Communicated on 11 May 2016
FOURTH SECTION
Application no. 22853/15
MERKANTIL CAR ZRT against Hungary
and 9 other applications
(see list appended)
SUBJECT MATTER OF THE CASE
The applications were introduced by financial institutions incorporated under Hungarian law which are active in the field of consumer credit and loan contracts and in financial leasing contracts. They relate to Act no. XXXVIII of 2014 on Kúria’s Uniformity Decision concerning the Settlement of Certain Issues relating to Consumer Loan Contracts of Financial Institutions, promulgated on 18 July 2014. The Act provides in essence that some contractual provisions contained in such contracts, relating to credits stipulated in foreign currency denominations, are null and void for being unfair. It asserts the presumption of unfairness of certain provisions and defines the procedure in which the presumption of unfairness may be rebutted. Its provisions extend both to ongoing and concluded proceedings in so far as the impugned contracts originated in the period between 2004 and the entry into force of the law.
The applicants complain under Article 6 § 1 that the special legislation applied in their cases effectively deprived them of (i) proper access to court in that it removed these litigations from the scope of normal civil procedure and subjected them to a special, summary procedure; (ii) in this special procedure, the time-limits were prohibitively short (for the applicants 30 days from enactment to lodge the claim; for the court 30 days from the lodging of the claim to adjudge the case; only one adjournment allowed; 8 days to appeal) especially in contrast to the significant complexity of the issues; (iii) the new law created a statutory and quasi-retrospective presumption of contractual unfairness exercised by the applicants to the detriment of customers, to be rebutted by the applicants in suing the State; (iv) however, such rebuttal was virtually impossible since the very restrictive procedural rules prevented the applicants from comprehensively arguing their cases, from making detailed and relevant arguments or from proposing any meaningful gathering of evidence; (v) the impugned legislation amounted to an interference by the legislature with the administration of justice in on-going litigations.
Moreover, they complain under Article 1 of Protocol No. 1 that they were deprived of their possessions notably because the application of the quasi-retrospective presumption of unfairness (i) prevented the applicants from claiming, from their customers, interests and fees originating in contracts already executed and then unilaterally modified and (ii) obliged the applicants to accept as set-off or reimburse already paid interests, characterised as unfair, and this even if the recoverability of those interests had already statutorily elapsed.
QUESTIONS tO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. In the determination of their civil rights, which consist in enforcing the outstanding loans notably by way of attempting to rebut the presumption of unfairness of the loan contracts, did the applicants benefit from a fair hearing, in particular in view of the strict procedural time-limits? Moreover, was there an interference by the legislature with the administration of justice designed to influence the judicial determination of the applicants’ disputes (see Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, §§ 49-50, Series A no. 301‑B)?
3. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, given in particular that the new law obliges them to accept as set-off or reimburse interests whose recoverability had expired long ago? If so, did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
Appendix
No
Application No
Lodged on
Applicant
Represented by
22853/15
04/05/2015
MERKANTIL CAR ZRT
MERKANTIL CAR ZRT
Budapest
Pierre-Francois VEIL
22858/15
04/05/2015
MERKANTIL BANK ZRT
MERKANTIL BANK ZRT
Budapest
Pierre-Francois VEIL
23255/15
12/05/2015
CIB BANK ZRT
CIB BANK ZRT
Budapest
Tibor SZÁNTÓ
25133/15
07/05/2015
CIB LÍZING ZRT
CIB LÍZING ZRT
Budapest
Tibor SZÁNTÓ
28270/15
09/06/2015
RAIFFEISEN BANK ZRT
RAIFFEISEN BANK ZRT
Budapest
Zsolt OKÁNYI
28273/15
09/06/2015
RAIFFEISEN LÍZING ZRT
RAIFFEISEN LÍZING ZRT
Budapest
Zsolt OKÁNYI
33424/15
07/07/2015
OTP JELZÁLOGBANK ZRT
OTP JELZÁLOGBANK ZRT
Budapest
Pierre-Francois VEIL
33426/15
07/07/2015
OTP BANK NYRT
OTP BANK NYRT
Budapest
Pierre-Francois VEIL
33737/15
07/07/2015
OTP INGATLANLÍZING ZRT
OTP INGATLANLÍZING ZRT
Budapest
Pierre-Francois VEIL
56131/15
09/11/2015
SOPRON BANK BURGENLAND ZRT
SOPRON BANK BURGENLAND ZRT
Sopron
Péter SIMON
Full & Egal Universal Law Academy