The Curia of Hungary, as the highest instance judicial forum of the country, has the constitutional duty to harmonise the administration of justice within the Hungarian judiciary, mainly by means of rendering uniformity decisions. The Curia renders uniformity decisions in cases rasing issues of theoretical importance in order to ensure the uniform application of law within the Hungarian judiciary. Such decisions are binding on all Hungarian courts. The operative parts of uniformity decisions – as brief summaries – are accessible hereunder:
No confiscation of a group of assets (an asset) to be released or returned to the injured party or already received by the injured party can be ordered; however, there is no obstacle to ordering confiscation for groups of assets by which the perpetrator has actually enriched himself through such an asset.
When a final decision on the merits is being quashed in review proceedings, the limitation period is to be examined, and if it is found that the offence is no longer punishable because it is barred by limitation, the legal consequences of such a finding must be drawn.
A person entitled to pre-emption and having accepted a sale and purchase contract, not subject to authority approval, on the transfer of the ownership of a land falling within the scope of Act No. CXXII of 2013 on Agricultural and Forestry Land Trade may enforce a claim arising from a violation of his or her pre-emption right under section 6:223 (2) of Act No. V of 2013 on the Civil Code.
In the action the court must be sought to establish that the sale and purchase contract is ineffective in respect of the person entitled to pre-emption and the contract has come into existence between the person entitled to pre-emption and the seller, due to the Statement of Acceptance made by the person entitled to pre-emption in the publication proceedings regulated under Act No. CXXII of 2013 on Agricultural and Forestry Land Trade.
I. Based on the notion of 'energy supplier' as specified in section 1 point 4) of Act No. XCIV of 2010 on a Special Tax on Certain Sectors, the statutory provision governing energy supply entrepreneurial activities does not cover activities performed outside Hungary. No Hungarian jurisdiction can be established for the purpose of levying the special tax on activities performed abroad.
II. The subject of the special tax can only be an entity having a licence covering the territory of Hungary. Only income originating from activities performed under a licence covering the territory of Hungary is subject to the special tax.
III. In examining the taxation of activities performed abroad, international agreements on double taxation must be taken into account.
An unsolicited declaration of intent to commit a criminal offence may also be suitable for establishing a criminal offence.
Where in determining an appeal against an order rejecting a statement of claims it can be clearly established that no ground for rejection exists and the statement of claims is suitable for starting the case initiation phase, the second instance court shall amend the first instance court’s order and shall not reject the statement of claims.
The second instance court shall act in the same way where in his appeal the plaintiff requests the court to quash the order but based on the content of the appeal he in fact alleges that his statement of claims is suitable for initiating the case.
In proceedings for the imposition of a single aggregated penalty, the date of the commission of the offences adjudged in the judgments delivered in the main proceedings is indifferent in determining the applicable criminal law; the date of the opening of the possibility of aggregating the penalties is of relevance.
The asset manager of a company can be the perpetrator of a misappropriation committed against the company, irrespective of the asset manager’s ownership share in that company.
1. An administrative authority decision is null and void where a ground for nullity specified in section 121(1) of Act No. CXL of 2004 on the General Rules of Administrative Authority Procedure and Services or in another Act of Parliament exists. The scope of the grounds for nullity cannot be broadened through interpretation.
2. An error or deficiency related to the signature of the person actually issuing the administrative authority’s decision does, in itself, not result in nullity but amounts to procedural irregularity.
3. In review proceedings instituted for establishing the nullity of an administrative authority decision the Curia will not conduct ex officio evidence-taking but may ex officio notice the evident nullity of an administrative authority decision. An administrative authority decision is evidently null where no separate evidence-taking is needed to establish its nullity.
4. If the first instance administrative authority decision is null, the court proceeding in the administrative lawsuit will quash the second instance administrative authority decision and will annul the first instance administrative authority decision.
I. Where in a set of administrative authority proceedings the client has legal representation, the service of a document on the legal representative will amount to legally valid communication of the document. In the absence of such legally valid communication, time limits for remedies will not start to run.
II. Where the client obtains knowledge of the content of the decision and files a court action, the court may examine how the absence of the legally valid communication of the [administrative authority] decision has affected the client’s remedy and fair trial rights and the requirement of legal certainty.
III. The uniformity panel no longer maintains decision No. EBH.2009. 2109 as a decision of principle.
A party exempted from the payment of duties under section 5 of Act No. XCIII of 1990 on Duties may not be obliged under section 86(2) of Act No. III of 1952 of the Code of Civil Procedure to pay duties in enforcement proceedings following a civil lawsuit.
