CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 novembre 2018

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They were represented by Mr P. Veil, a lawyer practising in Paris. 2.     The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4 .     The applicant companies are financial institutions which are active in the field of financial leasing, consumer credit and consumer loan contracts in Hungary. They are members of the OTP Bank Group. 1.     Background 5 .     According to the figures provided by the Government, the volume of consumer loans in Hungary reached its peak on 30 June 2010 when their aggregate value was   8,647.9 billion Hungarian forints (HUF). [1] Although in the subsequent years the value of those credits continuously decreased, on 30 June 2014 their volume still exceeded HUF 6,802 billion. The value of forint consumer loans amounted to HUF 3,139.1 billion, whereas the value of foreign-currency loans amounted to HUF 3,662.9 billion. 6 .     In the case of foreign-currency loans, the amounts provided by the creditor and repaid by the debtor were denominated in a foreign currency (calculation currency), but both parties were to pay the amounts in forints (payment currency). Under this type of contract the debtor had a debt in foreign currency and benefited from a more favourable interest rate than that payable in the given period on forint loans. Consequently, the debtor had to bear the effects of exchange-rate fluctuations: any depreciation of the forint would result in an increase in the debtor’s payment burden, and any appreciation of the forint would result in a decrease in that burden. The parties could also decide that the loan amount was to be provided and repaid in the calculation currency. 7 .     In 2010 the Government introduced measures to mitigate the detrimental effects of the 2008 financial crisis on debtors who held foreign ‑ currency loans. Those measures included limiting unilateral amendments to loan contracts and fixing the exchange rates for the repayment of foreign-currency loans. In addition, Act no. CXXI of 2011 (“the Early Repayment Act”) provided for the early repayment of foreign ‑ currency loans secured by mortgages on residential real estate, resulting in a 23.3 percent decrease in such loans. That legislative change was unsuccessfully challenged by the financial institutions before the Constitutional Court, which found the interference with the financial institutions’ rights to be justified on account of the exceptional and grave situation arising from the international financial crisis, which had prompted the State to take swift action to tackle the macroeconomic implications of the high volume of foreign-currency loans. 8 .     Following the financial crisis and the increased difficulties on the part of consumers to comply with the obligations stemming from their loan contracts, a large number of them instituted court proceedings seeking modification of the contracts. In response to the issues related thereto, Kúria (the historical Hungarian name for the Supreme Court, see Baka v. Hungary [GC], no. 20261/12, §§ 24 and 48, 23 June 2016) delivered a number of opinions and decisions. 2.     The Kúria’s opinions and decisions 9 .     On 12 December 2011 the Kúria issued Opinion no. 2/2011. PK [Civil Division] on certain issues related to the invalidity of a consumer contract (hereinafter “Opinion no. 2/2011), in which it addressed the question of the unfairness of non-negotiated contractual terms and standard contractual terms employed in consumer contracts. It found that the unbalanced position of the contracting parties may necessitate the protection of the party in the weaker bargaining position. On the same day the Kúria issued Opinion no. 3/2011. PK [Civil Division] on certain issues related to actio popularis in respect of consumer contracts (hereinafter “Opinion no.   3/2011). The Kúria confirmed that unfair general contractual terms employed in consumer contracts could be challenged before the court within the framework of actio popularis , even if the contracts in question had been concluded before 1 March 2006 (the date of entry into force of the corresponding provision in the old Civil Code, see paragraph 43 below) but only after 1   May 2004 (the date on which Hungary joined the European Union). 10 .     On 10 December 2012 the Kúria delivered Opinion no. 2/2012 PK on the unfairness of the standard terms of contract (hereinafter “STCs”) allowing for unilateral modification of a consumer-loan contract employed by a financial institution   (hereinafter “Opinion no. 2/2012”). It reads, as far as relevant: “(1) The financial institution may set out the right to the unilateral modification of interest rates, fees and charges, adversely affecting the consumer, among its general terms and conditions ... [in accordance with the law]. This contractual provision cannot, in itself, be qualified as unfair. (2) ... any unlawful contractual provision relating to the unilateral amendment of a contract is deemed null and void. The court initially assesses whether the provision set out among the general terms and conditions of a contract infringes any legal provisions. The contractual provision is also deemed null and void if, while it does not infringe legal regulations, one or more terms – the substance thereof – giving cause to the unilateral amendment of the contract grants an unreasonable and unilateral advantage to the financial institution and is disadvantageous for the consumer as it breaches the requirement of good faith and fairness and is, therefore, unfair within the meaning of section 209(1) of [the old Civil Code]. (3) The unfairness of a term, the substance of which is defined exhaustively by law, is not open to judicial review. If the mandatory ... legal provision is further specified by the parties, or if the parties derogate from the dispositive [non-mandatory] legal provisions, the unfairness of such a condition may be assessed. ...” 