OTP Bank Nyrt. and OTP Faktoring Követeléskezelő Zrt v Teréz Ilyés and Emil Kiss.
Date: 2018-09-20
37


It must be borne in mind at the outset that, according to the Court’s settled case‑law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred 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 (see, to that effect, judgment of 17 April 2018, Krüsemann and Others, C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, EU:C:2018:258, paragraph 24 and the case-law cited).
41


The presumption of relevance referred to in paragraph 37 of the present judgment cannot be rebutted by the mere fact that one of the parties in the main proceedings disputes the referring court’s interpretation of provisions of national law and, as a result, the relevance of the question referred for a preliminary ruling to the resolution of the dispute in the main proceedings. The national court alone has jurisdiction to find and assess the facts in the case in the main proceedings and to interpret and apply national law (judgment of 8 June 2016, Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 36 and the case-law cited).
43


In that regard, it need merely be recalled that, even when there is case‑law of the Court resolving the point of law at issue, national courts remain entirely at liberty to bring a matter before the Court if they consider it appropriate to do so, and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 21 and the case-law cited).
52


It should be recalled that Article 1(2) of Directive 93/13, which covers terms which reflect mandatory statutory or regulatory provisions, establishes an exclusion from the scope of that directive. The Court has already held that that exclusion requires two conditions to be met. First, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraphs 27 and 28 and the case-law cited).
53


That exclusion from the application of the rules of Directive 93/13 is justified by the fact that, in principle, it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts (see, to that effect, judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 28).
54


However, the Court has also held that a national court must take account of the fact that, having regard to the purpose of that directive, namely the protection of consumers against unfair terms included in contracts concluded with consumers by sellers or suppliers, the exception provided for in Article 1(2) of the directive is to be strictly construed (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 31 and the case-law cited).
55


As regards, in particular, that purpose and the general scheme of Directive 93/13, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, the directive requires Member States, first, under Article 6(1) thereof, to lay down ‘that unfair terms used in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer’ and, secondly, as is apparent from Article 7(1) thereof, to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’ (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 98 and the case‑law cited).
56


Concerning, more specifically, Article 6(1) of Directive 93/13, the Court has previously held that while that provision requires the Member States to lay down that unfair terms are not to be binding on the consumer, ‘as provided for under their national law’, the fact remains that the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope and, therefore, the substance of that protection (see, to that effect, judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 64 and 65).
61


If it were not permissible for a national court to replace an unfair term, without which the contract concerned could not continue in existence, with a supplementary provision of national law, that court would be required to annul the contract in its entirety. This might expose the consumer to particularly unfavourable consequences, since the consequence of such an annulment is that, in general, the outstanding balance of the loan becomes due forthwith, to a degree likely to be in excess of the consumer’s financial capacities and, as a result, tends to penalise the consumer rather than the lender who, as a consequence, might not be discouraged from inserting such terms in the contracts it offers (see, to that effect, judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 83 and 84).
65


However, such a consideration does not mean that another contractual term, such as that relating to the foreign exchange risk, is, in its entirety, also excluded from the scope of that directive and cannot therefore be examined in the light of the directive.
66


As recalled in paragraph 54 of the present judgment, Article 1(2) of Directive 93/13 is to be strictly construed. 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.
68


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).
72


In that regard, although it is for the national court alone to rule on the classification of terms in accordance with the particular circumstances of the case, the fact remains that the Court has jurisdiction to elicit from the provisions of Directive 93/13, in this case the provisions of Article 4(2) thereof, the criteria that the national court may or must apply when examining a contractual term (judgment of 23 April 2015, Van Hove, C‑96/14, EU:C:2015:262, paragraph 28 and the case-law cited).
73


In that regard, in the context of loan contracts denominated in a foreign currency, it is apparent from the Court’s case-law that 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 cannot be reduced merely to it being formally and grammatically intelligible (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 44 and the case-law cited).
74


As regards foreign currency lending, like that at issue in the main proceedings, it must be noted, as the European Systematic Risk Board stated in its Recommendation ESRB/2011/1 of 21 September 2011 on lending in foreign currencies (OJ 2011 C 342, p. 1), that financial institutions must provide borrowers with adequate information to enable them to take well-informed and prudent decisions and should at least encompass the impact on instalments of a severe depreciation of the legal tender of the Member State in which a borrower is domiciled and of an increase of the foreign interest rate (Recommendation A — Risk awareness of borrowers, paragraph 1) (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 49).
75


More specifically, the borrower must, first, be clearly informed of the fact that, in entering into a loan agreement denominated in a foreign currency, he is exposing himself to a certain foreign exchange risk which will, potentially, be difficult to bear in the event of a depreciation of the currency in which he receives his income in relation to the foreign currency in which the loan was granted. Second, the seller or supplier, in this case the bank, must be required to set out the possible variations in the exchange rate and the risks inherent in taking out a loan in a foreign currency (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 50).
76


Finally, as stated in the twentieth recital of Directive 93/13, it is important that the consumer should actually be given an opportunity to examine all the terms of the contract. Information, provided in sufficient time before concluding a contract, on the terms of the contract and the consequences of concluding it, is of fundamental importance for a consumer in order to decide whether he wishes to be bound by the terms previously drawn up by the seller or supplier (see, to that effect, judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 70 and the case-law cited).
86


Furthermore, it is apparent from Article 7(1) of Directive 93/13, read in conjunction with the twenty-fourth recital thereof, that Member States must ensure that the courts or administrative authorities have at their disposal adequate and effective means of preventing the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. In that regard, the Court has recalled the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers (judgment of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 33 and the case-law cited).
87


It should be recalled that, in the light of the foregoing, the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, provided that it has available to it the legal and factual elements necessary for that task (see, to that effect, judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 43 and the case-law cited).
88


That obligation for the national court has been regarded as necessary for ensuring that the consumer enjoys effective protection, in view in particular of the not insignificant risk that he is unaware of his rights or encounters difficulties in enforcing them (see, to that effect, judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 31 and the case-law cited).
89


In addition, the Court of Justice has held that, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6 thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy (see, to that effect, judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 35 and the case-law cited).