Case C-483/16: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 6 September 2016 — Zsolt Sziber v ERSTE Bank Hungary Zrt.
Date: 2016-09-06
Institutions: Court of Justice
Subjects: claim, consumer protection, credit, judicial proceedings, unfair terms of contract








C_2016419EN.01003202.xml










14.11.2016   


EN


Official Journal of the European Union


C 419/32





Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 6 September 2016 — Zsolt Sziber v ERSTE Bank Hungary Zrt.
(Case C-483/16)
(2016/C 419/43)
Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings


Applicant: Zsolt Sziber

Defendant: ERSTE Bank Hungary Zrt.

Other party to the proceedings: Mónika Szeder

Questions referred







1.


Must the following provisions of EU law, namely, Article 129a (1) and (2) of the Treaty establishing the European Community (Treaty of Rome), read in the light of Article 129a (3) of that treaty; Article 38 of the Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 2); Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) read in the light of Article 8 of that directive and recital 47 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, (2) be interpreted as precluding rules of national law (and their application) which impose additional requirements prejudicial to a party to proceedings, whether applicant or defendant, that, between 1 May 2004 and 26 July 2014, entered into a credit agreement, in the capacity of a consumer, containing an unfair contractual term which allows a unilateral increase in interest rates, costs or commissions or containing a bid-offer spread, on the basis that under those additional requirements, in order for the rights arising from the invalidity of those contracts concluded with consumers to be upheld before the courts and, in particular, in order for the court to be able to examine the substance of a case, a civil litigation document must be presented (primarily a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim) and it must comply with mandatory content requirements, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?










2.


Regardless of whether the Court of Justice answers Question 1, which is formulated in more general terms than this second question, in the affirmative or the negative, must the provisions of EU law listed in Question 1 be interpreted as precluding the following obligatory additional requirements [(a) to (c)] from applying to a party to proceedings that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1:






(a)


in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where, in that document, the party does not only request the court to declare wholly or partially invalid the credit agreement entered into with consumers as referred to in Question 1, but also requests the court to apply the legal consequences associated with the total invalidity of the contract, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?










(b)


in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where, in that document, whilst requesting the court to declare the total invalidity of the credit agreement entered into with consumers, as referred to in Question 1, no request is made, in the context of legal consequences associated with total invalidity, for legal restoration of the situation prior to the conclusion of the credit agreement, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?










(c)


in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where that document includes, in relation to the period from the start of the contractual legal relationship to the date the court is seised, a settlement calculation carried out using an extremely complex mathematical methodology (as prescribed by national provisions) which must also take into account the rules regulating currency conversion into forints, as well as including a detailed breakdown represented in a mathematically verifiable way; indicating the payments due under the credit agreement, payments made by the applicant, the payments due leaving aside the void clause, and the difference between those figures; and specifying the grand total that the party that entered into the credit agreement, in the capacity of a consumer, as referred to in Question 1, still owes the credit institution or paid in excess, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?














3.


Must the provisions of EU law listed in Question 1 be interpreted as meaning that infringement of those rules by means of the imposition of the additional requirements listed in Questions 1 and 2 also constitutes an infringement of Articles 20, 21 and 47 of the Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 2), taking into account (here and also partly with regard to Questions 1 and 2) that the courts of the Member States must apply EU law in the field of consumer protection even in cases which do not contain any cross-border elements, that is to say, in purely domestic situations, in accordance with the judgments of the Court of Justice of 5 December 2000, Guimont, C-448/98, EU:C:2000:663, paragraph 23, 10 May 2012, Duomo Gpa and Others, C-357/10 to C-359/10, EU:C:2012:283, paragraph 28, and the order of 3 July 2014, Tudoran, C-92/14, EU:C:2014:2051, paragraph 39? Or should the situation be regarded as a cross-border situation merely because the credit agreements referred to in Question 1 are ‘foreign currency based credit agreements’?






(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(2)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).