Opinion of the Advocate General — ECLI:EU:C:2024:950
Date: 2024-11-14
Language of the case: Slovak
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Slovakia

Summary C-351/23–1 
Case C-351/23 
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:  
6 June 2023 
Referring court:  
Krajský súd v Prešove (Slovakia) 
Date of the decision to refer:  
11 May 2023 
Applicant:  
GR REAL s. r. o. 
Defendants:  
PO 
RT 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2023 – CASE C-351/23 
 
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Subject matter of the main proceedings 
Request for a preliminary ruling submitted in the context of a dispute over the 
vacating of a property and the determination of ownership of that property. The 
present request has been filed because the referring court raised doubts as to the 
compatibility of the Slovak legal provisions concerning the judicial protection of 
the ownership of a property, over which a right has been created under a lien to 
secure a loan, with the provisions of EU consumer protection legislation, in 
particular Articles 6(1) and 7(1) of Council Directive 93/13/EEC and Articles 5, 8 
and 9 of Council Directive 2005/29/EC. 
Subject matter and legal basis of the request  
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
A. Do Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 
on unfair terms in consumer contracts apply to proceedings such as those at issue 
in the main proceedings, which were initiated by a person who was the winning 
bidder in an auction for property, in respect of which a counterclaim by a 
consumer for the restitution of the status prior to the auction was simultaneously 
pending when, prior to the extrajudicial auction, the consumer used legal remedies 
to suspend enforcement of the lien by lodging an application for interim relief 
with the court and, at the same time, before the auction, informed the persons 
taking part in the auction of the pending court proceedings to suspend 
enforcement of the lien by voluntary auction, when the auction proceeded in spite 
of the legal proceedings? 
B. Is Council Directive 93/13/EEC to be interpreted as precluding legislation of 
a Member State, such as that at issue in the main proceedings, which, in the 
context of the enforcement by an undertaking staging private auctions (‘the 
auctioneer’) of a lien over a consumer’s immovable property, with a view to 
recovering a debt due to a bank under a consumer credit agreement, 
1. does not allow the consumer to effectively raise objections before the 
auctioneer concerning the unfair nature of the terms of the contract on the basis of 
which the bank’s claim is to be enforced in order to postpone the auction, even 
though that claim is based on unfair contractual terms, and in particular a 
contractual term concerning early repayment of a loan, 
2. does not allow the consumer to prevent the auction of the property which is 
the consumer’s home, in spite of the fact that the consumer informed the 
GR REAL 
 
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auctioneer and the persons present at the auction of the court proceedings in 
respect of interim relief for the purpose of preventing the auction from being 
conducted, while the court had not yet issued its final decision on the application, 
when at the same time the interim relief measure is the only opportunity for the 
consumer to obtain temporary court protection against the conduct of the auction 
as a result of unfair contractual terms, 
3. does not allow consumers, in the circumstances referred to in the preceding 
paragraphs, to fully exercise their rights arising from the transposition of Directive 
93/13/EEC and to attain the objectives of that directive, since the legislation in 
question limits the possibility of raising a plea of nullity of a sale by auction to the 
following three grounds: 
a. the invalidity of the lien agreement, 
b. infringement of Zákon č 527/2002 Z.z. o dobrovoľných dražbách (Law 
No 527/2002 on Voluntary Auctions), 
c. commission of an offence? 
C. Is 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 
(‘Unfair Commercial Practices Directive’) to be interpreted as meaning that 
enforcing a lien on the basis of an unfair contractual term relating to the early 
recovery of a debt arising under a consumer credit agreement and, therefore, the 
incorrect amount of the outstanding debt, may constitute an unfair commercial 
practice within the meaning of Article 5 of that directive, and more specifically an 
aggressive commercial practice within the meaning of Articles 8 and 9 of that 
directive, and that the liability of the bank and the objectives of Directive 
2005/29/EC apply, in addition to the bank, to the auctioneer enforcing the bank’s 
rights under the lien? 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, Articles 7, 38 and 47 
Recitals twelve to fourteen, sixteen, twenty, twenty-one and twenty-four and 
Articles 1–3, 4(1), 6(1), 7 and 8 of 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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2023 – CASE C-351/23 
 
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Regulation (EC) No 2006/2004 of the European Parliament and of the Council, 
Articles 2(b), (c), (d), (e) and (k), 3, 5, 6(1), 7(1), 8, 9, 11 and 13 
Case-law of the Court of Justice and other sources of EU law cited  
Judgment of the Court of Justice of 14 March 2013, Aziz, C-415/11, 
EU:C:2013:164, paragraph 73 of the operative part 
Judgment of the Court of Justice of 21 March 2013, RWE Vertrieb, C-92/11, 
EU:C:2013:180, paragraphs 43 and 44 
Judgment of the Court of Justice of 7 December 2017, Banco Santander, 
C-598/15, EU:C:2017:945, operative part 
Judgment of the Court of Justice of 4 June 2015, Faber, C-497/13, 
EU:C:2015:357 
Judgment of the Court of Justice of 19 September 2019, Kušionová, C-34/13, 
EU:C:2014:2189, paragraph 65 
Opinion of Advocate General Medina delivered on 12 January 2023 in Case 
C-598/21, SP, CI v Všeobecná úverová banka a.s., EU:C:2023:22, points 92 to 
101 
Provisions of national law relied on 
Zákon č. 40/1964 Zb., Občiansky zákonník (Law No 40/1964 establishing the 
Civil Code), as amended:  
‘Paragraph 53 
(1) A consumer contract must not contain provisions which cause a 
significant imbalance in the rights and obligations of the parties to the 
contract to the detriment of the consumer (“unfair terms”). That does not 
apply in the case of contractual terms which relate to the main object of the 
contract or the appropriateness of the price, where those terms are expressed 
precisely, clearly and intelligibly, or if the unfair terms have been 
individually negotiated. 
