The second instance court determined that the first instance court committed a substantial violation described in article 354 paragraph 2 point 6 of the Civil Procedure Act because by not expressing its opinion regarding the unfairness of the contractual term, which represents an illegal action of the court, it did not enable the plaintiff to present the facts and propose the evidence needed for determination of rights and obligations of the contractual parties in order to evaluate the grounds of the claim for payment of the compensation for early termination of the contract. The second instance court particularly stressed the following:
“Court of Justice of the European Union in case C-472/11 in relation to the request for preliminary ruling in the procedure Banif Plus Bank Zrt c/a Csaba Csipai, Viktoria Csipai, responded that the provisions of article 6 paragraph 1 and article 7 paragraph 1 of the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts have to be interpreted in such way that a national court, which ex officio determined an unfair contractual term, does not have to wait for the consumer to demand that such contractual term be determined as null, in order to apply the consequences of such determination. However, the adversarial principle which applies to the procedure generally obliges the national court, which determined ex officio that a certain contractual term is null, to inform the parties to the procedure of such nullity and to enable them to provide the court with their opinion regarding the matter in question in a way prescribed by the national procedural law and in accordance with the adversarial principle”.
Cjeloviti tekst: Cjeloviti tekst