I. In case of an offence of bankruptcy fraud violating section 404 subsections (1) or (2) of the Criminal Code, the injured party is the economic operator falling under the scope of the Act on Bankruptcy and Liquidation Procedure
- whose assets are, in a situation of insolvency or threat of insolvency, actually or pretendedly reduced by the perpetrator by committing one of the conducts specified in section 404 subsection (1) a/ or b/ or c/ of the Criminal Code, and the satisfaction of whose creditors’ claims is thereby partly or fully prevented by the perpetrator; or
- who has rendered itself, actually or pretendedly, insolvent by committing a conduct specified in section 404 subsection (1) a/ or b/ or c/ of the Criminal Code and who has thereby, partly or fully, prevented the satisfaction of its creditors’ claims.
II. In case of an offence of bankruptcy fraud violating section 404 subsection (4) of the Criminal Code, the injured party is the economic operator falling under the scope of the Act on Bankruptcy and Liquidation Procedure whose creditor is given preference, following the issuance of the liquidation order for the economic operator, by the perpetrator by violating the order of satisfaction specified in the Act on Bankruptcy and Liquidation Procedure for creditors’ claims.
III. In criminal proceedings instituted for an offence of bankruptcy fraud violating section 404 subsections (1), (2) or (4) of the Criminal Code, the creditor of the economic operator falling under the scope of the Act on Bankruptcy and Liquidation Procedure is not an injured party, therefore such a creditor cannot enforce a civil claim as a private party and cannot act as substitute private prosecutor, either.
Where in the relevant background laws the status of person performing public duty is conferred on a person listed in section 459(1) point 12 of Act No. C of 2012 on the Criminal Code solely for the purposes of criminal law protection, the person performing public duty cannot be a perpetrator of the felony offence of ill-treatment committed in proceedings conducted by a person performing public duty, governed by section 302 of the Criminal Code, or a perpetrator of the felony offence of abuse of a public duty situation, governed by section 306 of the Criminal Code.
Save for changing the defendant’s domicile (place of residence), partial release from house arrest prior to the filing of the bill of indictment falls in the public prosecutor’s competence.
The Uniformity Panel of the Curia of Hungary hereby terminates the judicial decision of the decision of principle status of no. EBD 2015.B.15, published in Volume 4 of 2015 of the Journal of Curia Decisions.
I. In child pornography cases specified in section 204(1) of Act No. C of 2012 on the Criminal Code, the fact that – irrespective of the number of the persons under the age of 18 in the recordings – the committed conduct appears in several pornographic recordings does, in itself, not result in cumulation. However, legal unity is only created by offences violating the provisions on the same statutory offence. In respect of this criminal offence, section 204(1) points a), b) and c) of the Criminal Code contains not identical but separate statutory elements.
II. Where, in respect of the same recording, the perpetrator has committed conducts specified in various points, the commission of criminal offences constituting legal unity and threatened with the most serious penalty is to be established.
III. Where the perpetrator has committed the conducts violating the various points of section 204(1) of the Criminal Code in respect of separate recordings, the conducts that constitute legal unity within the same section shall form real cumulation.
IV. In case of aggravated child pornography specified in section 204(2) of the Criminal Code, the number of counts shall be identical with the number of persons meeting the conditions specified in that section.
Save for military criminal proceedings, a charge shall be lawful even if it has been preferred by a public prosecutor other than the one operating at the court having competence and jurisdiction for conducting the proceedings.
However, in military criminal proceedings a charge shall only be lawful if it has been preferred by a public prosecutor designated by the military public prosecutor or the Chief Public Prosecutor for proceeding in military criminal proceedings. A violation of this rule attests to the absence of entitlement to prefer charges.
The Uniformity Panel of the Curia of Hungary hereby quashes criminal uniformity decision no. 2/2016.
From among the instruments containing procedural provisions the Uniformity Panel finds the following instruments to have continued relevance for the purposes of the new Code of Civil Procedure as well:
civil uniformity decisions nos. 3/2000 PJE, 4/2003 PJE, 2/2006 PJE, 4/2006 PJE, 2/2008 PJE, 4/2008 PJE, 1/2009 PJE, 1/2011 PJE, 2/2011 PJE, 1/2013 PJE and 3/2014 PJE;
civil department opinions nos. 1/2005 (VI. 15.) PK, 3/2008 (XI. 24.) PK, 2/2011 (XII. 12.) PK, 3/2011 (XII. 12.) PK, 1/2016 (II. 15.) PK (save for point 2) and 1/2017 (IX. 11.) PK;
civil department positions and joint positions of the Civil and the Economic Departments nos. PK-GK 2, PK 12, PK 13, PK 14, PK 15, PK 102, PK 127, PK 133, PK 134, PK 137, PK 138, PK 142, PK 145, PK 146, PK 148, PK 152, PK 154, PK 157, PK 158, PK 166, PK 169, PK 171, PK 175, PK 176, PK 177, PK 178, PK 179, PK 180, PK 189, PK 190, PK 191, PK 193, PK 195, PK 196, PK 199, PK 200, PK 212, PK 217, PK 218, PK 221 and PK 277.