[…] 
(4) In particular, terms in consumer contracts shall be deemed unfair, if they: 
[…] 
k) impose payment of a disproportionate sum on a defaulting consumer as a 
sanction related to the consumer’s non-performance. 
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[…] 
(5) Unfair terms used in consumer contracts shall be invalid. 
[…] 
(9) In the case of consumer contracts to be paid in instalments, the trader 
may exercise the rights provided for in Paragraph 565 no earlier than three 
months after the delay in payment and on condition that he or she has given 
the consumer at least 15 days’ notice of the fact that he or she will exercise 
that right. 
[…] 
Paragraph 565 
In the case of repayment in instalments, the creditor may demand payment 
of the entire claim for failure to pay an instalment only in cases where this 
has been agreed or established in a judgment. The creditor may, however, 
exercise this right no later than the due date for the next monthly 
instalment.’ 
‘Paragraph 151j 
(1) If a debt secured by a lien is not fulfilled correctly and in due time, the 
creditor holding the lien may begin to enforce the lien. When exercising a 
lien, the secured creditor may obtain settlement of the claim by the means 
specified in the contract or by sale of the collateral at auction pursuant to a 
specific law3e) or by selling the collateral in accordance with specific 
statutory provisions3f), unless provided otherwise by this law or a specific 
statutory provision. 
[…] 
Paragraph 151m 
(1) The secured creditor may sell the collateral by the means specified in the 
agreement establishing the lien or at auction at least 30 days from the date of 
the notice to the guarantor and debtor of the commencement of enforcement 
of the lien, where the debtor and the guarantor are not the same person, 
unless otherwise provided for by a specific law. If the lien is entered in the 
register of liens and the date of registration of the commencement of 
enforcement of the lien falls after the date of notification of the 
commencement of enforcement of the lien to the guarantor and the debtor, if 
the debtor and the guarantor are not the same person, the 30-day period shall 
begin from the date on which the commencement of enforcement of the lien 
was entered in the register of liens. 
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(2) After notification of the commencement of enforcement of the lien, the 
guarantor and the secured creditor may decide that the latter is authorised to 
sell the security in the manner specified in the contract creating the lien, or 
by public auction, even before the period under subparagraph 1 has expired. 
(3) A creditor secured by a lien who has begun to enforce a lien with a view 
to satisfying his or her  claim in the manner set out in the lien contract may, 
at any time, during the exercise of that right, alter the manner of exercising 
that right and sell the collateral at auction, or sell the collateral in accordance 
with specific statutory provisions. The secured creditor is required to inform 
the guarantor of the change in the way in which the lien is enforced. 
[…] 
Paragraph 151ma 
[…] 
(3) In the event of enforcement of a lien by a secured creditor whose right to 
the lien is registered first in the order of priority in which the rights under 
the lien are to be satisfied (‘preferential creditor’), ownership of the 
collateral shall be transferred without encumbering the rights of lien of the 
other secured creditors. Where the proceeds from the sale of the collateral 
exceed the value of the claim guaranteed to the secured preferential creditor, 
the other creditors shall have the right to satisfy their claims against the 
object of the lien, whose title has been transferred, from the proceeds of sale 
of the object, after deduction of any objectively necessary costs incurred by 
the preferential creditor in enforcing the lien, in the order of priority for 
satisfaction of their rights under the lien.’ 
Zákon č. 527/2002 Z. z. o dobrovoľných dražbách (Law No 527/2022 on 
Voluntary Sale by Auction): 
‘Paragraph 6 
(1) The auctioneer shall be the person who organises the auction and fulfils 
the conditions established by this Law and the Specific Law and is 
authorised to exercise the relevant business activity. 