11 .     The Kúria held that provided that the term relating to the unilateral amendment of the contract was not unlawful it was to be considered unfair, if it failed to comply with the seven principles listed in its opinion, which were substantially the same as those later set down in the Uniformity Act (see section 4(1) of that Act cited in paragraph 51 below). The Kúria went on to explain that an invalid contractual term according to the list of principles did not have legal effect. The courts were required of their own motion to determine whether the impugned general terms of contract were invalid, and whether their invalidity could be determined on the basis of available evidence. Furthermore, it stipulated that “when this [was] necessary for the settlement of dispute proceedings brought by the consumer or by collective action”, the court was “required to examine whether the contractual term relating to unilateral amendment was unlawful or unfair regardless of whether the financial institution had actually applied such term and even if the term [was] no longer in force”. 12 .     Lastly, on 16 June 2014 the Kúria delivered Civil Law Uniformity Decision no. 2/2014 (hereinafter “the Uniformity Decision”). The Kúria held, inter alia , that the fact that the debtor bore the risk of currency fluctuations (in exchange for obtaining favourable interest rates) did not, in itself, make the agreements invalid. However, currency spreads, as provided for in the contracts, were invalid (see Bárdi and Vidovics v . Hungary (dec.) nos. 27514/15 and 13876/16, § 7, 19   December 2017). Moreover, STCs enabling the unilateral amendment of contracts were also invalid unless they complied with the seven principles laid down in the previous Opinion no.   2/2012 (see paragraph 11 above). 3.     Legislative developments 13 .     In order to ensure that the principles laid down in the Kúria’s Uniformity Decision could be enforced directly, not only in pending litigation but also in connection with potential, non-litigated claims concerning consumer loan contracts, Parliament adopted three pieces of legislation. Some of these statutes were enacted also to ensure that all foreign-currency loan agreements were converted into Hungarian forints and that settlements between the consumer and the financial institution – in respect of unfairly collected sums from exchange-rate spreads and costs that had arisen from unfair unilateral amendments – were implemented in accordance with the guidance of the Kúria and with pending court actions being meanwhile put on hold. 14 .     Act no. XXXVIII of 2014 on the resolution of questions relating to the Uniformity Decision concerning the settlement of certain issues relating to loan contracts between consumers and financial institutions (“the Uniformity Act”, see paragraphs 49 to 53 below) provided that certain contractual terms which had not been negotiated, namely STCs, and which allowed the possibility to increase interest rates, fees and costs unilaterally, would be presumed unfair. It also defined the procedure by which the presumption of unfairness could be rebutted. Such presumption could be rebutted by proving that the impugned STCs complied with the seven principles listed in Opinion no. 2/2012 (see paragraph 11 above). The Uniformity Act provided that STCs allowing the unilateral increase of interest rates, fees and costs should be considered void if the financial institution in question had not lodged a legal action in order to prove their fairness, or if a court had rejected such a legal action or if a court had declared such STCs void following proceedings instituted by the Hungarian National Bank. In such situations, the financial institution was obliged to settle the accounts with the consumer (see paragraph 15 below). 15 .     Act no. XL of 2014 on the rules of settlement laid down in the Uniformity Act (“the Settlement Act”), which entered into force on 1   November 2014, regulated settlements between consumers and financial institutions resulting from the application of the Uniformity Act. Under the Settlement Act, the calculation of the amount due to the consumer or the amount to be set off against his or her outstanding obligations vis à vis the financial institution was to be provided by the latter. However, the consumer had the right to challenge the calculation, first by complaining to the financial institution and then, if necessary, by lodging a claim with the Financial Arbitration Body. 16 .     Act no. LXXVII of 2014 on changing the currency of consumer loan agreements denominated in foreign currency (“the Currency Conversation Act”), which entered into force on 6 December 2014, provided for the foreign-currency loan agreements to be converted into Hungarian ‑ forint loans, using a defined exchange rate. 4.     Proceedings initiated by the applicant companies 17 .     