ECJ rules on FX loan case; another decision Wednesday

Issues

The European Court of Justice (ECJ) ruled in April on a case involving a Hungarian borrower and lender that will determine whether a clause in a foreign currency-denominated loan contract is fair is a matter for national courts to decide.

The court’s decision shows Katalin Sebestyén had asked a Hungarian court to declare invalid a clause in her contract with Raiffeisen Bank that said any contractual disputes could be decided only by an arbitration tribunal against whose decision there could be no appeal.

A description of the dispute noted that “the bank specifically drew Ms. Sebestyén’s attention” to this fact as well as to the fact that the costs of such an arbitration procedure “tended to be higher” than those of ordinary legal proceedings.

The ECJ opined that when a Hungarian court considers the case, it must in particular determine whether the clause hinders the consumer’s right to take legal action or exercise any other legal remedy, and take into account that communicating to the consumer the difference between arbitration and ordinary legal proceedings before the contract was signed “cannot alone rule out the unfairness” of the clause.

The case was the second filed with the Luxembourg court involving a Hungarian borrower with an forex-based bank loan. The first involves individuals Árpád and Hajnalka Kásler against OTP Bank; a decision on this case is expected on Wednesday.

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