Order — ECLI:EU:C:2026:137
Date: 2026-02-24
Language of the case: Slovenian
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Translation C-368/25 – 1 
Case C-368/25 
Request for a preliminary ruling 
Date lodged:  
2 June 2025 
Referring court:  
Vrhovno sodišče Republike Slovenije (Slovenia) 
Date of the decision to refer:  
21 May 2025 
Applicant:  
A.A. 
Defendant:  
C.  
  
[…] 
REQUEST FOR A PRELIMINARY RULING 
Proceedings are currently pending before the Vrhovno Sodišče (Supreme Court, 
Republic of Slovenia) between the applicant A. A. […] and the defendant C. […] 
concerning the validity of a credit agreement and the payment of EUR 33 414.14. 
STAYING OF THE PROCEEDINGS BEFORE THE REFERRING COURT 
By order […] of 21 May 2025, the Supreme Court […] stayed the proceedings 
and decided to refer a question to the Court of Justice of the European Union for a 
preliminary ruling.  
I. Subject matter of the dispute  
1 The applicant at first instance brought legal proceedings asking the court to 
declare that the foreign currency consumer mortgage loan agreement and the 
notarial instrument relating to that agreement, as well as the credit insurance 
agreement with mortgage security, which the applicant entered into with the 
defendant bank, are void. The applicant further requested that the defendant be 
EN 
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ordered to return EUR 33 414.14 to the applicant, with default interest at the 
statutory rate. In the proceedings before the Supreme Court, which is called upon 
to rule on the defendant’s appeal on points of law, the dispute remains solely in 
relation to the decision on the claim for restitution of what was paid (claim for an 
obligation that has ceased to exist). 
II. Facts  
2 On 25 September 2008, the applicant entered into a foreign currency mortgage 
loan agreement with the defendant. That party obtained a loan of CHF 90 000 
(corresponding at the time to EUR 56 785.92) for the purchase of an apartment. It 
was agreed that the loan would be repaid in 264 consecutive monthly instalments 
due on the 18th day of each month, with the first instalment due on 18 November 
2008 and the final instalment due on 18 November 2030. The monthly payment 
amounted to CHF 548.03 at the time the agreement was concluded. The interest 
rate was the quarterly LIBOR with a surcharge of 1.90% per annum. The assets in 
the applicant’s account in EUR were converted into CHF on the basis of the 
commercial sell exchange rate applied by the defendant on the date of payment by 
the applicant to the defendant. The agreement stated that currency risk meant the 
risk of a change in the value of CHF in relation to the value of the national 
currency. In order to secure the loan from the defendant, a mortgage was taken out 
on property No 67/2, land registry subdivision …, which at the time was jointly 
owned by the applicant., F.F. and G.G. 
3 The applicant has already repaid the loan in full. Until 14 April 2016, the 
applicant repaid EUR 32 517.80 in monthly instalments, while on 8 September 
2016 that party made a transfer of EUR 19 182.26 and finished paying back the 
loan through a new loan in euros of EUR 38 500.00. The total amount of these 
sums is EUR 90 200.06, which is almost double the amount the applicant received 
when the agreement was concluded. Due to the increase in value of the CHF, the 
applicant’s obligation increased considerably, which had an impact both on the 
increase in the monthly instalments (which were initially EUR 347.29 but by 
18 January 2015 had risen to EUR 429.95) and on the total amount of the loan still 
due. 
4 The defendant did not publicly market loan agreements in CHF, mainly offering 
loans in EUR and limiting those in CHF only to cases where the party insisted on 
that currency. Before concluding the agreement, the applicant was given a 
preliminary calculation for a loan in both EUR and CHF. With regard to the CHF 
loan, the applicant was given clarification that the instalment amount would 
change twice a year due to changes in the interest rate and that the monthly 
instalment amount would fluctuate depending on exchange rate movements. The 
applicant was informed that she would receive payment in EUR and that she 
would bear the currency risk. With regard to exchange rate fluctuations, no 
insurance or forecast was provided to the applicant. However, she was informed 
that the exchange rate could fluctuate or that the values could change, without 
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being given any explanation as to what minimal changes in the exchange rate 
would actually mean for her. The agreement was read aloud to her before she 
signed it in front of the notary. 
5 The defendant did not bear any currency risk and did not generate any profits from 
exchange rate fluctuations. At the time the agreement was signed, it was aware 
that the CHF/EUR exchange rate was subject to change. Because of its knowledge 
and previous experience, the defendant could have expected that to occur given 
the length of the loan repayment period and the dynamics of the economic cycle, 
but it could not have known when and to what extent that would occur, or that in 
the long term the risk would materialise to the detriment of the applicant. 
III. Legal context  
European Union Law 
6 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts 1 (‘Directive 93/13’ or ‘the Directive’) contains the following provisions 
relevant to the present case: 
‘Article 3 
1. A contractual term which has not been individually negotiated shall be 
regarded as unfair if, contrary to the requirement of good faith, it causes a 
significant imbalance in the parties’ rights and obligations arising under the 
contract, to the detriment of the consumer. 
… 
Article 6 
1. Member States shall lay down that unfair terms used in a contract concluded 
with a consumer by a seller or supplier shall, as provided for under their national 
law, not be binding on the consumer and that the contract shall continue to bind 
the parties upon those terms if it is capable of continuing in existence without the 
unfair terms. 
… 
Article 7 
1. Member States shall ensure that, in the interests of consumers and of 
competitors, adequate and effective means exist to prevent the continued use of 
unfair terms in contracts concluded with consumers by sellers or suppliers. 
 
