1.

This case is based on a reference for a preliminary ruling submitted by the Fővárosi Törvényszék (Budapest High Court, Hungary) concerning the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. ( 2 ) It is part of a series of cases which have come before the Court relating to the Hungarian framework on consumer credit agreements denominated in a foreign currency. ( 3 )

2.

Yet, this case raises fundamental questions concerning the national court’s duty to examine of its own motion (ex officio) unfair terms in consumer contracts in accordance with the Court’s case-law interpreting Directive 93/13. These are, namely, first, whether a national court’s ex officio examination of unfair terms must extend to all of the terms of the contract, even if the terms are not related to the subject matter of the action, and second, to what extent may a national court be called upon to take ex officio investigative measures in order to obtain the necessary legal and factual elements to carry out this examination?

3.

This case therefore presents the Court with a valuable opportunity to develop and refine its case-law on Directive 93/13, and in particular to clarify the extent of the national court’s duty to undertake ex officio investigative measures following from the landmark judgment of 9 November 2010, VB Pénzügyi Lízing (C‑137/08, EU:C:2010:659).

4.

Article 4(1) of Directive 93/13 states:

‘Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or 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.’

5.

Article 6(1) of Directive 93/13 provides:

‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

6.

Article 7(1) of Directive 93/13 further provides:

‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’

7.

Paragraph 3(2) of Law No III of 1952 on the Code of Civil Procedure (A polgári perrendtartásról szóló 1952. évi III. törvény, ‘the Civil Procedure Code’), as it applied at the material time, provides:

‘The court – in the absence of any statutory provision to the contrary – shall be bound by the submissions and legal statements made by the parties. The court shall consider applications and statements made by the parties in the light of their content, rather than their formal designation.’

8.

According to Paragraph 23(1)(k) of the Civil Procedure Code:

‘The county courts have jurisdiction to hear […] cases seeking a declaration of invalidity of unfair contract terms’.

9.

Paragraph 73/A(1)(b) of the Civil Procedure Code states:

‘Legal representation is mandatory: […] in cases which come under the jurisdiction of a county court as a court of first instance, at every stage of the proceedings, and also in the context of an appeal […].’

10.

Paragraph 213(1) of the Civil Procedure Code provides:

‘The judgment shall relate to all that has been requested in the application in the context of the case, or in the cases joined pursuant to Paragraph 149.’

11.

Paragraph 215 of the Civil Procedure Code further provides:

‘The decision of a court may not go beyond what has been requested in the application or in the defence; this rule shall also apply to claims which are ancillary to the main claim (interest, costs etc.).’

12.

According to the order for reference, on 13 December 2007, Mrs Györgyné Lintner, acting as a consumer, concluded with the financial institution UniCredit Bank Hungary Zrt. (‘UniCredit Bank Hungary’) a loan contract denominated in Swiss francs, but granted and repayable in Hungarian forints, and secured by a mortgage (‘the contract’). ( 4 )

13.

Considering that the contract contained certain terms which could be considered unfair, on 18 July 2012, Mrs Lintner brought an action against UniCredit Bank Hungary before the Fővárosi Törvényszék (Budapest High Court, Hungary). In her application, Mrs Lintner asked the referring court to declare invalid clauses 7.2.2, 7.3 and 7.4 of the contract giving UniCredit Bank Hungary the right to make unilateral amendments to the contract, and to declare that those clauses were not binding on her from the date on which the contract was concluded. In support of her action, she relied, inter alia, on Directive 93/13.

14.

By judgment of 29 August 2013, the referring court dismissed that action. Mrs Lintner brought an appeal against that judgment.

15.

By order of 1 April 2014, the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary) set aside that judgment, and ordered the referring court to reopen the procedure and to adopt a new decision.

16.

As indicated in the order for reference, the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) stated, inter alia, in that order that the effective application of Directive 93/13 is possible only if the national court examines of its own motion the whole contract at issue, and if it finds, on that occasion, that certain conditions are unfair, it must ask the consumer whether she wishes to invoke the unfair nature of other terms. In that regard, it referred to clauses 1, 2, 4, 10.4 and 11.2 of the contract, along with clause 1.8 of the general terms and conditions whose stipulations form part of the contract, as well as clauses III.13.4, III.18.1(1), (4) and (5) and III.18.2(j) of the general conditions applicable to contracts concluded with individuals. It instructed the referring court to request Mrs Lintner to state whether she wished to invoke the unfairness of those terms or other terms of the contract, and whether she acknowledged that the contract was binding on her once the terms in question were disapplied.