In the decisions outlined below, the domestic courts found the relevant STCs applied by the applicant companies unfair and thus declared them null and void. As a result, those STCs ceased to be part of individual consumer contracts and consumers were entitled to reclaim amounts they had previously paid under those terms. a.     Merkantil Car Zrt. (application no. 22853/15) and Merkantil Bank Zrt. (application no. 22858/15) 18 .     On 18 August 2014 the applicant companies, Merkantil Car Zrt. and Merkantil Bank Zrt., lodged applications with the Budapest High Court, seeking to prove that the STCs used in their loan contracts to which the Uniformity Act applied were fair. The court dismissed their statements of claim as incomplete and on 28 August 2014 the applicant companies resubmitted the statements of claim, together with appendices, including extensive documentation concerning terms and conditions, as well as applicable fees and other provisions relevant to the proceedings. In particular, they attempted to prove the fairness of three STCs, arguing that all seven principles laid down in section 4(1) of the Uniformity Act had been complied with, and arguing that certain other STCs fell outside the scope of the Uniformity Act. They also argued that their rights had been violated, in particular as the legislation had been applied retroactively, its provisions were unclear and the Kúria had overstepped its powers by setting up new legal standards in the Uniformity Decision. The applicant companies requested that the court initiate constitutional review proceedings in respect of sections 4(1), 7(7)(a), 10(3)-(4) and section 11 of the Uniformity Act and the Uniformity Decision. Furthermore, they requested that the court initiate the preliminary ruling procedure before the Court of Justice of the European Union (“the CJEU”). In the alternative, they requested that the court declare the contractual terms in question fair and valid. 19 .     The respondent submitted two statements of defence, the second one two days before the first hearing. 20 .     On 10 September 2014 the Budapest High Court held two hearings, during which counsels for the parties presented their oral pleadings. Two weeks later, after reviewing the STCs in question, the court delivered decisions finding that the STCs in question failed to comply with one or more of the seven principles set out in the Uniformity Act. The court dismissed the requests for the initiation of proceedings before the Constitutional Court and the CJEU, emphasising that the dispute could be decided by the sitting court and that no issue of unconstitutionality arose in the course of applying such provisions. 21 .     On 30 September 2014 the applicant companies appealed against the decision to the Budapest Court of Appeal. The latter upheld the decisions of the court of first instance with respect to both the compatibility of the impugned provisions with the Fundamental Law and the unfairness of the contractual terms.   In particular, the court held that the Uniformity Act did not define new grounds of invalidity but codified the uniform judicial practice concerning section 209(1) of the old Civil Code (see paragraph 42 below). It further considered   that the case did not require a preliminary ruling by the CJEU. The court reviewed the STCs in question only in terms of the requirement of transparency, upholding the decision regarding their unfairness. 22 .     On 12 and 13 November 2014 the applicant companies applied for a review of the above decisions before the Kúria. On 18 December 2014 the latter upheld the second-instance decisions,   finding, inter alia , that it sufficed to establish non-compliance with only one of the seven principles defined in the Uniformity Act and that in such case the remaining principles did not need to be examined. b.     OTP Jelzálogbank Zrt. (application no. 33424/15) and OTP Bank Nyrt. (application no. 33426/15) 23 .     On 18 August 2014 the applicant companies, OTP Jelzálogbank Zrt. and OTP Bank Nyrt., lodged applications with the Budapest High Court, seeking to prove the fairness of the STCs used in the loan contracts to which the Uniformity Act applied. On 5   September 2014 they re-submitted their claims, together with extensive appendices. The applicant companies argued that the STCs they had applied in the relevant period had complied with all seven principles defined in section 4(1) of the Act, and asked the court to declare that certain contractual terms did not fall within the scope of the Act. The applicant companies also requested that the court initiate constitutional review proceedings and the preliminary ruling procedure before the CJEU. They relied on arguments similar to those put forward by Merkantil Car Zrt. and Merkantil Bank Zrt. in the above-mentioned proceedings (see paragraph 18 above). In the alternative, they requested that the court declare the contractual terms in question fair and valid. 24 .     On account of the partly identical STCs applied by the applicant companies OTP Jelzálogbank Zrt. and OTP Bank Nyrt., on 8 September 2014 the court decided to merge the respective proceedings. On the same day, the respondent submitted its first statement of defence. The respondent submitted its second statement of defence on 11 September 2014. 25 .     On 12 September 2014 the court held its first hearing and decided to suspend the proceedings and to seek a constitutional review of certain provisions of the Uniformity Act. It invoked Articles B(1) (rule of law), E   (European integration), XXVIII.