Opinion of the Advocate General — ECLI:EU:C:2020:645
Date: 2020-09-03
Language of the case: Slovak
Subject matter: Consumer protection;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Slovakia

Summary C-485/19 — 1 
Case C-485/19 
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:  
25 June 2019 
Referring court:  
Krajský súd v Prešove (Slovak Republic) 
Date of the decision to refer:  
12 June 2019 
Applicant:  
LH 
Defendant:  
PROFI CREDIT Slovakia s.r.o. 
  
Subject-matter of the main proceedings 
Action brought by a consumer in which he seeks the repayment of EUR 1 500, 
together with interest, from a creditor on the basis of unfair terms in a consumer 
credit agreement. 
Subject-matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
the Krajský súd v Prešove (Regional Court, Prešov, Slovak Republic) refers a 
number of questions for a preliminary ruling concerning the application of 
limitation periods, the burden of proof and the method of interpretation in 
conformity with EU law in consumer cases, in light of Article 47 of the Charter of 
Fundamental Rights of the European Union, the principle of effectiveness and the 
direct effect of Directive 2008/48/EC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 12. 6. 2019 — CASE C-485/19 
 
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Questions referred 
A. 
I. Must Article 47 of the Charter of Fundamental Rights of the European 
Union (‘Article 47 of the Charter’) and, by implication, the consumer’s 
right to an effective legal remedy be interpreted as precluding national 
legislation, such as Article 107(2) of the Občianský zákonník (Civil 
Code of Slovakia) on the limitation of the consumer’s right by a 
statutory three-year limitation period, in accordance with which the 
consumer’s right to reimbursement which arises from an unfair 
contractual term may become time-barred even where the consumer is 
not in a position to evaluate the unfair contractual term and the 
limitation period starts even without the consumer being aware that the 
contractual term is unfair? 
II. In the event that, despite a lack of awareness on the part of the 
consumer, the legislation which imposes an statutory limitation period 
of three years on the consumer’s right is consistent with Article 47 of 
the Charter and the principle of effectiveness, the national court then 
asks the following: 
Is a national practice contrary to Article 47 of the Charter and the 
principle of effectiveness if, in accordance with that practice, the 
burden of proof falls on the consumer, who must prove in legal 
proceedings that the persons acting on behalf of the creditor were 
aware of the fact that the creditor was infringing the consumer’s 
rights, in the present case that awareness consisting in the knowledge 
that, by failing to indicate the precise annual percentage rate of charge 
(APR), the creditor was infringing a legal provision, and must also 
prove awareness of the fact that, in such circumstances, the loan was 
non-interest bearing and, by receiving payments of interest, the 
creditor obtained unjust enrichment? 
III. In the event that question A.2 is answered in the negative, on the part 
of which persons, among the directors, the shareholders and the 
commercial representatives of the creditor, must the consumer prove 
awareness of the matters referred to in question A.2? 
IV. In the event that question A.2 is answered in the negative, what degree 
of awareness must be shown in order to prove the supplier’s intention 
to infringe the relevant financial sector rules? 
B. 
I. Do the effects of the directives and the relevant case-law of the Court of 
Justice on the matter, including Rasmussen, C-441/14, EU:C:2016:278, Pfeiffer, 
C-397/01 to C-403/01, EU:C:2004:584, paragraphs 113 and 114, Kücükdeveci, 
PROFI CREDIT SLOVAKIA 
 
