Key facts of the case:
The plaintiff, a financial institution requested the Curia to quash the first and second instance courts’ judgments in an extraordinary review procedure. The case concerned the fairness of the clause in the foreign currency loan agreements that allowed for unilateral modification. The plaintiff urged the Curia to accept that the challenged clauses were in the examined period fair and thus valid. The Curia Unity of Law Decision no. 2/2004 declared that the fairness of clauses, under which the risk of foreign exchange is borne by the customer and the exchange rate is set by the lender, can be challenged only if the clause was not clear and understandable when the agreement was concluded. Act no. XXXVIII of 2014 adopted in response to the allegedly lenient solution repealed the exchange rate gap clauses and set a fixed rate. The Act introduced a statutory presumption of unfairness for the unilateral amendment option clauses and prescribed the procedure in which the presumption could be rebutted by the financial institutions. The plaintiff asked the Curia to suspend the trial and petition the Constitutional Court and request a preliminary ruling from the Court of Justice of the European Union as the Hungarian legislation violates Council Directive on unfair terms in consumer contracts and Article 17 of the Charter.
The Curia rejected the petition for review and upheld the second instance court’s judgment. As to the necessity of constitutional review, the court referred to Constitutional Court Decisions no. 34/2014 (XI. 14.) and 2/2015 (II. 2.) where the Constitutional Court ruled that the legal framework applicable to the issue presented by the case does not contradict the principle of rule of law, and does not violate the right against retroactive legislation, the right to a fair trial and the right to a remedy. The Curia failed to accept that the presumption of unfairness of the unilateral amendment clauses in loan agreements contradicts the Council Directive on unfair terms in consumer contracts or the Charter, thus no preliminary ruling was requested.
[According to the plaintiff Act No. XXXVIII of 2014 on the settlement of certain issues concerning the Uniformity Decision of the Curia related to consumer loan agreements provided by financial institutions] violates the right to property and the principle of legitimate expectation. (The Curia has acknowledged the applicability of the Charter in its previous judgments.) Claims based on unfair terms are null and void and the plaintiff would not have been entitled to enforce those, but the expiry of the statute of limitations significantly changed the legal relations. The consumer may refer to the unfairness of the term without deadline, but may not reclaim expired demands. Expired demands benefit from constitutional protection regardless the way they were acquired.
The basic rights enshrined in the Charter shall be respected in this procedure as well. However, the right to property and the economic interests of the plaintiff are not violated, since the fact that it can not apply contractual clauses, based on unfair terms, allowing to increase unilaterally interest rate, expenses or fees does not result in deprivation of property. These terms are null and void equally under the community and the Hungarian law, i.e. they cannot create obligations for the consumer and hence the plaintiff cannot base entitlements on them. Acquiring and exercising rights that the party was never entitled to under the national law, cannot be enforced under the European Convention on Human Rights and Fundamental Freedoms that regulates the right at issue in the same way as the Charter either.