(1) (right to a fair trial) and 26(1)   (judicial independence) of the Fundamental Law. 26 .     Following the Constitutional Court’s decision of 11 November 2014, finding that the Uniformity Act complied with the Fundamental Law (see paragraphs 35 to 39 below), the Budapest High Court held its second hearing on 21 November 2014. Two weeks later, on 5   December 2014, the court delivered a judgment. It found that some of the STCs referred to by the two applicant companies fell outside of the scope of the Uniformity Act and that the remaining STCs did not comply with one or more of the seven principles set out in section 4(1) of that Act.   27 .     Both the applicant companies and the Hungarian State lodged appeals, which were dismissed as unfounded on 8 January 2015. The second-instance court found the respondent’s appeal partly well-founded and it partly modified the reasoning of the first-instance judgment to widen the scope of STCs which were to be considered unfair. The applicant companies subsequently submitted an application for review to the Kúria . 28 .     On 24 February 2015 the Kúria upheld the lower court’s judgment. It held that several STCs referred to by the applicant companies fell outside the scope of the Uniformity Act and that the remaining STCs failed to meet the requirements of clear and intelligible wording and transparency. It also found the Uniformity Act to be compatible with relevant European Union law and therefore dismissed the request for the institution of the preliminary ruling procedure. c.     OTP Ingatlanlízing Zrt. (application no. 33737/15) 29 .     On 18 August 2014 the applicant company OTP Ingatlanlízing Zrt. lodged an application with the Budapest High Court, seeking to prove the fairness of the relevant STCs used in its loan contracts. On 5   September 2014 it resubmitted its claims including extensive appendices. 30 .     The respondent submitted its first statement of defence on 10   September 2014. It submitted its second statement three days before the first hearing. The first hearing was held on 15 September 2014. The court decided to suspend the proceedings and seek a constitutional review of certain sections of the Uniformity Act. 31 .     Following the Constitutional Court’s decision of 11 November 2014 (see paragraphs 35 to 39 below), the High Court held its second hearing on 28 November 2014. Two weeks later, on 12 December 2014, it delivered a judgment. The court held that some of the STCs referred to by the applicant company fell outside of the scope of the Uniformity Act and that the remaining STCs did not comply with one or more principles set out in section 4(1). 32 .     On 8 January 2015 the Budapest Court of Appeal dismissed the applicant company’s appeal as unfounded. 33 .     Subsequently, the applicant company applied to the Kúria for a review. On 26 February 2015 the Kúria delivered a partial judgment, remitting certain issues to the second-instance court for new proceedings. The Court of Appeal delivered its second judgment on 24 March 2015 finding that some of the contractual terms referred to by the applicant company fell outside the scope of the Uniformity Act and that the remaining STCs failed to meet the requirements of clear and intelligible wording and transparency. 34 .     The applicant company applied to the Kúria for a review of the second judgment. The application was rejected by the Kúria on 27 April 2015. 5.     The Constitutional Court’s decision of 11 November 2014 35 .     On 11 November 2014 the Constitutional Court issued Decision no.   34/2014 (XI.14), in which it assessed the compatibility of the Uniformity Act, in particular section 1(1), (2), (3), (6) and (7), sections 4 to 15 and section 19 with the Fundamental Law. The Constitutional Court ruled by majority that the impugned legal framework did not contradict the principle of the rule of law and did not violate the right against retroactive legislation or the right to a fair trial. It found, inter alia , that section 210(3) of the old Credit Institutions Act (see paragraph 47 below), which was a lex specialis , allowed the unilateral modification of contractual terms governing interest rates, fees and other issues in a manner that was disadvantageous to the client. This, however, was only “a type of enabling provision” and it could not be said that the legislature had defined a contract term which “could not amount to being unfair”. The Constitutional Court noted that the statutory requirement of good faith and fairness had, from the beginning, imposed a limit on unilateral contract modifications based on the enabling rule. The enabling provision of the old Credit Institutions Act did not repeal or suspend the requirements of fairness and fair dealing. In the Constitutional Court’s view, the Uniformity Act did not contain new substantive provisions that were applicable retroactively; Parliament had merely “enacted in the form of an Act of Parliament – and thus elevated to the level of a statute – an interpretation developed and made mandatorily applicable in the practice of the European and domestic courts”. In particular, it held as follows: “The [Uniformity] Act did not change the evaluation under the old (and the new) [Civil Code] provisions and the principles laid down by the Kúria of the fairness of the contract stipulations at issue; it merely specified, within the statutory framework of the general clause, the ab ovo existing content of the general clause. ...