1 OJ L 95, 21.4.1993. 
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…’. 
National law 
7 The Constitution of the Republic of Slovenia (‘the Slovenian Constitution’) 
contains the following provisions relevant to the present case: 
‘Article 2 
Slovenia is a social state governed by the rule of law. 
Article 14 
(1) In Slovenia, every person shall be guaranteed the same human rights and 
fundamental freedoms, regardless of nationality, race, gender, language, 
religion, political ideology or other beliefs, financial status, origin, 
education, social status, disability or any other personal circumstances.  
(2) Everyone is equal before the law. 
Article 22 
Everyone shall be guaranteed equal protection of their rights in proceedings 
before the judicial authorities and before other State bodies, local community 
bodies and holders of public powers that make decisions in relation to their legal 
rights, duties and interests. 
Article 33 
The right to private property and inheritance shall be guaranteed. 
Article 74 
(1) Economic initiative shall be free.  
(2) The conditions for the formation of commercial organisations shall be 
established by law. Commercial activities may not be pursued in a manner 
contrary to the public interest.  
(3) Unfair competition practices and acts which restrict competition in a manner 
contrary to the law are prohibited. 
Article 155 
(1) Laws, other regulatory acts and general acts cannot have retroactive effect.  
(2) Only the law can establish that certain provisions of the law have retroactive 
effect, if this is in the public interest and provided that this does not affect 
acquired rights’. 
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8 The Zakon o varstvu potrošnikov (Consumer Protection Law), which was in force 
at the time the foreign currency mortgage loan agreement at issue in the main 
proceedings was concluded, and which applies in the present case (‘the ZVPot’), 
contains the following provisions relevant to the present case: 
‘Article 23 
(1) The company cannot impose contractual clauses that are unfair to the 
consumer. 
(2) The contractual terms referred to in the preceding paragraph shall be null 
and void. 
Article 24 
(1) Contractual terms shall be considered unfair if they: 
- cause a significant imbalance in the parties’ rights and obligations arising 
under the contract, to the detriment of the consumer, or 
- result in the unjustified termination of the contract to the detriment of the 
consumer, or  
- result in the performance of the contract being significantly different from 
what the consumer could legitimately expect, or  
- breach the principle of good faith and fairness. 
…’. 
9 The Obligacijski zakonik (Code of Obligations) (‘the OZ’) contains the following 
provisions relevant to the present case: 
‘Article 86 
(1) A contract that conflicts with the Constitution, mandatory provisions or moral 
principles shall be null and void, unless the purpose of the provision infringed 
means that another penalty is appropriate or unless otherwise specified by law in 
specific cases. 
… 
Article 87 
(1) If the contract is void, each party must return everything it has received 
under the contract to the other party. If this is not possible or if the nature of what 
has been provided in performance of the contract prevents restitution, the party 
must pay adequate compensation in cash based on the prices at the time the court 
decision is issued, unless the law provides otherwise. 
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(2) If the contract is void because its content or purpose is contrary to 
fundamental moral principles, the court may reject, in whole or in part, the claim 
from the party that acted improperly to obtain restitution of what it has provided to 
the other party. In ruling on this point, the court shall take into account the 
fairness of the conduct of one or both parties, and the importance of the interests 
at stake. 
Article 111 
(1) If the contract is terminated, both parties shall be released from their 
obligations, except for compensation for any damages. 
(2) If one of the parties has fulfilled the contract in whole or in part, it shall be 
entitled to the restitution of what it has provided. 
(3) If both parties are entitled to seek restitution of what they have provided, the 
rules applicable to the performance of bilateral contracts shall apply to the mutual 
restitution. 
(4) Each party shall be required to compensate the other party for any benefits it 
has obtained in the meantime from anything it is obliged to return or repay. 
(5) The party returning a sum of money must pay interest from the day on which 
it received the payment. 
Article 190 
(1) Any persons who, without legal grounds, have been unjustly enriched to the 
detriment of another shall be required to return what they have received where 
possible, and in any case to provide compensation to the value of the benefit 
obtained. 
(2) Enrichment shall also mean the obtaining of a benefit by virtue of the 
provision of services. 
(3) The obligation of restitution or compensate the value shall also arise if 
someone receives something on the basis of a circumstance that failed to occur or 
subsequently ceased to exist. 
Article 193 
When restitution is made of something unjustly acquired, any proceeds must be 
returned and interest for late payment must be paid. More specifically, if the 
recipient has acted improperly, this shall apply from the date of receipt of the item 
and, in other cases, from the date the claim is made. 
Article 198 
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If someone has used another person’s property for his or her own benefit, the 
owner may – irrespective of any right to compensation, and even if such a right 
does not exist – require that person to pay compensation for the benefit derived 
from the use of the property. 
Article 371 
If the subject of the obligation is a sum of money, the debtor must pay the number 
of monetary units in which the obligation is expressed, unless the creditor and the 
debtor agree otherwise in accordance with this law’. 
IV. Conduct of the proceedings and arguments of the parties  
10 The applicant claims that the foreign currency mortgage loan agreement is void on 
the grounds that the bank failed to properly fulfil its information obligations, as 
she was not informed of the possibility of a very significant increase in her 
obligations. For this reason, the notarial instrument relating to that agreement and 
the credit insurance agreement with mortgage security are also void. Given that 
the foreign currency mortgage loan agreement is void, the defendant must return 
the applicant the sum of EUR 33 414.14, corresponding to the amount that the 
applicant paid to the defendant in excess of the amount she received from the 
defendant, converted into EUR on the date of transfer of the amount granted as the 
loan (EUR 90 200.06 – EUR 56 785.92). The applicant claims payment of 
statutory default interest from the date of payment of each loan repayment 
instalment. The applicant submits that it would be contrary to moral principles, to 
the principle of fairness and to the objectives of Articles 87 and 190 of the OZ if 
she were to bear the cost of all the differences linked to the exchange rate, as she 
would then find herself in the same situation as if the agreement had not been 
declared void. Similarly, she is not required to pay or return interest under the 
agreement, which void, and she has not received such interest. The applicant 
alleges unfair conduct on the part of the defendant and relies on Article 87(2) and 
Article 193 of the OZ. 
11 The defendant contends that the disputed credit agreement is not void, as it did not 
breach any information obligations. It also opposes the claim for restitution of 
what was paid. The defendant asserts that it is not obliged to return anything, as it 
received from the applicant money that it had lent to her, with the agreed interest. 
The loan was granted in CHF and repayment is also to be made in CHF. In fact, 
the nominal value principle (Article 371 of the OZ) must be taken into 
consideration. The applicant had money made available to her and must therefore 
repay the benefit derived from its use in an amount equal to the contractual 
interest (compensation for the use of another person’s money). On the other hand, 
the amount of interest represents a loss caused to the defendant because it was 
unable to have access to the sum lent. The defendant relies on Article 111 of the 
OZ. It contends that the applicant is not entitled to receive a free loan (without 
interest). Even if the applicant had obtained the loan in EUR, she would not have 
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been able to avoid the contractual interest and would therefore have paid more 
than she received. Similarly, the applicant does not take into account the passage 
of time, but merely offsets her payments against the defendant’s disbursement of 
the loan amount. The defendant also points out that the situation does not fall 
under Article 87(2) of the OZ. 
12 The court of first instance found that the disputed credit agreement and the 
notarial instrument relating to that agreement, as well as the credit insurance 
agreement with mortgage security, were void. That court ordered the defendant to 
pay the applicant, within 15 days, the sum of EUR 33 414.14, plus statutory 
default interest from the date of filing or amendment of the document instituting 
the proceedings until the date of payment. The court rejected the part of the claim 
relating to the payment of default interest until the date on which the document 
instituting the proceedings was filed. The court based its assessment of the unfair 
nature of the contractual term in CHF on the ZVPot, which guarantees broader 
protection for consumers than Directive 93/13, in that it is sufficient for one of the 
situations referred to in the first paragraph of Article 24 of the ZVPot to apply for 
a contractual term to be considered unfair. In its explanations provided to the 
applicant, the defendant did not sufficiently emphasise the unlimited nature of 
currency exchange rate fluctuations. The provision of information that is not 
sufficient in terms of its substance constitutes conduct contrary to the principle of 
good faith and fairness, which is why it constitutes an unfair term within the 
meaning of the fourth indent of the first paragraph of Article 24 of the ZVPot. At 
the same time, the agreement also constitutes an unfair term within the meaning of 
the third indent of the first paragraph of Article 24 of the ZVPot, in that the 
fulfilment of the applicant’s obligation was significantly different from what she 
could legitimately have expected at the time the agreement was concluded. An 
unfair contract term is void pursuant to the second paragraph of Article 23 of the 
ZVPot. The credit agreement cannot remain in force without that clause and is 
therefore void in its entirety. That court based its decision on the claim for 
restitution of what was paid on Article 87(1) of the OZ. As the subject of the 
performance was a sum of money, it is not possible to rule that the applicant must 
pay appropriate monetary compensation at the prices prevailing at the time of the 
court’s decision. The applicant obtained a loan in the amount of CHF 90 000.00, 
corresponding to EUR 56 785.92, and paid a total of EUR 90 200.06 to the 
defendant. Therefore, the defendant is required to return to the applicant the 
difference of EUR 33 414.14. The court of first instance also ruled that the 
defendant cannot be accused of acting improperly within the meaning of 
Article 193 of the OZ, and therefore must pay default interest from the date of 
filing or amendment of the document instituting the proceedings. 
13 The court of second instance dismissed the defendant’s appeal and confirmed the 
judgment of the court of first instance. That court agreed with the reasoning of the 
court of first instance regarding the invalidity of the credit agreement. It also 
agreed with the court of first instance that there is no question of calculating the 
compensation based on prices at the time the judgment was made. The court 
further explained that the defendant had merely granted the applicant a loan of 
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CHF 90 000.00, or EUR 56 785.92, and that the applicant did not receive any 
contractual interest from the defendant. Since the agreement is void in its entirety, 
the defendant is not entitled to receive contractual interest on the basis of that 
agreement. The defendant cannot therefore succeed in its arguments that the court 
should have granted the claim for restitution of what was paid only in such a way 
as to compensate for the exchange rate differences. The applicant will only 
receive what she has paid in excess of what she received from the defendant, so 
that she will not benefit from any enrichment. The court of second instance agreed 
with the assessment of the court of first instance, whereby the defendant is, 
pursuant to Article 193 of the OZ, in default of payment as of the date the 
document instituting the proceedings was filed. 
14 The defendant filed an application against the judgment of the court of second 
instance requesting authorisation to bring an appeal on points of law. The 
Supreme Court granted that request by means of an order […] of 20 November 
2014, authorising the appeal on the question as to whether, in the present case, the 
decision of the courts of first and second instance on the amount of the applicant’s 
claim for restitution of what was paid is substantively correct in law. That 
question is therefore: is the bank required to return to the consumer all sums paid 
in excess of the value of the loan obtained, calculated by deducting the amount of 
the loan received in euros on the date of the transfer to the consumer’s account 
from the amount of the loan repayment instalments paid in euros on the date of 
payment of each instalment? 
15 On the basis of that order, the defendant lodged an appeal on points of law against 
the judgment of the court of second instance, claiming a misapplication of 
substantive law. It requests that the Supreme Court allow the appeal and amend 
the judgments of the courts of first and second instance, rejecting the applicant’s 
claim for restitution, and, in the alternative, that the Supreme Court set aside the 
judgments of the courts of first and second instance in so far as they relate to the 
decision on the claim for restitution and refer the case back to the court of first 
instance for a new ruling. The defendant points out that at least part of the amount 
awarded is contractual interest, bearing in mind that the grounds for invalidity of 
the agreement do not relate to the agreed interest. The subject of the defendant’s 
contractual obligation was the provision of money for use for a specified period of 
time. The applicant had access to the loan for eight years completely free of 
charge, which would not have been possible even if she had received the loan in 
national currency and which is contrary to the principle of fairness. The defendant 
clarifies that the interest received does not constitute unjust enrichment on its part, 
but rather compensation for the use of its money, and refers to Article 111 of the 
OZ. It argues that the contractual interest paid represents adequate compensation, 
but the court may decide to award a lower amount of compensation – for example, 
equal to the interest rate at the time the agreement was concluded (4.7% per 
annum). It contends that the two lower courts should have taken into account the 
nominal value principle laid down in Article 371 of the OZ, and calculated the 
euro equivalent of the benefit received in CHF on the date of the judgment. If 
those courts had considered that the CHF currency could not be taken into 
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account, they should have – in accordance with Articles 87 and 190 of the OZ – 
reduced the value of the parties’ reciprocal contributions to a common 
denominator and revalued the amount of EUR 56 785.92 on the date of the 
judgment, which is the absolute minimum that they should have acknowledged. 
The only exception would be the situation covered by Article 87(2) of the OZ, 
which – however – the two lower courts did not consider to exist. The defendant 
also asserts that the decision is erroneous when considered in light of the 
judgment of the Court of Justice of the European Union in case C-520/21. 2 In that 
specific case, the applicant was able to obtain the resources for the repayment of 
the loan on [its] own, but Slovenian law differs from Polish law and, in the event 
of the agreement being declared null and void, provides for the assertion of claims 
for restitution. These are the fundamental rules of restitution, which are also a 
fundamental principle of civil law and do not conflict with Directive 93/13. The 
defendant also emphasises the punitive effect of the decision in the specific case 
cited, which exceeds the objective and purpose of the Directive. The defendant 
accuses the two lower courts of having failed to reconstruct the situation that 
would have existed without the unfair contractual term, arguing that they instead 
unjustly enriched the applicant, thereby penalising the defendant. 
16 In her defence, the applicant requests that the appeal on points of law be 
dismissed. She argues that a court in a Member State must disapply national law 
that cannot be interpreted in accordance with EU law and base its decision directly 
on EU law or apply national law after removing the provisions that are not in line 
with EU law. The applicant observes that the Court of Justice of the European 
Union, in its judgment in case C-6/22, 3 clarified that the application of provisions 
of national law must make it possible to restore the legal and factual situation that 
the consumer would have been in if that unfair term had not existed, and that the 
application of provisions of national law providing for an equal distribution of 
losses between the parties would contribute to eliminating the dissuasive effect of 
the straightforward non-application with regard to the consumer of those unfair 
terms, since those provisions could ultimately benefit sellers or suppliers by 
limiting their obligation to return sums wrongly received on the basis of those 
terms. The applicant also points out that the Court of Justice ruled in case 
C-520/21 that Article 6(1) and Article 7(1) of Council Directive 93/13 do not 
preclude a judicial interpretation of national law according to which the consumer 
has the right to seek compensation from the credit institution going beyond 
reimbursement of the monthly instalments paid and the expenses paid in respect of 
the performance of that agreement together with the payment of default interest at 
the statutory rate from the date on which notice is served, provided that the 
objectives of Directive 93/13 and the principle of proportionality are observed and 
that the abovementioned articles of the Directive preclude a judicial interpretation 
of national law according to which the credit institution is entitled to seek 
compensation from the consumer going beyond reimbursement of the capital paid 
 