The Uniformity Panel finds the following instruments to have continued relevance for the purposes of the new Code of Civil Procedure and the Code of Administrative Court Procedure as well:
- uniformity decisions nos. 1/2005 KPJE and 2/2012 KMPJE;
- department opinions nos. 3/2005 (XI. 14.) PK-KK and 1/2009 (VI. 24.) PK-KK.
1. Where the ownership of a property is transferred by the owner by retaining the usufruct for himself, usufruct will come into existence.
2. A contract under which the ownership of a property is transferred does not need to specify a separate legal ground for retaining the usufruct.
3. To register a retained usufruct in the Land Registry no separate document or registration permit is required.
4. The Land Registry authority shall register the retained usufruct ex officio, when complying with the request for registering the ownership of the property.
5. The Uniformity Panel no longer maintains decision no. EBH 2010.2281 as a decision declaring a principle of law.
1. The rule of specialty contained in Section 30 subsection (1) of Act no. CLXXX of 2012 on Cooperation with the Member States of the European Union in Criminal Matters does not prevent the Hungarian courts from fully applying the legal consequences specified in Act no. C of 2012 on the Criminal Code to a previous final conviction of a defendant surrendered for the purpose of being criminally proceeded against and found guilty in those proceedings.
2. Where in the course of the defendant’s surrender to Hungary the defendant has not expressly renounced the application of the rule of specialty and has committed the offence underlying the surrender during the probation period of a finally imposed suspended sentence of imprisonment, the subsequent ordering of the execution of a suspended sentence of imprisonment does not violate the rule of specialty set forth in Section 30 subsection (1) of Act no. CLXXX of 2012 on Cooperation with the Member States of the European Union in Criminal Matters, therefore such ordering does not require consent from the foreign judicial authority.
3. Where in the course of the defendant’s surrender to Hungary the defendant has not expressly renounced the application of the rule of specialty and the consent under Section 30 subsection (2) g) of Act no. CLXXX of 2012 on Cooperation with the Member States of the European Union in Criminal Matters has not been obtained from the judicial authority of the surrendering foreign state, the subsequent ordering in a special procedure governed by Section 572 subsection (1) b) of Act no. XIX of 1998 on the Criminal Code of the execution of a suspended sentence of imprisonment imposed for an offence committed before the surrender in a judgment not contained in the surrender request violates the rule of specialty.
In criminal proceedings no civil claim for compensation of damage caused by a criminal offence committed in connection with mandatory payments or budgetary supports falling within the competence of the National Tax and Customs Authority can be enforced by the National Tax and Customs Authority.
The National Office for the Judiciary is not a statutory representative of the legal person courts, therefore it may only represent a court upon authorisation to that effect. The statutory representative of a legal person court is the president of the given court. The president of a court is entitled to decide whether he, in his powers, wishes to arrange for the representation of his court in case this court as a party to a lawsuit, or wishes to authorise the National Office for the Judiciary to represent the court at issue.
Where in the assets in fiduciary management financial disadvantage exceeding the value limit of the regulatory offence is caused by the perpetrator by breaching one or several – various or repetitive (several kinds of) – asset management duties, the misappropriation of funds is to be evaluated as a natural unity, regardless of whether such misappropriation occurred simultaneously on one occasion, or successively in several parts.
However, where several (various) conducts breaching the asset management duties result in financial disadvantage constituting several various offences which separately, in themselves, also constitute a criminal offence, the conducts shall amount to continuous misappropriation of funds, provided that the further conditions of continuous commission are met.
1. Foreign currency-based consumer and retail loan contracts comply with the requirement set forth in Section 213 subsection (1) a) of Act no. CXII of 1996 on Credit Institutions and Financial Enterprises (henceforth: Hpt) where the written contract, including the general contractual terms which become part of the contract upon the conclusion of the contract, determines the provided loan amount in HUF (payment currency), provided that the equivalent amount in foreign currency (calculation currency) of the thus determined loan amount can be precisely calculated on the basis of the exchange rate applicable at the future time of conversion specified in the contract or, in lack of such stipulation, at the time of the disbursement of the loan amount.
2. Foreign currency-based consumer and retail loan contracts also comply with the requirement set forth in Section 213 subsection (1) e) of Hpt. where the written contract, including the general contractual terms which become part of the contract upon the conclusion of the contract, specifies in a predictable manner the numbers, amounts and payment dates of the instalments to be paid. The instalment amounts to be paid are to be regarded as predictable where the contract specifies, at least, the data and calculation method based on which the instalment amounts payable at the future time of conversion set forth in the contract or, in lack of such stipulation, at the successive due dates of the instalment payments can be precisely calculated.
