Case C-259/17: Request for a preliminary ruling from the Budai Központi Kerületi Bíróság (Hungary) lodged on 16 May 2017 — Zoltán Rózsavölgyi and Zoltánné Rózsavölgyi v Unicredit Leasing Hungary Zrt. and Unicredit Leasing Immo Truck Zrt.
Date: 2017-05-16
Institutions: Court of Justice
Subjects: consumer protection, currency adjustment, exchange rate, foreign currency, interest, loan, termination of a contract, unfair terms of contract








C_2017256EN.01000801.xml










7.8.2017   


EN


Official Journal of the European Union


C 256/8





Request for a preliminary ruling from the Budai Központi Kerületi Bíróság (Hungary) lodged on 16 May 2017 — Zoltán Rózsavölgyi and Zoltánné Rózsavölgyi v Unicredit Leasing Hungary Zrt. and Unicredit Leasing Immo Truck Zrt.
(Case C-259/17)
(2017/C 256/07)
Language of the case: Hungarian

Referring court

Budai Központi Kerületi Bíróság

Parties to the main proceedings


Applicants: Zoltán Rózsavölgyi and Zoltánné Rózsavölgyi

Defendants: Unicredit Leasing Hungary Zrt. and Unicredit Leasing Immo Truck Zrt.

Questions referred







1.


Given, in particular, that when the definition of the main subject matter of a contract is found to be unfair, the contract is consequently invalid in its entirety (and not merely in part), may a declaration that the term defining the main subject-matter of a loan agreement is invalid because of its unfairness (meaning that the consumer cannot be bound by that term) have as a consequence (for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law) that the legal characterisation of the contract, or its effects, changes such that, in particular, a foreign currency based loan agreement (in which the credit provided for in the loan agreement is determined and denominated in a foreign currency (‘the credit currency’) and the obligation to pay that credit is fulfilled in the national currency (‘the payment currency’)), must be regarded as a loan agreement denominated in Hungarian forints?






1.1.


In the event that the application of the invalidity resulting from the unfairness of the term defining the main subject-matter of a loan agreement may have as a consequence that the legal characterisation of the agreement, or its effects, changes, may the alteration of that legal characterisation have as a consequence (for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law) that certain parameters of the legal relationship having a financial impact may also change to the detriment of the consumer (for example, the retroactive application of the market interest rate for loans denominated in Hungarian forints or of the Central Bank base rate instead of the lower interest rate laid down in the agreement)?














2.


Are the legal consequences entailed by the unfairness [of a term] a purely legal question, of an absolute nature, or may regard be had, in the assessment of those consequences, to






(1)


the contractual practice followed as regards types of contracts other than those to which the unfair term relates;










(2)


the alleged vulnerability of certain operators directly concerned financially (for example, the group of borrowers in a foreign currency and the banking system); or










(3)


the interests of third persons or certain groups which are not directly concerned financially, for example because, following the invalidity, the members of the group of borrowers in foreign currencies are, for the most part, ultimately liable to find themselves, from an accounting perspective, in a more advantageous situation than that of the group of borrowers in forint.














3.


For the purposes of Article 3(1), Article 4(2), Article 5 and Article 6(1) of Directive 93/13/EEC (1) (that is to say, for the purposes of assessing the unfairness and its legal effects), may the term imposing the currency risk on the consumer (that is to say the provision(s) of the contract governing the allocation of the risk) be composed of various terms?










4.


May Article 6(1) of Directive 93/13/EEC (according to which the unfair terms used in a contract concluded with a consumer by a seller or supplier are not binding on the consumer) be interpreted as meaning that a term (not a specific part of that term, but the term taken as a whole) may be either unfair in its entirety or both partly fair and partly unfair, with the result that it remains applicable in part and (for example, depending on the assessment of the court in a specific case) may be binding on the consumer to a certain extent (that is to say, that, as regards its effects, the term is unfair only to a certain extent in both cases), for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law?






4.1.


In the event that Article 6(1) of Directive 93/13 must be interpreted as meaning that a given term may be unfair in its entirety or both partly fair and partly unfair, with the result that it remains applicable in part and may be binding on the consumer to a certain extent (that is to say, that, as regards its effects, the term is unfair only to a certain extent in both cases), may the declaration of invalidity of the entire loan agreement as a result of the unfair nature of the term in question, which defines the main subject-matter of the contract, give rise to the consequence that the consumer is, from an accounting perspective, in a less favourable situation and the seller or supplier in a more favourable situation than if, for the same reason, the loan agreement were merely declared unfair in part (in which case the other terms of the contract would continue to be binding on parties without any change to the content of those terms).














