Provisional text
JUDGMENT OF THE COURT (Eighth Chamber)
23 April 2026 (*)
( Reference for a preliminary ruling – Consumer protection – Unfair terms in consumer contracts concluded between a seller or supplier and a consumer – Directive 93/13/EEC – Article 2(c) – Concept of ‘seller or supplier’ – Article 6(1) – Effects of the finding that such a term is unfair – Invalidity of the contract – Article 7(1) – Deterrent effect of the prohibition on unfair terms – Loan agreement denominated in foreign currency – Contractual term placing the exchange rate risk on the consumer – Transfer of a contract among sellers or suppliers under national law – Seller or supplier against whom the consumer may assert the legal consequences of the invalidity of an unfair term in the transferred
contract )
In Case C‑761/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Budapest Környéki Törvényszék (Regional Court, Budapest, Hungary), made by decision of 10 October 2024, received at the Court on 5 November 2024, in the proceedings
HM,
JD
v
AXA Bank Belgium SA,
OTP Bank Nyrt.,
OTP Faktoring Követeléskezelő Zrt.
THE COURT (Eighth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, S. Rodin and N. Piçarra (Rapporteur), Judges,
Advocate General: D. Spielmann,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        HM and JD, by L. Marczingós, ügyvéd,
–        OTP Bank Nyrt. and OTP Faktoring Követeléskezelő Zrt., by A. Lendvai, ügyvéd,
–        the Hungarian Government, by D. Csoknyai and Z. Fehér, acting as Agents,
–        the European Commission, by O. Dani and P. Kienapfel, 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 2(c), 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, on the one hand, two consumers, HM and JD (‘the two consumers’), and, on the other, three credit institutions, namely AXA Bank Belgium SA (‘AXA’), OTP Bank Nyrt. (‘OTP’) and OTP Faktoring Követeléskezelő Zrt. (‘OTP Faktoring’), concerning
the
credit institution against which the two consumers may assert their claims vis-à-vis the legal consequences of the invalidity of an unfair term used in a loan agreement concluded with the legal predecessor of AXA and later transferred to OTP, which in turn transferred the claim arising from that agreement to OTP Faktoring.
Legal context
European Union law
3        The 21st and 24th 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        Article 2(c) of that directive defines the term ‘seller or supplier’ as ‘any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned’.
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        Under Article 7(1) of that directive:
‘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 Civil Code
7        Paragraph 6:202 of the Polgári Törvénykönyvről szóló 2013. évi V. törvény (Law No V of 2013 on the Civil Code), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), entitled ‘Transfer of rights’, stipulates in paragraph 3:
‘The relevant provisions on the transfer of claims shall apply mutatis mutandis to the transfer of rights.’
8        Paragraph 6:208 of the Civil Code entitled ‘Effects of the transfer of a contract’ provides:
‘(1)      The transferor, the counter-party and the transferee may agree to transfer all of the rights and obligations of the transferor to the transferee.
(2)      The transferee shall be subrogated in all the rights and obligations of the transferor vis-à-vis the counter-party under the contract in question. The transferee shall not set off any other claim which the transferor may hold over the counter-party. The counter-party shall not set off any other claim which it holds over the transferor.
(3)      Any guarantees in relation to the transferred rights shall be maintained. Any guarantees in relation to the implementation of the transferred obligations shall be extinguished, unless the guarantor consents to the transfer of the contract.’
Law No CCXXXVII. of 2013
9        Pursuant to Paragraph 17(1) of the hitelintézetekről és a pénzügyi vállalkozásokról szóló 2013. évi CCXXXVII.
törvény (Law No CCXXXVII. of 2013 on credit institutions and financial undertakings):
‘Subject to approval by the [Magyar Nemzeti Bank (National Bank of Hungary) acting as a surveillance authority], savings portfolios and any other repayable funds,
including portfolios of framework contracts for the provision of payment services, may be transferred (by means of an agreement) between the transferor credit institution and the transferee credit institution.