17.

It appears from the case file submitted to the Court that, by addendum to the initial action dated 5 July 2014, Mrs Lintner’s representative asked the referring court to declare all of the terms identified in the order of 1 April 2014 invalid, in addition to those terms indicated in the initial action.

18.

By order of 26 October 2015, the referring court invited Mrs Lintner to make a request for the application of the legal consequences of invalidity of the contract in accordance with national legislation concerning foreign currency loan contracts which had been adopted in 2014. That legislation includes in particular Laws DH1 ( 5 ) and DH2 ( 6 ), which contain provisions governing the determination of unfairness and the consequences to be drawn from it with regard to terms contained in such contracts relating to the power to make unilateral amendments to the contract in favour of the lender (‘the power to make unilateral amendments’) and the difference between the buying and selling rates of the currency concerned (‘the difference in exchange rates’). ( 7 )

19.

According to the order for reference, since no action was taken on that request, the referring court closed the proceedings by order of 7 December 2015. Mrs Lintner brought an appeal against that order.

20.

By order of 29 March 2016, the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) confirmed the referring court’s order of 7 December 2015 in respect of the unfair nature of the clauses relating to the power to make unilateral amendments and the difference in exchange rates, as referred to in Laws DH1 and DH2. However, it set aside that order as to the remainder, and ordered the referring court to reopen the proceedings and to adopt a new decision. It considered that, although the clauses referred to in Laws DH1 and DH2 could no longer be the subject of a judicial decision, ( 8 ) Mrs Lintner continued to pursue her claim in so far as she sought a declaration as to the unfair nature of the clauses identified in its order of 1 April 2014. It therefore held that the referring court must, in the context of the proceedings being reheard, rule on the substance of the remainder of Mrs Lintner’s claims.

21.

On that basis, the referring court indicated in the order for reference that it is called upon to examine ex officio contractual terms which Mrs Lintner, as the applicant in the main proceedings acting through her representative, did not dispute at first instance. Nor did she state facts in the grounds of her action from which it could be inferred that she also sought a declaration that the terms identified by the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) in its order of 1 April 2014 were unfair.

22.

Having regard to the Court’s case-law, ( 9 ) the referring court did not consider it to be clear, as a matter of the proper interpretation of Directive 93/13, to what extent a national court is required to examine of its own motion whether each clause of the contract is unfair, and to what extent the court is bound in that examination by the applicant’s claims, taking into account that, under Hungarian law, cases such as the present one seeking a declaration of invalidity of unfair contract terms can proceed only through a lawyer.

23.

It was in those circumstances that the Fővárosi Törvényszék (Budapest High Court) decided to stay the main proceedings, and to refer the following questions to the Court of Justice for a preliminary ruling:

24.

In the order for reference, the Fővárosi Törvényszék (Budapest High Court) observed that the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) submitted a reference for a preliminary ruling in Case C‑51/17, OTP Bank and OTP Faktoring, of which the fifth question is relevant to the questions referred in the present case. The referring court thereby requested the Court to join the two cases.

25.

By decision of the President of the Court, the present case was suspended until the delivery of the judgment of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750).

26.

That judgment having been drawn to the referring court’s attention, the Court asked it whether it wished to maintain its reference for a preliminary ruling. The referring court replied in the affirmative on 16 October 2018.

27.

Written observations were submitted to the Court by UniCredit Bank Hungary, the Hungarian Government and the European Commission. Those parties also took part in the hearing which was held on 19 September 2019.

28.

UniCredit Bank Hungary submits that the answer to the three questions referred, taken together, should be that Articles 6(1) and 7(1) of Directive 93/13 do not require the national courts to examine ex officio the unfairness of contractual terms which have not been contested by the consumer and which do not relate to the contractual terms covered by the action. Similar to the Court’s answer to the fifth question referred in OTP Bank and OTP Faktoring, ( 10 ) a national court must examine ex officio unfair terms only if it has the necessary legal and factual elements for that purpose and if the clause concerned is relevant to the decision to be given on the application and has a material and logical relationship with it. In so far as, on the basis of the case file, the court identifies possible unfairness not covered by the conclusions of the application but related to them, it must ensure that the unfair term does not bind the consumer, but the ex officio examination should not extend to the entire contract in the absence of a request to that effect and consist in searching for terms which could be qualified as unfair.

