Judgment;Summary — ECLI:EU:C:2024:10
Date: 2024-01-11
Language of the case: Czech
Court formation: Third Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Czechia

Translation C-755/22 – 1 
Case C-755/22 
Request for a preliminary ruling  
Date lodged: 
13 December 2022 
Referring court: 
Okresní soud Praha-západ (Czech Republic) 
Date of the decision to refer: 
1 August 2022 
Applicant: 
Nárokuj s.r.o. 
Defendant: 
EC Financial Services, a.s. 
  
[…] 
ORDER 
The Okresní soud Praha-západ (District Court Prague – West, Czech Republic) 
has ruled […] in the case of the 
Applicant: Nárokuj s.r.o., […], having its registered office at […] 
Veselí nad Moravou […] 
v 
Defendant: 
 
EC Financial Services, a.s., […] having its registered office 
at […] Dolní Břežany […] 
 
Concerning the payment of CZK 35,000 plus associated amounts and 
interest,  
as follows: 
[…] [national proceedings] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1. 8. 2022 – CASE C-755/22 
 
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The District Court Prague – West hereby submits the following question to the 
Court of Justice of the European Union for a preliminary ruling, pursuant to 
Article 267 of the Treaty on the Functioning of the European Union (TFEU): 
Is the purpose of Directive 2008/48/EC of the European Parliament and of 
the Council of 23 April 2008 on credit agreements for consumers and 
repealing Council Directive 87/102/EEC to penalise credit providers for a 
failure to fully examine a consumer’s creditworthiness, even in cases when 
the consumer fully paid up the credit and raised no objections against the 
agreement while paying? 
Grounds: 
I. Subject of the dispute and decisive facts  
1 The subject of the dispute is the relinquishment of unjust enrichment of 
CZK 35,000 plus default interest at the statutory rate of 8.5% per annum from 
23 September 2021 until payment. The applicant acquired the receivable from a 
consumer who entered into a consumer credit agreement with JET Money s.r.o. 
for CZK 50,000. Prior to entering into the agreement, the consumer presented his 
identification document and driver’s licence, payment slips from his employer to 
document his wage in the three months preceding the conclusion of the credit 
agreement; documentation of the costs of services linked to the use of his flat, 
television, and internet fees, also in the three months preceding the conclusion of 
the credit agreement; and a sworn affidavit concerning the amount of his 
contribution to shared household expenses; furthermore, he stated in his 
application that he had no other, prior commitments, is single, and shares a 
household with his grandmother. He subsequently paid off the loan plus 
associated amounts and interest, with the amount paid being CZK 85,000. The 
claimed amount – of CZK 35,000 – represents the difference between the loan 
principal and the amount paid. As concerns the change in the loan provider, this 
occurred on 28 September 2018 due to a transfer of a part of the firm to the 
present defendant.  
2 There is no dispute between the parties as to the fact that a credit agreement was 
been entered into, or as to the amount paid by the consumer. In terms of the facts 
of the case, the situation is to all intents and purposes uncontested.  
3 The parties do not, however, agree on the legal assessment. According to the 
applicant, the credit provider breached its obligations by failing to adequately 
examine the consumer’s creditworthiness, and the agreement is therefore void. 
The examination of creditworthiness was not conducted with professional care, as 
the credit provider did not in any credible manner test the actual amount of 
expenses. According to the applicant, it is logical that the consumer was unable to 
contest the invalidity of the agreement at a time when legal advice from his lawyer 
was unavailable to him. On the contrary, the defendant maintains that the 
assessment of creditworthiness was adequate. According to the defendant, 
NÁROKUJ 
 