3. Where a foreign currency-based consumer and retail loan contract, including the general contractual terms which become part of the contract upon the conclusion of the contract, contains the elements specified in paras 1. and 2. above, a unilateral legal declaration (e.g. reimbursement notification, loan repayment plan, loan repayment schedule) is to be considered as information provided to the consumer by the financial institution, not affecting the existence or validity of the contract at issue.
1. The Uniformity Panel of the Curia of Hungary hereby quashes civil uniformity decision no. 3/2012.
2. The signature of a witness to a last will and testament meets the requirements prescribed for signatures where the document is signed by the witness in a manner characteristic of him or her and reflects the individual writing style developed by the witness. Where the person of the witness cannot be identified from the document, the court may take evidence on this issue.
3. The decision published under no. EBH 2015.P.10 shall no longer be maintained by the uniformity panel as a decision on principle.
The felony offence of sexual violence committed against a person not having attained the age of 12 years violates Section 197 subsection (1) of Act no. C of 2012 on the Criminal Code and is, in view of subsection (2), to be characterized under subsection (4) point a) where the aggrieved party is a relative of or is brought up or supervised or cared or medically treated by the perpetrator or is in any other manner under the power or influence of the perpetrator, regardless of whether coercion has been used by the perpetrator.
The Uniformity Panel of the Curia of Hungary
1. quashes Decisions nos. 1/1998 PJE , 4/1999 PJE, 2/2000 PJE and 1/2006 PJE;
2. does no longer maintain its Opinion no. 2/2004 (XII. 2.) PK;
3. does no longer maintain Opinions nos. PK 129, PK 132, PK 140, PK 147, PK 150, PK 153, PK 155, PK 156, PK 162, PK 165, PK 167, PK 170, PK 182, PK 184, PK 198, PK 205, PK 206, PK 210, PK 211, PK 219, PK 220 and PK 263, and Department Opinions nos. GK 1, GK 60, GK 61 and GK 62, and Opinion GKT 58/1973 as guidance of principles.
4. does no longer maintain the reasoning of its Opinions nos. PK 152, PK 158 and PK 264.
Section 340/A subsection (2) point b) of the Code of Civil Procedure (Pp.) excludes the possibility of review only in cases where the administrative decision contains solely a provision imposing a fine.
1. The exclusion of the possibility of conditional release from life imprisonment is part of the constitutional order and the judicial application of such exclusion is not prohibited under any international treaty, provided that the statutory requirements are met.
Under the laws in force, the ECHR case law, the Constitutional Court’s decision and the 11 June 2015 review decision of the Curia of Hungary (no. Bfv.II.1812/2014/7), no departure from the established court practice developed on the imposition of life imprisonment without eligibility for parole (whole life sentence) is warranted.
2. A decision prompted by a judgment of a human rights body set up under an international treaty and being in conformity with an international instrument promulgated in an Act of Parliament shall be adopted not directly under the European Convention on Human Rights (Convention) as a substantive and procedural law serving as a basis for the adjudication of the case but – based on the human rights body’s decision, by incorporating it into the Hungarian legal system – under the laws in force unaffected by the Convention violation, in review proceedings regulated in the Act on Criminal Procedure.
Section 18(1) b) of Act. No. II of 2007 on the entry and stay of third country nationals shall be construed so that in case in proceedings instituted for the acquisition or prolongation of a third country national’s entitlement to stay the third country national submits false data or untrue fact, he shall bear the legal consequences of such conduct. Where the entitlement to stay is sought for the purpose of carrying out income-earning activities, sustenance capability can be proved by lawful (taxed) income deriving from lawful income-earning activities. The submission of false data or untrue fact is committed when the data or fact is submitted. The immigration authority shall satisfy itself of the falseness of the data and/or the untrueness of the fact submitted. Section 18(1) b) of the said Act prescribes the mandatory application of the legal consequences (denial, withdrawal), hence the authority shall have no margin of appreciation.
The Uniformity Panel of the Curia of Hungary
1. hereby quashes decision no. 1/2003 KPJE, decision no. 1/2007 KPJE, decision no. 1/2008 KPJE and decision no. 2/2008 KPJE;
2. no longer upholds joint opinion no. 1/2002 (IV. 22.) PK-KK, opinion (correctly: joint) opinion no. 1/2003 (II. 17.) PK (correctly: PK-KK), point 2 of joint opinion no. 3/2005 (XI. 14.) PK-KK and points 2-3 of joint opinion no. 1/2009 (VI. 24.) PK-KK;
3. no longer upholds joint opinion no. BKT-PKT-GKT 1/1981 and joint opinion no. BKT-PKT-GKT 1/1986 as guidelines on principles.
