GT v HS.
Date: 2019-06-05
23


In that regard, it should be noted that, according to 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, and 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 for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law 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).
25


It is true that, in so far as they replace terms stipulating a differential between the exchange rate applicable when the loan is advanced (the buying rate) and that applicable to its repayment (the selling rate) with a term stipulating that a single rate of exchange will be applied, namely that set by the National Bank of Hungary, the laws referred to by the Commission have the effect of placing the latter term outside the scope of Directive 93/13, as such a term reflects a mandatory statutory provision, within the meaning of Article 1(2) of Directive 93/13. Nevertheless, in view of the fact that that provision must be construed strictly, it does not follow that another contractual term, such as that at issue in the main proceedings, which determines how the amount of the loan denominated in foreign currency is to be fixed, will also be excluded from the scope of the directive in its entirety (see, to that effect, judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraphs 65 and 66), so that it is not obvious that that directive is not applicable to the term at issue in the main proceedings.
27


Although the question referred relates only in part to the interpretation of a particular provision of EU law, it is settled case-law that the Court must extract from all the information provided by the referring court, and in particular from the statement of grounds contained in the order for reference, the provisions of EU law requiring an interpretation, having regard to the subject matter of the dispute (see, to that effect, judgment of 3 April 2019, Aqua Med, C‑266/18, EU:C:2019:282, paragraph 39).
31


Under that provision, such terms escape any assessment as to whether they are unfair only if 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 (see, to that effect, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraph 48).
32


The Court has stated that the requirement that contractual terms must be drafted in plain intelligible language, also repeated in Article 5 of Directive 93/13, cannot be reduced merely to their being formally and grammatically intelligible. It has also stated that, to the contrary, since the system of protection introduced by the directive is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, in particular as regards his level of knowledge, that requirement must be understood in a broad sense (see, to that effect, judgment of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraph 61).
33


Therefore, the requirement that a contractual term must be drafted in plain intelligible language means that the contract should indicate transparently and specifically how the mechanism to which the relevant term relates is to function and, where appropriate, the relationship between that mechanism and that provided for by other contractual terms, so that that consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him of entering into the contract (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 45).
34


In a situation such as that in the main proceedings, in which the determination of the amount of the loan depends on the applicable exchange rate at the time the loan was advanced, as fixed by the lender after the agreement had been concluded, that requirement means that the mechanism for calculating the amount lent, expressed in foreign currency, and the exchange rate applicable must be indicated transparently, so that a reasonably well-informed and reasonably observant and circumspect consumer may evaluate, on the basis of clear, intelligible criteria, the economic consequences for him of entering into the agreement, including, in particular, the total cost of the loan (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 47, and order of 22 February 2018, ERSTE Bank Hungary, C‑126/17, not published, EU:C:2018:107, paragraph 32).
35


That question must be examined by the referring court in the light of all the relevant facts, including the promotional material and information provided by the lender in the negotiation of the loan agreement (judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 46).
40


The circumstances referred to in Article 4(1)of Directive 93/13 are those which could have been known to the seller or supplier at that time the agreement was concluded and which were of such a nature that they could affect the future performance of the agreement, since a contractual term which manifests itself only during the performance of the agreement term may give rise to an imbalance between the parties (see, to that effect, judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 54).
42


In that regard, the Court has held 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. However, the 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, which is to be determined objectively (see, to that effect, judgment of 14 March 2019, Dunai, C‑118/17, EU:C:2019:207, paragraph 51 and the case-law cited).