In December 2007, Mrs. Györgyné Lintner signed a CHF indexed mortgage loan agreement with UniCredit Bank Hungary
This contract contained certain clauses that gave UniCredit Bank the right to subsequently modify its content
Mrs. Lintner filed a lawsuit in the Hungarian courts to declare with retroactive effect the invalidity of the clauses in the mortgage contract, under the Directive 93/13 on unfair terms; which establishes, in particular, that the abusive clauses incorporated into contracts concluded between a consumer and a professional are not binding for the consumer.
In 2014, the Hungarian legislator introduced a regulation that regulates the declaration of the abusive nature of the clauses that give banks the right to unilaterally modify the loan contracts concluded with consumers, as well as the consequences that must derive from their abusive nature, therefore, Hungarian courts no longer have to consult the Directive to determine the compatibility of these clauses. However, after examining Ms Lintner’s application, the Fővárosi Törvényszék (General Court of the Capital) wonders, in the light of the case-law of the Court of Justice, whether, even so, it should not rule on compatibility with the Directive of other clauses, regarding the controversial loan contract that were not the main subject of the lawsuit. These last clauses refer to the notarial certification of the facts, the reasons for termination of the contract and certain expenses borne by the consumer.
Given these circumstances, the FT asks the Court of Justice whether it is obliged, under the Directive, to judge ex officio the abusive nature of all the clauses of the loan contract in question, even though, on the one hand, the compatibility of those clauses with the Directive have not been discussed by the consumer in his claim and, on the other hand, the analysis of them is not essential to rule on that claim.
In its judgment pronounced on March 11, 2020, the Court of Justice specifies that the judge before whom a consumer alleges that certain clauses included in a contract concluded with a professional are abusive is not obliged to examine ex officio and individually the possible abusive nature of all the other clauses of that contract that have not been contested by the consumer. However, it must carry out this examination of the clauses that, even when they have not been contested by the consumer, are linked to the object of the litigation as defined by the parties, as soon as it has the necessary elements of fact and law. Thus, if the file at hand raises serious doubts about the abusive nature of these clauses, the judge must complete it by requesting the parties to provide the necessary clarifications and documents for it. However, the judge is not obliged to examine ex officio the abusive nature of the clauses that have not been denounced by the consumer.
Finally, the Court of Justice recalls that the judge who has to determine the abusive nature of a contractual clause must take into account all the other clauses of the present in the contract, in order to carry out that examination, it is necessary to assess the cumulative effect of those clauses. However, the ECJ stresses that in the context of assessing the invalidity of the consumer demand clause, the judge is obliged to examine ex officio all these other clauses autonomously as to its possible abusive nature.
