Case C-630/23, AxFina Hungary: Request for a preliminary ruling from the Kúria (Hungary) lodged on 17 October 2023 — ZH and KN v AxFina Hungary Zrt.
Date: 2023-10-17
Institutions: Court of Justice
Subjects: claim, consumer credit, consumer protection, exchange transaction, financial risk, foreign currency, unfair terms of contract








C_202400629EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2024/629


15.1.2024





Request for a preliminary ruling from the Kúria (Hungary) lodged on 17 October 2023 — ZH and KN v AxFina Hungary Zrt.
(Case C-630/23, AxFina Hungary)
(C/2024/629)
Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings


Appellants: ZH, KN

Respondent: AxFina Hungary Zrt.

Questions referred







1.


Is it correct to interpret the phrase ‘[the contract] is capable of continuing in existence without the unfair terms’, which appears in Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (‘Directive 93/13’), (1) as meaning that a contract concluded with consumers and denominated in foreign currency is capable of continuing in existence without a contractual term which pertains to the main obligation to be performed under the contract and which places the exchange rate risk, on an unlimited basis, on the consumer, taking into account that the law of the Member State regulates the currency conversion mechanism by means of mandatory legal provisions?
Is a legal practice of a Member State compatible with Article 1(2), Article 6(1) and Article 7(1) of Directive 93/13, where, according to that practice (which is based on an interpretation of the law of the Member State given in the light of that directive and in compliance with the principles of interpretation established by the Court of Justice of the European Union), in view of the principle of unjust enrichment,






a)


the creditor is ordered to reimburse the consumer (or pay the consumer as part of a settlement) the amounts charged by the creditor under the term declared unfair, but that order is not made in the context of a restitutio in integrum, because a special provision of national law excludes that possible legal consequence of invalidity, and nor are the rules relating to unjust enrichment applied independently, because the national law does not provided for such a legal consequence of the invalidity of the contract, but rather the consumer is freed from the consequences that are particularly detrimental to him or her and, at the same time, the balance of the contract between the contracting parties is restored by applying the main legal consequence which the law of the Member State provides for in the case of invalidity, namely, a declaration of validity in respect of the contract, such that the unfair terms do not impose any obligation on the consumer, but the remaining (fair) elements of the contract (including the contractual interest and other costs) continue to bind the parties on the same terms?










b)


in the event that a declaration of validity is not possible, in order to effect a settlement of accounts, the legal consequences of invalidity are determined by declaring the contract applicable until judgment is given and the settlement of accounts between the parties is carried out by applying the principle of unjust enrichment?














2.


When it comes to determining the legal consequences of a contract that is invalid for the reason stated, may a legislative provision of the Member State, which entered into force subsequently and which introduced, from then on, mandatory conversion into forints, be disapplied, because that provision, as a result of the fixing of the exchange rate, places a certain part of the exchange rate risk on the consumer, who — on account of the unfair contractual term — should be freed entirely from that risk?










3.


In the event that, in accordance with EU law, it is not possible to determine the legal consequences of invalidity, either by means of a declaration of validity or by means of a declaration of applicability, what are the legal consequences, along with the relevant basis in case-law, which should therefore be determined contra legem, irrespective of the legislation of the Member State relating to the legal consequences and based exclusively on EU law, taking into account that Directive 93/13 does not regulate the legal consequences of invalidity?






(1)  
            OJ 1993 L 95, p. 29.


ELI: http://data.europa.eu/eli/C/2024/629/oj
ISSN 1977-091X (electronic edition)