Banif Plus Bank Zrt. v Márton Lantos and Mártonné Lantos.
Date: 2015-12-03
33. In addition, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see, inter alia, judgment in Commission v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 29).
35. Given that the governments of Member States have lodged written observations arguing that the reference for a preliminary ruling is inadmissible or expressed doubts about the admissibility of some of the questions referred, it should be pointed out that, according to the Court’s consistent case-law, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, bound to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of EU law requested bears no relation to the actual facts of the main action or its purpose, or that 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, inter alia, judgment in Les Vergers du Vieux Tauves , C‑48/07, EU:C:2008:758, paragraph 17).
43. It should be observed at the outset that, in the earlier case which gave rise to the judgment in Kásler and Káslerné Rábai  (C‑26/13, EU:C:2014:282), the Kúria (Supreme Court) also asked the Court about the conditions of application of Directive 93/13 in the specific context of foreign currency denominated consumer loan agreements. The Kúria (Supreme Court), by judgment 2/2014 PJE, which was delivered in order to ensure uniform interpretation of the provisions of civil law, held that the clauses concerning the terms relating to the exchange rate, in so far as they introduce an asymmetry between the purchase price of the currency, applied when the loan is advanced, and its sale price, applied for the calculation of the monthly instalments, could be reviewed in order to determine whether they were unfair and in fact had to be held to be unfair given, inter alia, that the bank charges the client a fee equal to the difference between those exchange rates without providing a service to the client in return.
48. They include provisions of Directive 93/13, which lays down the mechanism for reviewing the substance of unfair terms, as provided for in the system of consumer protection put in place by that directive (see, to that effect, judgment in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 42).
51. In that regard, although it is for the national court alone to rule on the classification of those 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 2004/39, in this case Article 4(1)(2), the criteria that the national court may or must apply to that end (see, to that effect, judgment in Genil 48 and Comercial Hostelera de Grandes Vinos , C‑604/11, EU:C:2013:344, paragraph 43).
52. That being so, there is no thing preventing a national court from asking the Court to rule in such a classification, as the referring court has done here by its first and second questions, although it is for the national court to make the findings of fact necessary for that classification in the light of all the material in the file in its possession.
73. Thus, a case such as the one at issue in the main proceedings is fundamentally different from the one which gave rise to the judgment in Genil 48 and Comercial Hostelera de Grandes Vinos (C‑604/11, EU:C:2013:344), which concerned a futures type of financial instrument, being a so-called ‘swap’ agreement aimed at protecting bank customers against fluctuations in variable interest rates to which they had been exposed as a result of a subscription for certain financial products with those banks.
79. In so far as relevant, it may be recalled in respect of the fourth question that the Court has held previously that it is for the internal legal order of each Member State to determine the contractual consequences where an investment firm offering an investment service fails to comply with the assessment requirements laid down in Article 19(4) and (5) of Directive 2004/39, subject to observance of the principles of equivalence and effectiveness (judgment in Genil 48 and Comercial Hostelera de Grandes Vinos , C‑604/11, EU:C:2013:344, paragraph 58).
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