Case C‑511/17
Györgyné Lintner
v
UniCredit Bank Hungary Zrt.
(Request for a preliminary ruling from the Fővárosi Törvényszék)
Judgment of the Court (Third Chamber), 11March 2020
(Reference for a preliminary ruling– Consumer protection– Directive 93/13/EEC– Unfair terms in consumer contracts– Foreign currency based loan contract– Article4(1)– Consideration of all the other terms of the contract for the purpose of assessing the unfairness of the contested term– Article6(1)– Examination by the national court of its own motion as to whether the clauses in the contract are unfair– Scope)
1.Consumer protection– Unfair terms in consumer contracts– Directive 93/13– Obligation on a national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair– Concept– Obligation to examine ex officio the unfairness of all the terms of such a contract, including those not challenged by the consumer– Not included– Obligation to examine ex officio only the terms connected to the subject matter of the dispute– Included
(Council Directive 93/13, Art. 6(1))
(see paragraphs27, 28, 30-34, 44, operative part 1)
2.Consumer protection– Unfair terms in consumer contracts– Directive 93/13– Obligation on a national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair– No obligation to take into account only the elements of law and fact submitted by the parties– Obligation to take ex officio investigative measures in order to complete those elements
(Council Directive 93/13, Art. 6(1))
(see paragraphs35, 37, 38, 44, operative part 1)
3.Consumer protection– Unfair terms in consumer contracts– Directive 93/13– Obligation on a national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair– Consideration of all the terms of such a contract– Scope– No obligation to examine ex officio the unfairness of all those terms
(Council Directive 93/13, Arts 4(1) and 6(1))
(see paragraphs46-49, operative part 2)
Résumé
In the judgment in Lintner (C‑511/17), delivered on 11March 2020, the Court addressed the scope of the obligations on a national court, first, to examine of its own motion whether the contractual terms of a loan agreement denominated in a foreign currency concluded between a consumer and a seller or supplier are unfair and, second, to take ex officio investigative measures as regards that examination, for the purposes of the Unfair Contract Terms Directive(1).
This judgment was delivered in the context of a request for a preliminary ruling made by the Fővárosi Törvényszék (Budapest High Court, Hungary)(2) (‘the referring court’). MrsLintner (‘the applicant’) had brought an action before that court concerning the allegedly unfair nature of certain terms in a foreign currency mortgage loan contract which she had concluded with a bank. Under those terms, that bank had the right to unilaterally amend that loan contract. Having dismissed that action, the referring court had the case referred back to it by the competent court of appeal, following an appeal brought by the applicant, and was required to examine of its own motion the contractual terms that the applicant had not challenged in its initial action, relating, in particular, to the notarial certificate, the grounds for termination and certain fees payable by the applicant.
As regards, in the first place, the scope of the ex officio examination of whether a contractual term is unfair, which the national court must undertake under the abovementioned directive, the Court ruled that that court is not obliged to examine of its own motion and individually all the other contractual terms, which were not challenged by that consumer, in order to ascertain whether they can be considered to be unfair, but must examine only those terms connected to the subject matter of the dispute, as delimited by the parties. Thus, the Court stipulated that that examination must respect the limitations of the subject matter of the dispute, understood as being the result that a party pursues by its claims, in the light of the heads of claim and pleas in law put forward to that end by the parties. Accordingly, it is within these limits that the national court is called upon to examine of its own motion a contractual term in order to prevent the consumer’s claims from being rejected by a potentially final decision when they could have been upheld had the consumer not, for lack of knowledge, omitted to invoke the unfair nature of that term. The Court also stated that, in order for the effectiveness of the protection afforded to consumers under that directive not to be compromised, the national court must not interpret the claims put before it in a formalistic manner, but must, instead, comprehend their content in the light of the pleas of law relied on in support of them.
As regards, in the second place, the implementation of the ex officio examination of whether a term is unfair, the Court ruled that if the elements of law and fact in the file before the national court give rise to serious doubts as to the unfair nature of certain clauses which were not invoked by the consumer but which are related to the subject matter of the dispute, that court must take ex officio investigative measures in order to complete that case file, by asking the parties, in observance of the principle of audi alteram partem, to provide it with the clarifications or documents necessary for that purpose.
In the third and last place, the Court ruled that, while all the other terms of the contract that the consumer concluded with a professional should be taken into consideration in order to assess whether the contractual term forming the basis of a consumer’s claim is unfair, taking such terms into account does not entail, as such, an obligation on the national court hearing the case to examine of its own motion the unfairness of all those terms.
1Council Directive 93/13/EEC of 5April 1993 on unfair terms in consumer contracts (OJ 1993 L95, p.29).
2It is part of a series of cases which have come before the Court relating to the Hungarian framework on consumer credit agreements denominated in a foreign currency. See, inter alia, judgments of the Court of 31May 2018, Sziber (C‑483/16, EU:C:2018:367), of 20September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750), and of 14March 2019, Dunai (C‑118/17, EU:C:2019:207).