# C_2014395EN.01002201.xml

| 10.11.2014 | EN | Official Journal of the European Union | C 395/22 |
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10.11.2014

EN

Official Journal of the European Union

C 395/22

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Request for a preliminary ruling from the Krajský soud v Praze (Czech Republic) lodged on 7 August 2014 — Ernst Georg Radlinger, Helena Radlingerová v Finway a.s.

(Case C-377/14)

(2014/C 395/28)

Language of the case: Czech

Referring court

Krajský soud v Praze

Parties to the main proceedings

Applicants: Ernst Georg Radlinger, Helena Radlingerová

Defendant: Finway a.s.

Questions referred

| 1. | Do Article 7(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘the Directive on Unfair Terms’) and Article 22(2) of Directive 2008/48/EC (2) of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (‘the Directive on Consumer Credit Agreements’) or other provisions of EU law on consumer protection preclude:






  — | the concept of Law No 182/2006 on bankruptcy and the modes of its resolution (zákon č. 182/2006 Sb., o úpadku a způsobech jeho řešení) (the Law on Insolvency), as amended by Law No 185/2013 (‘the Law on Insolvency’), which enables the court to examine the authenticity, amount or ranking of claims stemming from consumer relations only on the basis of an incidental application lodged by the administrator in bankruptcy, a creditor or (under the abovementioned restrictions) the debtor (consumer)? |
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1.

Do Article 7(1) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘the Directive on Unfair Terms’) and Article 22(2) of Directive 2008/48/EC (2) of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (‘the Directive on Consumer Credit Agreements’) or other provisions of EU law on consumer protection preclude:

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the concept of Law No 182/2006 on bankruptcy and the modes of its resolution (zákon č. 182/2006 Sb., o úpadku a způsobech jeho řešení) (the Law on Insolvency), as amended by Law No 185/2013 (‘the Law on Insolvency’), which enables the court to examine the authenticity, amount or ranking of claims stemming from consumer relations only on the basis of an incidental application lodged by the administrator in bankruptcy, a creditor or (under the abovementioned restrictions) the debtor (consumer)?

| — | provisions which, in the context of the national legislation governing insolvency proceedings, restrict the right of the debtor (consumer) to request review by the court of the registered claims of creditors (suppliers of goods or services) solely to cases in which the resolution of the consumer’s bankruptcy in the form of a discharge is approved, and in this context only in relation to creditors’ unsecured claims, with the objections of the debtor being further limited, in the case of enforceable claims acknowledged by a decision of the competent authority, solely to the possibility of asserting that the claim has lapsed or is time-barred, as laid down in the provisions of Paragraph 192(3) and Paragraph 410(2) and (3) of the Law on Insolvency? |
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provisions which, in the context of the national legislation governing insolvency proceedings, restrict the right of the debtor (consumer) to request review by the court of the registered claims of creditors (suppliers of goods or services) solely to cases in which the resolution of the consumer’s bankruptcy in the form of a discharge is approved, and in this context only in relation to creditors’ unsecured claims, with the objections of the debtor being further limited, in the case of enforceable claims acknowledged by a decision of the competent authority, solely to the possibility of asserting that the claim has lapsed or is time-barred, as laid down in the provisions of Paragraph 192(3) and Paragraph 410(2) and (3) of the Law on Insolvency?

| 2. | If Question 1 is answered in the affirmative: is the court in proceedings concerning the examination of claims under a consumer credit agreement required to have regard ex officio, even in the absence of an objection on the part of the consumer, to the credit supplier’s failure to fulfil the information requirements under Article 10(2) of the Directive on Consumer Credit Agreements and to infer the consequences provided for in national law in the form of the invalidity of the contractual arrangements? |
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2.

If Question 1 is answered in the affirmative: is the court in proceedings concerning the examination of claims under a consumer credit agreement required to have regard ex officio, even in the absence of an objection on the part of the consumer, to the credit supplier’s failure to fulfil the information requirements under Article 10(2) of the Directive on Consumer Credit Agreements and to infer the consequences provided for in national law in the form of the invalidity of the contractual arrangements?

