Official Journal of the European Union

C 225/8

(Case C-397/11) (<span class="super">1</span>)

(Directive 93/13/EEC - Unfair terms in consumer contracts - Examination by the national court, of its own motion, as to whether a contractual term is unfair - Consequences to be drawn by the national court from a finding that the term is unfair)

2013/C 225/12

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék (formerly known as Fővárosi Bíróság)

Parties to the main proceedings

Applicant: Erika Jőrös

Defendant: Aegon Magyarország Hitel Zrt.

Re:

Request for a preliminary ruling — Fővárosi Bíróság — Interpretation of Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — National legislation providing that a national court is limited in its examination of whether standard contract terms are unfair where the parties do not expressly seek a finding that such a term is unfair — Option for the national court of second instance to find of its own motion that a term of a contract before it is unfair even if that point was not raised at first instance and, under national rules, no account may be taken on appeal of new facts and evidence

Operative part of the judgment

1.Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that where a national court, dealing with an appeal concerning the validity of terms in a contract concluded between a seller or supplier and a consumer on the basis of a form prepared in advance by that seller or supplier, has the power, under its internal procedural rules, to examine any grounds for invalidity clearly apparent from the elements submitted at first instance and, if necessary, to redefine, depending on the facts determined, the legal basis relied upon to establish that those terms are invalid, it must assess, of its own motion or by redefining the legal basis of the application, whether those terms are unfair in the light of the criteria in that directive.

2.Article 6(1) of Directive 93/13 must be interpreted as meaning that a national court which has established that a contractual term is unfair is required, first, without waiting for the consumer to make an application in that regard, to draw all the consequences which, under national law, result from that finding in order to satisfy itself that that consumer is not bound by that term and, secondly, to assess, in principle on the basis of objective criteria, whether the contract concerned can continue in existence without that term.

3.Directive 93/13 must be interpreted as meaning that a national court which has, of its own motion, established that a contractual term is unfair must, as far as possible, apply its internal procedural rules in such a way as to draw all the consequences which, under national law, result from a finding that the term at issue is unfair, in order to satisfy itself that the consumer is not bound by that term.

(<span class="super">1</span>) OJ C 331, 12.11.2011.