The provisions of the Civil Code on the transfer of contracts shall apply to the transfer of portfolios, with the exception that, in the case of the transfer of a portfolio, the guarantees connected with the contract shall not
be extinguished and, in addition, the transfer of a portfolio does not require any indication of the counter-party’s wishes. [The approval of the National Bank of Hungary] does not replace the approval of the Gazdasági Versenyhivatal (Competition Authority, Hungary) [required] pursuant to the Law prohibiting unfair commercial practices and practices restricting competition.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
10      On 12 June 2008, the two consumers concluded a loan agreement with the legal predecessor of AXA, denominated in Swiss francs (CHF) in the sum of CHF 141 536.00, which was equivalent to approximately 20 075 000 forint (HUF) converted at the foreign exchange buying rate set by the credit institution on the date of release of the funds. That loan agreement, concluded for a term of 19 years, stated that the monthly instalments due under the loan were to be paid in forint converted at the selling rate of Swiss francs set by that credit institution. The contract also allowed that credit institution to alter
unilaterally the amount of the interest and the management fees which had to be covered by the two consumers.
11      AXA terminated that loan agreement with effect from 4 June 2013 due to
alleged arrears attributable to the two consumers.
The closing accounts drawn up on 4 March 2015 appeared to show an outstanding debt due to AXA in the sum of 42 815 836 HUF.
12      On 21 October 2015, the two consumers brought an action against AXA before the Budapest Környéki Törvényszék (Budapest Regional Court, Hungary), which is the referring court, asking it, first, to declare that the loan agreement was invalid on the ground that it contained unfair terms which, for that reason, could not be enforced against them, and, second, to remedy the consequences of that invalidity.
13      On 31 October 2016, AXA transferred a portfolio of contracts, including the loan agreement at issue in the main proceedings and all of the related rights and obligations, to OTP.
On 2 November 2016, OTP transferred the claim resulting from that loan agreement to OTP Faktoring.
14      By interim judgment of 25 October 2022, the referring court declared that loan agreement to be invalid in its entirety, based on the non-compliant information on the exchange risk. However, by order of 19 April 2023, that judgment was overturned on appeal and the case was remitted to the referring court.
15      On 21 September 2023, the referring court, taking the view that it was also responsible for determining which of the credit institutions concerned was subject to the penalties provided for in Directive 93/13, made a request to the Court of Justice for a preliminary ruling on the interpretation of Article 2(c) of that directive. The referring court
was uncertain as to the lawfulness of imposing those penalties on the transferee of the loan agreement at issue in the main proceedings, given that that transferee, while profiting from the economic and financial consequences of that loan agreement, had not, however, itself inserted the term considered to be unfair by the referring court.
16      By order of 9 April 2024, AXA Bank Europe and Others (C‑628/23, EU:C:2024:317), that request was dismissed as manifestly inadmissible on the ground that it did not meet the requirements of Article 94 of the Rules of Procedure of the Court.
17      Before the referring court, the two consumers contest national case-law according to which the legal consequences of the invalidity of a contract containing unfair terms, concluded between a consumer and a seller or supplier, may not be invoked against the transferee of the contract.
They submit that the deterrent effect which Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) of that directive, attaches to the finding that those terms are unfair would be compromised if the seller or supplier, having inserted those clauses into such a contract,
were able to escape the legal consequences of the invalidity of that contract by transferring it to a third party.
18      According to that court, in accordance with the provisions of the Civil Code on the transfer of contracts, which are also applicable to the transfer of portfolios, where a loan agreement is declared invalid, the consumer wishing to seek the repayment of any overpayment can act only against the transferee, to the exclusion of the transferor. The potentially significant number of actions that may be brought against that transferee could force the latter into insolvency, which would risk depriving that consumer of effective judicial protection.
19      Furthermore, that court is uncertain whether the deterrent effect that Directive 93/13 attaches to the finding that a contract term is unfair could be enforced against the transferee, even though the latter is not responsible for that term being used in the contract concerned.
