25.11.2019

Official Journal of the European Union

C 399/8

(Case C-34/18) (*)

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Article 3(1) and (3) - Annex to Directive 93/13/EEC - Point 1(m) and (q) - Loan agreement secured by a mortgage - Notarial instrument - Affixation of the enforcement clause by a notary - Reversal of the burden of proof - Article 5(1) - Plain and intelligible drafting)

(2019/C 399/08)

Language of the case: Hungarian

Referring court

Parties to the main proceedings

Applicant: Ottília Lovasné Tóth

Defendant: ERSTE Bank Hungary Zrt.

Operative part of the judgment

1.Article 3(3) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with point 1(q) of the Annex to that directive, must be interpreted as meaning that it does not qualify as unfair, in a general manner and without any further examination, a contractual term which has not been individually negotiated and which has the effect or object of reversing the burden of proof to the detriment of the consumer;

2.Article 3(3) of Directive 93/13, read in conjunction with point 1(q) of the Annex to that directive, must be interpreted as meaning, first, that it does not cover a term which has the object or effect of giving the consumer good reason to believe that he is required to fulfil all his contractual obligations, even though he considers that certain payments are not due, provided that that term does not alter the consumer’s legal position in view of the applicable national legislation and, secondly, that it covers a term which has the object or the effect of hindering the consumer’s right to take legal action or exercise any other legal remedy where the outstanding amount is determined by a notarised instrument with probative force making it possible for the lender to put an end to the litigation unilaterally and definitively;

3.Article 5 of Directive 93/13 must be interpreted as meaning that it does not require the seller or supplier to provide additional information relating to a term which is drafted clearly, but the legal effects of which may be determined only by interpreting provisions of national law in respect of which there is no consistent case-law;

4.Article 3(3) of Directive 93/13, read in conjunction with point 1(m) of the Annex to that directive, must be interpreted as meaning that it does not cover a contractual term which authorises the seller or supplier to assess unilaterally whether the consumer’s obligations were performed in accordance with the contract.

(*)

OJ C 240, 9.7.2018.