A second instance court order quashing a first instance decision and remitting a case to the first instance court shall have formal binding effect, therefore the Chief Public Prosecutor may, in the interest of legality, seek remedy against such an order.
The respondent of an administrative lawsuit instituted for the review of a decision related to the tasks specified under Section 4 subsection (9) of Act No. CXXXIX of 2013 on the National Bank of Hungary as in force till 31 December 2014 will be the National Bank of Hungary; the Financial Stability Board will proceed in the name of the National Bank of Hungary.
The Uniformity Panel of the Curia of Hungary hereby quashes uniformity decisions nos. 4/2005, 1/2006, 4/2006 and 5/2006 of the Supreme Court, which therefore shall not be applicable from the date of the publication of the present uniformity decision.
The Uniformity Panel of the Curia of Hungary hereby quashes uniformity decision no. 1/2012 BKMPJE of the Curia.
A tax liability or other public charge arisen after the starting date of the liquidation proceedings forms part of the preservation, conversation and sale costs related to the pledged property and mentioned in Section 49/D subsection (1) of Act No. XLIX of 1991 on Bankruptcy and Liquidation Procedures, and may therefore be deducted from the purchase amount received from the sale of the pledged property.
The 8-day time limit allowed for filing an objection against a liquidator’s allegedly unlawful measure or omission is a procedural time limit, non-observance of which may be remedied by filing a justification for delay.
The supervisory fee imposable under section 65, subsection (4) of Act no. XCIII of 1990 on Duties (henceforth: Itv.) shall be imposed in an amount reduced under section 58, subsection (1), point c) of Itv. in an order under section 80, subsection (3) of Act no. V of 2006 on Public Company Information, Company Registration and Winding-up Proceedings (henceforth: Ctv.) discontinuing the judicial supervisory proceedings on a company not contesting the unlawfulness specified in the court of registry notification made under section 80, subsection (1), point b) of Ctv. but terminating the unlawfulness and/or restoring lawful operation within the prescribed time limit.
The Civil Department of the Curia of Hungary
1. shall regard the following legal instruments as applying mutatis mutandis, to the new Civil Code as well:
- from among the PJE decisions PJE decisions nos. 1/2002, 3/2004, 2/2006, 4/2006, 1/2008, 1/2011, 3/2012 and 6/2013,
- from among the PK opinions PK opinions nos. 1/2005, 1/2006, PK opinion no. 1/2008 point VIII, PK opinion no. 2/2009 points 2, 6, 8, 9, PK opinion no. 1/2010 point 10, PK opinion no. 2/2010 points 2-4, 5/b, 6-9 and 10/b, PK opinion no. 1/2011 points 1-7 and 9-12, PK opinions nos. 2/2011, 3/2011, PK opinion no. 1/2012 points 1-11 and 15 and PK opinion no. 2/2012,
- from among the Polgári Elvi Döntések (Civil Law Decisions of Principle) Polgári Elvi Döntés no. XXV point I, save the last sentence and the related reasoning, as well as points II, IV and V, and Polgári Elvi Döntés no. XXVI,
- from among the PK resolutions PK resolutions nos. 1, 3, 4, 6, PK resolution no. 9 points III, IV and VII, PK resolutions nos. 29, 31, 34, 35, 40, 46, 47, 48, 76, 77, 80, PK resolution no. 85 point b), PK resolutions nos. 86, 87, 88, PK resolution no. 89 points a) and b), PK resolutions nos. 90, 97, 102, 104, 113, 192, 217, 261, 262, 265, 267, PK resolution no. 279 point II, PK resolution no. 281 and PK resolution no. 298 points I and III,
- from among the GK resolutions GK resolution nos. 12, 30, 47, 54, 57, 65 and GK-MK resolution no. 1.
- from among the GKT resolutions resolution no. 26/1973.
2. shall, regardless of the new Civil Code, quash or regard as outdated the following legal instruments even in the determination of cases to be adjudicated under the former Civil Code or other, already repealed laws:
- from among the PJE decisions PJE decisions nos. 2/1998, 1/1999, 3/1999, 5/1999, 2/2002, 1/2003, 2/2003, 3/2003, 1/2004, 2/2004, 3/2008, 2/2010, 3/2010, 4/2010 and 1/2012;
- from among the PK opinions PK opinions nos. 2/2002 and 3/2004 and PK opinion no. 2/2010 point 1;
- from among the PK resolutions PK resolutions nos. 41, 50, 51 and 75;
- from among the GK resolutions GK resolutions nos. 7, 17, 21, 39, 43, 64 and 74;
- from among the GKT resolutions GKT resolutions nos. 7/1973, 28/1973, 63/1973, 65/1973 and 85/1973.