[…] 
Paragraph 7 
(1) The person seeking sale by auction shall be the owner of the object for 
sale, the person enforcing the lien (“secured creditor”) or any other person 
entitled to request the sale by auction under a separate law.’ 
GR REAL 
 
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Pursuant to Paragraph 16(1), of this Law, the auction may only be conducted 
on the basis of a written contract for the conduct of the auction between the 
person seeking the sale by auction and the auctioneer. 
‘Paragraph 16 
[…] 
(2) The auction agreement shall include the designation of the person 
seeking the sale auction, the auctioneer, the object of the auction, the 
minimum bid, the estimated costs of the auction and the auctioneer’s 
remuneration or the manner in which it is to be determined, or an agreement 
that the auction will be conducted free of charge. A written declaration by 
the person seeking the sale by auction, indicating that the object of the 
auction may be auctioned, shall also be annexed to the agreement 
(Paragraph 7(2)). 
[…] 
Paragraph 19 
(1) The auctioneer shall cancel the auction at the latest before the start of the 
auction (a) upon written request by the person seeking the sale by auction, 
(b) if the auctioneer is shown by means of an enforceable decision that the 
person seeking the sale by auction is not authorised to seek that sale; if the 
court grants interim relief, it is sufficient to demonstrate to the auctioneer 
that the court has adopted such a measure. 
[…] 
Paragraph 21  
[…] 
(2) Where the validity of the lien contract is challenged or the provisions of 
this Law have been infringed, the person claiming that his or her rights have 
been adversely affected may request that the court declares the auction 
invalid. The right to apply for annulment of the auction shall lapse if no 
claim is made within three months of the date of court order acknowledging 
the winning bid, unless the grounds for annulment are related to the 
commission of a criminal act and, at the same time, the sale is related to a 
house or apartment for which, at the time of the acknowledgement, the 
former owner of the property was registered as a permanent resident in 
accordance with specific statutory provisions12b, in which case the invalidity 
of the sale may be applied for even after expiry of that period.’ 
Zákon č. 160/2015 Z. z. Civilný sporový poriadok (Law No 160/2015 on the Code 
of Civil Procedure; ‘the Civil Procedures Code’): 
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‘Paragraph 325  
(1) The court may adopt an interim measure if it is necessary to resolve the 
relationship immediately or if there are concerns that the enforcement of the 
judgment will be compromised.’ 
In accordance with paragraph 2(d), the court may adopt an interim measure 
to oblige a party to the dispute to take, desist from taking, or endure a 
particular action. 
The court may authorise payment by instalments in accordance with 
Paragraph 232(3) of the Civil Procedures Code. 
Zákon č. 162/1995 Z. z. (katastrálny zákon) [Law No 162/1995 (Land Register 
Law)] 
‘Paragraph 70 
(1) The particulars entered in the land register referred to in Paragraph 7 
shall be deemed to be correct unless proven otherwise.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 PO and RT, the defendants in the main proceedings, are married. On 7 April 2011, 
they took out a consumer loan, repayable in instalments, with Slovenská 
Sporiteľňa, a.s. (‘the bank’), under which the bank issued the defendants a loan in 
the amount of EUR 63 000, with PO and RT undertaking to repay that loan in 
monthly instalments of EUR 424.41 starting on 20 June 2011, with the final 
payment due on 20 January 2030. On 7 April 2011, they also concluded an 
agreement establishing a lien on the property in order to secure the mortgage loan. 
The subject of the contract establishing the lien was the house in which PO and 
RT were living with their three children. 
2 In a letter dated 3 November 2016, the bank announced that the loan was due with 
immediate effect on 3 November 2016 and demanded that PO and RT repay the 
outstanding debt of EUR 56 888.08. Under Slovak law, a person enforcing a lien 
is entitled to apply for a voluntary sale by auction of the object subject to lien. On 
21 April 2017, PO and RT brought an action against the bank before the Okresný 
súd Prešov (District Court of Prešov, Slovakia), asking the bank to refrain from 
enforcing the lien by means of a voluntary auction, while applying for an interim 
measure requiring the bank to refrain from exercising its right under the lien by 
means of a voluntary auction, until the declaratory proceedings had been 
definitively concluded. PO and RT claimed in their action that the bank did not 
have the right to call in the loan early, as such a right existed only on the basis of 
an agreement and the parties to the agreement had not entered into an agreement 
to that effect. 
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3 On 25 April 2017, the first round of the auction took place, at which PO raised an 
objection against the auction, referring to the pending court proceedings to stop 
the enforcement of the lien before the District Court of Prešov. The first round of 
the voluntary auction was unsuccessful, as no bids were made. 
4 By order of 26 May 2017, the District Court of Prešov dismissed the application 
for interim measures, without addressing the defendants’ claim that the bank had 
infringed their rights by calling in the loan prematurely. PO and RT filed an 
appeal against that order. 