29.

According to UniCredit Bank Hungary, that position is consistent with the principles of equivalence and effectiveness, since the court is not empowered on the basis of national law to examine ex officio terms which are not necessary to decide on the application, and the consumer is not prevented from challenging the unfairness of a term not examined in the dispute in question in later proceedings. ( 11 ) Moreover, the Court has never ruled in favour of an obligation to carry out an unlimited ex officio examination, ( 12 ) and as it stressed at the hearing, an obligation to examine ex officio all the contractual terms would render uncertain the object of the dispute, and would mean that the court’s decision acquires the authority of res judicata for the entire contract, such that another court could not depart from it or examine the contract.

30.

The Hungarian Government submits that the first question should be answered in the negative. A national court is not required to examine each contractual term individually with regard to whether it can be considered unfair. Among the terms whose unfairness has not been invoked by the parties, a court must examine ex officio terms whose unfairness can be clearly established, as a matter of fact, on the basis of the available evidence. This approach takes into account both the principle that the subject matter of an action is delimited by the parties and the principle of the protection of consumer interests, ensures a solution in accordance with these two principles and also respects EU case-law, according to which the ex officio examination of an unfair term is subject to the condition that the legal and factual elements necessary for this purpose are available.

31.

The Hungarian Government contends that, on the basis of the Court’s case-law, ( 13 ) it does not make a difference in respect of the ex officio examination whether the consumer is represented by a lawyer. Moreover, if the examination of the evidence on the basis of the parties’ offers of proof, taking into account the application and defence, clearly leads to a finding that a term not invoked by the parties is unfair, the court must declare ex officio the unfair nature of the term, but if the court does not have the necessary legal and factual elements for that purpose, it is not in a position to do so, since it is not possible to adduce evidence ex officio. As it stated at the hearing, the Court’s case-law on the national court’s duty to take ex officio investigative measures is linked to the scope of Directive 93/13, and where there are indications that a term could be unfair but the court needs further evidence to form an opinion on the matter, Hungarian law provides that the court informs the parties of this possibility and the consumer may thus extend his request and put the relevant documentation in the case file.

32.

In support of its position, the Hungarian Government refers to certain opinions of the Kúria (Supreme Court, Hungary) ( 14 ) which indicate in particular that in so far as the court must examine ex officio the unfairness of a term, it must allow the parties to submit observations on that point so as to avoid ‘surprise judgments’ which the parties did not expect. The Hungarian Government also draws attention to the summary opinion of the case-law analysis group of the Kúria on unfair terms in credit agreements, ( 15 ) which considered, inter alia, that in actions brought by a consumer seeking to have unfair terms declared void, the court must under EU law verify only those terms not invoked by the consumer which are essential for the interpretation of the provisions necessary for the assessment of the application or defence or those which influence their application, and that in determining whether such terms are unfair, the court may not rule beyond the facts established on the basis of the parties’ offers of evidence, public or well-known facts.

33.

The Hungarian Government submits that the second question should be answered to the effect that it follows from Directive 93/13 and the Court’s case-law that all the other terms of the contract must also be examined in order to assess whether the term on which the claim is based is unfair. During this examination, the national court may raise ex officio the unfairness of certain terms of the contract not invoked by the consumer. However, the national court must only raise ex officio the unfairness of terms for which it has the necessary legal and factual elements for this purpose.

34.

Along similar lines, the Hungarian Government takes the view that the third question should be answered in the affirmative, it being understood that if, when the examination is carried out within the limits of the request, the national court finds, on the basis of the legal and factual elements available, that a contractual term is clearly and manifestly unfair, it must take it into account ex officio even where the parties have not invoked it.

35.

The Commission submits that the Court should answer the three questions, taken together, that Articles 4(1) and 6(1) of Directive 93/13 must be interpreted as meaning that it is for the national court called upon to rule on the unfairness of terms in contracts concluded with consumers, when assessing those terms, to take into account the circumstances of the contract and all its other terms, and to rule taking those factors into consideration when establishing the unfair nature of the contractual term or to ensure that the contract can survive without the unfair term. The national court’s obligation to examine ex officio the unfairness of contractual terms falling within the scope of Directive 93/13 does not go so far as to require it to examine individually the unfairness of each of the contractual terms if the consumer does not so wish, provided that the consumer does not lose his right, on the basis of national procedural law, in particular by virtue of the principle of res judicata, to challenge in another action the terms not referred to in the main proceedings.