[Opinion No.   2/2012] expressed the same view, namely that ‘to establish the unfairness of a general contract term under the provisions of the old Civil Code in force at the time of the conclusion of the contract on a ground which later – in light of, for example, the experience gained from the related court practice – is mandatorily regulated under a separate Act, does not violate the prohibition of retroactive application of the law.” 36 .     The Constitutional Court thus found that the impugned provisions, which had entered into force after the conclusion of the contracts, “contained no such elements that [might] have been unknown to the parties”. It pointed out that “a finding of legal invalidity necessarily affect[ed] the contract as of the date of its conclusion” because “invalidity inherently contain[ed] the element that the contract, or part of the contract, suffered from some ‘legal defect’ already at the time of its conclusion”. 37 .     The Constitutional Court went on to note that “[c]onsumer loan contracts [were] typically long-term contractual relationships in which the parties [had] mutual rights and obligations”. It considered that “the position that in such relationships the various claims [could not] become separately time-barred during the existence of the contract [was] constitutionally acceptable”. It explained that “similarly to the solution used with respect to instalment payments in leasing contracts, in the impugned Act the legislature provided, with a view to treating the legal relationship as a single unit, an interpretation which [was] not contrary to the old Civil Code’s statute of limitations rules, namely that the limitation period [should] start to run from the date on which the contractual relationship terminate[d] under the contract”. 38 .     As regards the restrictions on procedural rights, such as short time ‑ limits, under the Uniformity Act, the Constitutional Court found the following:   “... [T]he statutory presumption was applicable solely to contractual provisions allowing unilateral increases in interest rates, fees and costs, which constituted a minor, clearly identifiable part of the general contractual terms. The identification of these elements, even in the case of a contract term of approximately 10 years’ duration, did not pose such a problem which would make it impossible to bring an action ... with the time-limit. Moreover, the Act precisely specified the principles to be complied with by contractual provisions which had already been applied to certain contracts in ongoing lawsuits, based on which ... [the Opinion no. 2/2012] and the Uniformity Decision had been adopted ... Some of the principles leave no room for discretion [e.g. point b): whether a list of grounds exists and if it does, whether it is exhaustive], whereas the adjudication of other issues falls within the discretion of the courts [e.g. point a): whether the wording of the general contract term at issue is clear and intelligible for the consumer]. Persuasive arguments and a detailed analysis of the contractual provisions were to be submitted basically only in respect of these latter elements.” 39 .     As regards the need for the introduction of the Uniformity Act, the Constitutional Court expressed the following view: “... [A]ccording to the information provided by the minister of justice, those applying the law and the legislature were to expect the lodging of some 1.8 million civil lawsuits – as compared to 160,000, which is the average annual number of new civil lawsuits – which would have resulted in a caseload increase that would have paralysed the administration of justice for a long time. Therefore, the legislative intervention whereby a very great number of individual lawsuits could be replaced by some sui generis proceedings which allowed the financial institutions to rebut the presumption and which thus prevented the operation of the courts from being frustrated, cannot be regarded as State interference violating the requirement of legal security.” ... [C]ourts are able to secure the enforcement of consumer protection laws only in individual cases; in the event of problems affecting the whole society, the State must interfere and provide a solution, even via legislation. The very fact that in respect of a given contractual provision the State has taken over claim enforcement from the consumer and from the entity entitled to lodge an action in the public interest is in harmony with the constitutional requirement of consumer protection. ... [T]he interpretation that, where unfair contractual terms exist in great numbers, a member State’s [right to interfere] ... via legislation ... in the interest of consumers, can also be inferred from the aim set forth in Directive 93/13/EEC.” B.     Relevant domestic and European Union law and practice 1.     Government Decree No. 275/2010 (XII. 15) 40 .     Government Decree No. 275/2010 (XII.15) on the unilateral amendment of interest rates agreed in a contract was in force between 18   December 2010 and 31 January 2015. Under the decree, the financial institution could unilaterally modify the interest rate in loan contracts to the disadvantage of the customer on certain conditions, which were listed in the decree and which concerned circumstances actually affecting the rate of interest (such as certain adverse changes to the financing costs of the creditor and its ability to obtain funds). 2.     Old Civil Code 41 .     