# C_2019305EN.01002602.xml

| 9.9.2019 | EN | Official Journal of the European Union | C 305/26 |
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9.9.2019

EN

Official Journal of the European Union

C 305/26

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Request for a preliminary ruling from the Krajský súd v Prešove (Slovakia) lodged on 25 June 2019 — LH v PROFI CREDIT Slovakia s.r.o.

(Case C-485/19)

(2019/C 305/33)

Language of the case: Slovak

Referring court

Krajský súd v Prešove

Parties to the main proceedings

Applicant: LH

Defendant: PROFI CREDIT Slovakia s.r.o.

Questions referred

| A. | 1. | Must Article 47 of the Charter of Fundamental Rights of the European Union (‘Article 47 of the Charter’) and, by implication, the consumer’s right to an effective legal remedy be interpreted as precluding national legislation, such as Article 107(2) of the Občianský zákonník (Civil Code of Slovakia) on the limitation of the consumer’s right by a statutory three-year limitation period, in accordance with which the consumer’s right to reimbursement which arises from an unfair contractual term may become time-barred even where the consumer is not in a position to evaluate the unfair contractual term and the limitation period starts even without the consumer being aware that the contractual term is unfair? |
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A.

1.

Must Article 47 of the Charter of Fundamental Rights of the European Union (‘Article 47 of the Charter’) and, by implication, the consumer’s right to an effective legal remedy be interpreted as precluding national legislation, such as Article 107(2) of the Občianský zákonník (Civil Code of Slovakia) on the limitation of the consumer’s right by a statutory three-year limitation period, in accordance with which the consumer’s right to reimbursement which arises from an unfair contractual term may become time-barred even where the consumer is not in a position to evaluate the unfair contractual term and the limitation period starts even without the consumer being aware that the contractual term is unfair?

| 2. | In the event that, despite a lack of awareness on the part of the consumer, the legislation which imposes an statutory limitation period of three years on the consumer’s right is consistent with Article 47 of the Charter and the principle of effectiveness, the national court then asks the following:
  Is a national practice contrary to Article 47 of the Charter and the principle of effectiveness if, in accordance with that practice, the burden of proof falls on the consumer, who must prove in legal proceedings that the persons acting on behalf of the creditor were aware of the fact that the creditor was infringing the consumer’s rights, in the present case that awareness consisting in the knowledge that, by failing to indicate the precise annual percentage rate of charge (APR), the creditor was infringing a legal provision, and must also prove awareness of the fact that, in such circumstances, the loan was non-interest bearing and, by receiving payments of interest, the creditor obtained unjust enrichment? |
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2.

In the event that, despite a lack of awareness on the part of the consumer, the legislation which imposes an statutory limitation period of three years on the consumer’s right is consistent with Article 47 of the Charter and the principle of effectiveness, the national court then asks the following:

Is a national practice contrary to Article 47 of the Charter and the principle of effectiveness if, in accordance with that practice, the burden of proof falls on the consumer, who must prove in legal proceedings that the persons acting on behalf of the creditor were aware of the fact that the creditor was infringing the consumer’s rights, in the present case that awareness consisting in the knowledge that, by failing to indicate the precise annual percentage rate of charge (APR), the creditor was infringing a legal provision, and must also prove awareness of the fact that, in such circumstances, the loan was non-interest bearing and, by receiving payments of interest, the creditor obtained unjust enrichment?

| 3. | In the event that question A.2 is answered in the negative, on the part of which persons, among the directors, the shareholders and the commercial representatives of the creditor, must the consumer prove awareness of the matters referred to in question A.2? |
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3.

In the event that question A.2 is answered in the negative, on the part of which persons, among the directors, the shareholders and the commercial representatives of the creditor, must the consumer prove awareness of the matters referred to in question A.2?

| 4. | In the event that question A.2 is answered in the negative, what degree of awareness must be shown in order to prove the supplier’s intention to infringe the relevant financial sector rules? |
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4.

In the event that question A.2 is answered in the negative, what degree of awareness must be shown in order to prove the supplier’s intention to infringe the relevant financial sector rules?

| B. | 1. | Do the effects of the directives and the relevant case-law of the Court of Justice on the matter, including DI, C-441/14, EU:C:2016:278, Pfeiffer, C-397/01 to C-403/01, EU:C:2004:584, paragraphs 113 and 114, Kücükdeveci, C-555/07, EU:C:2010:21, paragraph 48, Impact, C-268/06, EU:C:2008:223, paragraph 100, Dominguez, C-282/10, paragraphs 25 and 27, and Association de médiation sociale, C-176/12, EU:C:2014:2, paragraph 38, preclude a national practice in accordance with which the national court reaches a conclusion concerning interpretation in conformity with EU law without employing interpretative methods and without giving due reasons? |
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B.

1.

Do the effects of the directives and the relevant case-law of the Court of Justice on the matter, including DI, C-441/14, EU:C:2016:278, Pfeiffer, C-397/01 to C-403/01, EU:C:2004:584, paragraphs 113 and 114, Kücükdeveci, C-555/07, EU:C:2010:21, paragraph 48, Impact, C-268/06, EU:C:2008:223, paragraph 100, Dominguez, C-282/10, paragraphs 25 and 27, and Association de médiation sociale, C-176/12, EU:C:2014:2, paragraph 38, preclude a national practice in accordance with which the national court reaches a conclusion concerning interpretation in conformity with EU law without employing interpretative methods and without giving due reasons?

| 2. | If, after applying interpretative methods, such as purposive interpretation, authentic interpretation, historical interpretation, contextual interpretation, logical interpretation (the a contrario method, the reductio ad absurdum method) and after applying the whole body of domestic law, in order to secure the objectives referred to in Article 10(2)(h) and (i) of Directive 2008/48/EC (1) (‘the Directive’), the national court concludes that interpretation in conformity with EU law results in a situation contra legem, is it then possible — for example, by making a comparison with relationships involving discrimination or the protection of employees — to accord the abovementioned provision of the Directive direct effect, in order to protect traders against consumers in credit relationships, and disapply the provision of law which is not in conformity with EU law? |
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2.

If, after applying interpretative methods, such as purposive interpretation, authentic interpretation, historical interpretation, contextual interpretation, logical interpretation (the a contrario method, the reductio ad absurdum method) and after applying the whole body of domestic law, in order to secure the objectives referred to in Article 10(2)(h) and (i) of Directive 2008/48/EC (1) (‘the Directive’), the national court concludes that interpretation in conformity with EU law results in a situation contra legem, is it then possible — for example, by making a comparison with relationships involving discrimination or the protection of employees — to accord the abovementioned provision of the Directive direct effect, in order to protect traders against consumers in credit relationships, and disapply the provision of law which is not in conformity with EU law?

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(1)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

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