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C-555/07, EU:C:2010:21, paragraph 48, Impact, C-268/06, EU:C:2008:223, 
paragraph 100, Dominguez, C-282/10, paragraphs 25 and 27, and Association de 
médiation sociale, C-176/12, EU:C:2014:2, paragraph 38, preclude a national 
practice in accordance with which the national court reaches a conclusion 
concerning interpretation in conformity with EU law without employing 
interpretative methods and without giving due reasons? 
II. If, after applying interpretative methods, such as purposive interpretation, 
authentic interpretation, historical interpretation, contextual interpretation, logical 
interpretation (the a contrario method, the reductio ad absurdum method) and 
after applying the whole body of domestic law, in order to secure the objectives 
referred to in Article 10(2)(h) and (i) of Directive 2008/48/EC (‘the Directive’), 
the national court concludes that interpretation in conformity with EU law results 
in a situation contra legem, is it then possible — for example, by making a 
comparison with relationships involving discrimination or the protection of 
employees — to accord the abovementioned provision of the Directive direct 
effect, in order to protect traders against consumers in credit relationships, and 
disapply the provision of law which is not in conformity with EU law? 
Provisions of EU law and EU case-law cited  
Article 47 of the Charter of Fundamental Rights of the European Union 
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 
Judgments of the Court of Justice in Oceáno Grupo Editorial and Salvat Editores, 
C-240/98 to 244/98, EU:C:2000:346, Pfeiffer, C-397/01 to C-403/01, 
EU:C:2004:58, Impact, C-268/06, EU:C:2008:233, Commission v Ireland and 
Others, C-89/08 P, EU:C:2009:742, Dominguez, C-282/10, EU:C:2012:33, 
Association de médiation sociale, C-176/12, EU:C:2014:2, CA Consumer Finance 
SA v Ingrid Bakkaus and Others, C-449/13, EU:C:2014:2464, Ernst Georg 
Radlinger and Helena Radlingerová, C-377/14, EU:C:2016:283, Rasmussen, 
C-441/14 EU:C:2016:278, Francisco Gutiérrez Naranjo and Others, C-154/15 
and C-307/15, EU:C:2016:980, Home Credit Slovakia a.s. v Klára Bíroová, 
C-42/15, EU:C:2016:842, Cresco Investigation, C-193/17, EU:C:2019:43, and 
Mariusz Pawlak, C-545/17, EU:C:2019:260 
Provisions of national law and national case-law cited 
Article 107(1) and (2) of the Občiansky zákonník č. 40/1964 Zb. (Civil Code, Law 
No 40/1964) 
Articles 15 and 16 of the Trestný zákon č. 300/2005 Z.z. (Penal Code, Law 
No 300/2005) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 12. 6. 2019 — CASE C-485/19 
 
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Article 2(2) of the Civilný sporový poriadok, zákon č. 160/2015 Z.z. (Code of 
Civil Procedure, Law No 160/2015) 
Articles 9 and 11 of the zákon č. 129/2010 Z.z. o spotrebiteľských úveroch a o 
iných úveroch a pôžičkách pre spotrebiteľov a o zmene a doplnení niektorých 
zákonov (Law No 129/2010 on consumer credits and other credits and loans to 
consumers and amending certain other laws), in the version in force until 1 May 
2018 
Judgment of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak 
Republic, ‘the Supreme Court of the Slovak Republic’) of 18 October 2018, Case 
No 1Cdo 238/2017 
Judgment of the Supreme Court of the Slovak Republic of 22 February 2018, Case 
No 3 Cdo 146/2017. 
Outline of the facts and the main proceedings 
1 On 30 May 2011, the applicant, LH, entered into a consumer credit agreement 
with the defendant, the company PROFI CREDIT Slovakia, s.r.o. The agreement 
was for a loan of EUR 1 500 with an interest rate of 70% and an annual 
percentage rate of charge (APR) of 66.31%, and entailed an obligation to repay 
the total sum of EUR 3 698.40 over four years in 48 monthly repayments of 
EUR 77.05. On the first day of the credit relationship, the defendant applied a 
commission of EUR 367.49 in respect of the option of deferring repayments, 
without any certainty that the applicant would avail himself of that option in the 
future. Accordingly, the applicant received not EUR 1 500, but just 
EUR 1 132.51, that is to say, 24% less than the loan amount agreed upon. 
2 At the time of concluding the agreement, the applicant did not receive information 
about the actual APR. The loan repayments were not specified in the agreement in 
terms of principal, interest and fees, which was contrary to the wording of 
Article 9(2)(k) of Law No 129/2010 on consumer credit, in the version then in 
force, which, up to 1 May 2018, required that information to be given. 
3 On 9 November 2016, in its judgment in Case C-42/15, the Court of Justice held 
that such specification of loan repayments under Article 9(2)(k) of Law 
No 129/2010 was not required by Directive 2008/48/EC. The Slovak legislature 
corrected that legislative error and amended the provision in question, with effect 
from 1 May 2018. 
4 The applicant repaid the loan, paying the defendant EUR 3 698.40. 
5 On 2 February 2017, L.H. learned from his lawyer that he had suffered loss by 
reason of the defendant’s use of unfair contractual terms and that he had not been 
duly informed about the APR. Accordingly, on 2 May 2017, LH brought a legal 
action. 
PROFI CREDIT SLOVAKIA 
 