2 ECLI:EU:C:2023:478. 
3 ECLI:EU:C:2023:216. 
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in respect of the performance of that agreement together with the payment of 
default interest at the statutory rate from the date on which notice is served. 
V. Grounds for the reference for a preliminary ruling  
17 The proceedings on points of law before the Supreme Court involves a dispute 
concerning the amount of the claim for restitution of what was paid (claim for an 
obligation that has ceased to exist) asserted by the consumer in relation to the 
mortgage loan agreement subject to mutual performance, which is void in its 
entirety due to the unfair clause in relation to the foreign currency loan. 
18 Directive 93/13 does not contain any provisions on restitution in cases where the 
agreement is invalid due to an unfair term. European Union law also lacks a 
comprehensive system of rules on such restitution. Therefore, the rules on 
restitutions of the Member State must apply, and those rules must comply with EU 
law and the objectives of the Directive. As far as possible, the referring court must 
apply its national law in such a way as to consider all the consequences that 
follow under national law from the finding that a contractual term is unfair, with a 
view to ensuring that the Directive in question is fully effective and to achieving 
an outcome consistent with the objective pursued by it. In particular, in 
accordance with Article 6(1) of the Directive, a term that has been found to be 
unfair must be regarded as non-existent, so that it cannot produce any effects for 
the consumer, thereby restoring the legal and factual situation in which the 
consumer would have been if that term had not existed. In connection with 
Article 7(1) of the Directive, a dissuasive effect must also be ensured in the long 
term, so that sellers or suppliers do not use unfair terms in contracts concluded 
with consumers. 4 The obligation on a national court to refer to the content of a 
directive when interpreting and applying the relevant rules of domestic law is 
limited by general principles of law, particularly those of legal certainty and non-
retroactivity, and that obligation cannot serve as the basis for an interpretation of 
national law contra legem. 5 
19 Slovenian law does not contain any special legislation applicable to consumers 
governing the consequences of the invalidity of credit agreements concluded by 
consumers, so that claims for restitution of sums lent are governed by the 
(general) rules of the OZ relating to the consequences of the invalidity or 
termination of bilateral agreements and those relating to unjust enrichment. 
Because invalidity has ex tunc effect, it is necessary to consider the situation that 
would have existed if the agreement had not been concluded and performed 
(status quo ante). If both parties to the contract have performed their obligations 
 