5.


 






5.1.


In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning that the amount of the repayment instalments to be paid under the loan agreement may exceed the amount of the consumer’s income noted by the seller or supplier in the examination of creditworthiness; given also the fact that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?










5.2.


In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning that the amount of the outstanding capital may exceed the value of the debtor’s assets noted by the seller or supplier in the examination of creditworthiness; given also the fact that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?










5.3.


In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning that (1) there is no ceiling to the potential fluctuations in the exchange rate; (2) there is a real possibility of a fluctuation of the exchange rate, which may occur during the entire repayment period; (3) the amount of the repayment instalments may increase without limit following such a fluctuation; (4) following a fluctuation of the exchange rate, not only the amount of the repayment instalments, but also that of the outstanding capital may increase without limit; (5) there are no limits to the losses that may be incurred; (6) the effectiveness of the necessary preventative measures is limited and requires constant vigilance, (7) which the seller or supplier cannot ensure; taking into account also the fact that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?










5.4.


In view, inter alia, of the fact that the national case-law or legislation establishes, or may establish, that, in the case of foreign currency based loan agreements, the consumer may borrow in the foreign currency as a result of the more favourable interest rates during the period considered as compared with loans denominated in Hungarian forints, in consideration for which he alone bears the effects of a fluctuation of the exchange rate; taking into account also that the national case-law or legislation establishes, or may establish, that the unfair nature of the unilateral and unforeseeable transfer of contractual responsibilities after the conclusion of the loan agreement cannot be assessed, since the grounds of invalidity must exist at the time the contract is concluded; taking into account, in addition, that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess that risk, is it possible, in view of its financial consequences, not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning regarding the foreseeable direction of the fluctuation of the exchange rate during the term of the agreement (at the very least during the initial period) and its minimum and/or maximum values (for example by relying on the method for calculating forward interest rates and/or on the interest rate parity principle — according to which, as regards loans denominated in foreign currencies, it is possible to predict with a high degree of certainty that an advantage with respect to interest rates, namely the fact that the LIBOR (London Interbank Offered Rate] or the EURIBOR (Euro Interbank Offered Rate) is less that the BUBOR (Budapest Interbank Offered Rate), means that the consumer suffers a currency loss, since the value of the payment currency falls by comparison with the credit currency)?










5.5.


In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning indicating precisely (for example by comparing, through a set of data or a graph, the changes in the exchange rate of the foreign currency in which the debt is denominated with that of the payment currency during a period at least as long as that of the consumer’s commitment) the risk actually incurred by the debtor because he is liable for the currency risk; taking into account, in addition, that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?










5.6.


Taking account of the fact that the national case-law or legislation establishes, or may establish, that, in the case of foreign currency based loan agreements, the consumer may borrow in foreign currencies because of a more favourable interest rate during the period concerned as compared with loans denominated in Hungarian forint, in consideration for which he alone bears the risks of a fluctuation of the exchange rate; taking into account, in addition, that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; and since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess that risk, is it permissible to characterise as fair, in that it is drafted in a clear and understandable manner, having regard to its financial consequences, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning indicating (for example explicitly and quantified by a set of data relating to a past period at least as long as that of the consumer’s commitment) the amount of profits foreseeable as regards interest in the event that the BUBOR is applied in the case of loans denominated in Hungarian forints and the LIBOR or the EURIBOR in the case of loans denominated in a foreign currency?














6.


For the purposes of assessing the unfairness of a contractual term which allocates the currency risk to the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, how should the burden of proof be allocated between the consumer and the seller or supplier in order to assess whether the consumer actually had the opportunity, before the conclusion of the loan agreement, to become acquainted with the term in question to which he was irrevocably bound (Article 3(3) of Directive 93/13/EEC and point 1(i) of the annex)?










7.


Must it be considered that, in foreign currency based loan agreements — that is to say, for the purposes of transactions in relation to services whose price is linked to fluctuations in an exchange rate on the monetary markets — credit institutions which conclude agreements with a consumer using their own foreign currency exchange rates are sellers or suppliers who do not control the price fluctuations within the meaning of point 2(c) of the annex to Directive 93/13/EEC?






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