As regards contractual relationships, pursuant to Act No. IV of 1959 on the Civil Code as amended (“the old Civil Code”), the limitation period should start to run from the date on which the contractual relationship terminated. 42 .     In the period between 1998 and 2006 section 209 of the old Civil Code provided that the injured party could challenge the general terms in court if he or she considered them to be unfair. 43 .     As of 1 March 2006 the amended section 209 of the old Civil Code provided that the general terms were to be considered unfair if the rights and obligations of the parties arising from the agreement were stipulated, in breach of the requirement of good faith and fairness, in such a way that they gave unreasonable and unilateral advantage to the party who set the terms and conditions, to the detriment of the other party. Furthermore, a new section 209/A provided for the conditions under which the injured party could challenge allegedly unfair STCs in court. It read as follows: “(1) A contractual term incorporated into the contract as a standard contract term may be challenged as unfair by the injured party. (2) An unfair contractual term drafted in advance by the party entering into a contract with a consumer and not negotiated individually but incorporated into the contract as a standard contract term, shall be considered null and void. The contract may only be annulled in the consumer’s interest.” 44 .     As of 2009 section 209 was amended and supplemented. It provided, as far as relevant, as follows: “(1) A standard contract term or a term which has not been individually negotiated in a consumer contract shall   be regarded as unfair if, in breach of the obligation to act fairly and in good faith, it unilaterally and unjustifiably establishes the contractual rights and obligations of the parties to the detriment of the co-contractor of the party imposing the contractual term in question. (2) The unfairness of a contractual term shall be assessed by taking into account the nature of the services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. (3) Other legal regulations may define the contractual terms and conditions that are regarded to be unfair in respect of a consumer contract or that shall be regarded as unfair until proven otherwise. (4) A standard contractual term or a term which has not been individually negotiated in a consumer contract shall also be regarded as unfair simply on the grounds that it is not [drafted] in plain intelligible language. ... (6) Contractual terms determined in a statute or in accordance with a statutory provision shall not be deemed unfair.” 3.     New Civil Code 45 .     Act No. V of 2013 on the Civil Code (hereinafter “the new Civil Code”), provides, in so far as relevant, as follows: Section 6:103 “... (2) As regards contracts between a consumer and a business party, a standard contract term or any contract term which has been drafted in advance by the business party and which has not been individually negotiated shall be regarded as unfair if it is not drafted in plain and clearly understandable language, solely on that basis. (3) Any unfair contract term that has been incorporated into a contract between a consumer and a business party shall be considered null and void. The right to have the term declared null and void may be invoked in favour of the consumer.” Section 6:104 “... (2) In contracts between a consumer and a business party a contractual term shall, in particular, be considered unfair, until proven otherwise, if its object or effect is to: ... d) enable a business party to alter the contractual terms unilaterally without a valid reason which is specified in the contract, in particular to increase the monetary consideration fixed in the contract, or to allow the business party to alter unilaterally the terms of a contract where there are serious grounds laid down in the contract for doing so, provided that in such cases the consumer is not free to withdraw from or to terminate the contract; ...” 4.     Old Credit Institutions Act 46 .     The relevant part of section 210 of Act CXII of 1996 on Credit Institutions and Financial Enterprises, as in force after the amendment introduced by Act No. CL of 2009 Amending Certain Finance-Related Acts of Parliament (hereinafter “the old Credit Institutions Act”), provided:   “... (2) The agreement for supplying financial services and for engaging in activities auxiliary to financial services must clearly indicate the interest rates, fees and all other charges and conditions, including the legal consequences of any default in payment, and the procedure for the enforcement of collateral obligations made in security of the contract and the legal ramifications involved. (3) In loan contracts with consumers and in financial leasing agreements only the interest rate, fees and commissions may be changed unilaterally to the disadvantage of the customer. Other conditions, including a list of the grounds substantiating the unilateral modification of the terms and conditions of the contract may not be altered unilaterally to the disadvantage of the customer. The creditor shall be able to exercise the right of unilateral modification if the objective reasons giving grounds for modification are fixed in the contract, and if the creditor has committed its pricing criteria in writing. ... (6) Having regard to the contracts mentioned in subsection (3) above, any changes applied unilaterally regarding interest rates, fees or commission ... , if to the disadvantage of customers, shall be published by way of posted notice sixty days prior to the operative date of such changes. ... ...” 