30 Sep Loan denominated in foreign currency …
Consumer protection – Unfair terms – Directive 93/13/EEC – Article 1(2) – Article 6(1) – Loan denominated in foreign currency – Difference between the exchange rate applicable when the loaned funds are released and when they are repaid – Member State legislation providing for the replacement of an unfair term by a provision of national law – Possibility for the national court to invalidate the entire agreement containing the unfair term – Possible consideration of the protection offered by that legislation and of the consumer’s wishes regarding its application.
ECJ, 2 September 2021 Case C-932/19, JZ v OTP Jelzálogbank Zrt. and Others.
Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding national legislation which, in relation to loan agreements concluded with a consumer, renders void a term relating to the exchange difference that is regarded as unfair and requires the national court with jurisdiction to replace that term with a provision of national law imposing the use of an official exchange rate, without providing for the possibility, for that court, to grant the application of the consumer concerned for the annulment of the loan agreement in its entirety, even if that court considers that the continuation of that agreement would be contrary to the interests of the consumer, in particular with regard to the exchange risk which the latter would continue to bear by virtue of another term in that agreement, in so far as the court is, however, in a position to make a finding – in the exercise of its sovereign discretion, over which the consumer’s expressed wishes cannot prevail – that the implementation of the measures thus provided for by that national legislation makes it possible to re-establish the legal and factual situation which would have existed for the consumer in the absence of that unfair term.