Order;Information — ECLI:EU:C:2025:1020
Date: 2025-12-16
Language of the case: Slovak
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Slovakia

summary form, for the finding of the court hearing those earlier proceedings 
that those terms or parts of terms were not unfair […].’ 
According to the judgment of the Najvyšší súd Slovenskej republiky (Supreme 
Court of the Slovak Republic), file ref. 4Cdo/144/2024: ‘A res judicata obstacle 
does not exist in cases where the court, in the course of the proceedings, settled 
the relevant matter on a preliminary basis. A matter settled on a preliminary basis 
and the assessment thereof cannot ever be taken into account in the operative part 
of a court judgment, and since said operative part is the only part of the judgment 
which is enforceable as res judicata, the matter settled on a preliminary basis, 
which appears only in the statement of reasons for the judgment, cannot constitute 
a res judicata obstacle. Cases involving the final settlement of an action for 
performance conditional upon the preliminary settlement (finding) of a legal 
right or relationship serve as an exception to this rule. If a final judgment has 
been handed down in respect of a performance obligation, irrespective of 
whether the judgment is positive or negative (whether the action has been 
granted or dismissed), the operative part of this judgment serves as a res 
judicata obstacle to an action seeking a finding between the same parties to 
the proceedings in relation to the same facts of the case, since the legal 
classification of these facts has already been determined on a preliminary 
basis in the judgment pertaining to the action for performance. The same does 
not apply in the opposite case, however. A final judgment relating to an action 
seeking a finding does not therefore automatically constitute a res judicata 
obstacle to an action for performance. A final judgment finding a legal right or 
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relationship cannot be deemed to have settled the matter of a performance 
obligation based on this legal right or relation. For this reason, an action for 
performance is admissible in these cases. 
Since it is not clear from the content of the case file whether there had been a 
change in factual circumstances that could be deemed significant from a legal 
perspective in connection with the proceedings conducted under file ref. 
29Up/516/2020, in conclusion, the court of cassation is entitled to reiterate that 
the final order for payment issued in the case conducted under file ref. 
29Up/516/2020, which settled the action for performance, serves as a res 
judicata obstacle in these proceedings in relation to the action seeking a 
finding that the consumer credit was not subject to interest or fees, seeking a 
finding that the contract terms were unfair and for a return of any unjust 
enrichment [see not only the oft-cited case R 110/2003, but also the cases under 
file ref. 4Cdo/298/2020, file ref. 2Cdo/41/2021 and file ref. 5Cdo/l8/2022 and the 
resolution by the Ústavný súd Slovenskej republiky (Constitutional Court of the 
Slovak Republic, Slovakia) with file ref. II. ÚS 305/2023].’ 
4. Two of the contract terms complained of relate to the contractual penalties 
imposed in the order for payment issued by the Okresný súd Prešov (District 
Court in Prešov) […] on 10 December 2010; this order for payment was issued by 
the court clerk rather than the judge. 
According to Paragraph 172(9) of the version of the Občiansky súdny poriadok č. 
99/1963 Zb. (Code of Civil Procedure, Law No 99/1963) which is currently in 
force: ‘In cases defended by a consumer relating to a claim for the payment of a 
monetary amount on the basis of a consumer contract, the court shall not issue an 
order for payment if the contract contains unfair terms.’ 
According to Paragraph 172(1) of the Občiansky súdny poriadok č. 99/1963 Zb. 
(Code of Civil Procedure, Law No 99/1963) which is currently in force: ‘Even in 
the absence of an express request by the applicant and without hearing the 
defendant, the court may issue an order for payment if the action involves the 
pursuit of a claim for the payment of a monetary amount resulting from the 
circumstances cited by the applicant. In an order for payment, the court shall 
oblige the defendant to settle the claim pursued by the applicant and to cover the 
costs of proceedings within 15 days of the date on which the order for payment is 
served or, within the same deadline, to file an objection before the court that 
issued the order for payment. Reasons must be given for any objection filed 
against the order for payment. Paragraph 43 shall not apply.’ 
4.1. Given that the action for payment related directly to contractual penalties, it 
can be assumed that the court clerk did not make a finding that the contract terms 
relating to these penalties were unfair, even though no justification was provided 
for this conclusion since this was not required by law. The consumer, who is the 
applicant in the present case and was the defendant in that case, failed to file an 
objection, even though according to the case-law a mere statement that he did not 
REQUEST FOR A PRELIMINARY RULING OF 15. 5. 2025 – CASE C-423/25 
 
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feel obliged to pay the relevant amount would have been sufficient for the order 
for payment to be overturned. 