20      Accordingly, the referring court
asks the Court of Justice, in essence, to determine, with reference to Directive 93/13, the seller or supplier against whom the two consumers may assert their claims vis-à-vis
the legal consequences of the invalidity of the loan agreement at issue in the main proceedings, and makes it clear that it intends to disregard the provisions of the Hungarian legislation applicable to the dispute in the main proceedings should the Court interpret that directive as meaning that it is only for the transferor to remedy those legal consequences.
21      In those circumstances, the Budapest Környéki Törvényszék (Regional Court, Budapest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Do [Article] 6(1) and [Article] 7(1) of [Directive 93/13] preclude national case-law or an interpretation of domestic law [by a national court] which, in the event that a consumer contract is found to be totally invalid on account of an unfair term applied therein:
–        does not remedy the legal consequences of the invalidity in the legal relationship between the original lender and the consumer as debtor, because national legislation makes it possible for the original lender and a third party to conclude an agreement that results in a change in the parties to the contract [but]
–        remedies the legal consequences of the invalidity only as between the consumer and the successor in law entering the contractual relationship as a new party as a result of the transfer of the contract, in such a way that the consumer is obliged to make any payment to the new party to the contract rather than to the original lender and, conversely, may only claim from the new party entering the contractual relationship any amount that may have to be reimbursed to that consumer, even though the consumer has not made any payment to that party[?]
(2)      Does national case-law or an interpretation of domestic law, according to which the legal consequences of the invalidity of an unfair consumer contract may be inferred only as between the current parties to that contract, that is to say between the new lender entering the contractual relationship as a consequence of a change in the parties to that relationship and the consumer as debtor, contravene the concept of “seller or supplier” as defined in Article 2(c) of [Directive 93/13
?]’
Consideration of the questions referred
Admissibility of the questions referred
22      AXA submits that the questions referred are inadmissible on the ground that they do not bear any relation to the dispute in the main proceedings and that, therefore, they are purely hypothetical. First, the invalidity of the loan agreement at issue in the main proceedings cannot be accepted, on the ground that the interim judgment which, at first, had reached such a finding, was later set aside on appeal.
Second, since that loan agreement was terminated prior to the transfer at issue in the main proceedings, the subject matter of that transfer is the claim arising from the agreement, and not that loan agreement as such.
23      According to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 11 December 2025, Kuszycka, C‑767/24,
EU:C:2025:962, paragraph 33 and the case-law cited).
24      Questions relating to EU law thus enjoy a presumption of relevance. The Court of Justice may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 11 December 2025, Kuszycka, C‑767/24, EU:C:2025:962, paragraph 34 and the case-law cited).
25      Furthermore, in the context of the procedure provided for in Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, only the national courts may establish and assess the facts of the dispute in the main proceedings and determine the exact scope of national laws, regulations or administrative provisions. The Court of Justice is only empowered to rule on the interpretation or validity of EU law in the light of the factual and legal situation as described by the referring court, and cannot call that situation into question or determine its accuracy
(see, to that effect, judgment of 13 July 2023, Ferrovienord, C‑363/21 and C‑364/21, EU:C:2023:563, paragraphs 54 and 55).
26      In the present case, the line of argument relied on by AXA in support of the hypothetical nature of the questions referred concern the establishment and assessment of the facts in the main proceedings. It is not for the Court of Justice to call that establishment and assessment into question, since only the national court is competent to do so.
That line of argument is therefore not sufficient to rebut the presumption of relevance referred to in paragraph 24 of the present judgment.
27      Accordingly, the questions referred for a preliminary ruling are admissible.
Substance
28      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether
Article 2(c), Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation under which a consumer, having concluded a contract with a credit institution which was later transferred to another credit institution, must assert the rights that he or she derives from that directive only against the transferee of that contract.
29      In the first place, Article 2(c) of that directive defines the concept of ‘seller or supplier’ as any natural or legal person who, in contracts covered by that directive, is acting for purposes relating to his or her trade, business or profession, whether such activity is publicly or privately owned.
30      The broad definition of the concept of ‘seller or supplier’ that the EU legislature thus intended to confer on it (see, to that effect, judgment of 27 October 2022, S. V. (Building in co-ownership), C‑485/21, EU:C:2022:839, paragraph 28 and the case-law cited) precludes an interpretation of that concept as meaning that only the person having initially concluded the contract with a consumer would be covered by it, excluding therefore from the scope of application of Directive 93/13 any other person, even if that person acts, as the transferee of that contract, for purposes relating to his or her trade, business or profession.
