Summary;Judgment — ECLI:EU:C:2019:1130
Date: 2019-12-19
Language of the case: Slovak
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Slovakia

SUMMARY) 12. 3. 2019 – CASE C-290/19 
 
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Stays the proceedings pursuant to Article 162(1)(c), in conjunction with 
Article 378, of the Code of Civil Procedure and refers the following question 
to the Court of Justice of the European Union:  
Is Article 10[(2)](g) of  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 to be interpreted as meaning that a 
consumer credit agreement satisfies the requirement laid down in that 
provision if the annual percentage rate of charge is indicated in the 
agreement, not as a specific percentage, but as a range between two figures 
(from – to)? 
Grounds  
1 The present court is required to rule on the appellant’s appeal against the 
judgment of the  Orkresný súd Senica (District Court, Senica, Slovokia) 
[OMISSIS] [Case No] of 21 March 2018, by which that court dismissed the 
appellant’s claim that the respondent should be ordered to pay EUR 1 932.10, plus 
default interest, on the ground of unjust enrichment. The unjust enrichment on the 
part of the respondent consisted in the repayment to it of consumer credit pursuant 
to a credit agreement. However, that agreement did not contain all the information 
required by law. Accordingly, the loan granted under the agreement should be 
regarded as free of interest and charges and the appellant should have paid to the 
respondent only the capital part of the loan. Nevertheless, given that the appellant 
has paid to the respondent the sum of EUR 1 932.10 in addition to the capital, the 
appellant now claims that the respondent should reimburse that sum.  
2 The court at first instance based its decision on facts that are not disputed in the 
appeal [Or. 2] or by the parties and can be summarised as follows. On 4 March 
2013, a credit agreement was concluded by the appellant, as debtor, and the 
respondent, as creditor [OMISSIS] [agreement number]. The agreement provided, 
inter alia, as follows: the respondent was to grant to the appellant for a non-
specified purpose the total sum of EUR 3 359.14, the monthly repayments were to 
be EUR 89.02, spread over 60 instalments, the annual rate of interest was to be 
19.62% and the annual percentage rate of charge (APRC) was to vary between 
21.5% and 22.4%. There was a note to the indication of the APRC, which stated 
that ‘the exact value of the APRC depends on the day on which the loan is granted 
and the customer shall accept that the creditor will inform him of the exact value 
of the APRC after the loan has been granted’. Moreover, the agreement set out the 
dates on which the repayments fell due, the first of which being due within one 
month of the date on which the loan was granted. All other repayments were due 
on the 15th day of each calendar month and the repayment period of the loan was 
60 months. By letter of 2 July 2017, the respondent confirmed to the appellant that 
he had repaid the loan in full. In total, the appellant had paid to the respondent in 
respect of the loan the sum of EUR 5 291.24.  
HOME CREDIT SLOVAKIA 
 
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3 The court at first instance concluded that the loan granted by the respondent to the 
appellant is consumer credit within the meaning of zákon č. 129/2010 Z. 
z o spotrebitel’ských úveroch a o iných úveroch a pôžčkách pre spotrebitel’ov 
a o zmene a doplneni niektorých zákonov) (Law No 129/2010 on consumer credit 
and other forms of credit and loans granted to consumers), in the version 
applicable on 4 September 2013 (‘Law No 129/2010’) and that the credit 
agreement [OMISSIS] [agreement number] contains all the information required 
under Article 9(2) of Law No 129/2010. Referring to the judgment of the Court of 
Justice of 9 November 2016 in Case C-42/15, Home Credit Slovakia v Bíróová, 
that court came to the conclusion that the agreement did not necessarily have to 
contain the exact dates on which the individual instalments fell due or the final 
date by which repayment of the loan was due or to indicate exactly how the 
individual instalments were to be spread in terms of repayment of the capital sum 
and repayment of interest. It also concluded that it was not necessary to indicate 
the APRC in the agreement unequivocally with a precise figure and that it would 
be disproportionate to penalise the lender defendant by taking the view that no 
interest or charges were payable in respect of the loan simply because the APRC 
was given as a range between two figures (from – to). Accordingly, the court at 
first instance found that the loan could not be regarded as free of interest and 
charges and that the respondent had not been unjustly enriched by receiving from 
the appellant the repayments made under the loan in the total sum agreed in the 
credit agreement.  
4 In the appeal, the appellant raises a number of objections which the referring court 
none the less considers irrelevant for the purpose of the question to be referred for 
a preliminary ruling. Those objections concern whether the agreement should 
provide a detailed indication of how the individual repayments are to be spread, 
broken down into capital and interest, and whether the agreement should indicate 
the exact date (end date) on which the final repayment of the loan is due. In that 
regard, the referring court observes that the Court of Justice has previously 
provided answers to certain questions concerning the interpretation of Directive 
2008/48/EC in Case C-42/15, Home Credit Slovakia v Bíróová, and that the 
principle of acte clair is therefore applicable to those questions. However, the 
appellant does not share the view of the court of first instance that, under Article 
9(2)(j) of Law No 129/2010, it is sufficient for the APRC to be set out in the 
agreement in the form of a range (between two values). That interpretation, in the 
appellant’s view, is at odds with the provision of Law No 129/2010, under which 
the consumer is entitled to receive unequivocal and specific information 
concerning the APRC, calculated on the basis of data that were valid at the time 
the consumer credit agreement was concluded. In support of that argument, the 
appellant also refers to the decisions of the various regional courts of the Slovak 
Republic. It maintains that as the agreement does not contain that essential item of 
information, referred to in Article 9(2)(j) of Law No 129/2010, the loan is free of 
interest and charges and the respondent is obliged to repay to the appellant the 
total interest paid in excess of the capital sum lent.  
 