5 The second round of bidding took place on 18 July 2017. At that auction, the 
consumer PO drew the attention of the auctioneer and the notary to the fact that 
legal proceedings were in progress with a view to suspending enforcement of the 
lien, but neither the notary nor the auctioneer acknowledged his plea or his 
presence. The successful bidder was GR REÁL, which, inter alia, actively 
provides credit and loans and factoring and forfeiting services, and manages and 
maintains residential and non-residential property. In accordance with Slovak law, 
the acknowledgement of a winning bid is accompanied by the transfer of title 
under certain conditions. 
6 By decision of 9 August 2017, the Krajský súd v Prešove (Regional Court of 
Prešov) ruled on the action brought by PO and RT, setting aside the order of the 
court of first instance which had dismissed the application for interim measures 
and referred the case back to that court for further proceedings and to deliver a 
new ruling. According to the appeal court, the court of first instance should have 
referred, in particular, to PO and RT’s claim that they had not entered into an 
agreement with the bank that would have allowed it to call in the loan early, to the 
principle of proportionality, to the fact that it was the only home of PO and RT 
and their family, and to whether the creditor could not be satisfied in some other 
way. 
7 On 19 December 2017, PO and RT withdrew the action to stop enforcement of the 
lien by voluntary auction, arguing that the auction had already taken place, and 
that therefore the action for suspension had become meaningless. By decision of 
11 January 2018, the District Court of Prešov discontinued the proceedings and 
ordered PO and RT to pay all the procedural costs incurred by the bank. 
8 As a result of the auction, GR REÁL was registered as the owner of the house in 
the land register and, as PO and RT refused to leave the family home, the 
company disconnected PO and RT’s utilities, such as water and electricity, and 
brought an action under which the property would be vacated. The action was 
dismissed by the court of first instance, and its decision was upheld by the court of 
appeal. Both courts took into account the principles of morality and the fact that 
the property was the home of PO, RT and their three children. In its decision of 
8 April 2021, the Najvyšší súd (Supreme Court, Slovakia) set aside the two 
judgments and stated that the courts must take account of GR REÁL’s property 
rights. 
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9 In its second judgment, the court of first instance ordered PO and RT to vacate the 
property and dismissed their counterclaim. According to the court of first instance, 
the voluntary auction had not been declared invalid and the court seised in that 
case did not have jurisdiction to rule on its invalidity. GR REÁL brought an 
appeal against the part of the judgment of first instance that did not award it 
reimbursement of the costs of the proceedings. PO and RT appealed against that 
judgment in so far as it required them to vacate the property and dismissed their 
counterclaim. The appeal court stayed the main proceedings and made a request 
for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
10 The applicant in the main proceedings, GR REÁL, seeks to exercise its right of 
ownership to the property, which it claims to have acquired by voluntary auction, 
and to have it vacated and to be awarded reimbursement of the costs of the 
proceedings. 
11 The defendants in the main proceedings, PO and RT, have brought a counterclaim 
to the effect that they have right of ownership over the house in question. In their 
view, the sale of the house constitutes an infringement of their rights as consumers 
and their right to a home. They argue that no agreement exists between them and 
the bank under which the bank may recall the loan prematurely. In addition, they 
claim that the bank did not agree to their request to restructure the loan, instead 
proceeding to put up the property for sale by voluntary auction. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court considers that, from the perspective of the outcome of the case 
in the main proceedings, the pertinent question is whether the provisions of EU 
law on consumer protection apply to judicial proceedings in a situation such as the 
one at issue in the main proceedings, in which consumers sought protection from 
the court before the auction was held, applied for an interim measure and drew 
attention to the pending judicial proceedings and yet the auction was held. The 
referring court considers that, if Directive 93/13 were to apply in the case in the 
main proceedings, this would mean that, in the case in the main proceedings, a 
judicial review of the contractual term relating to early repayment is required and 
that, if this term were found to be unfair, that would be fundamental to 
determining the declaratory proceedings. 
13 The referring court also believes that a fundamental issue is whether Slovak 
legislation  which limits consumer protection in relation to property which 
belongs to those consumers, and which they used as a lien to secure a loan, where 
that property was sold by voluntary auction, to the following three grounds: 
infringement of the Law on voluntary sale by auction, invalidity of the agreement 
establishing the lien, and cases where an offence has been committed  is 
compatible with EU law. The referring court takes the view that neither the case 
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of the consumers at issue in the main proceedings, nor their allegations, relates to 
those three situations. 
14 The referring court fully agrees with the arguments put forward by Advocate 
General Medina in her Opinion of 12 January 2023 in SP, CI v Všeobecná 
úverová banka a.s., C-598/21, EU:C:2023:22, in particular points 92 to 105.