4 Judgments of the Court of Justice in cases C-287/22 (ECLI:EU:C:2023:491, paragraph 56); 
C-6/22 (ECLI:EU:C:2023:216, paragraphs 22 to 26 and 62); C-520/21 (ECLI:EU:C:2023:478, 
paragraphs 58 and 64 to 68); and C-154/15, C-307/15 and C-308/15 (ECLI:EU:C:2016:980, 
paragraph 60). 
5 Judgment of the Court of Justice in case C-212/04 (ECLI:EU:C:2006:443, paragraph 110). 
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on the basis of a void agreement, each party is entitled to claim restitution from 
the other party on the grounds that the basis of the obligation has ceased to exist, 
provided that the claims of both parties are interdependent. The consequences of 
the invalidity of the agreement are governed primarily by Article 87(1) of the OZ. 
In that sense, the primary obligation of the parties to a void agreement is that each 
party must return to the other party what it received in performance of the 
agreement (restitution in kind). If this is not possible or the nature of what has 
been performed prevents restitution, restitution through monetary compensation 
may be considered. This is actually a general rule derived from the rules on unjust 
enrichment, and more specifically from the provision in Article 190(1) of the OZ. 
Therefore, the legislation on unjust enrichment establishes what the restitution 
obligation consists of: essentially, what has been received must be returned. If the 
performance of the agreement involved a sum of money, the party must, in 
accordance with Article 371 of the OZ (nominal value principle), return the same 
number of monetary units that it received. This means that, in the case of a purely 
monetary loan granted in CHF, the borrower must, in principle, repay the loan 
received in CHF. Such an interpretation is also consistent with the current position 
of the Supreme Court, according to which the agreement on the currency clause 
also extends to the claim for restitution of what was paid on the basis of a void 
agreement. 6 
20 With regard to other issues – such as, in the present case, the interests or benefits 
derived from the use of the property – that are not specifically governed by 
Article 87 of the OZ, the general rules on unjust enrichment, and in particular 
Articles 190 and 198 of the OZ, must be applied by analogy. In interpreting those 
provisions, it is necessary to start from the purpose of the void agreement. In the 
case of a credit agreement, this purpose consists in the possibility of using, for 
consideration, capital belonging to another party for a specified period of time. In 
that respect, it differs substantially from agreements that are intended to transfer 
the subject of performance into the permanent ownership of the other party to the 
agreement. In fact, the beneficiary of the loan has been allowed the use of 
another’s capital in return for consideration, so that party’s situation is different 
from that of someone who has received money for the purpose of keeping it as his 
or her own (for example, the seller in the case of a sales agreement). The 
abovementioned difference must therefore be adequately reflected in the 
repayment phase. 7 The right to use someone else’s money is therefore what the 
beneficiary of the loan has received, while the interest corresponds to the price for 
the use of the money received. For this reason, it must be considered that the 
beneficiary of the loan, by obtaining the loan, has received a benefit equal to the 
amount of interest that he or she would have to pay on the market for the use of 
the money in comparable circumstances. The obligation to pay interest reflecting 
the benefit derived from the possibility of using another person’s money (so-
 