REQUEST FOR A PRELIMINARY RULING (SUMMARY) 12. 3. 2019 – CASE C-290/19 
 
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II EU law and national law [Or. 3] 
5 In assessing the question to be submitted, the referring court relies, in particular, 
on recitals 19 and 31 and Articles 3(i), 4(2)(c), 5(1)(g), 10([2])(g) and 19 of 
Directive 2008/48/EC and on Part II of Annex I thereto. In the interests of 
conciseness, a literal citation of those provisions is dispensed with, since they are 
familiar to the Court of Justice. 
6 Directive 2008/48/EC was transposed into Slovak law by Law No 129/2010 on 
consumer credit and other forms of credit and loans granted to consumers and 
amending and supplementing certain laws, in force at the time the agreement 
between the appellant and the respondent was signed. The following provisions 
(in force on 4 September 2013) are relevant for the purposes of the present case.  
Article 1(2) provides: 
‘(2) For the purposes of this law, consumer credit shall mean a temporary 
provision of financial means, on the basis of a consumer credit agreement, in the 
form of a loan, credit, deferred payment, or comparable financial assistance 
provided by a creditor to a consumer.’ 
Article 9(2)(k) and (l) provides: 
‘(2) The consumer credit agreement … shall contain the following information …:  
(j) the annual percentage rate of charge and the total amount the consumer is 
required to pay, calculated on the basis of current data at the time the 
consumer credit agreement is concluded; all the assumptions used in 
calculating the annual percentage rate of charge shall be stated …’. 
Article 11(1) is worded as follows: 
‘(1) Any consumer credit granted shall be deemed to be free of interest and 
charges if:  
(a)  the consumer credit agreement ... does not contain the information referred 
to in Article 9(2)(a) to (k) .... ’ 
7 Also relevant to the present case is Article 451 of the Civil Code (Law 
No 40/1964, as subsequently amended), which is worded, in essence, as follows: 
‘(1) Any person who is unjustly enriched at the expense of others shall be obliged 
to return any undue payment. 
(2) Unjust enrichment is an economic advantage obtained as a result of 
compliance with a requirement lacking in any foundation in law or which is based 
on an invalid legal act .... ’ 
HOME CREDIT SLOVAKIA 
 
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III Relevance of the question and grounds for the reference for a preliminary 
ruling 
8 In the case under consideration, the referring court is required to adjudicate on the 
issue of the appellant’s claim for repayment of sums paid but not due, alleging 
unjust enrichment within the meaning of Article 451 of the Civil Code. According 
to the appellant, the respondent was unjustly enriched in so far as the appellant 
made all the loan repayments due in accordance with the credit agreement 
[OMISSIS] [agreement number], totalling EUR 5 291.24. However, the loan 
granted under the agreement should have been free of interest and charges, in 
accordance with Article 11(1)(a) of Law No 129/2010, and, therefore, the 
respondent was entitled to claim from the [appellant] only repayment of the 
capital part of the loan, amounting to EUR  3 359.14. Accordingly, given that the 
respondent also received under the agreement interest and charges, to which it was 
not entitled by law, it benefited from compliance with a requirement lacking any 
justification in law, in particular as a result of the payment of invalid statutory 
interest, which it is required to repay to the appellant pursuant to Article 451 of 
the Civil Code. According to the appellant, one of the reasons why the loan must 
be regarded as [Or. 4] free of interest and charges is because, in the credit 
agreement [OMISSIS] [agreement number], the annual percentage rate of charge 
is indicated only by a range between two values (from – to), which, the appellant 
claims, is at odds with Article 9(2)(i) of Law No 129/2010. The answer to the 
question whether the credit agreement [OMISSIS] [agreement number] satisfies 
the requirements laid down by law, and, therefore, whether the respondent is 
entitled to interest and charges under the agreement, depends on the interpretation 
of the provision of Law No 129/2010 mentioned above, which transposes 
(implements) Article 10([2])(g) of Directive 2008/48/EC. According to the 
referring court, in order to give judgment in the present case, it is therefore 
necessary to obtain a ruling on the interpretation of Directive 2008/48/EC, as 
provided for in the second paragraph of Article 267 of the Treaty on the 
Functioning of the European Union (‘TFEU’). The interpretation of Directive 
2008/48/EC, as an act of an institution of the European Union, within the meaning 
of section (b) of the first paragraph of Article 267 TFEU, falls within the 
jurisdiction of the Court of Justice of the European Union.  
9 According to the case-law of the Court of Justice, the annual percentage rate of 
charge (APRC) is an important piece of information at the time the consumer 
makes his decision, on the basis of which he assesses the various offers of credit 
and at the same time the implications of his future undertaking (order of the Court 
of Justice in Case C-76/10, Pohotovosť v Korčkovská). The importance of that 
information may also be inferred from recital 19 of Directive 2008/48/EC, which 
seeks to ensure transparency specifically by making the method of calculating the 
APRC and the assumptions to be applied in that regard the same throughout the 
EU. To that end, Article 19 of the directive, in conjunction with Annex I thereto, 
sets out a detailed method for calculating the APRC and a detailed list of those 
assumptions. According to the referring court, it is possible, on the basis of those 
provisions alone, to infer that, by the term ‘annual percentage rate of charge’, 
REQUEST FOR A PRELIMINARY RULING (SUMMARY) 12. 3. 2019 – CASE C-290/19 
 
