Zsuzsanna Dunai v ERSTE Bank Hungary Zrt.
Date: 2019-03-14
35


First of all, it should be pointed out that, although the first to third questions refer only to the term relating to exchange difference as an unfair term which justifies, according to the applicant in the main proceedings, the cancellation of the loan contract, it is apparent from the request for a preliminary ruling that the interested party invokes the unfair nature of that term in order to avoid exchange rate risk. It can therefore not be excluded, as the Advocate General stated in point 57 of his Opinion, that, in the main proceedings, the question of the application of a term relating to the exchange rate risk is always relevant, particularly since the referring court could be tasked with assessing of its own motion the unfair nature of such a term (see, to that effect, judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 53 and the case-law cited). Therefore, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, it is necessary to answer the first three questions also in connection with an examination of an application for cancellation of a loan contract, such as that at issue in the main proceedings, based on the unfair nature of a term relating to the exchange rate risk.
40


In so far as the Hungarian legislature remedied the problems connected with the practice of credit institutions consisting in concluding loan contracts including terms relating to exchange difference by modifying those terms by legislative means and by safeguarding, at the same time, the validity of loan contracts, such an approach corresponds to the objective pursued by the Union legislature in the context of Directive 93/13, and in particular Article 6(1) thereof. That objective consists in restoring the balance between the parties while in principle preserving the validity of the contract as a whole, not in cancelling all contracts containing unfair terms (see, to that effect, judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 31).
41


Nevertheless, as regards Article 6(1) of that directive, the Court has also held that it must be interpreted as meaning that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer, and that it has the consequence of restoring the consumer to the legal and factual situation that he would have been in in the absence of that term (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, paragraph 61).
42


Although Article 7(1) of Directive 93/13 does not preclude the Member States from using legislation to put an end to the use of unfair terms in contracts concluded with consumers by sellers or suppliers, the fact remains that the legislature must, in that context, respect the requirements deriving from Article 6(1) of that directive.
43


The fact that certain contractual terms were, by means of legislation, declared to be unfair and void and replaced by new terms, in order to allow the continued existence of the contract at issue, cannot have the result of weakening the protection guaranteed to consumers, as pointed out in paragraph 40 of the present judgment.
44


In this case, in so far as the action brought by Mrs Dunai is based on the term relating to exchange difference which was included initially in the loan contract concluded with the bank, it is for the referring court to ascertain whether the national legislation, which declared terms of that nature to be unfair, allowed the legal and factual situation in which Mrs Dunai would have been in the absence of such an unfair term to be restored, in particular by giving rise to a right to restitution of advantages wrongly obtained, to her detriment, by the seller or supplier on the basis of that unfair term (see, to that effect, judgment of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 53).
48


In that regard, it should be noted, secondly, that, concerning contractual terms relating to exchange rate risk, it follows from the Court’s case-law that such terms, in so far as they define the main subject matter of the loan contract, come within 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 considers, following a case-by-case examination, that they were drafted by the seller or supplier in plain intelligible language (see, to that effect, judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 68 and the case-law cited).
49


If, thirdly, the referring court considers that the term relating to exchange rate risk at issue in the main proceedings is not drafted in plain intelligible language for the purposes of Article 4(2), it is for it to examine whether that term is unfair and, in particular, whether, despite the requirement of good faith, it causes a significant imbalance in the rights and obligations of the parties to the contract to the detriment of the consumer at issue (see, to that effect, judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 64).
51


As regards, fifthly, the question whether a loan contract such as that at issue in the main proceedings must be cancelled in its entirety where it is concluded that one of its terms is unfair, it must be noted, first, as has already been pointed out in paragraph 40 of the present judgment, that Article 6(1) of Directive 93/13 seeks to restore the balance between the parties, and not to cancel all contracts containing unfair terms. Secondly, that contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 71 and the case-law cited), which is to be determined objectively (see, to that effect, judgment of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 32).
52


In this case, as was already noted in paragraph 48 of the present judgment, the term relating to the exchange rate risk defines the main subject-matter of the contract. Therefore, in such a case, the continuation of the contract does not appear to be legally possible, which is however to be determined by the referring court.
54


Moreover, it should also be noted that, although the Court accepted, in its judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraphs 83 and 84), that a national court may substitute a supplementary provision of domestic law for an unfair contractual term in order to ensure the continued existence of the contract, it follows from the Court’s case-law that that possibility is limited to cases in which the cancellation of the contract in its entirety would expose the consumer to particularly unfavourable consequences, such that the latter would be penalised (see, to that effect, judgments of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 74, and of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 61).
61


In that regard, an answer in the affirmative to those questions could be necessary where, first, those decisions do not allow the court with jurisdiction to give full effect to the rules of Directive 93/13 by setting aside, where necessary of its own motion, any conflicting provision of national legislation, even one adopted subsequently, including any conflicting judicial practice, without it being necessary for that court to request or await the prior setting aside of such a provision by legislative or other constitutional means, and, secondly, the possibility to make a reference for a preliminary ruling to the Court would be inhibited (see, to that effect, judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraphs 34, 40 and 41 and the case-law cited).