47 .     On 27 November 2010 Parliament amended the old Credit Institutions Act by adding a new section 210/A, which applied to loan and credit agreements and financial leasing arrangements for housing purposes. The new provision prohibited the amendment of such agreements by financial institutions to the disadvantage of the consumer, declaring any such amended terms null and void, except “in respect of the interest rate and only in cases and under the terms and conditions specified by a government decree, and if justified by changes in the central bank base rate, in the refinancing rates, money-market indices and the interest rates of credit institutions on fixed-term deposits, by changes decreed by the Government in the regulatory framework or in the assessment of credit risk.” 48 .     Under section 235(1) of the old Credit Institutions Act the Government was empowered to issue detailed regulations concerning the cases and the terms and conditions under which a financial institution could be authorised to unilaterally modify the interest rates of the agreements referred to in section 210/A of the Act to the disadvantage of the consumer. 5.     The Uniformity Act 49 .     The Uniformity Act (see paragraph 14 above) was enacted by Parliament on 4 July 2014 and promulgated by the President of the Republic on 18 July 2014. The Uniformity Act applies to consumer loan contracts concluded between 1 May 2004 and the entry into force of the Act, namely 19   July 2014. The Act pertains to consumer loan contracts denominated in foreign currency or forints, as well as to certain financial leasing contracts (section 1 of the Uniformity Act). The Act establishes that STCs allowing the unilateral increase of interest rates, fees and costs should be presumed to be unfair unless they can be proved to comply with all of the seven principles set forth in Opinion no. 2/2012 (see paragraphs 10 and 11 above) and enumerated in section 4 (1) of the Act (see paragraph 51 below). 50 .     Pursuant to section 4(2) of the Uniformity Act, it was for a financial institution to prove that the relevant STCs complied with the aforementioned seven principles and were therefore fair. For that purpose, the financial institution had to institute proceedings against the State, rather than against its individual clients. 51 .     The following provisions of the Uniformity Act are particularly relevant: 1.     General provisions Section 1 “(1) This Act applies to consumer loan agreements concluded between 1 May 2004 and the date of entry into force of this Act. In the application of this Act the concept of consumer loan agreement shall cover any foreign exchange based (linked to, or denominated in, a foreign currency and repaid in forints) or forint based credit or loan agreement, financial leasing agreement concluded between a financial institution and a consumer, if it incorporates standard contract terms containing a clause provided for in Subsection (1) of Section 3 or Subsection (1) of Section 4 or any contract term which has not been individually negotiated. (1a) In the application of this Act the concept of consumer loan agreement shall - in addition to what is contained in Subsection (1) - cover any foreign exchange credit or loan agreement, financial leasing agreement not qualifying as foreign exchange based, between a financial institution and a consumer, if concluded between times provided for in Subsection (1) hereof, and it incorporates standard contract terms containing a clause provided for in Subsection (1) of Section 4 or any contract term which has not been individually negotiated.” ... (6) In respect of claims arising out of consumer loan agreements, the provisions of Act IV of 1959 on the Civil Code regarding the statute of limitation shall be interpreted in such a manner that during the existence of the loan contract, the claims do not lapse; the limitation period starts to run upon termination of the contract.” 4.     Resolution of contract terms allowing the possibility to alter the terms of the contract unilaterally Section 4   “(1) As regards consumer loan agreements allowing for the possibility to alter the terms of the contract unilaterally, any term – with the exception of contract terms which have been individually negotiated – that creates a right to increase the interest rate and other costs and fees unilaterally is deemed to be unfair, given that it does not comply with: a) the principle of clear and intelligible wording, where the term in question is neither plain nor understandable for the consumer; b) the principle of detailed specification, where the conditions for amending the terms of the contract unilaterally are not specified in detail, that is to say the reasons are not listed, or the reasons supplied are merely indicative; c) the principle of objectivity, where the conditions for amending the terms of the contract unilaterally lack objectivity, that is to say the party with whom the consumer is entering into a contract is able to cause such conditions to occur, and has the power to incite such conditions and to influence the extent of any change that may serve as grounds for substantiating the amendment; d) the principle of effectiveness and proportionality, where the circumstances specified in the list of reasons do not effectively or proportionally influence