6 Judgment of the Slovenian Supreme Court, II Ips 738/2006 of 26 February 2009 
(ECLI:SI:VSRS:2009:II.IPS. 738.2006, paragraph 7 of the statement of grounds). 
7 […] 
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called interest for enrichment) may also be based on the provision in 
Article 111(5) of the OZ, which expressly establishes such an obligation in the 
event of the termination of a synallagmatic agreement. However, in principle, 
termination produces the same effects (ex tunc) as a declaration of invalidity of 
the agreement, so that the above provision may also be applied by analogy to a 
void agreement. 8 The Supreme Court has already recognised in its case-law that a 
person who has received money and then unlawfully retained it may be required, 
on the basis of Article 198 of the OZ, to pay appropriate compensation or interest 
for enrichment. 9 However, it has not yet addressed the question of the necessary 
amount. The legal theory supports the argument that, if the reasons for the 
invalidity of an agreement do not derive from the interest rate itself, the 
contractually agreed interest rate may be applied accordingly. In exchange for that 
rate, the bank was prepared to waive the availability of the loan amount for the 
agreed period, and the beneficiary of the loan also agreed to that rate. This is a de 
facto agreement on the market price at the time, which can be a useful indicator 
for assessing the adequacy of compensation. Given that the beneficiary of the loan 
decided to borrow the money, legal theory also indicates that adequate 
compensation might be the average effective interest rate on consumer credit 
agreements published by the Bank of Slovenia, or a combination of one of the 
reference interest rates (LIBOR or EURIBOR) and the difference between the 
Central Bank’s discount rate and the actual costs of the loan (for example, 2 to 4 
percentage points). 10 In any case, interest for enrichment should amount to at least 
what is necessary to compensate for the loss of purchasing power of the money 
(inflation) during the period in which the beneficiary of the loan had the money at 
her disposal. 
21 The courts of first and second instance acknowledged the applicant’s claim for the 
entire difference between the total amount of the loan instalments paid in euros on 
the date of payment of each instalment and the amount of the loan in euros on the 
date of the transfer made by the defendant into the applicant’s account. In doing 
so, the courts denied the defendant the right to retain part of the capital repaid and 
any compensation whatsoever for the use of the capital granted as a loan. The 
possibility of such a decision by the court (which therefore grants the party to a 
void agreement less than it would be entitled to under the above provisions of the 
OZ) is provided for in that code only in the case covered by Article 87(2). This is 
an exception that is very rarely applied in case-law and refers to so-called cases of 
qualified invalidity, where one or both parties to a void agreement behave 
improperly and the agreement, due to its content or purpose, conflicts with 
fundamental moral principles. In that context, it is important that, unlike the 
assessment of the unfair nature of a contractual term under the Directive and the 
 
