Criteria to be taken into account in applying Directive 93/13/EEC
15.10.2013
Question for written answer P-011737-13
to the Commission
Rule 117
Zoltán Bagó (PPE)
In the light of case-law[1], should national courts in principle define a contract obligation as unfair which, in the case of a long-term loan taken out in a reserve currency[2] or euros, stipulates that the exchange rate risk should be borne entirely by the borrower (consumer) while the contract does not in the slightest require the service-provider (bank) to pass on any naturally occurring base rate reduction[3] in the reserve currency or reduction in the European Central Bank’s interest rate, particularly bearing in mind that in recent years Hungary’s CDS premium has declined significantly?
If the national court reviews the criterion of whether the consumer finds himself in a worse position than provided for by the relevant law in force, should it take account of the fact that, if interest rates on loans in Hungarian forint are linked either to the interest rates of the Hungarian Central Bank or to the market interest rate for loans in Hungarian forint, then, in the case of foreign-currency loans, interest rates ought to be determined by comparison either with the base rate of the central bank responsible for the foreign currency concerned or with the market interest rate for the currency zone concerned, i.e. ought the reduction which has occurred in recent years to be passed on? Does European law require transparency with regard to interest rates and the cost of funds?
Does the Commission consider it to be compatible with European law for service-providers (banks) to unilaterally raise interest rates[4] or unilaterally increase the disparity between the foreign currency buying and selling rates[5] where contracts exist under which the exchange rate risk is borne solely by the consumer, or does European law limit the power of service-providers (banks) to do this? Does it seem compatible with EU objectives regarding the striking of a genuine balance between consumers and service-providers for banks to apply the exchange rate risk not only in the case of a capital debt but also to charges for managing that debt (to the detriment of consumers)?
- [1] Court of Justice of the European Union, C-415/11, particularly with reference to the fact that, for the purpose of ascertaining whether a contract obligation is unfair, the main criterion to be applied, according to European case-law, is whether the consumer has accepted the obligation during an individual negotiation.
- [2] The Swiss franc.
- [3] I take it to be a natural process if, in the event of a crisis, a reserve currency appreciates because of the flight of investors and the central bank concerned seeks — as it generally will — to dampen the appreciation of the currency by reducing the base rate.
- [4] Bearing in mind that many consumers (borrowers) are experiencing payment difficulties.
- [5] The Hungarian National Bank’s study clearly indicates that the increase in the burdens on consumers (borrowers) has been caused not only by the — for them — disadvantageous change in exchange rates but also by the practice adopted by service-providers (banks) of changing foreign currency buying and selling rates to the detriment of consumers (Ádám Balog, Márton Nagy, MNB).
OJ C 216, 09/07/2014