Ottília Lovasné Tóth v ERSTE Bank Hungary Zrt.
Date: 2019-09-19
40


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 (judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 37 and the case-law cited).
42


In addition, it must be stated that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and tribunals and the Court of Justice, any assessment of the facts and of national law is a matter for the national court or tribunal (see, to that effect, judgment of 27 February 2019, Associação Peço a Palavra and Others, C‑563/17, EU:C:2019:144, paragraph 36 and the case-law cited). Consequently, in the present case, it falls to the referring court to assess the meaning and scope of the term at issue in the main proceedings.
45


It is clear from Article 3(3) of Directive 93/13 that the Annex to that directive contains an indicative and non-exhaustive list of the terms which may be regarded as unfair. It is true that, as the Court has already held, the Annex to directive 93/13 is an essential element on which the competent court may base its assessment as to the unfair nature of that term (see, to that effect, order of 3 April 2014, Sebestyén, C‑342/13, EU:C:2014:1857, paragraph 32 and the case-law cited). However, a term appearing in the list in that Annex need not necessarily be considered unfair and, conversely, a term that does not appear in the list may nonetheless be regarded as unfair (see judgment of 7 May 2002, Commission v Sweden, C‑478/99, EU:C:2002:281, paragraph 20).
52


The Court has already held, in relation to terms which may fall within point 1(q) of the Annex to Directive 93/13, read in conjunction with Article 3(1) of that directive, that the national court must assess whether and, if appropriate, to what extent, the term in question derogates from the rules applicable in the absence of agreement between the parties, so as to make it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence (see, to that effect, judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 75).
59


In that respect, it should be noted that the Court has already held that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding national legislation which allows a notary who drew up, in due form, an authentic instrument concerning a contract concluded between a seller or supplier and a consumer, to affix the enforcement clause to that instrument or to refuse to cancel it when no review of the unfairness of the contractual terms has been performed at any stage, provided, however, that the procedural rules governing actions laid down by national law guarantee effective legal protection for the consumer in the circumstances of the case, that being a matter for the national court to verify (see, to that effect, judgment of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraphs 64 and 65).
62


It should be noted, first of all, that, according to the Court’s case-law, the requirement for transparency of contractual terms, laid down inter alia by Article 5 of Directive 93/13, requires not only that the relevant term should be grammatically intelligible to the consumer, but also that it should make it possible for the consumer to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 75, and of 9 July 2015, Bucura, C‑348/14, not published, EU:C:2015:447, paragraph 55).
63


That case-law requires, in essence, that the mechanisms for calculating the debt and the amount to be repaid by the consumer should be transparent and intelligible and that, where appropriate, the seller or supplier should provide additional information to that end (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 51).
64


Again in relation to the requirement for transparency with regard to the economic consequences for the consumer arising from a contract, the Court has held that, in a situation in which certain aspects of the method of amendment of the fees connected with the service to be provided were laid down in mandatory statutory or regulatory provisions within the meaning of Article 1(2) of Directive 93/13 or in which those provisions set out, for the consumer, the right to terminate the contract, it was essential that that consumer be informed by the seller or supplier of those provisions (see, to that effect, judgment of 26 April 2012, Invitel, C‑472/10, EU:C:2012:242, paragraph 29).
65


In addition, the Court has held, in a different context relating to a term requiring the application of the law of the seller’s State of establishment, that the seller is required to inform the consumer of the existence of mandatory provisions, such as Article 6(2) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6), which provides that the choice of applicable law must not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which would have been applicable in the absence of choice (see, to that effect, judgment of 28 July 2016, Verein für Konsumenteninformation, C‑191/15, EU:C:2016:612, paragraph 69).