36.

The Commission asserts that, in reference to the Court’s case-law, ( 16 ) while Articles 4(1) and 6(1) of Directive 93/13 do not require the national court to examine individually each of the terms when carrying out an overall assessment of the contract, if, during that assessment, the court encounters other terms which may be considered unfair, it must indicate this to the parties and invite the consumer to amend his claim, so as to ensure the effectiveness of Article 6(1) of Directive 93/13. The applicant’s claim constitutes the limit of the court’s ex officio examination under Directive 93/13, and it is irrelevant to the level of protection guaranteed by that directive whether the consumer is represented by a lawyer. As it stated at the hearing, the court must examine ex officio all terms suspected to be unfair where legal and factual elements are available, and the court is also required, following from the Court’s case-law, ( 17 ) to take ex officio investigative measures, in which it may ask the parties to transmit the relevant documentary evidence, so that it can decide whether a given term is unfair.

37.

My analysis is divided into two parts. First, in Section A, I will address the first question, since it concerns the scope of the national court’s duty to examine ex officio the unfairness of contractual terms under Articles 6(1) and 7(1) of Directive 93/13. Second, in Section B, I will examine the second and third questions together, since they also relate to the national court’s assessment of the unfairness of a contractual term under Article 4(1) of Directive 93/13.

38.

By its first question, the referring court essentially wishes to know whether a national court is required under Articles 6(1) and 7(1) of Directive 93/13 to examine ex officio the unfairness of all of the terms of the contract even if they are not necessary to decide on the parties’ claims in the dispute, having regard to the principles of civil procedural law that the subject matter of the action is delimited by the parties and the court can go no further than that subject matter (ne ultra petita), along with rules on legal representation as set out in the Hungarian law (see points 7 to 11 of this Opinion).

39.

I have reached the conclusion that, under Articles 6(1) and 7(1) of Directive 93/13, a national court is required to examine ex officio the unfairness of contractual terms which are related to the object of the dispute and have a link with the legal or factual elements in the case file.

40.

With a view to answering the question, I will first address the ambit of the national court’s duty to make an ex officio examination of unfair terms. Next, I will examine the extent of the national court’s duty to take ex officio investigative measures. Finally, I will turn to the potential relevance of whether or not the consumer has legal representation.

41.

It should be noted at the outset that the first question referred in the present case has not yet been dealt with in the Court’s case-law. Indeed, as indicated in the observations of UniCredit Bank Hungary, in the Court’s case-law so far on the national court’s ex officio examination of unfair terms under Directive 93/13, generally there was no question that the contractual terms formed the basis of the parties’ claims or were the subject of the dispute before the referring court. ( 18 )

42.

Also, the Court addressed a different question in its judgment in OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750). By its fifth question, ( 19 ) the referring court asked whether, in light of the principle that the subject matter of an action is delimited by the parties, it was precluded from examining ex officio the unfairness of terms not relied on by the consumer in support of his claim in his capacity as an applicant. In its judgment, ( 20 ) the Court held that Articles 6(1) and 7(1) of Directive 93/13 must be interpreted as requiring the national court to examine ex officio, including where necessary in the place of the consumer in his capacity as an applicant, any unfairness of a contractual term, provided that the court has available to it the legal and factual elements necessary for that task. Thus, while the judgment in OTP Bank and OTP Faktoring is relevant to the present case, it did not address to what extent the national court’s ex officio review of unfair terms covers all terms of the contract.

43.

Generally speaking, the principle that the subject matter of an action is delimited by the parties is a guiding principle in civil proceedings across the Member States with particular relevance to consumer actions before the national courts. ( 21 ) Under that principle, it is for the parties to initiate or terminate the proceedings and to determine their subject matter and, in consequence, the court can go no further than that subject matter (ne ultra petita). ( 22 )

44.

Set against that backdrop, it may be considered that the Court’s case-law on the national court’s ex officio examination of unfair terms under Articles 6(1) and 7(1) of Directive 93/13 affects the operation of the principle that the subject matter of an action is delimited by the parties, in the sense that the national court is required to play an active role in raising ex officio the unfairness of terms in consumer contracts, even if this would have the result that under the national procedural law the court would go beyond the ambit of the dispute defined by the parties. ( 23 )

45.