8 […] 
9 Judgment of the Slovenian Supreme Court, II Ips 147/2013 of 28 May 2015 
(ECLI:SI:VSRS:2015:II.IPS.147.2013, paragraph 19 of the statement of grounds). 
10 […] 
REQUEST FOR A PRELIMINARY RULING OF 21. 5. 2025 – CASE C-368/25 
 
14  
ZVPot, a subjective criterion applies to the assessment of the improper nature of a 
party’s conduct under the OZ. An unfair contractual term of this kind does not in 
itself mean that the party to the agreement (seller or supplier) has acted 
improperly within the meaning of Article 87(2) and Article 193 of the OZ. In fact, 
that party’s relationship with the circumstances that have caused the agreement to 
be invalid is significant. The application of the objective criteria of unfair conduct, 
which were established in relation to the Directive and the ZVPot, 11 would 
therefore not be compatible with the concept of improper conduct within the 
meaning of the OZ, and such a tightening of the liability of the party contra legem 
would also be contrary to the prohibition of retroactive effect enshrined in 
Article 155 of the Slovenian Constitution. 12 The assessment by the courts of first 
and second instance that the defendant did not engage in improper conduct within 
the meaning of Article 193 of the OZ is therefore in accordance with legal theory 
and case-law, which, in order to conclude that there has been improper conduct on 
the part of the beneficiary, require the beneficiary to have been aware of the 
circumstances giving rise to the unjust enrichment and of the legal consequences 
of those circumstances (namely the fact that the beneficiary cannot retain what he 
or she has received), or to have been aware of the circumstances and to have acted 
with serious negligence in ignoring the legal consequences. 13 The same 
requirements apply mutatis mutandis to the improper nature of the conduct of a 
party to a void agreement within the meaning of Article 87(2) of the OZ, 14 where, 
in that context, the circumstances leading to the invalidity must be so serious as to 
also constitute a breach of moral principles. The case-law considers that such a 
situation is represented by the evasive behaviour of the other party to the 
agreement, creditors or heirs; 15 however such circumstances do not arise in the 
present case. In light of the above, the Supreme Court does not see, in the specific 
circumstances of the present case, any elements that it could have subsumed under 
the legislative scenario covered by Article 87(2) of the OZ. 
22 If the unfair contractual term relating to the foreign currency loan were to 
continue to have effect despite the declaration of invalidity of the credit 
 
11 Opinion of the Advocate General in case C-485/19 (ECLI:EU:C2020:645, point 85) and 
judgment of the Slovenian Supreme Court, II Ips 8/2022 of 19 April 2023 
(ECLI:SI:VSRS:2023:II.IPS.8.2022, paragraphs 47, 51, 52 and 54 to 56 of the statement of 
grounds). 
12 By analogy, judgment of the Court of Justice in case C-268/06 (ECLI:EU:C:2008:223, 
paragraphs 102 to 104). 
13 Judgments of the Slovenian Supreme Court, II Ips 68/2023 of 21 February 2024 
(ECLI:SI:VSRS:2024:II.IPS.68.2023, paragraph 26 of the statement of grounds and note No 11) 
and III Ips 5/2011 of 20 March 2013 (ECLI:SI:VSRS:2013:III.IPS.5.2011, paragraph 15 of the 
statement of grounds) […]. 
14 Judgment and order of the Slovenian Supreme Court, III Ips 27/94 of 9 November 1994 
(ECLI:SI:VSRS:1994:III.IPS.27.94, penultimate paragraph of the statement of grounds). 
15 Order of the Slovenian Supreme Court, II Ips 281/2009 of 15 November 2012 
(ECLI:SI:VSRS:2012:II.IPS.281.2009, paragraph 22 of the statement of grounds). 
MALEC 
 
15 
agreement, the objective set out in Article 6(1) of the Directive would be 
frustrated. To avoid this, according to the Supreme Court, it must be considered 
that the contractual provision relating to the foreign currency loan, along with the 
risk arising therefrom, is only apparently based on the provisions of Article 371 of 
the OZ. That legislative provision only establishes how to determine the subject 
matter of a financial obligation, but does not in itself regulate the balanced rights 
and obligations of the parties to the agreement. 16 At the same time, that 
contractual provision has resulted in an imbalance in the legal and factual situation 
of the applicant (consumer), such that that provision is unfair and constitutes a 
ground for the invalidity of the entire agreement. For that reason, during the 
restitution phase or within the scope of the rules on unjust enrichment, both of 
which seek to balance the positions of the parties, it is necessary, through a 
teleological interpretation, to exclude a case such as the one in question from the 
scope of Article 371 of the OZ. In fact, this is an exceptional situation for which a 
rule tailored to the exception must be applied 17 and, within the meaning of 
Article 87(1) of the OZ, its value in euros or its purchasing power at the time the 
amount given as a loan to the consumer was paid must be regarded as capital 
received, which was in any event decisive from the point of view of the purpose of 
the loan, namely to enable the purchase of residential property. 
23 The provisions of Article 87 of the OZ, read in conjunction with Articles 111, 190 
and 198 of that code, cannot be interpreted as meaning that the defendant was not 
entitled to receive any compensation for the capital it was owed (which it could 
have claimed by way of an out-of-court or substantive exception of set-off and 
thereby reduced the amount of the difference claimed). Under the current market 
conditions, it would not be possible to have a considerable amount of foreign 
currency available for a number of years without any compensation whatsoever, 
and even the specific credit agreement in the present case applied the concept of 
the right to use another party’s capital in return for consideration, which, as 
already mentioned, should also be taken into account during the restitution phase. 
The view that the defendant is not entitled to receive any compensation for the 
capital provided on credit acknowledges a right on the part of the applicant, while 
imposing obligations on the defendant that would be practically inconceivable in 
any market scenario. Similarly, it creates a significant asymmetry in restitution for 
the entitled parties in the proceedings. At the same time, through a de facto 
expropriatory effect of credit without consideration, the above argument also 
interferes with the defendant’s rights to private property and free economic 
initiative enshrined in Articles 33 and 74 of the Slovenian Constitution. With 
regard to the balancing of entitlements, and thus the assessment of the 
proportionality of such consequences, the Supreme Court considers it important 
that, in the specific case, no improper contractual terms relating to interest (as 
compensation for the use of capital lent) were found. Therefore, if the defendant 
 
