Opinion of the Advocate General — ECLI:EU:C:2024:753
Date: 2024-09-12
Language of the case: Bulgarian
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-337/23 – 1 
Case C-337/23 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court  
Date lodged:  
29 May 2023  
Referring court:  
Sofiyski rayonen sad (Bulgaria)  
Date of the decision to refer:  
29 May 2023  
Applicants in the order for payment procedures:  
‘APS beta Bulgaria’ EOOD  
‘Agentsia za kontrol na prosrocheni zadalzhenia’ AD  
  
Subject matter of the main proceedings 
The present case involves several proceedings in which guarantors selected by 
persons granting credit to consumers under credit agreements which provide for a 
higher rate of interest in the event of refusal to enter into a corresponding contract 
of guarantee are applying for enforcement orders against the respective consumers 
in respect of all the loan amounts plus their remuneration, even though national 
law provides that the guarantee in question ceases to exist on expiry of a period 
during which the principal creditor has remained inactive vis-à-vis the consumer-
borrower. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Are Article 4(2) and Article 6(1) of Council Directive 93/13/EEC on unfair 
terms in consumer contracts (‘Directive 93/13/EEC’) to be interpreted as 
meaning that, where a credit agreement imposes an obligation on the 
EN 
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consumer to conclude a contract of guarantee with a guarantor nominated by 
the creditor, the content of the contract of guarantee is not the ‘main subject 
matter’ of the contract with that third party but forms part of the content of 
the credit agreement? Is it relevant in that regard whether the creditor and 
the guarantor are connected persons? 
2. Is point 1(i) of the Annex to Directive 93/13/EEC to be interpreted as 
meaning that, where the consumer is required to provide a guarantor in 
connection with a credit agreement which has already been concluded, and 
one of the options is for him or her to appoint a person nominated by the 
creditor,  the content of the consumer’s obligation under the contract of 
guarantee concluded later on the day on which the credit agreement was 
concluded must be regarded as unclear, since it was not possible for the 
consumer himself or herself to select or propose the person to be nominated 
by the creditor as the future guarantor? 
3. If the answer to the preceding question is that the subject matter of the 
contract of guarantee is clear, is point 1(i), (j) and (m) of the Annex to 
Directive 93/13/EEC to be interpreted as meaning that, where the consumer 
has undertaken to provide a guarantor in connection with a credit agreement 
which has already been concluded, and one of the options is for him or her 
to appoint a person nominated by the creditor,  the content of the consumer’s 
obligation under the credit agreement must be regarded as unclear and may 
lead to the nullity of the credit agreement or particular terms thereof? 
4. Is Article 4(1) of Directive 93/13/EEC, read in conjunction with Article 8 of 
Directive 2005/29/EC concerning unfair commercial practices, to be 
interpreted as meaning that, where a person granting credit requires the 
consumer to conclude an agreement with a person nominated by the creditor 
to secure the creditor’s claim against the consumer, that always constitutes 
exploitation of the consumer’s disadvantageous position and is therefore an 
aggressive commercial practice? 
5. If Question 4 is answered in the negative: is Article 4(1) and Article 7 of 
Directive 93/13/EEC, read in conjunction with Article 8 of Directive 
2005/29/EC concerning unfair commercial practices, to be interpreted as 
meaning that, in unilateral legal proceedings, such as the order for payment 
procedure, in which the consumer is not a party, the court may raise doubts 
that a contractual term is unfair solely on the ground that it suspects that the 
term was accepted by the consumer on the basis of an unfair commercial 
practice, or must the latter be established with certainty? 
6. Is Article 15(2) of Directive 2008/48/EC on credit agreements for consumers 
(‘Directive 2008/48/EC’) to be interpreted as meaning that it applies in cases 
where the credit agreement is linked to an ancillary service, namely the 
provision of a guarantee by a third party in return for a fee, and allows the 
consumer not only to pursue his or her claims on grounds of wrongful 
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conduct on the part of the guarantor, such as payment after the expiry of a 
statutory time limit, but also to rely on procedural objections which rule out 
the obligation to the guarantor? 
7. Does Article 15(2) of Directive 2008/48/EC, read in conjunction with the 
principle of effectiveness, or – on the assumption that the credit agreement 
and the contract of guarantee constitute related transactions – do Articles 5 
and 7 of Directive 93/13/EEC, read in conjunction with point 1(b) and (c) of 
the Annex thereto, permit national case-law according to which the 
guarantor of a contract linked to a consumer credit agreement who has 
received a fee from the consumer for the collateralisation of the credit 
agreement and has paid the principal creditor in accordance with a 
contractual term, despite the expiry of the period laid down in Article 147 of 
the Zakon za zadalzheniata i dogovorite (Law on obligations and contracts), 
which, according to the relevant case-law, extinguishes the guarantee in its 
entirety, may nevertheless plead that he or she has succeeded to the rights of 
the original creditor and, citing contradictory case-law on the application of 
the law, claim payment from the principal debtor? 
8. Is Article 3(g) of Directive 2008/48/EC, read in conjunction with Article 5 
of Directive 93/13/EEC, to be interpreted as meaning that in the case of an 
obligation under a credit agreement to conclude a linked contract of 
guarantee, which has the effect of increasing the total amount of the credit 
liability, the annual percentage rate of charge (APR) for the credit must also 
be calculated on the basis of the increased instalments resulting from the fee 
paid to the guarantor? Is it relevant in that regard who selected the guarantor 
and whether he or she is a person connected with the principal creditor? 
9. Is Article 10(2)(g) of Directive 2008/48/EC to be interpreted as meaning that 
the incorrect indication of the APR in a credit agreement concluded between 
a seller or supplier and a consumer-borrower must be regarded as a failure to 
indicate the APR in the credit agreement and that the national court must 
apply the consequences provided for in national law for failure to indicate 
the ARP in a consumer credit agreement? Is it to be assumed that those 
consequences must also apply to the guarantor who has paid in his or her 
relationship with the consumer? 
10. Is the second sentence of Article 23 of Directive 2008/48/EC to be 
interpreted as meaning that a penalty provided for in national law, namely 
the nullity of the consumer credit agreement, whereby only the principal 
amount granted is repayable, must be regarded as proportionate in cases 
where the consumer credit agreement does not contain a precise indication 
of the APR in that it does not indicate the cost of a commercial guarantor 
selected by the creditor, even though the APR is indicated in numerical form 
in the text of the credit agreement? 
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11. Is Article 2(2) of Directive 2009/138/EC on the taking-up and pursuit of the 
business of Insurance and Reinsurance (Solvency II) (‘Directive 
2009/138/EC’), read in conjunction with point 14 of Part A of Annex 1 to 
that directive, to be interpreted as meaning that, in the case of a guarantor, 
the professional pursuit of a remunerated activity in respect of which the 
guarantor company pays, in all cases of default, the total amount of the 
credit contracted by a consumer who is the principal debtor, and the fee is 
paid with each instalment of the credit, irrespective of the consumer’s 
default, constitutes an ‘insurance activity’ within the meaning of that 
directive? 
12. If Question 11 is answered in the affirmative: is Article 14(1) of Directive 
2009/138/EC to be interpreted as meaning that a person pursuing the activity 
referred to in Question 11 is subject to an obligation to obtain authorisation 
from the national regulatory authorities responsible for granting 
authorisations to insurers? 
Provisions of EU legislation and case-law 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts 
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 
2005 concerning unfair business-to-consumer commercial practices in the internal 
market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 
98/27/EC and 2002/65/EC of the European Parliament and of the Council and 
Regulation (EC) No 2006/2004 of the European Parliament and of the Council 
(the Unfair Commercial Practices Directive) 
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 
Directive 2009/138/EC of the European Parliament and of the Council of 
25 November 2009 on the taking-up and pursuit of the business of Insurance and 
Reinsurance (Solvency II) 
Provisions of national legislation 
Grazhdanski protsesualen kodeks (Code of civil procedure), Articles 5, 6, 7, 410, 
411, 413, 414, 414а, 415 and 416 
Zakon za potrebitelskia kredit (Law on consumer credit), Articles 2, 9, 10, 10а, 
11, 14, 19, 20, 21, 22, 23, 24, 26, 28 and 33, and Paragraph 2 of the Dopalnitelni 
razporedbi (Additional provisions) 
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Zakon za zashtita na potrebitelite (Law on consumer protection), Articles 143, 
144, 145, 146 and 147, and Paragraph 13а of the Dopalnitelni razporedbi 
(Additional provisions) 
Zakon za zadalzheniata i dogovorite (Law on obligations and contracts; ‘the 
ZZD’), Articles 22, 86, 138, 141, 142, 143, 146 and 147 
Postanovlenie No 426 ot 18 dekemvri 2014 g. za opredelyane razmera na 
zakonnata lihva po prosrocheni parichni zadalzhenia (Decree No 426 of 
18 December 2014 setting the amount of the statutory interest rate for monetary 
debts not paid on time) – single Article – and Paragraph 1 of the Dopalnitelni 
razporedbi (Additional provisions) 
Zakon za sadebnata vlast (Law on the judiciary), Article 130 
Kodeks za zastrahovaneto (Code of insurance law), Articles 3, 28 and 29 and 
Annex 1 
Interpretative Decision No 4/2013 of the Obshto sabranie na grazhdanskata i 
targovskata kolegii (General Assembly of Civil and Commercial Chambers; ‘the 
OSGTK’) of the Varhoven kasatsionen sad (Supreme Court of Cassation; ‘the 
VKS’) of 18 June 2014 
Interpretative Decision No 5/2019 of the VKS OSGTK of 21 January 2022 
Order No 5389 of the Sofiyski gradski sad (Sofia City Court) of 1 March 2019 in 
civil appeal case No 2165/2019 
Succinct presentation of the facts and procedure 
1 The request for a preliminary ruling is made in the context of a national order for 
payment procedure, which is a formal (written) procedure and is predominantly 
pursued by one side. Accordingly, unless otherwise indicated, the ‘facts’ that are 
set out comprise assertions made by the applicants, which can be challenged. 
Case No 11879/2023 
2 The applicant, APS beta Bulgaria EOOD, applied for an order for payment, which 
is a decision whereby the court orders the debtor either to recognise and settle the 
creditor’s claim or to contest the claim within a specified period; if the claim is 
not contested, the order is enforced. 
3 According to the applicant, on 15 April 2021 the debtor concluded a consumer 
credit agreement for BGN 300 with an interest rate of 40% per annum and an 
annual percentage rate of charge (APR) of 48.35% with another legal person, Easy 
asset management AD. The debt was to be settled by 7 July 2021 in 12 equal 
instalments of BGN 34, making a total repayment amount of BGN 315.24. The 
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agreement bound the borrower to provide one of the following securities within 
three days of the agreement having been concluded: two natural persons with a 
certain income and good credit standing, a bank guarantee in favour of the lender 
for the amount of BGN 315,24, still valid 30 days after the expiry of the period for 
performance of the contractual obligations, or a company offering guarantee 
operations, which is authorised by the lender, to act as guarantor. 
4 On the day on which the credit was granted, namely 15 April 2021, the debtor also 
concluded, in the course of the proceedings, a contract of guarantee with a person 
who is not party to the proceedings, Financial Bulgaria EOOD (a subsidiary of 
Easy asset management AD), whereby that company undertook to perform the 
debtor’s obligation towards the original creditor if the creditor required it to do so, 
that is to say to conclude a contract of guarantee in favour of the creditor. For 
assuming that obligation, Financial Bulgaria EOOD received remuneration of 
BGN 92.76, paid directly to the original creditor, Easy asset management AD, by 
way of a supplementary charge of BGN 7.73 in the monthly instalments. This 
made the total monthly instalment BGN 34 and the total amount to be repaid 
BGN 403. The actual cost to the consumer is 30% of the debt for three months, 
which represents an annual percentage rate of charge in excess of 120%. 
5 The applicant claims that, following the payment made by Financial Bulgaria 
EOOD to the original creditor, Easy asset management AD, which took place on 
5 April 2022, more than six months after the expiry date of the last instalment 
under the credit agreement (the time limit is relevant in view of the provision in 
Article 147 of the ZZD), the rights of the original creditor vis-à-vis the debtor in 
respect of all of the amounts paid by the original creditor, totalling BGN 342.20, 
passed to the first-named company, as the guarantor, and that the guarantor is also 
entitled to remuneration of BGN 77.30. 
6 The applicant asserts that the guarantor assigned its claim to the applicant, APS 
beta Bulgaria EOOD, by means of an agreement dated 31 March 2022 and that the 
debtor was notified accordingly on 2 May 2022. For this reason, the applicant 
company is claiming amounts totalling BGN 442.76, excluding court costs, from 
the debtor. 
Case No 11882/2023 
7 In these proceedings, APS beta Bulgaria EOOD is once again the applicant, 
seeking an order for payment against a consumer who had not paid the guarantor 
under a consumer credit agreement, even though the guarantor had performed the 
obligation towards the original creditor. 
8 The creditor in those proceedings is another financial enterprise, Kredisimo AD, 
which, on 5 September 2016, granted the consumer-borrower credit amounting to 
BGN 1 700.00 at an APR of 50%, repayable in 118 equal monthly instalments of 
BGN 115.26, which amounts to a total repayment liability of BGN 2 074.68. 
Under the agreement, the consumer can provide the creditor with an unconditional 
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bank guarantee or conclude a contract of guarantee with a person selected by the 
creditor within 48 hours of the conclusion of the contract, in which case he or she 
would obtain a credit authorisation within 24 hours. If no security is provided, the 
time limit for granting credit is 14 days. Under the agreement, moreover, the 
creditor may call in the loan early if the debtor does not provide a guarantee. 
9 On 5 September 2016, the debtor concluded a contract with another guarantor, I 
Trust EOOD, for the provision of a guarantee to the creditor at a cost of 
BGN 124.39 per month for a period of 18 months, that is to say a total of 
BGN 2 239.02, which exceeds the amount of the debt obligation. 
10 The applicant in the proceedings, APS beta Bulgaria, claims that, on 23 February 
2021 (after the expiry of the time limit prescribed by Article 147 of the ZZD of six 
months from the due date of the final loan instalment), the guarantor paid a total 
of BGN 2 498.01 to the original creditor. The guarantor, according to the 
applicant, was also owed a total of BGN 2 595.72 in remuneration plus default 
interest. 
11 It is submitted that the guarantor, I Trust EOOD, by an assignment effected on 
2 March 2021, transferred to the applicant in the proceedings, APS beta Bulgaria 
EOOD, the claims which it acquired by virtue of recourse when the payment was 
made on 23 February 2021, the debtor being notified accordingly on 31 March 
2021. On these grounds, the applicant moves that the debtor be ordered to pay a 
sum of BGN 5 093.73, excluding procedural costs. 
Case No 17309/2023 
12 The assertions in these proceedings are very similar to the situation in the 
procedure described immediately above, which involve the same creditor, the 
same guarantor and the same assignee. 
13 In these proceedings, the guarantor is liable under the contract of guarantee even 
after the consumer’s obligations under the consumer credit agreement have fallen 
due, regardless of whether the creditor has filed a claim against the consumer 
and/or the guarantor within six months after the obligation under the consumer 
credit agreement has fallen due. 
Case No 17635/2023 
14 Like the first case, No 11879/2023, this case also concerns consumer credit 
granted to the debtor by Easy asset management AD, the creditor’s subsidiary, 
Financial Bulgaria EOOD, having provided a guarantee at the consumer’s request. 
In this case, however, the applicant and assignee is Agentsia za kontrol na 
prosrocheni zadalzhenia AD. 
15 It is submitted that the guarantor made the payment following the expiry of the 
six-month period from the date on which the final loan instalment fell due to the 
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original creditor, the time limit laid down in Article 147 of the ZZD, and that the 
guarantor thus succeeded to the creditor’s rights; the guarantor’s claim, it is stated, 
was transferred to the applicant, Agentsia za kontrol na prosrocheni zadalzhenia 
AD, under an assignment agreement. 
Case No 24555/2023 
16 In a similar constellation to that in the first case described above, the claim is 
based on a credit agreement with Easy asset management AD, for which its 
subsidiary, Financial Bulgaria EOOD, provided a guarantee at the consumer’s 
request. 
17 It is submitted that the guarantor paid the original creditor (within the time limit 
prescribed by Article 147 of the ZZD, namely six months from the due date of the 
final instalment) and that, on the same day, it assigned to the applicant, Agentsia 
za kontrol na prosrocheni zadalzhenia AD, its rights of recourse arising from the 
payment and its claim for remuneration and also notified the debtor accordingly. 
Case No 24706/2023 
18 In a similar constellation to that in the first case described above, the claim is 
based on a credit agreement with Easy asset management AD, for which its 
subsidiary, Financial Bulgaria EOOD, provided a guarantee at the consumer’s 
request. 
19 It is submitted that the guarantor paid the original creditor (after the expiry of the 
time limit prescribed by Article 147 of the ZZD, namely six months from the due 
date of the final instalment) and that, on the same day, it assigned to the applicant, 
Agentsia za kontrol na prosrocheni zadalzhenia AD, its rights of recourse arising 
from the payment and its claim for remuneration and also notified the debtor 
accordingly. 
Case No 25027/2023 
20 The facts described in this case are similar to those in Case No 24706/2023. 
Case No 25108/2023 
21 The facts described in this case are likewise similar to those in Case 
No 24706/2023. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
Connection to EU law and need for interpretation: the link between the credit 
agreement and the contract of guarantee – the first three questions referred 
22 First of all, the referring chamber wishes to clarify the extent to which the credit 
agreements concluded by the debtors in the cases in question are linked to the 
contracts of guarantee, so that it can assess the unfair nature of the terms they 
contain. In the present case, there is a suspicion that the contracts of guarantee are 
being concluded for the primary purpose of circumventing the restriction laid 
down by the Law on consumer credit, which provides for a maximum APR for 
consumer credit agreements. 
23 It is for the referring chamber to examine of its own motion whether the terms of 
both the initial credit agreement and the contract of guarantee are unfair. Under 
Bulgarian law, the contract of guarantee is classed as an agency contract within 
the meaning of Article 280 of the ZZD, as the future guarantor makes a 
commitment to the original creditor to fulfil the debtor’s obligation. That follows 
from the fact that, under Bulgarian law, the contract of guarantee is independent 
of the principal loan agreement and that the parties to the contract of guarantee are 
the creditor and the guarantor (Article 138(1) of the ZZD). The obligation to 
guarantee the specific credit agreement and the price for the provision of that 
financial service therefore constitute the main subject matter of that contract of 
guarantee, the unfair nature of which is not possible to assess, under Article 4(2) 
of Directive 93/13/EEC. This interpretation is consistent with the rulings of the 
Court of Justice, for example in paragraph 62 of the judgment of 16 July 2020 in 
Joined Cases C-224/19 and C-259/19, Caixabank, and the case-law cited: since 
the contract in question is concluded between a consumer-debtor and a 
commercial guarantor, the parties are not the same as the parties to a credit 
agreement, and their obligations differ. If the provision of the guarantee and the 
price are not agreed, the contract cannot exist. 
24 However, the question arises whether, in a case such as the present one, the 
classification of the contract of guarantee as an independent transaction with 
different main subject matter from that of the credit agreement is capable of 
ensuring effective consumer protection within the meaning of the Member States’ 
obligation under Article 7(1) of Directive 93/13/EEC. In that regard, there is no 
doubt that the contract of guarantee was concluded between parties other than 
those who concluded the initial agreement and that it contains different rights and 
obligations. 
25 There are, however, many reasons to believe that both contracts actually govern a 
single legal relationship, which is intended to secure an increase in the consumer’s 
debt as the borrower, for under the terms of the principal credit agreement, 
consumers themselves cannot select the guarantor but are required to accept the 
guarantor designated by the creditor if they have not found one themselves. 
Firstly, in the first case and in the third to the eighth cases, the guarantor is 
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directly connected with the creditor, being his subsidiary. Secondly, all the 
concluded contracts of guarantee provided for fees exceeding 75% of the total 
payable amount of the loan. Thirdly, the fee for providing the guarantee is paid on 
the same dates as those on which the monthly loan instalments fall due and, from 
the consumer’s perspective, is part of his or her obligation under the credit 
agreement. Finally, the price for providing the guarantee is not included in the 
APR of the principal credit agreement and considerably increases its cost in 
breach of national rules. 
26 On the other hand, there is also the question of the nature of the contract of 
guarantee, which, though concluded at the request of a consumer, is concluded 
with a person selected unilaterally by the original creditor. The limited choice 
available to consumers effectively leaves them in the dark, at the time when the 
credit agreement is concluded, about the identity of the guarantor to which they 
will be bound and the conditions under which that will be done. 
27 The question therefore arises whether, in the case of such a twofold contractual 
relationship (credit agreement and contract of guarantee), the content of the 
contract of guarantee may be regarded in toto as contrary to point 1(i) of the 
Annex to Directive 93/13/EEC. In those circumstances, but only if the two 
contracts are interpreted as a single contractual relationship, the referring chamber 
might consider that the contract of guarantee is void in its entirety, since the main 
subject matter of the contract for the provision of the guarantee is not determined 
by the consumer, who is nevertheless required to accept the guarantor selected by 
the original creditor. 
28 However, the uncertainty as to the identity of the guarantor could also be regarded 
as an ambiguity in the credit agreement which was initially concluded, since the 
absence of a guarantor for that agreement could lead to non-performance of the 
agreement if the term is valid, which, according to the general terms and 
conditions of the credit agreement, would lead to the loan being called in early in 
the second and third cases and to delay in granting the loan in the other cases. An 
answer is therefore needed to the question whether the inclusion in the credit 
agreement of an obligation to conclude a contract of guarantee with a person 
designated by the creditor may be regarded as an unfair term within the meaning 
of point 1(i), (j) and (m) of the Annex to Directive 93/13/EEC. 
The link between the practice of nomination of a guarantor by the original 
creditor and the unfairness of contractual terms – the fourth and fifth questions 
referred 
29 According to the case-law of the Court of Justice (paragraphs 43 to 44 of the 
judgment of 15 March 2012, Perenicovà and Perenic, C-453/10, and 
paragraphs 48 to 50 of the judgment of 19 September 2018, Bankia, C-109/17), 
whether a party has resorted to unfair commercial practice within the meaning of 
Directive 2005/29/EC to include a term in a contract is one element in the 
assessment of unfairness within the meaning of Article 4 of Directive 93/13/EEC. 
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30 In the view of the referring chamber, the amount of the debtors’ obligations in the 
eight pending cases depends on whether or not those debtors provide the creditor 
with a guarantee. In this respect, it is necessary to assess whether the fact that the 
creditor’s selection of a guarantor binds the consumer may be interpreted as an 
unfair commercial practice within the meaning of Directive 2005/29/EC. In this 
context, the referring chamber needs an answer to the question whether the unfair 
nature of the commercial practice as aggressive within the meaning of Article 8 of 
Directive 2005/29/EC can be determined in the present case on the sole basis of 
the nature of the legal transaction between the parties in the form of a credit 
agreement and the consequences envisaged for the absence of a guarantee, or 
whether that assessment must also be made on the basis of additional factors. 
31 On the other hand, the referring chamber considers that, in view of the unilateral 
nature of the order for payment procedure, it would be prevented from applying 
the rules relating to the overall assessment of the existence of an unfair 
commercial practice, since consumers are not yet involved in the order for 
payment procedure. According to the guidance given by the Court of Justice in 
paragraph 38 of the judgment of 11 May 2020, Lintner, C-511/17, in unilateral 
proceedings such as the order for payment procedure the court may also find that a 
party to a contract is not entitled to protection if, though not having established 
with certainty that a particular term should be regarded as unfair within the 
meaning of Directive 93/13/EEC, it nevertheless has reasonable doubts in that 
regard. This obligation stems from the requirement laid down in Article 7 of 
Directive 93/13/EEC to provide effective means to protect consumers from being 
bound by unfair terms. In the present case, however, the reasonable doubts of the 
court as to the fairness of a contractual term are prompted by other reasonable 
doubts, namely a suspicion that the term has become an integral part of the 
contract as a result of recourse to an aggressive commercial practice within the 
meaning of Article 8 of Directive 2005/29/EC. It must therefore be determined 
whether, in such an event, a possible doubt as to the fairness of the commercial 
practice may lead to the conclusion that there are also reasonable grounds to 
suspect unfairness of a term within the meaning of Article 4(1) of Directive 
93/13/EEC. 
Effective application of the time limit for releasing the guarantor from his 
obligations to the creditor and the consumer – the sixth question referred 
32 A question also arises in the light of settled national case-law on the application of 
the time limit under Article 147 of the ZZD for releasing guarantors from their 
liability. That case-law leaves the consumer-borrower in the dark regarding the 
effects of the consumer credit agreement at the time of its conclusion if the 
agreement prescribes the mandatory purchase of a guarantee. 
33 Under Article 147 of the ZZD, the obligation of the guarantor to pay the principal 
creditor ceases if the latter does not assert his claim against the principal debtor 
within six months of the date on which the claim falls due. That provision is 
mandatory. According to a binding national interpretative decision, that is a cut-
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off period, for if the creditor has not asserted his rights against the principal 
debtor, the legal relationship between him and the guarantor is extinguished in 
full. Payments made by the guarantor or confirmation of his obligations to the 
principal debtor are of no consequence in terms of the effects of that time limit, 
since it is subject to review by the court, acting of its own motion. The prescribed 
time limit does not constitute a limitation period. 
34 At the same time, some judicial chambers consider that the conclusions relating to 
the complete termination of the guarantee may be applied to the creditor’s claims 
against the guarantor but not to the guarantor’s rights against the consumer-debtor. 
Contrary to the interpretative decision, they consider that the termination of the 
guarantee does not have absolute effect and that only the guarantor can rely on it. 
This position, which relates to the applicable time limit under national law for the 
termination, but not the extinction, of the guarantor’s liability and, consequently, 
each of his rights of recourse against the debtor, raises problems when it comes to 
applying the Consumer Credit Directive, especially Article 15(2) of Directive 
2008/48/EC. The referring chamber doubts whether that provision can be applied 
in the present case, as the debtors in all of the proceedings, besides their respective 
consumer credit agreements, also concluded contracts for the provision of a 
guarantee for a fee, which, in the view of the referring court, constitutes a 
financial service to the consumer. 
35 For those reasons, the question arises as to whether Article 15(2) of Directive 
2008/48/EC may be applied in situations where the guarantor has not fulfilled his 
obligation to refuse to pay because of the expiry of the period for liability under 
national law by invoking the extinction of the guarantee pursuant to Article 147 of 
the ZZD. According to the definition in Article 3(n) of Directive 2008/48/EC, 
such application is possible if it is accepted that the two contracts form a whole 
and finance each other, since the consumer pays for the guarantee together with 
the instalments specified in the credit agreement. If the provision is applicable 
with regard to the guarantor too, there will also be a need to answer the question 
whether it applies not only to reciprocal claims which the consumer might assert 
against the service provider in the context of a contract for the provision of 
services but also to his or her procedural defences, such as the refusal to settle a 
claim for recourse made by a person whose obligation had already expired. 
36 It is also necessary to examine the compatibility with EU law of the national case-
law according to which the guarantor may rely on the expiry of his period of 
liability under Article 147 of the ZZD on the ground that the original creditor has 
not asserted his claim under the credit agreement against the consumer-debtor 
within six months of the final due date, but that the consumer cannot rely on the 
expiry of that period against the guarantor who has paid. 
37 Even if Article 15(2) of Directive 2008/48/EC is not applicable in the present 
case, the question to be answered is whether such national case-law, which the 
guarantor in the third proceedings to which the questions referred for a 
preliminary ruling relate expressly invokes in a contractual term, relying on the 
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contradictory nature of national case-law on the issue, is not contrary to Article 7 
of Directive 93/13/EEC, in so far as that case-law allows the commercial 
guarantor himself to determine the scope of his obligation in breach of point 1(b) 
and (c) of the annex to the last-named directive. If the guarantor chose to object to 
the original creditor that the he or she was being asked to pay after the expiry of 
the time limit laid down in Article 147 of the ZZD, the borrower-debtor would not 
be liable to the guarantor for the monthly loan instalments. However, if the 
guarantor does not make this objection and pays, even though, under a binding 
interpretative decision relating to the order for payment procedure, the guarantor 
is under no such obligation, the consumer, as the principal debtor, would remain 
liable to the guarantor, since, according to the case-law set out above, he or she 
could not rely on the guarantor’s period of liability having expired. In at least one 
of the proceedings, this effect results from an explicit contractual term based on a 
contradictory interpretation by the national courts of the rules relating to the 
enforceability of that time limit, which should be based on mandatory statutory 
rules, namely those in Article 147 of the ZZD, governing the content of the 
contract of guarantee, but the consumer is being denied the protection of those 
rules. The contradictory national case-law therefore allows the guarantor to 
formulate the terms of the contract of guarantee, thereby depriving consumer 
protection under national law of its practical effectiveness. 
38 Accordingly, an answer is needed to the question whether the principle of 
effective consumer protection against unfair terms in the contract of guarantee, 
which govern how a seller or supplier who has undertaken to provide a guarantee 
must deal, after the expiry of the guarantor’s period of liability, with an order for 
payment addressed to him by the original creditor, precludes the application of 
national case-law according to which only the guarantor himself may rely on the 
expiry of his period of liability. 
39 The question must also be answered, in the light of Article 5 of Directive 
93/13/EEC, whether that provision allows contradictory national case-law on a 
particular question of national law to be used to interpret contractual terms 
unclearly to the detriment of consumers, as is happening in the present case. 
Impact of payment of the guarantee on the determination of the APR in the 
credit agreement 
40 The next three questions are identical to those referred to the Court of Justice in 
the pending Case C-714/22 Profi Credit Bulgaria. They concern the creditor’s 
obligation, in the context of a consumer credit agreement, to state clearly the 
annual percentage rate of charge in the text of the credit agreement so as not to 
mislead the consumer. Referring to the full grounds of that request for a 
preliminary ruling, the referring chamber expresses reservations as to whether 
Directive 2008/48/EC does not require, in addition to the annual percentage rate 
of charge in the text of the credit agreement, the indication of an annual 
percentage rate of charge calculated correctly in accordance with the method laid 
down by that directive. In the present case, since the costs for contracts of 
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14  
guarantee are not a component part of credit agreements, they are not taken into 
account in the determination of the APR for credit agreements. The referring 
chamber is unsure whether the cost of providing the guarantee should not be part 
of the APR, particularly in cases where the guarantor who agrees to secure the 
consumer’s obligations is selected by the original creditor but remunerated by the 
consumer. The definition in Article 3(g) of Directive 2008/48/EC stipulates that 
costs in respect of ancillary services must also be included in the APR if the use of 
those services is a condition for the credit being granted at all or being granted 
under the terms and conditions laid down in the credit agreement. That is precisely 
the situation in this case. 
41 In order to determine whether the fee for the guarantor under a linked contract 
with the debtor must be included in the APR of the credit agreement, the question 
should also be answered whether and under what conditions that cost may be 
regarded as part of the APR if the debtor had the option to propose a guarantor 
himself in the short term. For this reason, the voluntary nature of the choice 
should also be taken into account, particularly as regards the determination of the 
guarantor, which ultimately depends on the will of the original creditor, the 
conditions, if any, for the creditor’s acceptance of a different guarantor, and the 
period available to the debtor to find such a guarantor. 
42 Furthermore, it is necessary to consider again whether the incorrect indication of 
the APR in a credit agreement must be regarded as failure to indicate the APR, 
since an incorrect indication defeats the purpose of the obligation to provide that 
information, namely to enable the consumer to compare offers in the credit market 
effectively. Following on from that question, the question also arises whether 
equating the indication of an incorrect APR with failure to indicate such a rate 
would not also lead, in more general terms, to a disproportionate penalty in 
national law for miscalculation. 
The nature of the contract for provision of the guarantee and its classification 
as an insurance transaction 
43 The referring chamber also has doubts as to the correct legal classification, in the 
light of EU law, of transactions whereby consumers agree that a particular a 
person will guarantee their debts to another creditor for a fee where such 
transactions are conducted continuously on a professional basis. Chambers of the 
Sofiyski gradski sad (Sofia City Court) and the Varhoven kasatsionen sad 
(Supreme Court of Cassation) implicitly assume that such cases are ordinary 
guarantee transactions which are not subject to licensing regulations and could be 
conducted by anyone. 
44 In such transactions, however, a person undertakes, in the event of delay, to 
assume the liability of the consumer-debtor for the non-performance of his or her 
specific obligation to the creditor, the debtor paying a fee for that service. The 
main features of that obligation are similar to those of a credit insurance contract, 
namely the assumption of liability, for a consideration, if a future and uncertain 
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adverse event (non-performance of a contract) occurs. For that reason, the 
referring chamber needs an interpretation to determine whether contracts such as 
those concluded with debtors in order for payment proceedings (on the provision 
of a guarantee to their creditors for a fee) can be classed as insurance contracts. 
The relevant Directive 2009/138/EC does not define the content of insurance 
contracts, but such a definition can be found in the case-law of the Court of 
Justice, namely the judgment of 23 April 2015, Van Hove, C-96/14, paragraph 34: 
under the insurance contract, the insurer is required, in return for prior payment of 
a premium, to indemnify the insured against the damage resulting from the 
materialisation of any insured risk indicated in the contract. 
45 The cases pending before the referring chamber relate to such fees and to an 
adverse event for the consumer-debtor in the form of default of payment, but it 
seems that no risk is specified which is normally classed as an insurance risk. In 
fact, the guarantor secures any non-payment on the part of the consumer, for 
whatever reason, including a deliberate refusal to repay the loan. That 
distinguishes the said contract to some extent from an insurance contract. 
46 On the other hand, a contract of guarantee with a professional guarantor reduces to 
a minimum the risks for the original debtor in the case of an adverse event in the 
form of non-repayment of the loan, and the contract is remunerative in nature, 
which makes it comparable with insurance. In the present case, consideration may 
be given to the question whether, in such a situation, the consumer, who is the 
principal debtor, is not acting as an insurer in relation to the original creditor, for 
whom he or she provides security against loss by remunerating the guarantor. For 
that reason, it should be ascertained whether such a contract may fall within the 
scope of the term ‘insurance contract’ within the meaning of Directive 
2009/138/EC and whether, consequently, the recipient of a premium under such a 
contract is not subject to an authorisation requirement under Article 14 of that 
directive.