What procedure should national judges follow when assessing the fairness of contract terms under the Unfair Terms Directive? In today's judgment in the Hungarian case Banif Plus Bank v Csipai, the Court of Justice of the EU holds the following:
'1. Articles
6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair
terms in consumer contracts must be interpreted as meaning that the
national court which has found of its own motion that a contractual term
is unfair is not obliged, in order to be able to draw the consequences
arising from that finding, to wait for the consumer, who has been
informed of his rights, to submit a statement requesting that that term
be declared invalid. However, the principle of audi alteram partem,
as a general rule, requires the national court which has found of its
own motion that a contractual term is unfair to inform the parties to
the dispute of that fact and to invite each of them to set out its views
on that matter, with the opportunity to challenge the views of the
other party, in accordance with the formal requirements laid down in
that regard by the national rules of procedure.
2. The
national court must, in order to determine whether the contractual term
on which the claim brought before it is based may be unfair, take
account of all of the other terms of the contract.'