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6 The applicant seeks reimbursement of the commission on the ground that, under 
Slovak law, a failure correctly to state the APR is sanctioned, inter alia, by the loss 
of the creditor’s right to charge a commission. 
7 In the proceedings before the national court, the defendant asserts that the 
applicant’s claim is time-barred. 
Succinct presentation of the reasons for the request for a preliminary ruling 
8 With regard to the questions referred for a preliminary ruling that are set out in 
part A above, it is the opinion of the national court that, when the contract was 
provided, an incorrect APR was indicated and an unfair commission was charged. 
9 In so far as concerns the limitation defence, it is necessary, under Slovak law, to 
exercise the right which arises from unjust enrichment within a subjective 
limitation period of two years. For the purposes of that limitation period, time 
begins to run when the complainant becomes aware of the fact that there has been 
unjust enrichment. The national court considers that the applicant has complied 
with that limitation period and has brought his action in good time. 
10 In addition to the subjective limitation period, there is also an objective limitation 
period for the exercise of that right. If the unjust enrichment was deliberate, the 
right becomes time-barred ten years after the date on which the unjust enrichment 
occurred. If the unjust enrichment was the result of negligence, the right becomes 
time-barred three years after the date on which it occurred.  
11 The national court states that, in accordance with the new Code of Civil 
Procedure, it is bound by the established decision-making practice of the Supreme 
Court of the Slovak Republic. According to the judgment of the Supreme Court of 
the Slovak Republic of 18 October 2018, the burden of proof rests on the 
applicant in so far as concerns the question of whether the three-year limitation 
period or the ten-year limitation period applies. In order for the ten-year limitation 
period to apply, the consumer must first of all determine the precise moment when 
the unjust enrichment occurred and then demonstrate that the creditor intended 
(the element of knowledge and volition) to obtain a pecuniary advantage to the 
detriment of the consumer. In the assessment of liability (the element of 
knowledge and volition), the principles of criminal law must be applied by 
analogy. If the consumer fails to prove the necessary intent on the creditor’s part, 
the three-year limitation period will apply. 
12 However, it is not clear to the national court what degree of intention to infringe 
the law must be established. In this connection, it explains that it is virtually 
impossible for an applicant to prove a defendant’s intention in so far as concerns 
the latter’s knowledge that it was infringing the rules which govern consumer 
credits and that, if it did have such knowledge, it was aware that it was obtaining 
an unjust enrichment to the detriment of the consumer. Equally, it is unclear who 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 12. 6. 2019 — CASE C-485/19 
 
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must be shown to have had the necessary intention, whether it is a director, a 
shareholder or the commercial representative of the defendant. 
13 In this connection, the national court refers to the judgment in CA Consumer 
Finance SA v Ingrid Bakkaus, C-449/13, EU:C:2014:2464, in which the Court of 
Justice held that EU law precluded national rules according to which the burden of 
proving the non-performance of the obligation to provide the consumer with 
adequate information lies with the consumer and that the task of verifying the 
consumer’s creditworthiness also lies with the consumer. In regard to the above, it 
is much more difficult for a Slovak consumer to prove intentional fault on the part 
of a creditor. 
14 With regard to the temporal limit on the exercise of the consumer’s right, the 
national court observes that, in its judgment in Gutiérrez Naranjo and Others, 
C-154/15 and C-307/15, EU:C:2016:980, the Court of Justice held that Directive 
93/13/EEC precludes national case-law that temporally limits the restitutory 
effects connected with a finding of unfairness by a court in respect of a clause to 
amounts overpaid under such a clause after the delivery of the decision in which 
the finding of unfairness is made. 
15 The national court doubts whether the abovementioned national decision-making 
practice, which in the present case effectively leads to the application of the 
objective three-year limitation period and a weakening of the right of the 
uninformed consumer to the point of the loss of that right, is consistent with the 
right to an effective remedy and to a fair trial referred to in Article 47 of the 
Charter or with the principle of the effectiveness of EU law. 
16 As regards the questions referred for a preliminary ruling that are set out in part B 
above, which concern the methods for interpreting the original wording of 
Article 9(2)(k) of Law No 129/2010, which required specification of loan 
repayments in terms of principal, interest and fees, the national court observes 
that, on 22 February 2018, the Supreme Court of the Slovak Republic held that, in 
old cases which preceded the amendment of that law, interpretation had to be in 
conformity with EU law. According to that judgment, the wording of 
Article 9(2)(k) of Law No 129/2010 had to be interpreted as not imposing an 
obligation to provide the required information specifically with regard to each 
component (principal, interest and fees), but only an obligation to provide the 
information in a global fashion, in terms of instalments that include principal, 
interest and fees. 
17 The national court considers that it is unclear from that judgment what 
interpretative methods the Supreme Court of the Slovak Republic used and how it 
arrived at an interpretation in conformity with EU law. The national court takes 
the view that interpretation of the provision in question in conformity with EU law 
would result in an interpretation that is contra legem. One solution could be to 
disapply the provision. However, the case would have to involve social 
relationships of importance, discrimination, for example (Rasmussen, C-441/14, 
PROFI CREDIT SLOVAKIA 
 
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EU:C:2016:278) or a threat to the health of employees (Pfeiffer, C-397/01 to 
C-403/01, EU:C:2004:58). The national court doubts whether, in order to protect 
traders that make money available, Directive 2004/48/EC could be given direct 
effect, since that would undermine the certainty of the right of consumers who 
might have based their expectations on the wording of Law No 129/2010.