Request for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 1 February 2017 — Teréz Ilyés, Emil Kiss v OTP Bank Nyrt., OTP Faktoring Követeléskezelő Zrt.
(Case C-51/17)
Language of the case: Hungarian
Referring court
Fővárosi Ítélőtábla
Parties to the main proceedings
Applicants: Teréz Ilyés, Emil Kiss
Defendants: OTP Bank Nyrt., OTP Faktoring Követeléskezelő Zrt.
Questions referred
1) Is a contractual term which places the exchange rate risk on the consumer and which, owing to the removal of an unfair contractual term which established a bid-offer spread and the obligation to bear the corresponding exchange rate risk, has become part of the contract with ex tunc effects as a consequence of the intervention of the legislature following disputes concerning validity which affected a large number of contracts considered to be a clause which is not individually negotiated within the meaning of Article 3(1) of the Directive 1 and which therefore falls within the scope of the Directive?
2) If a contractual term which places the exchange rate risk on the consumer falls within the scope of the Directive, is the exclusion in Article 1(2) of the Directive to be interpreted as also referring to a contractual term which reflects mandatory statutory provisions within the meaning of paragraph 26 of the judgment of the Court of Justice in RWE Vertrieb AG, C-92/11, which have been adopted or have come into force after the conclusion of the contract? Does that exclusion also extend to a contractual term which has become part of the contract with ex tunc effects after the conclusion of the contract as a consequence of a mandatory statutory provision which remedies the invalidity caused by the unfairness of a contractual term which makes it impossible to perform the contract?
3) If, according to the replies to the above questions, it is possible to examine the unfairness of a contractual term which places the exchange rate risk on the consumer, is it to be understood that the requirement for plain intelligible language to which Article 4(2) of the Directive refers is also met if the obligation to provide information required by law and formulated in necessarily general terms is fulfilled in the terms set out in the facts, or is it also necessary to communicate information concerning the risk to the consumer of which the financial institution is aware or to which it might have access at the time the contract is concluded?
4) Is the fact that, at the time the contract was concluded, the contractual terms relating to the power to make unilateral amendments and to the bid-offer spread — which, years later, turned out to be unfair — appeared in the contract together with the term relating to the assumption of the exchange rate risk, so that, as a cumulative effect of those terms, the consumer had no means of foreseeing how the payment obligations or the mechanism for varying them would evolve, relevant from the point of view of the requirement for clarity and transparency and of the provisions in point 1(i) of the Annex to the Directive, for the purposes of interpreting Article 4(1) of the Directive?
5) If the national court declares that the contractual term which places the exchange rate risk on the consumer is unfair, is it required, when determining the legal effects in accordance with the rules of national law, also to take into account of its own motion, while respecting the right of the parties to present argument in inter partes proceedings, the unfairness of other contractual terms which have not been relied on by the applicants in their action? Does the principle that the court should act of its own motion in accordance with the case-law of the Court of Justice also apply if the applicant is a consumer or, having regard to the position occupied by the principle of the autonomy of the parties in the whole proceedings and to the particular features of the proceedings, does the principle that the parties have the right to delimit the subject matter of an action, in that case, preclude examination by the court of its own motion?
____________1 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; OJ 1993 L 95, p. 29.