16 Order of the Slovenian Supreme Court, II Ips 37/2023 of 20 March 2024 
(ECLI:SI:VSRS:2024:II.IPS.37.2023, paragraphs 22 to 24 of the statement of grounds). 
17 […] 
REQUEST FOR A PRELIMINARY RULING OF 21. 5. 2025 – CASE C-368/25 
 
16  
bank were to retain adequate remuneration for the capital lent, this would not, in 
the opinion of the Slovenian Supreme Court, in any way affect the applicant’s 
essential right, enshrined in Article 6(1) of the Directive, not to be bound by a 
term deemed to be unfair. 18 
24 According to the Supreme Court, such differences in the scope of restitution to 
entitled parties under national law cannot be justified by the dissuasive effect of 
the Directive itself. In this regard, the Supreme Court first of all points out that the 
ZVPot guarantees consumers a higher level of protection than that offered by the 
Directive, since it is sufficient for one of the alternative situations listed in the first 
paragraph of Article 24 of that law to apply to establish that a contractual term is 
unfair. 19 In practice, this means that consumers can more easily claim that an 
unfair contract term is invalid and thus ensure that it does not bind them. The 
unconditional non-application of unfair terms already has a dissuasive effect on 
suppliers. 20 In addition, according to national case-law in that type of case, the 
credit agreement is considered void in its entirety. In that way, in principle, the 
person granting the credit loses any security (mortgage). 21 Furthermore, taking 
into account the above explanation regarding the non-application of the nominal 
value principle for the principal amount of the loan, the credit provider would not 
receive interest on the difference compared to the value of the principal in CHF to 
which it would be entitled under the void agreement. The Supreme Court 
considers that the cumulative effect of those consequences would sufficiently 
deter creditors from applying unfair contractual terms, such as those at issue in the 
present case, in contracts they conclude with consumers. A further restriction on 
the scope of the entitlement to restitution on the part of the person granting the 
credit would ultimately be in conflict with the non-punitive nature of private law. 
If, in such situations, the credit institution were not even entitled to receive 
compensation or interest covering at least the loss of purchasing power of the 
money loaned during the period in which the consumer was able to have access to 
the sum, there would be a real risk that credit institutions would raise the prices of 
loans in future or grant credit in a fundamentally more restrictive manner, which 
could prompt consumers to a certain extent to seek an alternative on the black 
market, where they would not benefit from the protection offered by the Directive 
and the ZVPot. At the same time, such asymmetry in the parties’ entitlements to 
restitution confers on the consumer an economic advantage that the latter could 
 
18 Judgment of the Court of Justice in cases C-154/15, C-307/15 and C-308/15 
(ECLI:EU:C:2016:980, paragraph 71). 
19 Judgment of the Court of Justice in case C-405/21 (ECLI:EU:C:2022:793) and decisions of the 
Slovenian Supreme Court, II Ips 8/2022 of 19 April 2023 (ECLI:SI:VSRS:2023:II.IPS.8.2022, 
paragraphs 29 and 58 of the statement of grounds) and II Ips 37/2023 of 20 March 2024 
(ECLI:SI:VSRS:2024:II.IPS.37.2023, paragraph 54 of the statement of grounds). 
20 Judgments of the Court of Justice in cases C-6/22 (ECLI:EU:C:2023:216, paragraph 26) and 
C-154/15, C-307/15 and C-308/15 (ECLI:EU:C:2016:980, paragraph 60). 
21 Judgment of the Slovenian Supreme Court, II Ips 48/2024 of 19 February 2025 
(ECLI:SI:VSRS:2025:II.IPS.48.2024, paragraph 30 of the statement of grounds). 
MALEC 
 
17 
not obtain on any market. Thus, in terms of compensation for the use of the 
money lent (interest), the consumer is in a genuinely better position than other 
credit recipients who have taken out loans in national currency, so that in practice 
their equal treatment and compliance with the principle of equality are not 
guaranteed (Articles 14 and 22 of the Slovenian Constitution). 
25 In the opinion of the Supreme Court, the above prevents, in the present case, a 
further increase in the asymmetry in the parties’ entitlements to restitution at the 
expense of compensation for the use of the capital provided as a loan, but such a 
course of action could also entail a new additional obligation for the defendant (to 
grant the consumer a loan without consideration), which has not existed in 
national law to date, 22 which would be contrary to provisions governing legal 
certainty (Article 2 of the Slovenian Constitution) and the prohibition of 
retroactive effect (Article 155 of the Slovenian Constitution). 
26 The excessive imbalance during the restitution phase, as resulting from the above 
observations, could nevertheless also run counter to the purpose of the Directive, 
which, in the opinion of the Supreme Court, is not to guarantee the consumer an 
economic advantage, but to protect the consumer against unfair terms in contracts 
with sellers and suppliers that make contractual proposals. 23 Similarly, such an 
imbalance could be contrary to certain general principles of EU law, such as the 
principles of fairness, equality, proportionality, legal certainty, the prohibition of 
retroactive effect 24 and the principle of non-punitive action. 25 
27 The Supreme Court is aware that the Court of Justice has already dealt with the 
question of a credit institution’s entitlement to compensation for the capital loaned 
and its revaluation in the event of the invalidity of the credit agreement due to an 
unfair contractual term in cases C-520/21, C-488/23 and C-630/23. 26 
Notwithstanding that fact, the Supreme Court considers that the legal and factual 
circumstances of the present case are significantly different. First of all, it should 
be noted once again that the OZ – which governs the consequences of agreements’ 
 
