the other taxes or interest for as long as the contract has not been 
declared invalid in a court judgment. 
Having received the relevant request to do so, a party that unilaterally enjoys the 
benefit of the other party’s performance must pay interest or taxes.’ 
2/2010. (VI. 28.) PK vélemény Az érvénytelenségi perekben felmerülő egyes 
eljárásjogi kérdésekről (Opinion 2/2010/VI.28./PK of the Mixed Civil Chamber of 
the Legfelsőbb Bíróság (Supreme Court of Hungary), of 28 June 2010, on certain 
matters of procedural law arising in invalidity proceedings). 
‘2. In a claim (counterclaim) which, based on the invalidity of the contract, 
seeks the continued existence of the contract, the party must state precisely which 
of the legal consequences of invalidity he or she wishes the court to apply and 
with what content. 
[…] 
7. Where the restoration of the original situation is sought in the claim, except 
where the defendant expressly waives his or her right to it, the court must order 
that the benefit of any performance completed be returned to the defendant, even 
where the defendant does not respond to the claim or make a counterclaim.’ 
Applicable provisions of European Union law: 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29). 
Article 1 
‘1. The purpose of this Directive is to approximate the laws, regulations and 
administrative provisions of the Member States relating to unfair terms in 
contracts concluded between a seller or supplier and a consumer.’ 
Article 7 
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‘1. 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.’ 
Case-law of the Court of Justice of the European Union: 
Judgment of 31 May 2018, Sziber, C-483/16, EU:C:2018:367 
Order of 22 February 2018, ERSTE Bank Hungary, C-126/17, not published, 
EU:C:2018:107 
Judgment of 31 March 2022, Lombard Lízing, C-472/20, EU:C:2022:242 
Order of 14 June 2023, AxFina Hungary, C-705/21, EU:C:2023:496 
Judgment of 15 June 2023, Bank M. (Consequences of the annulment of the 
contract), C-520/21, EU:C:2023:478 
Reasoning in the request for a preliminary ruling 
Hungarian case-law does not properly clarify the legal consequences which may 
arise for the consumer in the event that the unfair nature [of its terms] affects the 
main subject matter of the contract. That is made worse by the fact that 
Paragraph 37 of the DH2 Law obliges the consumer to make a claim for a 
declaration of validity or applicability in respect of the contract, even where the 
courts have not yet examined whether it is possible to perform the contract 
omitting the unfair contractual term. The question also arises of whether, in order 
to return to the position he or she would have been in if the unfair contractual term 
had not existed, the consumer is able to choose between the restoration of the 
original situation and the application of the rules relating to unjust enrichment. 
[…] [Procedural aspects of national law] 
Budapest, 13 September 2023 
[…] [signature] 
President of the Chamber