Based on Article 417, paragraph (1) of Act XIX of 1998 on the Code of Criminal Procedure, in cases where the charge was brought by a private prosecutor or a substitute private prosecutor, the public prosecutor is not entitled to submit a motion for judicial review for reasons set out in Article 406, paragraph (1), points a)-d) of the Code of Criminal Procedure.
With the exception of tax and customs proceedings and proceedings overviewing institutions of adult education, Article 12/A of the Act on Small and Medium Enterprises shall be applied in any proceeding carried out in respect of small and medium enterprises if the infringement of law did not result in the apparent danger of human life, physical integrity and health, in environmental damage or in the violation of law protecting persons under 18 years of age.
According to tax law regulations in force until 31 December 2011 the sale of a movable property within the framework of business activity is a conduct of business, for which the tax payer shall pay personal income tax under Article 58, paragraph (8) of the Act on Income Tax and according to the regulation on revenue coming from independent activity even if the tax payer failed to register himself as VAT payer and thereby he did not become entitled to VAT deduction.
The person on whom imprisonment was imposed for premeditated crime cannot be placed on probation if the person committed this new crime after the end of an earlier probation period authorised during the execution of an earlier imprisonment and that former probation was later terminated in relation to another case.
1. The clause of a foreign exchange loan contract which stipulates that the risk of foreign exchange shall be taken without restrictions by the consumer – in exchange for a favourable interest rate – forms part of the main subject matter of the contract, therefore, as a main rule, its unfairness is exempt from assessment. The unfairness of such clause can be assessed and established only if its content, i.e. the text of the contract and the information provided by the financial institution, is not clear and intelligible for the average consumer, who is reasonably well-informed and reasonably observant and circumspect (hereinafter: consumer) when the contract is concluded. If due to insufficient information or lack of information by the financial institution there is reason for the consumer to believe that the risk of exchange is not real or that it burdens him/her only to a limited degree, the contractual clause related to the risk of exchange is unfair, which leads to the invalidity of the contract in part or in full.
2. Contractual clauses enabling unilateral amendment of a contract are unfair if they do not comply with the principles laid down in point 6 of Opinion no. 2/2012 (XII. 10.) of the Civil Department of the Curia on the unfairness of the right to unilateral contract amendment in the general terms and conditions applied by financial institutions in consumer loan contracts (the principle of clear and intelligible drafting, the principle of taxonomic definition, the principle of objectivity, the principle of factuality and proportionality, the principle of transparency, the principle of terminability, and the principle of symmetry). Based on these principles, contractual clauses defining the criteria of unilateral contract amendment are fair if they clearly and intelligibly define how and to what extent changes in the circumstances of causes listed in the above Opinion affect the consumer’s payment obligations and if they make it possible to verify the unilateral amendments’ compliance with the principles of proportionality, factuality and symmetry as well as with the other contractual terms.
3. The application of a different exchange for the purposes of repayment of the loan (selling rate) to that used for the advancement of the loan (buying rate) is unfair because the financial institution does not provide any service directly for the consumer, therefore it is an unjustified cost for the consumer. These clauses are furthermore unfair because the economic reasons for their application are not clear, not intelligible and not transparent for the consumer. In view of the derogatory provisions of Article 231, paragraph (2) of the Civil Code, the buying and selling rates applied in foreign exchange loan contracts as rates of conversion shall be replaced by the official foreign exchange rate of the Hungarian National Bank until mandatory provisions of law enter into force.
The Curia does not uphold decision no. EBH.2013.G.10 in its quality as a decision on principle.
Uniformity decision 6/2013 PJE
Chaired by the President of the Curia, the Civil Department, proceeding as a uniformity panel, passed its uniformity decision in issues of principle that arose in connection with foreign currency loan contracts.
In Hungary between 2003 and 2008 approximately 750.000 foreign currency loan contracts were concluded. Due to the considerable weakening of the Forint after the conclusion of the contracts, the instalments of the debtors drastically rose, creating a major social problem. The number of court cases involving foreign currency loan contracts significantly increased. At the beginning of November 2013 the head of the Civil Department asked for information from tribunals and courts of appeal concerning the number of cases related to foreign currency loan contracts and law application problems in such cases. Based on the information provided and on the findings of a discussion at the Szeged Court of Appeal, the head of the Civil Department of the Curia initiated a uniformity procedure in order to develop judicial practice in the field concerned.
The Civil Department of the Curia decided on the matters with more than two thirds majority. During the very short time, only three weeks, at disposal the decision, which is binding on courts, was preceded by an extraordinarily intensive preparatory work, in the course of which the Prosecutor General ex officio expressed his standpoint and the chair of the uniformity panel requested the opinion both of the President of the Hungarian National Bank and Lajos Vékás law professor.