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Directive 2008/48/EC is referring to a specific figure. Precisely because the value 
of the APRC depends on the date on which the loan concerned is drawn down and 
the dates of the individual repayments, there may be differences in the calculation 
of the APRC, depending on when the loan was granted. Directive 2008/48/EC 
addresses that problem, providing, in Part II of Annex I, a series of assumptions 
which may be used in such a case, and the purpose of which is to establish a 
specific date on which the credit is to be drawn and on which the repayments are 
to be made. That is also in line with the wording of Article 10(2)(g) of Directive 
2008/48/EC, which provides that the agreement must specify the APRC, as 
‘calculated at the time the credit agreement is concluded’. Accordingly, in the 
view of the referring court, the wording of that provision supports the conclusion 
that Directive 2008/48/EC requires that the APRC be indicated by a specific 
figure, calculated at the time the agreement is concluded and applying the 
assumptions set out in Part II of Annex I, not by a range between two values (from 
– to).  
10 In its cross-appeal of 6 February 2019, the respondent states that the credit 
agreement [OMISSIS] [number of the agreement] was entered into by agreement 
on the telephone between the appellant and the respondent and that the appellant 
was given 35 days within which to decide whether or not to accept the proposed 
agreement. Consequently, the respondent was not in a position to determine 
precisely the time at which the funds were granted. Nevertheless, the referring 
court does not find that argument convincing, because in such situations the 
assumptions set out in Part II of Annex I come into play, for instance those 
referred to in sections (a), (c) or (f). The mere fact that the date on which the loan 
is drawn down is not clear does not necessarily mean that there is no need to 
specify a single value for the APRC.  
11 Furthermore, it is possible to infer from Directive 2008/48/EC that it defines 
exhaustively both the cases in which the APRC may be indicated other than by a 
specific number and the cases in which the APRC cannot be determined. It is clear 
from Article 19(5) of the directive that where, in calculating the APRC, it is not 
possible to use the assumptions set out in Part II of Annex I or those given in 
Article 19, the Commission has the power to supplement or modify those 
assumptions by delegated legislation. Similarly, Article 5 [Or. 5] (1)(g) of 
Directive 2008/48/EC governs the case in which, in certain circumstances, it is 
possible to modify the APRC and, in such a case, expressly permits (and requires) 
the creditor to indicate that certain other drawdown mechanisms for the loan may 
result in a higher APRC. That provision would be unnecessary if it were possible 
to identify the APRC as a range between two values, since, in that case, it would 
be sufficient to refer to such a ‘higher APRC’, within the meaning of Article 
5(1)(g) of Directive 2008/48/EC, as the upper limit and there would be no need to 
indicate that this could be higher. That consideration also supports the conclusion 
that the intention of Directive 2008/48/EC is that the APRC should be expressed 
as a specific figure, not a range, and that it lays down express rules to deal with 
the situation in which it is not in fact possible to establish an APRC. Those rules 
cannot therefore be circumvented by indicating the APRC using only a range 
HOME CREDIT SLOVAKIA 
 
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(from – to), claiming that it is impossible to determine its exact value. Such a 
possibility (of indicating that the APRC may be higher or lower) is not 
contemplated by Article 10(2)(i) of Directive 2008/48/EC; on the contrary, that 
provision requires that a specific APRC be indicated. According to the referring 
court, the conclusion that defining the APRC by reference to a range between two 
values (from – to) does not satisfy the requirements laid down in Article 10(2)(g) 
of Directive 2008/48/EC is therefore well founded.  
IV Conclusion 
12 In the light of the considerations set out above, the referring court has come to the 
conclusion that it is necessary to submit a request to the Court of Justice of the 
European Union for a preliminary ruling in the present case. Accordingly, in 
accordance with … procedure [OMISSIS] [reference to national procedural 
provisions] and pursuant to Article 267 TFEU, it stays the proceedings and makes 
the order set out in the operative part of this decision. After the ruling has been 
delivered by the Court of Justice, the court will resume the proceedings 
[OMISSIS] [reference to national procedural provisions].  
13 [OMISSIS] 
[OMISSIS] 
Done at Trnave, 12 March 2019. 
[OMISSIS]