Request for a preliminary ruling from the Ráckevei Járásbíróság (Hungary) lodged on 8 December 2020 – EP and Others v ERSTE Bank Hungary Zrt.

(Case C-670/20)

Language of the case: Hungarian

Referring court

Ráckevei Járásbíróság

Parties to the main proceedings

Applicants: EP, TA, FV and TB

Defendant: ERSTE Bank Hungary Zrt.

Questions referred

Having regard to the interpretation of Article 4(2) of Directive 93/13/EEC on unfair terms in consumer contracts ¹ adopted in the judgment in Andriciuc and Others, C-186/16, ² is a contractual term concerning foreign exchange risk which, without expressly establishing that that risk is to be borne exclusively and entirely by the debtor, contains only a declaration by the debtor in which it is stated that the latter ‘is fully aware of the possible risks of the transaction, and in particular the fact that fluctuations in the currency in question against the Hungarian forint can both increase and reduce the burden of repayment of the loan in forints[’], to be regarded as clear and unambiguous?

Does the contractual term described above satisfy the requirement, laid down in the judgment in Andriciuc and Others, C-186/16, that the consumer must be able to assess, on the basis of such a term, the potentially significant economic consequences of the assumption of foreign exchange risk with regard to his or her financial obligations, having regard to the fact that the document entitled [‘]Information on the general risks of foreign currency financing[’], which the consumer signed when entering into the contract, makes reference in identical wording to the favourable and unfavourable effects of changes in the exchange rate, and thereby suggests that the typical trend in a stable exchange rate – also communicated by the Hungarian Banking Association – is that those favourable and unfavourable economic effects are offset in the long run?

Does the contractual term described above satisfy the requirement, laid down in the judgment in Andriciuc and Others, C-186/16, that the consumer must be able to assess, on the basis of such a term, the potentially significant economic consequences of such a term with regard to his or her financial obligations, where neither the contract nor the information document on the foreign exchange risk, which is signed when the contract is concluded, expressly or implicitly states that the increase in repayments may be significant or can also, in fact, reach any level?

Having regard to the interpretation of Article 4(2) of Directive 93/13/EEC on unfair terms in consumer contracts adopted in the judgment delivered in Andriciuc and Others, C-186/16, is a contractual term concerning the foreign exchange risk, in which it is not expressly stated that the foreign exchange risk is to be borne exclusively and entirely by the consumer, to be regarded as clear and unambiguous when it does not expressly follow from the terms of the contract that the increase in repayments may be significant and can also, in fact, reach any level?

Is the declaration made to that effect by the consumer, which is set out in general terms in a standard clause in the contract, sufficient per se to assess whether the information on the foreign exchange risk satisfies the requirement, laid down in the judgment delivered in Andriciuc and Others, C-186/16, that that information must allow the consumer to assess, on the basis of that term, the potentially significant economic consequences of the transfer of the foreign exchange risk with regard to his or her financial obligations, where no other clause in either the contract or the information document supports that finding?

Having regard to the content of the judgment delivered in Andriciuc and Others, C-186/16, is the interpretation given by the Kúria (Supreme Court, Hungary) according to which ‘the fact that the defendant provided information on the foreign exchange risk in itself means that the applicant should realistically have expected that risk’ in conformity with Article 4(2) of Directive 93/13/EEC?

____________

¹ Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

² Judgment of 20 September 2017, Andriciuc and Others, C-186/16, EU:C:2017:703.