The operative part of the uniformity decision reads as follows:
1. Foreign currency based credit agreements, loan agreements and financial leasing contracts (hereinafter: foreign currency loan contracts) are foreign currency contracts. The parties denominated the creditor’s and the debtor’s financial liability arising from the loan contract in foreign currency (denominated currency), and they had to pay it in Forints (paid currency). With such contracts the debtor got into debt under the conditions of an interest rate more favourable than that of the Forint loan in the given period, therefore, the debtor shall bear the impacts of the exchange rate changes: the weakening of the Forint leads to an increase of the debtor’s financial burden, while strengthening leads to a decrease thereof.
2. Just the fact that the exchange rate changes burden the debtor in exchange for the more favourable interest rate does not render the foreign currency loan contract as a type of contract unlawful, obviously immoral, usurious or sham, nor is the contract aimed at impossible services. The unforeseeable one-way shift of contractual burdens after the conclusion of the contract cannot be evaluated from the viewpoint of invalidity, since the cause of invalidity has to exist at the time of the conclusion of the contract.
3. The statutory obligation of the financial institution to provide information had to extend to the possibility of exchange rate change and its impact on the payments. The obligation to provide information could not extend, however, to the extent of the exchange rate change.
4. If the court establishes the nullity of a contract, upon a claim (counterclaim) for the application of the legal consequences, the court has to endeavour primarily to render the contract valid, provided that the cause of nullity can be eliminated or has subsequently terminated.
5. If the court finds a clause of a consumer contract void but the contract can be performed without the invalid part, the clause found to be void becomes ineffective from the point of view of legal consequences, however, the remaining contractual clauses continue to bind the parties.
6. It is only after the European Court of Justice passes a preliminary ruling in case C-26/13 that the uniformity panel of the Curia will answer the question when a contractual term which makes unilateral amendment of contracts possible meets the requirements of transparency.
7. Amendment of a contract by the court is a legal means having the function to remedy in individual cases the adverse impact that a change in the circumstances of the long-term legal relation of the parties after the conclusion of the contract has on the legitimate interests of either party. It is not, however, a legal means to remedy the consequences of comprehensive economic changes affecting a great amount of a particular type of contracts in a similar way – in a way that is detrimental only to one of the parties. If the legislature has addressed these detrimental consequences in a legal rule from a certain viewpoint, the intervention on the part of the legislature excludes individual judicial discretion in that viewpoint.
In a consumer contract an arbitration court condition based on a general contractual term or on a term not negotiated individually is unfair.
The court is obliged to recognise the unfairness of such a condition ex officio, but it can establish its nullity only if the consumer, upon the call of the court, makes reference to it.
1. In an action brought to establish the nullity (or partial nullity) of a contract based on Article 239/A of the Civil Code, the satisfaction of conditions listed in Article 123 of the Code of Civil Procedure shall not be examined.
2. a. As a main rule in an action brought by virtue of Article 239/A of the Civil Code, the value of the subject-matter of the litigation shall be determined based on the value of consideration for services defined in the contract.
b. If, by virtue of Article 239/A, an action is brought to establish the partial nullity of the contract, the value of the subject-matter of the litigation shall be considered as non-definable, except when the value linked to the disputed contractual condition can be defined separately from the value of consideration due for the services indicated in the contract.
3. In an action brought by virtue of Article 239/A a counter-claim for the application of the legal consequences of the nullity can be filed only if the defendant does not dispute the nullity of the contract, that is if (s)he accepts what is included in the claim.
The concept „contractual debt” appearing in Article 27, paragraph (2) point a) of Act XLIX of 1991 on Bankruptcy and Liquidation Proceedings involves creditors’ claims recognised by the debtor in the contract and other claims of the creditor originating from the contract about which the creditor informed the debtor to an extent necessary for raising awareness of the debt demand, including demands originating from not proper contractual performance or from the termination of the contract.
The present uniformity decision replaces part III of Directive no. 15 on the Protection of Life and Physical Integrity through Criminal Law.
Based on Article 195, paragraph (3) of Act CLXI of 2011 the Curia repeals Directive no. 15 on the Protection of Life and Physical Integrity through Criminal Law as a directive, replacing parts I and II with this uniformity decision.
If the enforceability of public work or financial penalty imposed in a final decision expired before 1 May 2010, there is no further lawful possibility to enforce the punishment.
However, if the enforceability of public work or financial penalty did not expire until 1 May 2010, the period of limitation pertaining to the enforceability of punishment shall be five years.