Article 6(1) of Directive 93/13 requires Member States to lay down that unfair terms are not binding on consumers, ( 24 ) whereas under Article 7(1) of that directive, read in conjunction with the twenty-fourth recital thereof, Member States must provide for adequate and effective means to prevent the continued use of unfair terms in consumer contracts. ( 25 ) While those provisions have given rise to an extensive body of case-law, ( 26 ) I will outline the applicable principles drawn from that case-law which are most pertinent to my analysis of the present case.

46.

The Court has ruled, starting in its seminal judgment in Océano Grupo Editorial and Salvat Editores, ( 27 ) that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier as regards both his bargaining power and his level of knowledge which leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of the terms. ( 28 ) In order to guarantee the protection intended by Directive 93/13, the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the parties to the contract. ( 29 )

47.

It is in the light of those considerations that the Court has held that, in the exercise of the functions incumbent upon a national court under Directive 93/13, that court is required to assess of its own motion whether a contractual term is unfair, and in so doing, compensate for that imbalance between the consumer and the seller or supplier. ( 30 ) That obligation for the national court is regarded as necessary for ensuring that the consumer enjoys effective protection, in view of the not insignificant risk that he is unaware of his rights or encounters difficulties in enforcing them. ( 31 )

48.

Notably, in that context, the Court’s clear recognition since Pannon ( 32 ) of the national court’s obligation, as opposed to power, to examine ex officio the unfairness of contractual terms under Directive 93/13 has been accompanied by the condition that the national court has available to it the legal and factual elements necessary for that task. ( 33 ) If those elements are not available to it, a national court is not in a position to examine whether a contractual term is unfair under that directive. ( 34 )

49.

In the present case, on the basis of the foregoing case-law and in particular the condition that the national court must have available to it the necessary legal and factual elements to make an ex officio assessment, I take the view that the ambit of the national court’s duty to examine ex officio unfair terms under Directive 93/13 extends only to the contractual terms which are related to the object of the dispute and have a link with the legal or factual elements in the case file.

50.

This proposed approach may be considered to respect the principle that the subject matter of an action is delimited by the parties, since it does not go beyond the ambit of the dispute as determined by the parties. As one commentator has considered: ‘Even if the principle of party presentation [according to which the delimitation of the ambit of the dispute belongs to the parties] is tempered in order to accommodate the underlying power imbalance of the parties, the consumer proceedings do not become inquisitorial. The requirement to observe the factual ambit of the dispute is the “borderline” which the courts cannot cross.’ ( 35 )

51.

On the contrary, as indicated in all of the parties’ observations in the present case, an approach obliging the national court to carry out an unlimited ex officio examination of the unfairness of contractual terms under Directive 93/13 would appear to run counter to fundamental principles of civil procedural law of the Member States, including the principles that the subject matter of an action is delimited by the parties and that the court may not rule ultra petita.

52.

At the same time, this proposed approach ensures the system of protection underlying Directive 93/13 and the active role played by the national court in raising ex officio the unfairness of terms which have not been challenged by the consumer following from the Court’s case-law mentioned in points 46 and 47 of this Opinion. ( 36 )

53.

This proposed approach also appears to be in line with the case-law and practice of certain Member States. ( 37 ) For instance, in France, the courts have an obligation to set aside unfair terms in consumer cases where the unfairness derives from the elements of the dispute. ( 38 ) In the Netherlands, the Hoge Raad (Supreme Court) considered in its judgment in Heesakkers v Voets ( 39 ) that if the court has the necessary factual and legal information to suspect that an agreement falls within the scope of Directive 93/13 and contains a clause which is unfair within the above meaning, it should examine the matter, even if the claim or the defence has not been based on allegations aimed at such examination. In Spain, judgments of the Tribunal Supremo (Supreme Court) indicate that the national judge is obliged to control ex officio the unfairness of contractual terms as soon as it has the necessary legal and factual elements. ( 40 ) Furthermore, in light of the observations of the Hungarian Government (see points 31 and 32 of this Opinion), it appears that, in Hungary, a national court’s ex officio examination applies to terms whose unfairness can be established on the basis of the case file.

54.

In reference to the observations of the Hungarian Government and the Commission (see points 31 and 36 of this Opinion), it is necessary to consider whether, in circumstances where the national court has indications or suspicions that contractual terms which are related to the object of the dispute and have a link to the legal or factual elements in the case file could be unfair, Directive 93/13 requires that the court be able to take ex officio investigative measures to verify this.