22 Judgments of the Court of Justice in cases C-715/20 (ECLI:EU:C:2024:139, paragraph 73), 
C-291/13 (ECLI:EU:C:2014:2209, paragraph 57) and C-573/17 (ECLI:EU:C:2019:530, 
paragraphs 65 and 67). 
23 Order of the Court of Justice in case C-254/22 (ECLI:EU:C:2023:134, paragraph 72). 
24 Judgments of the Court of Justice in cases C-80/86 (ECLI:EU:C:1987:431, paragraph 13), 
C-63/93 (ECLI:EU:C:1996:51, paragraph 20), C-17/03 (ECLI:EU:C:2005:362, paragraph 80), 
C-212/04 (ECLI:EU:C:2006:443, paragraph 110), C-305/05 (ECLI:EU:C:2007:383, 
paragraph 28), C-226/08 (ECLI:EU:C:2010:10, paragraph 45) and C-277/11 
(ECLI:EU:C:2012:744, paragraph 93). 
25 See, by analogy, recital 13 and Article 3(3) of Directive 2014/104/EU of the European 
Parliament and of the Council of 26 November 2014 on certain rules governing actions for 
damages under national law for infringements of the competition law provisions of the Member 
States and of the European Union (OJ L 349, of 5.12.2014). 
26 ECLI:EU:C:2025:302. 
REQUEST FOR A PRELIMINARY RULING OF 21. 5. 2025 – CASE C-368/25 
 
18  
invalidity under national law – provides for the possibility of reducing the scope 
of entitlement to claim restitution to which a party to a void agreement would 
otherwise have (restitution of what was provided to the other party along with the 
benefits derived from its use), only in the case of so-called qualified invalidity as 
provided for in Article 87(2) of the abovementioned code, and thus where one or 
both parties to a void agreement engage in improper conduct and that agreement, 
because of its content or purpose, is contrary to fundamental moral principles. In 
that context, for the purposes of assessing improper conduct on the basis of the 
OZ (unlike the assessment of the unfair nature of a contractual term under the 
ZVPot and the Directive), the subjective behaviour of the party in relation to the 
circumstances giving rise to the invalidity is significant. Such circumstances must 
be so serious as to constitute a breach of the most important moral principles, as is 
the case, for example, when the conduct of other party, creditors or heirs is 
evasive. In the present case, no such conduct has been established. Similarly, in 
the present case, it was not a matter of applying a contractual term that had been 
(previously) included in a specific register of inadmissible contractual provisions 
kept by a state body. Through a proper interpretation of national law, it is possible 
to exclude the application of the nominal value principle during the restitution 
phase and thus ensure that the consumer is placed in the legal and factual situation 
in which he or she would have been if the unfair contractual term relating to the 
foreign currency credit had not existed. On the other hand, refusing to give the 
defendant proper compensation for using its capital for almost eight years could 
cause an unfair imbalance in terms of the parties’ entitlements to restitution of 
what they provided to an agreement that is no longer valid, which would not be in 
line with the non-punitive nature of private law, with the principles of fairness, 
proportionality and equality, or with the principles of legal certainty and the 
prohibition of retroactive effect. Furthermore, as already clarified, it is essential 
that the ZVPot guarantee consumers a higher level of protection than that offered 
by the Directive, so that consumers can more easily enforce the invalidity of an 
unfair contractual term, and national courts can consider, in such situations, that 
the credit agreement is null and void in its entirety, which also affects security 
(mortgages). The bank would therefore receive (retain) less capital and interest on 
part of the capital than it would have received under the void agreement, as well 
as losing the security (mortgage), and this would also deter (other) credit 
providers from including such unfair terms in credit agreements concluded with 
consumers. Lastly, it must be emphasised that, in the present case, the 
compensation for the use of the capital lent would in no circumstances amount to 
a sum that would be identical or more favourable to the applicant than if she had 
remained bound by the void credit agreement. 
28 In the light of the foregoing, the Vrhovno Sodišče Republike Slovenije (the 
Supreme Court, Slovenia) refers the following question to the Court of Justice of 
the European Union for a preliminary ruling, pursuant to the third paragraph in 
MALEC 
 
19 
conjunction with point (b) of the first paragraph of Article 267 of the Treaty on 
the Functioning of the European Union: 27 
‘Do Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts preclude a judicial interpretation of national 
law whereby the court, when ruling on a claim for restitution brought by a 
consumer in relation to a foreign currency mortgage loan agreement that has been 
reciprocally performed by the parties and declared void, may – where the bank did 
not act improperly in a subjective sense due to insufficient information on the 
currency risk, and the agreement does not conflict with fundamental moral 
principles – order the bank to return to the consumer the difference between the 
amount of the loan instalments paid in euros on the date of payment of each 
instalment and the amount of the loan in euros on the date of payment into the 
consumer’s account, reduced by an amount equivalent to provide adequate 
compensation for the use of the capital lent? 
Ljubljana, 21 May 2025 
[…] 
Annexes: 
– copy of the judgment of the court of first instance  
– copy of the judgment of the court of second instance  
– copy of the appeal on points of law filed by the defendant and the defence 
filed by the applicant  
– copy of the order of the Supreme Court staying the proceedings  
 
27 OJ C 202, 7.6.2016.