If Question 1 or 2 is answered in the affirmative:

| 3. | Do the provisions of the directives applied above have direct effect and is their direct application precluded by the fact that the initiation of an incidental action by the court ex officio (or, from the point of view of national law, the inadmissible review of a claim on the basis of an ineffective contestation by the debtor-consumer) encroaches on the horizontal relationship between the consumer and the supplier of goods or services? |
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3.

Do the provisions of the directives applied above have direct effect and is their direct application precluded by the fact that the initiation of an incidental action by the court ex officio (or, from the point of view of national law, the inadmissible review of a claim on the basis of an ineffective contestation by the debtor-consumer) encroaches on the horizontal relationship between the consumer and the supplier of goods or services?

| 4. | What amount is represented by ‘the total amount of credit’ in accordance with Article 10(2)(d) of the Directive on Consumer Credit Agreements and what amounts are included as ‘the amounts of drawdown’ in the calculation of the annual percentage rate (APR) according to the formula set out in Annex I to the Directive on Consumer Credit Agreements, if the credit agreement formally promises the payment of a specific financial amount but at the same time it is agreed that, as soon as the credit is paid out, the claims of the credit supplier in terms of a fee for the provision of the credit and in terms of the first credit repayment instalment (or subsequent instalments) will to a certain extent be offset against that amount, so that the amounts thus offset are never in reality paid out to the consumer, or to his account, and remain at the creditor’s disposal throughout? Does the inclusion of those amounts which are in reality not paid out affect the amount of the APR calculated? |
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4.

What amount is represented by ‘the total amount of credit’ in accordance with Article 10(2)(d) of the Directive on Consumer Credit Agreements and what amounts are included as ‘the amounts of drawdown’ in the calculation of the annual percentage rate (APR) according to the formula set out in Annex I to the Directive on Consumer Credit Agreements, if the credit agreement formally promises the payment of a specific financial amount but at the same time it is agreed that, as soon as the credit is paid out, the claims of the credit supplier in terms of a fee for the provision of the credit and in terms of the first credit repayment instalment (or subsequent instalments) will to a certain extent be offset against that amount, so that the amounts thus offset are never in reality paid out to the consumer, or to his account, and remain at the creditor’s disposal throughout? Does the inclusion of those amounts which are in reality not paid out affect the amount of the APR calculated?

Regardless of the answer to the preceding questions:

| 5. | In the assessment of whether the above agreed compensation is disproportionate within the meaning of point 1(e) of the Annex to the Directive on Unfair Terms, is it necessary to evaluate the cumulative effect of all the penalty clauses, as concluded, regardless of whether the creditor actually insists that they be satisfied in full and regardless of whether some of them may from the point of view of the rules of national law be considered to have been concluded invalidly, or is it necessary to take into consideration only the total amount of the penalties actually demanded and capable of being demanded? |
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5.

In the assessment of whether the above agreed compensation is disproportionate within the meaning of point 1(e) of the Annex to the Directive on Unfair Terms, is it necessary to evaluate the cumulative effect of all the penalty clauses, as concluded, regardless of whether the creditor actually insists that they be satisfied in full and regardless of whether some of them may from the point of view of the rules of national law be considered to have been concluded invalidly, or is it necessary to take into consideration only the total amount of the penalties actually demanded and capable of being demanded?

| 6. | In the event that the contractual penalties are found to be abusive, is it necessary to disapply all of those partial penalties which, only when considered together, led the court to conclude that the amount of compensation was disproportionate within the meaning of point 1(e) of the Annex to the Directive on Unfair Terms, or only some of them (and in that case by what criteria is this to be judged)? |
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6.

In the event that the contractual penalties are found to be abusive, is it necessary to disapply all of those partial penalties which, only when considered together, led the court to conclude that the amount of compensation was disproportionate within the meaning of point 1(e) of the Annex to the Directive on Unfair Terms, or only some of them (and in that case by what criteria is this to be judged)?

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(1)  OJ 1993 L 95, p. 29.

(2)  OJ 2008 L 133, p. 66.

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