55.

I take the view that Articles 6(1) and 7(1) of Directive 93/13 require that the national court be able to take ex officio investigative measures to complete the case file, such as requesting clarification or documentary evidence from the parties, in order to obtain the necessary legal and factual elements to carry out an ex officio examination of whether a contractual term is unfair. I do so for the following reasons.

56.

In VB Pénzügyi Lízing, ( 41 ) the Court was asked by way of a reference for a preliminary ruling from a Hungarian court, inter alia, whether, in a situation in which the national court begins to consider whether a contractual term conferring exclusive territorial jurisdiction may be unfair, the court must undertake, of its own motion, an investigation with a view to establishing the legal and factual elements necessary to assess whether the term is unfair, where the national procedural rules permit that only if one of the parties so requests.

57.

In its judgment, ( 42 ) the Court held that the national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer, which is the subject of a dispute before it, falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair. In dividing the examination into two stages, the Court underlined that, in the first stage, the court must ‘in all cases and whatever the rules of domestic law’ determine whether the contested term falls within the scope of that directive, and if so, in the second stage, the court must assess that term, if necessary of its own motion, according to the requirements of unfairness under that directive.

58.

The Court has confirmed its ruling in VB Pénzügyi Lízing in subsequent cases, sometimes associated with a term conferring exclusive territorial jurisdiction, ( 43 ) or framed in more general terms to the effect that the national court must investigate of its own motion whether a term in a contract concluded between a seller or supplier and a consumer falls within the scope of the Directive and, if it does, assess of its own motion whether such a term is unfair. ( 44 )

59.

Even so, that line of case-law following from VB Pénzügyi Lízing appears to have left open questions in particular relating to whether the national court’s duty to take ex officio investigative measures is limited to the scope of Directive 93/13 ( 45 ) or may also apply to the unfairness assessment, as well as what such investigative measures may involve.

60.

Viewed from a comparative perspective, it appears that the civil procedural laws of the Member States generally provide courts with powers to instruct the parties to provide additional evidence and to ask questions of the parties for clarification, whereas the Member States take divergent approaches when it comes to actual so-called ‘measures of inquiry’ — for example, where the courts gather evidence of their own motion through ex officio hearing of witnesses, ex officio ordering of evidence by third parties, ex officio hearing of experts, or ex officio visits — which go beyond the mere asking of questions or requesting the submission of additional documents from the parties. ( 46 )

61.

On that basis, it may be considered that ex officio investigative measures taken by the national court to complete the case file, such as requesting clarification or documentary evidence from the parties in the dispute, in order to form an opinion whether a contractual term is unfair constitute appropriate means of ensuring the system of protection for consumers under Directive 93/13 so that the national court is able to carry out its ex officio examination of unfair terms pursuant to the provisions of that directive.

62.

The fact that the Court has emphasised the need for sufficient evidence in order to rely on Directive 93/13 in its case-law may be viewed as lending support for the position that the national court has at its disposal sufficient legal and factual elements for the ex officio examination if necessary by being able to take ex officio investigative measures to that effect.

63.

For instance, in Profi Credit Polska, ( 47 ) the Court held that under the particular circumstances of that case in which a national court is hearing an application under a consumer credit agreement for which it has serious doubts as to the unfairness of provisions agreed between the parties and it does not have available to it the necessary legal and factual elements, Articles 6(1) and 7(1) of Directive 93/13 require the court to examine ex officio whether the provisions agreed between the parties are unfair, and in that regard, require that the court be able to request the production of the documents on which the application is based, so that the court is able to verify that the rights that consumers derive from that directive are observed. The Court emphasised that such a request does not contravene the principle that the subject matter of an action is delimited by the parties, since it forms part of the evidential framework of the proceedings.

64.

By contrast, it should be noted that no arguments have been presented to the Court that an obligation for the national court to take more extensive ex officio‘measures of inquiry’ as referred to in point 60 of this Opinion would be necessary for ensuring the system of protection for consumers under Directive 93/13 in the particular circumstances of the present case. This matter remains in principle within the discretion of the national court based on the relevant national procedural law, subject to compliance with EU law. ( 48 )

65.

As a final point, I take the view that the issue of legal representation does not have any bearing in respect of the assessment of the ambit of the national court’s ex officio examination of unfair terms under Directive 93/13 in the circumstances of the present case.

66.