31      Such an interpretation of Article 2(c) of Directive 93/13 would, furthermore, be incompatible with the objective, pursued by that directive, of ensuring a high level of consumer protection (see, to that effect, judgment of 8 May 2025, Myszak, C‑324/23, EU:C:2025:324, paragraph 44 and the case-law cited). The obligation imposed on consumers to exercise the rights they derive from
that directive against a seller or supplier who is no longer party to the disputed contract, likely renders it more difficult, in practice, to exercise such rights.
32      It follows from the foregoing that a credit institution, being the transferee of a loan agreement concluded with a consumer, falls under the concept of ‘seller or supplier’ within the meaning of Article 2(c) of Directive 93/13. However, based on that provision alone, it cannot be determined whether it is only against that transferee that the legal consequences of the invalidity of the unfair clause in that contract may be invoked.
33      In the second place, Article 6(1) of Directive 93/13, read in conjunction with the 21st recital thereof, obliges Member States to ensure that unfair terms used in a contract concluded with a consumer by a seller or supplier are not to be binding on consumers, ‘as provided for under their national law’, and that that contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.
34      However, the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope or, therefore, the substance of that protection and thus affect the strengthening of the effectiveness of that protection by the adoption of uniform rules of law in respect of unfair terms (judgment of 16 March 2023, M.B. and Others (Effects of the invalidation of a contract), C‑6/22, EU:C:2023:216, paragraph 20 and the case-law cited).
35      That regulation by national law likewise may not make it excessively difficult, if not practically impossible, to exercise the rights that consumers derive from that directive. In particular, Member States must oversee compliance with the protection granted to the consumer by that directive by ensuring the restoration of the legal and factual situation that the consumer would have been in had such an unfair term not existed by, inter alia, creating a right to restitution of advantages wrongly obtained, to the consumer’s detriment, by the seller or supplier on the basis of that unfair term (see, to that effect, judgments of 16 March 2023, M.B. and Others (Effects of the invalidation of a contract), C‑6/22, EU:C:2023:216, paragraph 22, and of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 61 and the case-law cited).
36      It follows from the foregoing that Article 6(1) of Directive 93/13 must be interpreted as meaning that, where a contract concluded by a consumer with a seller or supplier has been transferred
to a third party having the status of a seller or supplier in accordance with the applicable national law, that consumer must be able to rely, where appropriate, on the invalidity of an unfair term used in such a contract, or of that contract in its entirety, vis-à-vis the transferee, in the same way as the consumer would have been able to rely on that invalidity
vis-à-vis the transferor in the absence of such a transfer. The subrogation, which results from that transfer, of the transferee in all the rights and obligations of the transferor vis-à-vis the consumer under the same contract, cannot have the effect of altering the content of those rights and obligations, nor, accordingly, can it affect the protection of consumers who must be able to enforce any legal consequences arising from the unfairness of the disputed contract term against the transferee.
37      In the third place, Article 7(1) of Directive 93/13, read in conjunction with the 24th recital thereof, obliges Member States 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.
38      In addition to the primary and immediate objective, which consists in protecting the consumer from unfair terms used in contracts that he or she concludes with sellers or suppliers by restoring, legally and factually, the situation in which the consumer would have been in if such unfair terms had not existed, Article 7(1) of Directive 93/13 seeks, in the longer term, to prevent the continued use of unfair terms by sellers or suppliers.
Indeed, the non-application of those terms with regard to the consumer has a deterrent effect as regards their use (see, to that effect, judgment of 16 March 2023, M.B. and Others (Effects of the invalidation of a contract), C‑6/22, EU:C:2023:216,
paragraphs 24 to 26).
39      It follows that the deterrent effect as regards the use of unfair terms concerns sellers or suppliers in general, and not only the individual seller or supplier who introduced the contested unfair term.
