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Dolores Utrilla
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11th March 2020
Consumer, Health & Environment Justice & Litigation

CJEU ruling on the ex officio powers of national judges concerning unfair terms in consumer contracts

Today, the Court of Justice has handed down its judgment in Lintner (C-511/17) in response to a request for a preliminary ruling lodged by the High Court of Budapest (Fővárosi Törvényszék) concerning the interpretation of Article 6(1) of Directive 93/13 on unfair terms in consumer contracts.

The Hungarian court referred to the Court of Justice in proceedings between Mrs Györgyné Lintner and UniCredit Bank Hungary concerning the unfair nature of certain terms in a mortgage loan agreement denominated in a foreign currency. The questions to be solved by the Court of Justice referred, in essence, to the conditions under which a national court may assess, of its own motion, the (un)fairness of those contractual terms that are not the same terms that have been contested by the consumer in legal proceedings.

By its judgment, the Court of Justice has ruled that Article 6(1) of the Unfair Terms Directive means that a national court, hearing an action brought by a consumer seeking a declaration that certain terms in a contract which that consumer has concluded with a seller or supplier are unfair, is not required to examine of its own motion and individually all the other contractual terms which have not been contested by the consumer in order to ascertain whether they may be regarded as unfair, but must examine only those which relate to the subject-matter of the dispute, as defined by the parties, as soon as it has at its disposal the legal and factual elements necessary for that purpose, supplemented, where appropriate, by measures of inquiry.

Moreover, the Court of Justice has made clear that, even though the assessment of the unfairness of the contractual term on which a consumer’s claims are based requires taking into account all the other terms of the contract [Articles 4(1) and 6(1) of the Unfair Terms Directive], such ‘taking into account’ does not, as such, imply an obligation on the national court to examine of its own motion the possible unfairness of all those terms.

The judgment is available here (in French).

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