4.2. The applicant in the present proceedings failed to raise a defence in the 
enforcement proceedings, and instead paid the amount due. He could also have 
invoked the unfair nature of the contract terms during the enforcement 
proceedings [pursuant to Paragraph 57(1)(g) of the Exekučný poriadok č. 
233/1995 Z.z. (Enforcement Code, Law No 233/1995; ‘the court shall stay the 
enforcement if it makes a finding that said enforcement is inadmissible on the 
grounds that there is another reason why it is impossible to proceed with the 
enforcement’), but failed to do so. 
4.3. The applicant subsequently brought an action for the resumption of 
proceedings in the matter of the order for payment on the grounds that the order 
had been issued inter alia on the basis of unfair contract terms, but later withdraw 
this application. 
5. An indication of the reasons why the national court decided to refer the 
question concerning the interpretation or significance of the specified provisions 
of EU law, and the links identified by the national court between these provisions 
and the provisions of national law applicable in the national proceedings. 
5.1. The court therefore considers that the bringing of this action – at a point in 
time when a) the contract can no longer give rise to any further rights or 
obligations, b) over 15 years have passed since the contract was terminated, c) 
there is no option for a judgment granting the action to serve as the basis for an 
obligation to make restitution, d) the seller or supplier is not demanding 
performance of any kind from the applicant/consumer, e) the seller or supplier is 
already obliged to refrain from using the relevant contract terms on the basis of 
other judgments by the national courts, and f) the sole purpose is to secure success 
(even partial) as a basis for bringing a subsequent action for payment of adequate 
monetary compensation – may constitute an abuse of rights. This abuse is all the 
more evident because an action for payment of adequate monetary compensation 
could have been brought at the same time as an action seeking a finding that a 
contract term is unfair, but the lawyers choose not to do so, and instead 
deliberately initiate multiple disputes for the purpose of increasing the costs of 
proceedings with a view to their later reimbursement. A position confirming an 
abuse of rights within the meaning of the general principle of EU law as set out in 
the judgments in cases C-38/21, C-47/21 and C-232/21 would however be 
contrary to the abovementioned case-law by the Court relating to Article 6(1) of 
the Directive as regards the notion that a consumer is entitled to invoke the 
invalidity of a contract term at any time. The answer to this question will allow the 
court to determine whether, when settling this matter, it can apply the relevant 
provisions of national law (Paragraph 3(1) of the Slovak Civil Code and Article 5 
of the Slovak Code of Civil Procedure) and under which conditions it can 
conclude that there has been an abuse of EU law (and the national law transposing 
said EU law). 
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At the same time, the district court questions whether, in the light of the Court’s 
judgment in case C-724/22, the abovementioned national case-law can be applied, 
the circumstances of this case can be deemed res judicata in accordance with 
Paragraph 230 of the Slovak Code of Civil Procedure on the grounds that an order 
for payment was issued and enforcement proceedings were conducted (given that 
the documents available do not permit a clear conclusion to be drawn as to 
whether the contract terms relating to contractual penalties were found to be fair) 
and the proceedings aimed at a finding of unfairness of the contract terms can be 
stayed, and whether these proceedings would not thus be contrary to Article 6(1) 
of the Directive. 
6. In connection with the above, the Okresný súd Prešov (District Court in 
Prešov) wishes to query whether it is possible: 
a) to assume that bringing an action seeking a finding that a contract term is 
unfair constitutes an abuse of rights if Article 6(1) of the Directive applies on a 
mandatory basis and has the force of a rule of public law under national 
legislation, 
b) to assume that a res judicata obstacle exists, and therefore to ask the Court 
to answer the following questions: 
– Does Article 6(1) of Council Directive 93/13/EEC, in the light of the 
general principle of EU law prohibiting the abuse of rights, allow a 
national court […] to follow a line of case-law according to which an 
action brought by a consumer seeking a finding that a contract term is 
unfair can be dismissed on the ground of an abuse of rights? 
– If the first question is answered in the affirmative: what relevant 
circumstances should be examined and what conclusion should be 
drawn on this basis in order that a national court may consider that an 
action seeking a finding that a contract term is unfair should be 
dismissed on the ground of an abuse of rights? 
– Can the findings in the Court’s judgment in Case C-724/22 also be 
applied to a situation where the court issued an order for payment and 
imposed an obligation to pay contractual penalties, and where the 
consumer subsequently failed to file an objection, failed to raise a 
defence in the enforcement proceedings and withdrew an application 
for the resumption of proceedings in the matter of the order for 
payment, yet where said consumer is currently contesting the contract 
terms that served as a basis for the decision to impose an obligation to 
pay contractual penalties, and where the order for payment does not 
make it clear why the court did not find these terms unfair, and it is 
therefore for the national court to examine the contract terms that have 
been challenged? 
[…] [information on legal remedies] 
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