I acknowledge that, from a comparative perspective, even in the Member States which strictly adhere to the principle that the subject matter of an action is delimited by the parties, the extent to which the court actively intervenes and/or raises issues of its own motion is based on various circumstances, including whether or not the party is represented, and that, in certain Member States, the court may be expected to be more active when the weaker party is not represented by a lawyer, with the aim of reducing the inequality between the parties. ( 49 )

67.

That said, as indicated by the Hungarian Government, the system of protection afforded by Directive 93/13 and the national court’s obligation to carry out an ex officio examination of unfair terms flowing from the Court’s case-law as set out in points 46 and 47 of this Opinion is based on the imbalance which exists between the consumer and the seller or supplier at the time of conclusion of the contract, and not at the time of the exercise of the rights arising from the contract.

68.

Consequently, as the Court held in Rampion and Godard, ( 50 ) involving the interpretation of EU legislation on consumer credit, ( 51 ) the fact that a case is brought by a consumer and the consumer is represented in those proceedings by a lawyer does not justify a different conclusion in respect of the need to permit the court to act of its own motion, since the issue of ex officio examination must be settled independently of the specific circumstances of the case. This reasoning is applicable to the assessment of the national court’s ex officio examination of unfair terms under Directive 93/13, especially seeing as the Court applied the considerations from its case-law on Directive 93/13 to the circumstances arising in that case. ( 52 )

69.

In light of the foregoing, I take the view that Articles 6(1) and 7(1) of Directive 93/13 require a national court to examine ex officio the unfairness of contractual terms which are related to the object of the dispute and have a link with the legal or factual elements in the case file. Those provisions also require that the national court be able to take ex officio investigative measures to complete the case file in order to obtain the necessary legal and factual elements to carry out that examination.

70.

By the second and third questions, taken together, the referring court in substance seeks guidance whether, in the event that the first question is answered in the negative, a national court is required under Articles 4(1), 6(1) and 7(1) of Directive 93/13 to examine the unfairness of all of the other contractual terms when examining the unfairness of a particular contractual term.

71.

I have reached the conclusion that these questions should be answered to the effect that, under Articles 4(1), 6(1) and 7(1) of Directive 93/13, a national court is not required to examine ex officio all of the other contractual terms autonomously for unfairness when carrying out an overall assessment of the contract for the purposes of examining the unfairness of a particular contractual term. My reasons for so concluding are as follows.

72.

It should be borne in mind that Article 4(1) of Directive 93/13 states in relevant part that ‘the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or 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’. ( 53 ) That provision is part of the framework for the unfairness assessment of contractual terms set out in Directive 93/13. ( 54 )

73.

As the Court held in Banif Plus Bank, ( 55 ) in reference to that provision, 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, and thus not just the terms on which the claim before it is based.

74.

This implies an overall assessment of the terms of the contract. ( 56 ) Indeed, as Advocate General Saugmandsgaard Øe pointed out, ‘for the purposes of assessing unfairness, a contractual term cannot be isolated from its context. It follows that such an assessment is not absolute but relative, inasmuch as it is dependent on the particular facts attending the conclusion of the contract, including the cumulative effect of all of the terms of the contract.’ ( 57 )

75.

Thus, the national court is required, under Article 4(1) of Directive 93/13, to take account of all of the other terms of the contract when examining the unfairness of a particular term. Yet, that does not mean that the national court is required to examine ex officio those other terms autonomously for unfairness as part of that assessment pursuant to Articles 6(1) and 7(1) of that directive.

76.

Nevertheless, as indicated by the Hungarian Government and the Commission, in the process of undertaking that overall assessment, the national court may encounter contractual terms which may be considered to be unfair and which the court is required to examine ex officio where it has the necessary legal and factual elements to that end in accordance with the Court’s case-law (see point 48 of this Opinion). While the fact that a national court takes into account the other terms of the contract for the purposes of assessing the unfairness of a particular contractual term should not be equated with an ex officio examination, this may promote such an examination of any of those terms where the necessary legal and factual elements are available for that purpose.

77.

In light of the foregoing, I take the view that, under Articles 4(1), 6(1) and 7(1) of Directive 93/13, a national court is not required to examine ex officio all of the other contractual terms autonomously for unfairness when carrying out an overall assessment of the contract for the purposes of examining the unfairness of a particular contractual term.

78.

I propose that the Court answer the questions referred by the Fővárosi Törvényszék (Budapest High Court, Hungary) as follows: