Judgment;Summary — ECLI:EU:C:2022:518
Date: 2022-06-30
Language of the case: Bulgarian
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 March 2021 
Referring court: 
Sofiyski rayonen sad (Bulgaria) 
Date of the decision to refer: 
15 March 2021 
Applicant: 
Profi Credit Bulgaria EOOD 
Debtor in the main proceedings: 
T.I.T. 
  
Subject matter of the main proceedings 
Application by the applicant for an order for payment pursuant to Article 410 of 
the Grazhdanski protsesualen kodeks (Code of Civil Procedure; ‘the GPK’) in 
respect of a claim against the debtor for sums of money consisting of a principal 
claim, remunerative interest owed under the contract, remuneration for the 
purchase of a package of ancillary services and default interest under a consumer 
credit agreement concluded between the parties. 
Subject matter and legal basis of the request 
Interpretation of Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts. 
Article 267 TFEU 
EN 
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Questions referred for a preliminary ruling 
1. Must Article 6(1) of Directive 93/13/EEC be interpreted as requiring the 
court, in proceedings to which the debtor is not party until the issuance of a court 
order for payment, to assess of its own motion the unfairness of a contractual term 
and, if there is a suspicion that the term is unfair, to disapply it? 
2. If the first question is answered in the affirmative, is the national court 
required to refuse to issue a court decision ordering payment altogether where part 
of the claim was based on an unfair contractual term, which gives rise to the 
amount of the claim asserted? 
3. If the first question is answered in the affirmative and the second in the 
negative, is the national court required partially to refuse to issue a court decision 
ordering payment in respect of the part of the claim that was based on the unfair 
term? 
4. If the third question is answered in the affirmative, is the court required, and, 
if so, under what conditions, to take into account of its own motion the 
consequences of the unfairness of a term in the case where it has available to it 
information about a payment based on that term, inter alia by offsetting that 
payment against other outstanding debts under the contract? 
5. If the fourth question is answered in the affirmative, is the national court 
bound by the instructions of a higher court which, under national law, are binding 
on the instance under review, in the case where those instructions do not take the 
consequences of the unfairness of a term into account? 
EU legislation and case-law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, Article 6(1) 
Case C-243/08 of the Court of Justice of the European Union [see operative part] 
Provisions of national law and national case-law relied on 
1. Grazhdanski protsesualen kodeks (Code of Civil Procedure; ‘the GPK’) 
Article 278. [This provision concerns appeals. They are heard in closed session. 
The appeal decision adopted therein is binding on the lower court.] 
Article 410. (1) An applicant may apply for an order for payment: 
1. on the grounds of monetary claims or claims to fungible goods, provided the 
Rayonen sad [district court] has jurisdiction to hear the application; [2. on the 
grounds of the delivery of movable property] 
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(2) The application must request an enforcement order and must fulfil the 
requirements of Article 127(1) and (3) and Article 128, Sections 1 and 2. […] 
(3) (New – Darzhaven vestnik (State Gazette; ‘DV’) No 100 of 2019) If the 
claim arises from a consumer contract, the contract, if in writing, together with 
any annexes and amendments thereto, as well as any general terms and conditions 
applicable thereto, shall be attached to the application. 
Article 411. The application shall be lodged with the district court within the 
district of which the debtor has his permanent address or domicile [time limit for 
verifying territorial jurisdiction]. An application against a consumer shall be filed 
with the court in the district of which the consumer has his current address or, in 
the absence of a current address, [with the court] in the district of which he has 
his permanent address. [procedure to be followed if it is filed with a court without 
jurisdiction]. 
(2) The court shall examine the application at a preparatory hearing and shall 
grant a payment order within the period stipulated in paragraph (1) except where: 
1. the application does not fulfil the requirements of Article 410 and the 
applicant fails to remedy the errors within three days of notification; 
2. the application is unlawful or immoral; 
3. (new – DV No 100 of 2019) the claim is based on an unfair term in a 
consumer contract or there are reasonable grounds to suspect that that is the 
case; 
4. and 5. [These provisions concern the case where the debtor has no 
permanent address in Bulgaria or does not exercise his or her occupation in 
Bulgaria.] 
(3) If the application is admitted, the court shall issue an order, a copy of which 
shall be served on the debtor. 
Article 413. (1) A payment order cannot be contested except for the decision on 
costs. 
(2) The applicant can file a complaint contesting a ruling dismissing an 
application for a payment order in full or in part; a copy for service need not be 
enclosed. 
Article 414. (1) The debtor may lodge a written objection against the order for 
payment or parts of the order. [grounds for objection] 
(2) Objections must be lodged within one month of service of the order. That 
period cannot be extended. 
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Article 415. (1) The court shall notify the applicant that he or she may initiate 
proceedings to pursue his or her claim in the following cases: 
1. the objection was lodged in time; 
2. [service if the debtor cannot be located]; 
3. the court dismissed the application for an order for payment. 
(2) If the court advised of the facility to initiate proceedings in the case referred to 
in point 2 of paragraph (1), it shall order provisional suspension of enforcement, 
inasmuch as an enforcement order was granted under Article 418. 
(3) Proceedings initiated in accordance with point 1 or 2 of paragraph (1) are 
proceedings for a declaratory judgment. Proceedings initiated in accordance with 
point 3 of paragraph (1) are injunction proceedings. 
(4) Proceedings shall be initiated within one month of notification; [details 
regarding the court fee] 
(5) If the applicant fails to adduce proof that he or she initiated proceedings 
within the period prescribed, the court shall declare that the order for payment is 
null and void in part or in full, together with the enforcement order issued in 
accordance with Article 418. 
Article 416. If the objection is not lodged in time [or is withdrawn, or the claim is 
judicially acknowledged], the order for payment shall become enforceable. [An 
enforcement order shall be issued] 
Article 422. (1) An application for declaratory judgment acknowledging the claim 
shall be deemed to have been lodged at the time when the application for an order 
for payment was lodged, provided that the period prescribed in Article 415(4) has 
been observed. 
(2) The lodging of an application in accordance with paragraph 1 shall not 
have the effect of discontinuing provisional enforcement …. 
(3) If the application is dismissed by final judgment, enforcement shall be 
discontinued …. 
(4) No order reversing enforcement shall be issued if the application is 
dismissed on the ground that the claim is unenforceable. 
2. Zakon za zadalzheniata i dogovorite (Law on obligations and contracts; ‘the 
ZZD’): 
Article 76. (1) A person who owes the performance of several obligations of the 
same kind to the same person may, in so far as enforcement is not sufficient to 
extinguish all the claims, specify which of them he or she will extinguish. If he or 
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she does not specify this, the most onerous claim shall be extinguished. In the case 
of several claims that are equally onerous, the oldest shall be extinguished, and if 
they all arose at the same time, each claim shall be extinguished proportionately. 
(2) Where enforcement is not sufficient to cover the interest, the charges and the 
principal claim, the charges shall be repaid first, then the interest and finally the 
principal claim. 
3. Zakon za potrebitelskia kredit (Law on consumer credit; ‘the ZPK’) 
Article 9. (1) A consumer credit agreement is an agreement whereby a creditor 
grants or promises to grant to a consumer credit in the form of a deferred 
payment, a loan or other similar financial accommodation. [exceptions] 
(2) The contracting parties to the consumer credit agreement are the consumer 
and the creditor. 
(3) A consumer is a natural person who, when concluding a consumer credit 
agreement, acts outside his or her trade or profession. 
(4) A creditor is a natural or legal person who grants or promises to grant 
credit in the course of his or her trade or profession. 
Article 10а. (1) The creditor may charge the consumer fees and commissions 
for additional services related to the consumer credit agreement. 
(2) The creditor may not charge fees or commissions for activities related to the 
disbursement and administration of the credit. 
(3) The creditor may charge fees and/or commissions for the same activity only 
once. 
(4) The nature and amount of fees and/or commissions and the activity for 
which they are charged must be clearly and precisely specified in the consumer 
credit agreement. 
Article 19. (1) The annual percentage rate of charge of the loan shall represent 
the current and future total cost of the credit to the consumer (interest, other 
direct or indirect costs, commissions, fees of any nature, including those owed to a 
broker in respect of the conclusion of the contract), expressed as an annual 
percentage of the total amount of the loan granted. 
(2) [calculation of the annual percentage rate of charge] 
(3) [The following costs shall not be taken into account in the calculation of the 
annual percentage rate of charge]: 1. Costs to be borne by the consumer in the 
event of non-performance of his obligations under the consumer credit agreement; 
2. costs other than the purchase price of the product or service owed by the 
consumer; 3. costs of maintaining an account in connection with the consumer 
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credit agreement, costs of using a means of payment enabling payments to be 
made in connection with the disbursement or repayment of the credit and the like.] 
(4) The annual percentage rate of charge shall not be more than five times the 
statutory rate of default interest in leva or in a foreign currency determined by 
decision of the Council of Ministers of the Republic of Bulgaria. 
(5) Contractual terms that go beyond those specified in paragraph 4 shall be 
deemed to be null and void. 
(6) In the case of payments under contracts containing terms declared null and 
void under paragraph 5, amounts paid in excess of the threshold under paragraph 
(4) shall be offset against subsequent redemption payments under the loan. 
Article 20. (1) The rights to which consumers are entitled under this Law must not 
be restricted. Any agreement which excludes or restricts the rights of consumers 
in advance shall be invalid. 
(2) Any waiver of rights to which consumers are entitled under this Law shall be 
ineffective. 
(3) [Impermissibility of the exclusion of the legal protection granted to the 
consumer under this Law or under the law system of another Member State of the 
EU where the contract is directly related to the territory of the Republic of 
Bulgaria or to that of another Member State or other Member States]. 
Article 21. (1) Any term in a consumer credit agreement which has the object or 
effect of circumventing the requirements of this Law shall be void. 
(2) Any term in a consumer credit agreement with a fixed interest rate which 
provides for compensation for the creditor greater than that provided for in 
Article 32(4) shall be void. 
Article 22. [Other cases of nullity] 
Article 23. If a consumer credit agreement has been declared null and void, the 
consumer shall repay only the net amount of the credit and shall not owe any 
interest or other costs for the credit. 
Article 24. The provisions of Articles 143 to 148 of the Law on consumer 
protection shall also apply to consumer credit agreements. 
4. Zakon za zashtita na potrebitelite (Law on consumer protection; ‘the ZZP’): 
Article 143. (in force until 23 December 2019) An unfair term in a contract 
concluded with a consumer is any agreement harming the consumer which is 
contrary to the requirement of good faith and causes a significant imbalance in 
the rights and obligations of the seller or supplier and the consumer arising under 
the contract by: 
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1. [limiting the liability of a seller or supplier in the event of the death of a 
consumer or personal injury to the latter resulting from an act or omission of that 
seller or supplier] 
2. excluding or limiting the legal rights of the consumer vis-à-vis the seller or 
supplier or any other person in the event of total or partial non-performance or 
inadequate performance of any of the contractual obligations, including the 
exclusion of the option of offsetting a debt owed to the seller or supplier against 
any claim which the consumer may have against him or her; 
3. making the provision of services by the seller or supplier subject to a 
condition whose realisation depends on his or her own will alone; 
4. [permitting only the seller or supplier, but not the consumer, to retain sums 
in the event that the contract is not concluded or performed]; 
5. requiring any consumer who fails to fulfil his or her obligation to pay a 
disproportionately high sum in compensation or contractual penalty; 
6. authorising the seller or supplier to exempt himself or herself from his or 
her obligations on a discretionary basis where the same facility is not granted to 
the consumer, or permitting the seller or supplier to retain the sums paid for 
services not yet supplied by him or her where it is the seller or supplier himself or 
herself who dissolves the contract; 
7. enabling the seller or supplier to terminate a contract of indeterminate 
duration without notice – except where there are serious grounds for doing so; 
8. providing for a disproportionately short period for the consumer’s tacit 
consent to the renewal of the contract where he or she does not object; 
8а. providing that a contract of fixed duration is automatically extended where 
the consumer does not express his or her desire to terminate it, and fixing an 
unreasonably early deadline for the consumer to express this desire not to extend 
the contract; 
9. binding the consumer to terms with which he or she had no opportunity of 
becoming acquainted before the conclusion of the contract; 
10. [enabling the seller or supplier to alter the terms of the contract unilaterally 
without a reason which is specified in the contract]; 
11. [enabling the seller or supplier to alter unilaterally without reason any 
characteristics of the product]; 
12. [providing for the price to be determined at the time of delivery of the 
product or provision of the service or allowing a seller or supplier to increase the 
price without giving the consumer the right to cancel the contract in such a case]; 
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13. [giving the seller or supplier the exclusive right to interpret contractual 
terms]; 
14. obliging the consumer to fulfil all his or her obligations where the seller or 
supplier does not perform his or hers; 
15. providing that the seller or supplier may transfer his or her rights and 
obligations under the contract, where this may serve to reduce the guarantees for 
the consumer, without the latter’s agreement; 
16. [excluding or hindering the consumer’s right to take legal action or other 
dispute resolution remedies, unduly restricting the evidence available to him or 
her or imposing the burden of proof on him or her]; 
17. [limiting the seller’s or supplier’s liability for commitments undertaken by 
his or her agents]; 
18. not giving the consumer the possibility of assessing the economic 
consequences of the conclusion of the contract; 
19. laying down other similar conditions. 
Article 143. (as amended by No 100 of 2019) (1) An unfair term in a contract 
concluded with a consumer is an agreement harming the consumer which is 
contrary to the requirement of good faith and causes a significant imbalance in 
the rights and obligations of the seller or supplier and the consumer arising under 
the contract by: 
(2) A term is unfair if it: 
1. [… wording identical to point 1 of Article 143 prior to the amendment, see 
above]; 
2. [… wording identical to point 2 of Article 143 prior to the amendment, see 
above]; 
3. [… wording identical to point 3 of Article 143 prior to the amendment, see 
above]; 
4. [… wording identical to point 4 of Article 143 prior to the amendment, see 
above]; 
5. [… wording identical to point 5 of Article 143 prior to the amendment, see 
above]; 
6. [… wording identical to point 6 of Article 143 prior to the amendment, see 
above]; 
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7. [… wording identical to point 7 of Article 143 prior to the amendment, see 
above]; 
8. [… wording identical to point 8 of Article 143 prior to the amendment, see 
above]; 
9. [providing that a contract of fixed duration is automatically extended where 
the consumer does not express his or her desire to terminate it]; 
10. [previously point 9, see above]; 
11. [previously point 10, see above]; 
12. [previously point 11, see above]; 
13. [previously point 12, see above]; 
14. [previously point 13, see above]; 
15. [previously point 14, see above]; 
16. [previously point 15, see above]; 
17. [previously point 16, see above]; 
18. [previously point 17, see above]; 
19. [previously point 18, see above]; 
20. [previously point 19, see above]. 
Article 144. (1) [Point 7 of Article 143(2) shall not apply if a supplier of financial 
services reserves the right to terminate unilaterally a contract of indeterminate 
duration without notice where there is a valid reason.] 
(2) [Point 11 of Article 143(2) shall not apply to terms by which: 1. a supplier of 
financial services reserves the right to alter the rate of interest payable by the 
consumer or due to the latter, or the amount of other charges for financial services 
without notice where there is a valid reason; 2. a supplier of financial services 
reserves the right to alter unilaterally the conditions of a contract of indeterminate 
duration] 
(3) [Points 7, 11 and 13 of Article 143(2) shall not apply in relation to: 1. 
Transactions in transferable securities, financial instruments and other products or 
services where the price is linked to fluctuations in a stock exchange quotation or 
index or an interest rate on a financial market; 2. Contracts for the purchase or sale 
of foreign currency] 
(4) [Point 13 of Article 143(2) shall not apply to price-indexation clauses] 
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Article 145. (1) The unfairness of a contractual term in a contract concluded with 
a consumer shall be assessed, taking into account the nature of the goods or 
services for which the contract was concluded and by referring, at the time of 
conclusion of the contract, to all the circumstances attending the conclusion of the 
contract and to all the other terms of the contract or of another contract on which 
it is dependent. 
(2) Assessment of the unfair nature of the terms shall relate neither to the 
definition of the main subject matter of the contract nor to the adequacy of the 
price and remuneration, on the one hand, as against the services or goods 
supplies in exchange, on the other, in so far as these terms are in plain intelligible 
language. 
Article 146. (1) Unfair terms in contracts shall be null and void unless 
individually negotiated. 
(2) to (4) [The provisions specify when clauses have not been individually 
negotiated and how that fact is to be proven.] 
(5) The existence of unfair terms in a consumer contract does not render that 
contract null and void if the contract can also continue to exist without those 
terms. 
Article 147. (1) The terms in contracts offered to consumers must be drafted in 
clear and unequivocal language. 
(2) Where there is doubt about the meaning of a particular term, the 
interpretation most favourable to the consumer shall prevail. 
… 
Article 147а. (1) When a contract is concluded with a consumer, general terms 
and conditions included therein shall be binding on the consumer only if they have 
been made available to him or her and he or she has agreed to them. 
(2) The consumer’s agreement to the general terms and conditions shall be 
certified by signature. 
(3) to (5) [The provisions govern the proof of the transmission of a signed copy of 
the seller’s or supplier’s general terms and conditions to the consumer and the 
consumer’s agreement thereto]. 
Article 147b. (1) The seller or supplier is obliged to inform the consumer of any 
change to the general terms and conditions included in the contract within seven 
days of the change via the telephone number, email address or correspondence 
address provided by the consumer. 
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(2) to (5) [further action to be taken by the parties in the event of a change to the 
general terms and conditions] 
Article 148. (1) The Commission for Consumer Protection: 
1. to 4. [Powers of the Commission for Consumer Protection in respect of unfair 
terms in pre-formulated standard contracts] 
(2) to (4) [Powers of the Commission for Consumer Protection in respect of unfair 
terms in pre-formulated standard contracts] 
5. Interpretative judgment No 4 of the Varhoven kasatsionen sad (Supreme 
Court of Cassation, Bulgaria), OSGTK [Joint Committee of the Civil and 
Commercial Sections], of 18 June 2014, paragraph 2.b. The court found as 
follows: ‘According to the express provision of Article 410(1) of the GPK, the 
application must meet the requirements of Article 127(1) of the GPK, that is to 
say, it must contain details of the circumstances on which the claim is based. In 
that sense, a precise explanation of the claim in terms of justification and amount 
is the prerequisite for a proper application as a basis for the issuance of an order 
for payment. In the event that the application does not sufficiently specify the legal 
ground on which it is founded, it must be rejected; the court ruling on the order 
for payment is not permitted to infer the legal ground from the documents 
attached to the application. As justification for this, it is stated that the court does 
not take evidence in the order for payment procedure under Article 410 of the 
GPK (the purpose of the procedure is not to establish the claim as such, but 
merely to verify whether it is disputable) and, consequently, no conclusions as to 
the existence of the claim or the legal basis on which it is founded can be drawn 
from the documents attached to the application. However, in the case of 
Article 417 of the GPK, in which the court decides on the basis of the document 
submitted by the applicant, it is permissible for the legal basis and the subject 
matter of the claim to be determined from that document, since, for the purposes 
of the statutory legislation, it is mandatory for that document to be attached to the 
application on the basis of which the enforcement order is issued, whereby the 
prerequisite for the issuance thereof is the existence of an enforceable claim, 
which is proven by precisely that document.’ 
6. Non-appealable decisions of the Sofiyski gradski sad (Sofia City Court; 
‘the SGS’) in comparable cases: order [of] 30 June 2020, order of 27 November 
2020 and further orders. In the appeal proceedings brought by Profi Kredit 
Bulgaria EOOD against the rejection of its application for an order for payment 
under Article 410 of the GPK in respect of claims arising from a consumer credit 
agreement containing a clause on ‘remuneration for the purchase of a package of 
ancillary services’, the court held that the clause was null and void pursuant to 
Article 10a(2) and Article 19(4) of the ZPK. The SGS then held that the provision 
of Article 76(2) of the ZZD applies to the amounts paid by the debtor, inter alia, to 
satisfy the claims that were null and void owing to the unfairness of the terms. 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The proceedings are based on an application of 21 October 2020 lodged by Profi 
Kredit Bulgaria EOOD, a company incorporated under Bulgarian law (‘Profi 
Kredit’), seeking the issuance of an order for payment in respect of a monetary 
claim against the debtor, T.I.T., a Bulgarian national, in accordance with 
Article 410 GPK for the total amount of 5 218.69 leva (BGN) (approximately 
EUR 2 609), consisting of a principal claim in the amount of BGN 2 035.34, 
remunerative interest owed under the contract for the period from 11 July to 
11 August 2020 in the amount of BGN 1 160.46, remuneration for the purchase of 
a package of ancillary services in the amount of BGN 1 765.61, default interest for 
the period from 12 April 2018 to 11 August 2020 in the amount of BGN 212.17, 
and default interest for the period from 11 August 2020 to 19 October 2020 in the 
amount of BGN 45.11. 
2 In its application, Profi Kredit stated that the claims asserted arose from the 
consumer credit agreement concluded between the parties on 29 December 2017, 
which was attached to the application. It submitted that the debtor had paid eleven 
repayment instalments and had fallen into arrears. As a result, it was declared on 
11 August 2020 that the term of the loan was being accelerated; the consumer was 
informed of this. 
3 By order of 9 November 2020, the court – taking into account its duty arising 
from Article 411(2)(3) of the GPK and the requirement introduced by the case-law 
of the Court of Justice to assess, of its own motion, the unfairness of a term where 
it has available to it the factual elements necessary for that task (С-147/16; 
C-243/08) – found that, according to the documents submitted in the case, the 
terms relating to the package of ancillary services were likely to be unfair. It 
found that the contractual relationship between the parties in the specific case 
constitutes a consumer credit agreement pursuant to Article 9(1) of the ZPK, for 
which reason the provisions of the ZPK or the ZZP apply. As to the substance, the 
court found that the package of ancillary services agreed under point V. of the 
contract, on which a separate agreement was concluded, … included the payment 
of remuneration of BGN 2 292.48, whereby the services to be provided for that 
price were not exhaustively listed, as prescribed by the mandatory provisions of 
the ZPK. Moreover, contrary to Article 10a(4) of the ZPK, the prices for the 
services are not listed individually, including in the agreement. Furthermore, 
payment of the remuneration is made on a precautionary basis, that is to say, it is 
owed solely for the ‘possible provision’ of the services, irrespective of whether 
one of the services is used during the term of the contract. That court stated that 
this is because, in the preamble of the agreement, it is stated that the claim to 
remuneration for the provision of the specified ancillary services arises upon 
signature, whereby it exists in full even if none of the services are used. According 
to the attached payment plan, the debtor had to pay, for 36 months, for something 
that he did not use. The referring court cites the judgment of the Court of Justice 
of 16 July 2020 in Case С-686/19, concerning the concept of the ‘total cost of the 
credit to the consumer’, contained in Article 3(g) of Directive 2008/48/EC. The 
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court takes the view that the agreement at issue is likely to be unfair to the 
detriment of the consumer within the meaning of Article 143 of the ZZP, which is 
applicable in the specific case, causing a significant imbalance in the rights and 
obligations of the seller or supplier and the consumer arising under the contract, 
for which reason the application must be rejected in part, in relation to the 
remuneration for the purchase of a package for ancillary services in the amount of 
BGN 1 765.61. 
4 Next, taking into account the applicant’s statement that the debtor had made 
eleven payments, and taking into account the amount of the sums claimed, the 
court found that the debtor had paid a total of BGN 1 988.69, by means of which 
the remunerative interest and then the principal claim were to be repaid, in that 
order, as provided for in Article 76(2) of the ZZD. The court stated that, on the 
basis of the amounts asserted in the application, it is established that the amounts 
had also been set off against the asserted claims arising from the package of 
ancillary services, although they should have been set off against subsequent 
instalments. Accordingly, by way of those payments, 16 full instalments and part 
of the 17th instalment (due on 11 June 2019) had been made in respect of the 
principal claim and 17 full instalments in respect of the interest, in accordance 
with Article 76(2) of the ZZD. Thus, the debtor had repaid BGN 1 206.06 of the 
interest and BGN 782.63 of the principal claim, as a result of which the remaining 
amount of the principal claim is BGN 1 617.37 and the remaining amount of 
interest is BGN 609.90. With regard to the default interest claimed for the period 
from 12 April 2018 to 19 October 2020 (in a total amount of BGN 257.28), the 
court ruled that it is justified for the period from 11 June 2019 (in view of the 
offsetting of payments against the subsequent instalments pursuant to 
Article 76(2) of the ZZD) to 19 October 2020; the court set the amount at 
BGN 204.53 pursuant to Article 162 of the GPK; the court held that the 
application is to be dismissed with regard to the difference between that amount 
and the claimed BGN 257.28 (that is to say, BGN 52.75). On those grounds, the 
court dismissed in part the application for an order for payment lodged by Profi 
Kredit on 21 October 2020 pursuant to point 3 of Article 411(2) of the GPK. 
5 By order for payment of 9 November 2020, the Sofiyski rayonen sad (District 
Court, Sofia), in a preparatory hearing held in closed session on that day, held that 
the conditions for granting the application were met, including on the basis of 
Article 411(3) of the GPK, and ruled as follows: The debtor must pay the creditor, 
Profi Kredit, the sum of BGN 1 617.37, which is composed of the following: 
principal claim under the consumer credit agreement of 29 December 2017, plus 
statutory interest from 21 October 2020 until the point at which the claim is 
settled, remunerative interest in the amount of BGN 609.90 for the period from 
11 July 2019 to 11 August 2020, compensation for delay in the amount of 
statutory interest of BGN 204.53 for the period from 11 June 2019 to 19 October 
2020, and procedural costs for court fees in the amount of BGN 48.63 and for 
legal advice in the amount of BGN 23.30. 
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6 The applicant, Profi Kredit, brought an appeal against the order of the SRS of 
9 November 2020 before the SGS. By order of 16 February 2021, the latter held 
that the court must reject an application for an order for payment pursuant to 
point 3 of Article 411(2) of the GPK if the application is based on an unfair term 
in a contract concluded with a consumer or if there are reasonable grounds to 
suspect that that is the case. The appellate court held that the appellant’s argument 
that the court of first instance was not empowered to examine the validity of 
contractual clauses was unfounded, since the court could determine the 
unlawfulness or immorality of contractual clauses of its own motion and without 
the debtor being able to object thereto; that obligation was imposed on it by 
point 2 of Article 411(2) of the GPK. According to the appellate court, a further 
argument is provided by the case-law of the Court of Justice of the European 
Union, in accordance with which the national court is required to assess, of its 
own motion, whether the contractual terms falling within the scope of Directive 
93/13 are unfair, compensating in this way for the unfairness. As to the substance, 
the appellate court proceeded on the assumption that the consumer credit 
agreement does contain an unfair term, which obliges the consumer to pay 
remuneration to the creditor for the provision of ancillary services. 
7 Next, the appellate court found that the remainder of the appeal was well-founded 
because the court is obliged to issue the order for payment pursuant to Article 410 
of the GPK if the conditions provided for in the GPK [conditions listed] are met. It 
stated that the exceptions are provided for in points 1 to 5 of Article 411(2) of the 
GPK. The purpose of the procedure is not to establish the claim itself, but merely 
to assess whether it is disputable. Therefore, the powers conferred on the court do 
not extend to an assessment of the existence of the claim asserted. That question 
must be clarified by way of legal proceedings instigated by the creditor in 
accordance with Article 422 of the GPK, in the case where the debtor exercises 
his or her right of objection pursuant to Article 414 of the GPK. The appellate 
court held that the decision of the court of first instance rejecting part of the 
principal claim asserted under the consumer credit agreement, the remunerative 
interest and the default interest owing to the invalidity of the term on the package 
of ancillary services and the payments made by the debtor and offset pursuant to 
Article 76(2) of the ZZD was wrong as the decision went beyond the court’s 
powers of review [in respect of the] issuance of an order for payment. The 
appellate court stated that the claims for payment of the principal claim and 
interest had been sufficiently specified in the application in terms of justification 
and amount, and if none of the requirements of points 1 to 3 of Article 411(2) of 
the GPK were met, the requirements for issuing the order for payment pursuant to 
Article 410 of the GPK are met. The question of whether the payment obligation 
exists in its entirety is the subject of the examination to be carried out in the 
context of a possible subsequent action for a declaratory judgment pursuant to 
Article 422 of the GPK. [Amounts repeated] 
8 For these reasons, the SGS upheld the SRS’s order of 9 November 2020 in the 
part rejecting Profi Kredit’s application in respect of the amount of 
BGN 1 765.61, consisting of the remuneration for a package of ancillary services. 
PROFI CREDIT BULGARIA 
 
15 
It annulled the order as to the remainder and ruled as follows: ‘It is necessary to 
issue an order for payment pursuant to Article 410 of the GPK in favour of Profi 
Kredit Bulgaria against the debtor in respect of an amount of BGN 417.97 (the 
difference between the full principal amount claimed, in the amount of 
BGN 2 035.34, under the consumer credit agreement of 29 December 2020 and 
the amount already awarded, in the amount of BGN 1 617.37), an amount of 
BGN 550.56 (the difference between the total remunerative interest claimed for 
the period from 11 July 2019 to 11 August 2020 in the amount of BGN 1 160.46 
and the amount already awarded, in the amount of BGN 609.90), and an amount 
of BGN 52.75 (the difference between the total amount of default interest claimed 
for the period from 12 April 2018 to 19 October 2020, in the amount of 
BGN 257.28, and the amount already awarded, in the amount of BGN 204.53, for 
the period from 11 June 2019 to 19 October 2020), plus statutory interest on the 
principal claim from 21 October 2020 until the point at which payment is made in 
full, and additional costs of BGN 96.38 for the court fee paid and the 
remuneration for a legal advisor’. By that non-appealable order, the appellate 
court referred the case back to the SRS with the stipulation that it issue an order 
for payment corresponding to the order. 
Essential arguments of the parties in the main proceedings 
9 The applicant seeks the issuance of an order for payment in respect of a monetary 
claim arising from a consumer credit agreement. Since the order for payment 
procedure is pursued unilaterally until the order for payment is issued, the debtor, 
who is a consumer, has not taken a position on the matter. The reasoning of the 
courts hearing the case differs to a certain extent, first with regard to the scope of 
consumer protection and more specifically with regard to how the court must 
discharge its duty not to allow the consequences of unfair terms to materialise. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The following is clear from the facts of the present case: An application for an 
order for payment was lodged pursuant to Article 410 of the GPK. Under national 
law, that procedure is pursued unilaterally until the order is issued. The 
application lodged is for the issuance of an order for payment (court order by 
which the court orders the debtor to pay the applicant the claims acknowledged by 
the court) in respect of claims arising from a consumer credit agreement. All 
courts with jurisdiction in the case have expressed they have reasonable grounds 
to suspect that some of the claims are based on unfair terms that increase the value 
of the claims arising from the loan. According to the applicant, the debtor (a 
consumer) made payments which were used, inter alia, to meet the claims arising 
from the unfair terms. 
11 If – as assumed by the SGS in other decisions – the payments from the unfair 
terms were to be set off against the unpaid components of the credit agreement 
(principal and interest) in accordance with Article 19(6) of the ZPK, that is to say, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-170/21 
 
16  
if set-off had to take place ex officio where the contractual term on the basis of 
which the consumer had made a payment was found to be unfair, it would not be 
necessary, when a court order for payment is issued, for the consumer to raise an 
objection under Article 414 of the GPK or for legal proceedings to be conducted 
in which he or she could exercise his or her right of set-off. In that regard, the 
referring court cites operative parts 1 and 2 of the judgment of the Court of Justice 
of the European Union in Case С-243/08. 
12 The referring court considers that it is important to establish whether, in 
proceedings to which the consumer is not party, the national court – where it has 
grounds for suspicion, verifies the unfair nature of a contractual term, and has 
available to it the legal and factual elements necessary for that task – must refuse 
to issue an order for payment pursuant to Article 410 of the GPK altogether or 
must refuse it in part, in relation to the specific contractual term, taking into 
account of its own motion the consequences of the unfairness of the term, in the 
case where that national court has available to it information about payments 
based on that term, and whether that court is bound by the instructions of a higher 
court which, despite having assessed a contractual term as being unfair, orders the 
issuance of an order for payment pursuant to Article 410 of the GPK, thereby 
disregarding, in essence, some of the consequences of the unfairness of the term. 
The latter is related to ensuring effective remedies for consumers, as national law 
allows offsetting of claims only in the event that a subjective right is exercised and 
only exceptionally under Article 19(6) of the ZPK. For that reason, if Article 6(1) 
of Directive 93/13/EEC requires the court, in proceedings to which the debtor is 
not party, to disapply of its own motion a contractual term on the ground of 
suspected unfairness vis-à-vis a consumer, but does not require it to refuse to issue 
a judicial decision ordering payment altogether, and instead requires it to refuse to 
do so only in part, must the court then take into account of its own motion the 
consequences of the unfairness of the term, in the case where it has available to it 
information about a payment made by the consumer on the basis of the unfair 
term, whereby, under national law, the corresponding application of Article 19(6) 
of the ZPK in conjunction with Article 76(2) of the ZZD is permissible and has 
also been applied in similar cases cited above? 
13 There is an interest in the request for interpretation, as the existing case-law of the 
Court of Justice of the European Union does not provide answers to the specific 
questions raised. It is not clearly apparent from the existing case-law of the Court 
of Justice cited above whether that interpretation covers the questions. For these 
reasons, it is necessary for the referring court to request a ruling from the Court of 
Justice on the questions set out in this order for reference and to stay the main 
proceedings on the basis of Article 267(2) TFEU.