In administrative cases under Chapter XX of Act III of 1952 on the Code of Civil Procedure, tax secret qualifies as a secret defined in a separate act according to the first sentence of Article 119, paragraph (2) of the Code of Civil Procedure. In the judicial proceeding tax secret shall be treated in compliance with the principle of purpose limitation.
In administrative cases the parties shall have access to all information on tax secrets involved in the case. A tax secret about which no information is provided cannot be used as evidence.
In the judicial review procedure of an administrative decision the experts appointed by the court are entitled to get to know and assess all those tax secrets that they need to know in order to complete their duties.
The object of the lawsuit filed on the basis of Article 33/A of Act XLIX of 1991 on Bankruptcy Proceedings and Liquidation Proceedings is to establish the liability of the executive of the economic operator. The court fees shall be imposed based upon the non-definable sum in dispute irrespective of the fact that in the claim the plaintiff has to point out the extent of the decrease of assets and that the court has to define it in monetary terms.
If the sum collected in the course of judicial enforcement does not cover the full amount of the costs of enforcement specified in Article 164, paragraph (1) of the Act on Judicial Enforcement, at first the unpaid duties and the costs advanced by the state shall be settled.
In the absence of further costs of priority the costs of filing, ordering and implementation of the enforcement proceeding shall be proportionately satisfied from the remaining sum.
If the accused person’s residence becomes unknown after submitting the indictment and the warrant issued against the accused did not have any result, the proceeding can be resumed in the absence of the accused according to Chapter XXV of the Code of Criminal Procedure only if the prosecutor makes a proposal for that based on Article 529, paragraph (2) of the Code of Criminal Procedure.
In view of Article 529, paragraph (4) of the Code of Criminal Procedure the court shall suspend the proceeding if the prosecutor proposes not to resume the proceeding or fails to make a proposal for the resumption of the proceeding in the absence of the accused within the prescribed time period of fifteen days in Article 529, paragraph (2) of the Code of Criminal Procedure.
In such a case the reason of suspension is that a proceeding against an accused whose residence is unknown cannot be continued in the absence of a motion by the prosecutor.
After suspension, however, the prosecutor can still propose to resume the proceeding in the absence of the accused by applying the provisions pertaining to special proceedings in Chapter XXV of the Code of Criminal Procedure.
The obstacle to resume the proceeding, therefore the reason of suspension, is in this way removed. Therefore, the court shall resume the proceeding based on the prosecutor’s motion in view of Article 266, paragraph (5) of the Code of Criminal Procedure.
The witness to a will has to sign the document in the usual way that is characteristic of him/her. The signature of the witness cannot be substituted by initials, illegible signs or the stamp of the attorney-at-law. The person of the witness shall be identifiable based on the document.
The Civil Department of the Curia does not uphold the last sentence of point II of the Civil Economic Decision on Principle no. I of the Supreme Court, neither the last indent of the reasoning in connection to that, nor Standpoint no. GK 11 of the Supreme Court.
I. The prosecutor, an abstract legal entity governed by public law, is authorised to exercise the rights of a party. In litigious or non-litigious civil proceedings that are initiated by them or against them according to a separate law, they take part in each stage of the proceeding as a plaintiff or a defendant. As an abstract legal entity governed by public law, the prosecutor is represented by the competent prosecution organ, which is subject to change in the various stages of the proceeding.
II. In civil proceedings, in which the claim follows from a contract made by the prosecution service or from damage caused by the prosecution service out of contract, the Office of the Prosecutor-General shall act as party to the case.
Persons fulfilling service and working in a public place shall not be considered public entities, therefore, rendering public a photo or video record of them that makes identification possible, is subject to authorisation by the person concerned.
The Hungarian financial branch of a foreign financial undertaking seated in an EEA member state, established according to Act CXXXII of 1997 on the Hungarian Branch Offices and Commercial Representative Offices of Foreign-Registered Companies, does not have the capacity to be a party in legal proceedings.
1. According to Article 38, paragraph (1) of Act XCIII of 1990 on fees, a court proceeding starts by submitting a claim, a claim for an out-of-trial proceeding, an appeal, a request for the re-opening of a case or a request of review by the Curia. According to the Act the various stages of court proceedings, the first instance and appeal stages constitute separate proceedings that are subject to separate fees.
2. The base of the fee shall be calculated in each proceeding according to Article 39, paragraphs (1)-(3) of the Act.
3. Act CLVI of 2011 on the amendment of certain tax regulations and other relevant law shall be applied in court proceedings that started after 1 January 2012.
Misuse of personal data, thereby violating the first indent of Article 177/A, paragraph (1), point a) of the Criminal Code, can be committed by anybody, not only by the controller of data as defined in data protection regulation.
Hereinafter the decision on principle no. 926 of 2003, published in the Official Corpus of Supreme Court Decisions, shall not be considered as guiding.