the interest, costs and/or fees; e) the principle of transparency, where the consumer was not in a position to foresee what additional burdens would be passed on to him, nor the extent and reasons for such changes; f) the principle of withdrawability, where the consumer does not have the right to withdraw from the contract if it is amended; or g) the principle of symmetry, where the contract does not allow any change in the conditions that may occur to the consumer’s benefit to take effect for the consumer’s benefit. (2) The contract terms referred to in subsection (1) hereof shall be deemed null and void if the financial institution has failed to lodge a civil action within the time-limit specified in section 8(1), or if the court dismisses the action or terminates the proceedings ... ... (3) In the case provided for in subsections (2) and (2a), the financial institution shall settle accounts with the consumer as provided for in the relevant legislation.” 5.     Examination of standard contract terms and terms not individually negotiated Section 5 “(1) Financial institutions shall review within thirty days of the date of entry into force of this Act those standard contractual terms and any contract term which has not been individually negotiated (hereinafter referred to as “STCs”) which form part of a consumer loan agreement allowing the possibility to alter the terms of the contract unilaterally. (2) Within thirty days of the date of entry into force of this Act, financial institutions shall disclose to the Hungarian National Bank, acting within its supervisory and customer-protection function (hereinafter referred to as “the Authority”) all STCs that contain a contract term as provided for in subsection (1), and shall indicate whether in their view the contract term in question should be considered fair or unfair. The notification referred to above shall include the identification numbers of the contracts which contain such terms and the amount of receivables outstanding on the basis of such contracts. (3) Financial institutions shall review by 30 November 2014 those STCs which form part of consumer loan agreements provided for in section 1(1)a), allowing the possibility to alter the terms of the contract unilaterally. (4) Financial institutions shall disclose to the Authority by 30 November 2014 all STCs that contain a contract term, as provided for in subsection (3), and shall indicate whether in their view the contractual term in question should be considered fair or unfair, and shall disclose whether any amendment was made to the contract resulting in an increase in the interest rate, fee or commission on the basis of such contractual terms. The notification referred to above shall include the identification numbers of the contracts which contain such terms and the amount of receivables outstanding on the basis of such contracts.” Section 6 “(1) If, following the review, the financial institution finds that any of the STCs it uses contains a contract term that is to be presumed unfair having regard to the provisions set out in section 4(1), but which the financial institution considers fair, the financial institution has the right – unless otherwise provided for in subsection (2) hereof – to bring a civil action in accordance with the provisions of this section for the rebuttal of the presumption. (2) In the case of forint-based consumer loan agreements, or consumer loan agreements provided for in section 1(1)a), STCs published after 26 November 2010, and amendments to previous STCs published after 26 November 2010 need not be presumed unfair, having regard to the provisions set out in section 4(1). ...” 6.     Civil action Section 7 “(1) The actions provided for in this section shall be governed by the provisions of Act III of 1952 on the Code of Civil Procedure (hereinafter referred to as “the CPC”), subject to the exceptions set out in this section. (2) In such actions the Hungarian State is the defendant ... (3) In such actions legal representation is mandatory. (4) The court shall hear such cases in priority proceedings. ...” Section 8 “(1) The statement of claim of a financial institution for initiating the ... [proceedings] referred to in section 6 shall be received by the court, if the STCs at issue: a) was used in a foreign-exchange (linked to, or denominated in, a foreign currency and repaid in forints) credit or loan agreement, or financial leasing agreement, within thirty days of the date of entry into force of this Act; b) was used in a forint-based credit or loan agreement, or financial leasing agreement, on 26 November 2010 or previously, between 5 January and 12 January 2015; c) was used in a consumer loan agreement as provided for in section 1(1a), on 26   November 2010 or previously, between 5 January and 12 January 2015. ... (3) Subject to the exception provided for in subsection (3a) hereof, financial institutions shall apply for a review of all STCs they use so as to determine their validity in accordance with the criteria provided for in section 4(1) in a single statement of claim. The statement of claim shall, inter alia , indicate the period during which the financial institution applied the contract term in question. (3a) Financial institutions shall apply for a review of all such STCs they use so as to determine their validity in accordance with the criteria provided for in section 4(1) in a single statement of claim; the statement of claim shall be received by the court betw