40      In that regard, it must be pointed out that, under Directive 93/13, the invalidity of a contract term does not depend on the wrongful conduct of the seller or supplier concerned or on the fact that the he or she must bear the consequences thereof, rather it depends only on the objective unfairness of the contested contract term (see, to that effect, judgment of 22 April 2021, Profi Credit Slovakia, C‑485/19, EU:C:2021:313, paragraph 65).
41      It follows that that directive does not exclude the legal consequences arising from the unfairness of a term used in a contract concluded with a consumer from being borne by
a seller or supplier other than the one who introduced that term.
42      In the present case, it is for the referring court to assess whether the interpretation of the relevant national provisions by the Hungarian courts is such as to jeopardise restoring the legal and factual situation that the two consumers would have been in had the unfair term in question not existed.
43      However, the Court, in the context of a reference for a preliminary ruling, may provide the referring court with guidance, on the basis of the documents relating to the main proceedings and the observations which have been submitted to it, in order to enable that court to resolve the dispute before it
(see, to that effect, judgment of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraph 71).
44      It follows from the request for a preliminary ruling that, in accordance with Paragraph 17(1) of Law No CCXXXVII. of 2013 on credit institutions and financial undertakings, the transfer of the loan agreement at issue in the main proceedings was submitted for approval to the National Bank of Hungary acting as a surveillance authority. That measure appears, in principle, to protect the interests of consumers.
45      However, in order to ensure that the high level of consumer protection intended by Directive 93/13 is guaranteed and, in particular, that such a transfer does not deprive the consumer in question of rights that are guaranteed to him or her under Article 6(1) of that directive, it is for the referring court to verify, inter alia, whether, as submitted by the Hungarian Government, the issuance of such approval is subject to prudential supervision with the purpose of confirming that the financial solvency of the transferee of that contract is sufficient to cover the risks linked to that contract.
46      Moreover, it follows from the national legal context described by the referring court that the transferee of the loan agreement at issue in the main proceedings, as an interested party, assumed all the transferor’s rights and obligations vis-à-vis the counter-party under that loan agreement.
The two consumers would therefore have the right to enforce all the legal consequences arising from the unfairness of the term used in that loan agreement against the transferee, under the same conditions they would have been entitled to with regard to the transferor.
47      In the light of the above, it does not appear, subject to verification by the referring court, that, in the present case, it would be excessively difficult or practically impossible to remedy the legal consequences of the invalidity of the unfair term at issue in the main proceedings within the scope of the relationship between the two consumers and the transferee of that loan agreement.
48      However, should that court arrive at the conclusion that the applicable provisions of its domestic law do not ensure the restitution of the legal and factual situation which the two consumers would have found themselves in if the unfair term at issue had not existed, the principle that national law should be interpreted in conformity with EU law requires national courts and tribunals, in observance, inter alia, of the prohibition on interpretation of national law contra legem, to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (judgment of 27 November 2025, Gryczara, C‑746/24, EU:C:2025:925, paragraph 60 and the case-law cited).
49      Where it is unable to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law has an obligation, as an organ of a Member State, to give full effect to those provisions, if necessary refusing of its own motion to apply any provision of national law that is contrary to a provision of EU law with direct effect in the case pending before it (judgment of 3 July 2025, Ati-19, C‑605/23, EU:C:2025:513, paragraph 52 and the case-law cited).
50      In the light of all the foregoing considerations, the answer to the questions raised is that Article 2(c), Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding national legislation under which a consumer, having concluded a contract with a credit institution which was later transferred to another credit institution, must assert the rights that he or she derives from that directive only against the transferee of that contract, provided that that transfer does not make it practically impossible or excessively difficult to exercise the rights that that consumer derives from that directive.
Costs
51      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 2(c), Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as not precluding national legislation under which a consumer, having concluded a contract with a credit institution which was later transferred to another credit institution, must assert the rights that he or she derives from that directive only against the transferee of that contract, provided that that transfer does not make it practically impossible or excessively difficult to exercise the rights that that consumer derives from that directive.
[Signatures]
*      Language of the case: Hungarian.