Francii elvețieni, contractele de împrumut, riscul valutar, RIL, intervenția legislativă și dreptul CEDO

4 februarie 2018
926 citiri

4. In 2006 both applicants took out mortgages from Hungarian commercial/mortgage banks. Their loan agreements were denominated in Swiss francs. According to the terms of the agreements, the applicants were to bear the risk of any exchange rate fluctuations between the Hungarian forint and the Swiss francs.
26. The Court has already had occasion to rule on allegations of intervention by the State, through the legislature, in order to influence the outcome of a court case. This was the situation that obtained, among others, in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301-B) and in Zielinski and Pradal and Gonzalez and Others v. France ([GC] nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999-VII). On this subject, the Court reaffirms that, while in principle the legislature is not precluded from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest (see Stran Greek Refineries and Stratis Andreadis, cited above, § 49, and Zielinski and Pradal and Gonzalez and Others, cited above, § 57). Any reasons adduced to justify such measures should be treated with the greatest possible degree of circumspection. Financial considerations cannot by themselves warrant the legislature substituting itself for the courts in order to settle disputes (see Azienda Agricola Silverfunghi S.a.s. and Others v. Italy, nos. 48357/07 and 3 others, § 76, 24 June 2014 and the authorities cited therein).
27. In Stran Greek Refineries and Stratis Andreadis, two essential features led the Court to conclude that there had been an infringement of the right to a fair hearing: firstly, the Greek legislature’s intervention in the case had taken place at a time when judicial proceedings in which the State was a party were pending; secondly, the fact that, after the parties had received the opinion of the judge-rapporteur recommending the dismissal of the State’s appeal, the Court of Cassation had decided to adjourn the hearing on the ground that a draft law concerning the case was before Parliament (ibid., § 47). In Zielinski and Pradal and Gonzalez and Others, where also a violation of Article 6 § 1 of the Convention was found, the Court emphasised that the passing of legislation with retrospective effect had had the effect of endorsing the State’s position in the proceedings that had been brought against it and which were still pending in the ordinary courts (ibid., § 58; see also, more recently and in the same vein, Azienda Agricola Silverfunghi S.a.s. and Others, cited above, §§ 77-88, where the legislative intervention had the effect of definitely modifying the outcome of a pending litigation, endorsing the State position to the applicant companies’ detriment, and where the Court emphasised that even assuming that the new law was interpretative in nature and had reinforced the original intention of the legislator, that fact, in itself could not justify an intervention with retroactive effect).
28. However, there are significant differences between the present applications and those cases. A common feature of the cases previously examined by the Court lies in the fact that the State, which had been a party to the underlying court proceedings, was intervening through legislation in order to influence the outcome of pending judicial proceedings, to prevent proceedings being opened, or to render void final and enforceable decisions which recognised personal rights to receive payment. In the instant case, however, the State was not a party to the proceedings concerned. Moreover, as indicated in the explanatory memorandum attached to Act 1 (see paragraph 17 above), the sole purpose of the impugned legislation was to ensure that the principles laid down in the Kúria’s Civil Law Uniformity Decision no. 2/2014 (see paragraph 7 above) were enforced directly, in respect of not only pending litigations but also non-litigated claims. The Court notes that the Uniformity Decision gave guidance on resolving the issues of foreign-currency-based consumer loan agreements. Therefore, it can be said that in the circumstances of the present cases the applicants could have foreseen a reaction by Parliament (see, mutatis mutandis, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports of Judgments and Decisions 1997-VII, and OGIS‑Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France, nos. 42219/98 and 54563/00, § 72, 27 May 2004; see also, a contrario, Azienda Agricola Silverfunghi S.a.s. and Others, cited above, § 84). In any event, there is no reason for the Court to assume that such guidance would not have had to be followed by the domestic courts in any case, even without the enactment of the new legislation.
29. Consequently, the first applicant’s action would, in all likelihood, have had the same outcome, if only after much more time-consuming court proceedings. The rationale of the impugned legislation was to ensure that all claims relating to the same subject matter could be resolved in a prompt and comprehensive manner, avoiding any inconsistency in case-law and also the overburdening of the judicial system (compare Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §§ 62-75, ECHR 2004-III).

Curtea Europeană a Drepturilor Omului
(Decizia din data de 19 decembrie 2017, Bárdi și Vidovics împotriva Ungariei, CE:ECHR:2017:1219DEC002751415)

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