The credit agreement between Mr Csaba Csipai and Banif Plus Bank was concluded through a standard form contract. The latter included a clause that allowed the Banif Bank Plus to claim for the full amount of the loan as well as default interest and costs in case of breach of contract by the borrower. As Mr Csipai paid only part of the instalments defined by the contract, the bank terminated the agreement and presented a claim in front of the Pest Central District court in order to recover the debt. As Pest Central District Court evaluated ex officio the clause as unfair, it allowed the parties to comment, then decided the case on 6 July 2010 addressing the contract excluding the unfair clause.
Banif Plus Bank appealed against that decision before the Budapest Municipal Court, which decided to stay the proceedings and to refer the following questions:
‘Are the procedures of a national court consistent with Article 7(1) of [the Directive] if, where a contract term is held to be unfair, and the parties did not submit a claim to that effect, the court informs them that it holds sentence 4 of clause 29 of the standard contract terms of the loan agreement between the parties to the proceedings to be invalid? That invalidity arises from breach of the legislation, namely Paragraphs 1(1)(c) and 2(j) of Government Decree No 18/1999 …
In the circumstances of the first question, is it permissible for the court to direct the parties to the proceedings to make a statement in relation to the contract term in question, so that the legal implications of any unfairness may be established and so that the aims expressed in Article 6(1) of [the Directive] may be achieved?
In the circumstances described above, is it permissible for the court, when examining an unfair contract term, to examine all the terms of the contract, or may it examine only the terms on which the party concluding the contract with the consumer bases his claim?’
The CJEU decided the case on 21 February 2013. The Court addressed only the principle of effectiveness, disregarding the principle of equivalence, starting from the assertion that the judge has the duty to ascertain on its own motion the unfairness of contract clause, and should be able to establish all the consequences of such a qualification under national law. However, the CJEU balances effectiveness with the principle of effective judicial protection (art 47 CFREU) and in particular with the principle of audi alteram partem, which is part of the rights of defence.
Under this principle, the CJEU acknowledged that the both parties should not only be aware of the documents and observations made by the court but also be able to discuss them. Moreover, the court affirmed that in order to guarantee the right to a fair hearing, the parties should be able to debate and be heard on the matters of fact and law that are determinative.
The CJEU then affirmed on this point that:
“Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the national court which has found of its own motion that a contractual term is unfair is not obliged, in order to be able to draw the consequences arising from that finding, to wait for the consumer, who has been informed of his rights, to submit a statement requesting that that term be declared invalid. However, the principle of audi alteram partem, as a general rule, requires the national court which has found of its own motion that a contractual term is unfair to inform the parties to the dispute of that fact and to invite each of them to set out its views on that matter, with the opportunity to challenge the views of the other party, in accordance with the formal requirements laid down in that regard by the national rules of procedure.”

Although not included in as a reference within the preliminary reference, the CJEU evaluated the national provision taking into account art. 47 CFREU. The Charter article is found to contain the principle of audi alteram partem as well as the principle of a fair hearing.
Art. 47 CFREU is then used to balance the evaluation of compliance provided by the effectiveness test. The CJEU tempered the duty to exercise the ex officio power by the national court with the obligation to safeguard the possibility for the parties to present their observations regarding the evaluation of unfairness.