Case C‑51/17

OTP Bank Nyrt. and OTP Faktoring Követeléskezelő Zrt.

v

Teréz Ilyés and Emil Kiss

(Request for a preliminary ruling from the Fővárosi Ítélőtábla)

(Reference for a preliminary ruling — Consumer protection — Unfair terms — Directive 93/13/EEC — Scope — Article 1(2) — Mandatory statutory or regulatory provisions — Article 3(1) — Concept of ‘contractual term which has not been individually negotiated’ — Term incorporated in the contract after its conclusion following the intervention of the national legislature — Article 4(2) — Plain and intelligible drafting of a term — Article 6(1) — Examination by the national court of its own motion as to whether a term is unfair — Loan contract denominated in a foreign currency concluded between a seller or supplier and a consumer)

Summary — Judgment of the Court (Second Chamber), 20 September 2018

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Terms defining the main subject matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration — Term incorporated in a loan contract denominated in a foreign currency, relating to the foreign exchange risk — Included — Conditions — Obligation to satisfy the requirements of intelligibility and transparency — Moment taken into account in assessing the fulfilment of that obligation — Conclusion of the contract — Effect of the annulment of certain terms at a later time by the national legislature — None

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Terms defining the main subject matter of the contract or concerning the price or the remuneration and the services or goods supplied as consideration — Term incorporated in a loan contract denominated in a foreign currency, relating to the foreign exchange risk — Included — Conditions — Obligation to satisfy the requirements of intelligibility and transparency — Level of information required — Scope

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Exclusion provided for contractual terms reflecting mandatory statutory or regulatory provisions — Term imposing an exchange rate, incorporated after the conclusion of the contract and intended to remove a term which is null and void from that contract — Inapplicability of the directive — Term relating to the foreign exchange risk, not covered by statutory or regulatory provisions — Applicability of the directive

Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Term which has not been individually negotiated — Meaning — Term amended by a national provision adopted after the conclusion of the contract and intended to remove a term which is null and void — Included

The concept of ‘term which has not been individually negotiated’ in Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as covering inter alia a contractual term amended by a mandatory national statutory provision adopted after the conclusion of a contract with a consumer, for the purpose of removing a term which is null and void from that contract. In the present case, owing to the fact that the terms at issue in the main proceedings were imposed by the national legislature, it is clear that the parties to the contract did not individually negotiate them. (see paras 48, 49, operative part 1)

Article 1(2) of Directive 93/13 must be interpreted as meaning that the scope of that directive does not cover terms which reflect mandatory provisions of national law, inserted after the conclusion of a loan contract concluded with a consumer and intended to remove a term which is null and void from that contract, by imposing an exchange rate set by the National Bank. In that regard, the Court has previously held that Article 1(2) of Directive 93/13 must be interpreted as meaning that that directive is not applicable to conditions contained in the contract between a seller or supplier and a consumer which are determined by national legislation (see, to that effect, order of 7 December 2017, Woonhaven Antwerpen, C‑446/17, not published, EU:C:2017:954, paragraph 31). However, a term relating to the foreign exchange risk, such as that at issue in the main proceedings, is not excluded from that scope by virtue of that provision. As recalled in paragraph 54 of the present judgment, Article 1(2) of Directive 93/13 is to be construed strictly. Thus, the fact that some terms which reflect statutory provisions fall outside the scope of that directive does not mean that the validity of other terms, which are included in the same contract and are not covered by statutory provisions, may not be assessed by the national court in the light of that directive. In respect of contractual terms which address the issue of the foreign exchange risk and which are not covered by those statutory amendments, it follows from the Court’s case-law that such terms fall within the scope of Article 4(2) of Directive 93/13, and escape the assessment as to whether they are unfair only in so far as the national court having jurisdiction should form the view, following a case-by-case examination, that they were drafted by the seller or supplier in plain intelligible language (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 43). Furthermore, the fact that conditions relating to the difference in exchange rates are thus excluded from the scope of Directive 93/13 pursuant to Article 1(2) thereof does not prevent the requirements stemming from Article 6(1) and Article 7(1) of that directive and the Court’s case-law, as recalled inter alia in paragraphs 32 to 34 of the judgment of 31 May 2018, Sziber (C‑483/16, EU:C:2018:367), from remaining applicable for all other areas covered by that directive and, in particular, for the procedural rules serving to ensure that rights which individuals derive from that directive are respected. (see para. 63, 66, 68-70, operative part 2)

Article 4(2) of Directive 93/13 must be interpreted as meaning that the requirement for a contractual term to be drafted in plain intelligible language requires financial institutions to provide borrowers with adequate information to enable them to take well-informed and prudent decisions. In that regard, that requirement means that a term relating to the foreign exchange risk must be understood by the consumer both at the formal and grammatical level and also in terms of its actual effects, so that the average consumer, who is reasonably well informed and reasonably observant and circumspect, would not only be aware of the possibility of a depreciation of the national currency in relation to the foreign currency in which the loan was denominated, but would also be able to assess the potentially significant economic consequences of such a term with regard to his financial obligations. (see para. 78, operative part 3)

Article 4 of Directive 93/13 must be interpreted as requiring that the plainness and intelligibility of the contractual terms be assessed by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract, notwithstanding that some of those terms have been declared or presumed to be unfair and, accordingly, annulled at a later time by the national legislature. It is clear from the wording of Article 4(1) of Directive 93/13 that, in order to assess, in a situation in which the term in question relates to the definition of the main subject matter of the contract, whether that term is drafted in plain intelligible language within the meaning of Article 4(2) of that directive, account should be taken, inter alia, of all the terms of the contract that were included therein at the time of its conclusion, since it is at that moment that the consumer decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier. (see paras 80, 83, operative part 4)