3 
consumer protection cannot be applied, given that the receivable is no longer held 
by a consumer, but rather a business corporation.  
4 The court informed the parties that it was considering referring the above question 
to the Court of Justice of the European Union, as it deems it pivotal for the court’s 
decision. The applicant did not agree to the making of the reference, on the ground 
that the issue has been resolved by national case-law, which is evident from the 
judgment of the Městský soud v Praze (Prague City Court) of 5 January 2022, 
[…], according to which consumer protection has a preventative function as well 
as a function of safeguarding public policy. Furthermore, the applicant pointed to 
the judgment of the Krajský soud v Praze (Regional Court, Prague) of 9 January 
2020, […] according to which a creditworthiness assessment protects the 
consumer from risky credit and from increasing household indebtedness; this 
purpose is not lost even in respect of credit that has been repaid in full, since the 
consequences of agreeing to take out risky credit may become manifest at a later 
point.  
5 The defendant agreed to the reference, without providing further grounds. 
II. Applicable EU legislation  
6 Recital 26-28 of Directive 2008/48/EC of the European Parliament and of the 
Council of 23 April 2008 on credit agreements for consumers and repealing 
Council Directive 87/102/EEC: 
- Member States should take appropriate measures to promote responsible 
practices during all phases of the credit relationship, taking into account the 
specific features of their credit market. Those measures may include, for 
instance, the provision of information to, and the education of, consumers, 
including warnings about the risks attaching to default on payment and to 
over-indebtedness. In the expanding credit market, in particular, it is 
important that creditors should not engage in irresponsible lending or give 
out credit without prior assessment of creditworthiness, and the Member 
States should carry out the necessary supervision to avoid such behaviour 
and should determine the necessary means to sanction creditors in the event 
of their doing so. Without prejudice to the credit risk provisions of Directive 
2006/48/EC of the European Parliament and of the Council of 14 June 2006 
relating to the taking up and pursuit of the business of credit institutions, 
creditors should bear the responsibility of checking individually the 
creditworthiness of the consumer. To that end, they should be allowed to use 
information provided by the consumer not only during the preparation of the 
credit agreement in question, but also during a long-standing commercial 
relationship. The Member States’ authorities could also give appropriate 
instructions and guidelines to creditors. Consumers should also act with 
prudence and respect their contractual obligations. 
REQUEST FOR A PRELIMINARY RULING OF 1. 8. 2022 – CASE C-755/22 
 
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- Despite the pre-contractual information to be provided, the consumer may 
still need additional assistance in order to decide which credit agreement, 
within the range of products proposed, is the most appropriate for his needs 
and financial situation. Therefore, Member States should ensure that 
creditors provide such assistance in relation to the credit products which 
they offer to the consumer. Where appropriate, the relevant pre-contractual 
information, as well as the essential characteristics of the products 
proposed, should be explained to the consumer in a personalised manner so 
that the consumer can understand the effects which they may have on his 
economic situation. Where applicable, this duty to assist the consumer 
should also apply to credit intermediaries. Member States could determine 
when and to what extent such explanations are to be given to the consumer, 
taking into account the particular circumstances in which the credit is 
offered, the consumer’s need for assistance and the nature of individual 
credit products. 
- To assess the credit status of a consumer, the creditor should also consult 
relevant databases; the legal and actual circumstances may require that 
such consultations vary in scope. To prevent any distortion of competition 
among creditors, it should be ensured that creditors have access to private 
or public databases concerning consumers in a Member State where they 
are not established under non-discriminatory conditions compared with 
creditors in that Member State. 
7 Article 8(1) of Directive 2008/48/EC of the European Parliament and of the 
Council of 23 April 2008 on credit agreements for consumers and repealing 
Council Directive 87/102/EEC, according to which Member States are to ensure 
that, before the conclusion of the credit agreement, the creditor assesses the 
consumer’s creditworthiness on the basis of sufficient information, where 
appropriate obtained from the consumer and, where necessary, on the basis of a 
consultation of the relevant database. Member States whose legislation requires 
creditors to assess the creditworthiness of consumers on the basis of a 
consultation of the relevant database may retain this requirement. 
8 Article 22(1) of Directive 2008/48/EC of the European Parliament and of the 
Council of 23 April 2008 on credit agreements for consumers and repealing 
Council Directive 87/102/EEC, according to which in so far as this Directive 
contains harmonised provisions, Member States may not maintain or introduce in 
their national law provisions diverging from those laid down in this Directive. 
9 Article 22(2) of Directive 2008/48/EC of the European Parliament and of the 
Council of 23 April 2008 on credit agreements for consumers and repealing 
Council Directive 87/102/EEC, according to which Member States are to ensure 
that consumers may not waive the rights conferred on them by the provisions of 
national law implementing or corresponding to this Directive. 
NÁROKUJ 
 
5 
10 Article 23 of Directive 2008/48/EC of the European Parliament and of the Council 
of 23 April 2008 on credit agreements for consumers and repealing Council 
Directive 87/102/EEC, according to which Member States are to lay down the 
rules on penalties applicable to infringements of the national provisions adopted 
pursuant to this Directive and are to take all measures necessary to ensure that 
they are implemented. The penalties provided for must be effective, proportionate 
and dissuasive. 
III. Applicable national legislation  
11 Paragraph 86(1) of zákon č. 257/2016 Sb., o spotřebitelském úvěru (Law 
257/2016 on consumer credit) as amended, according to which a provider shall, 
prior to the conclusion of a consumer credit agreement or prior to a change in an 
obligation arising from such an agreement, which consists of a significant 
increase in the total consumer credit amount, assess the consumer’s 
creditworthiness on the basis of necessary, reliable, sufficient, and appropriate 
information obtained from the consumer and, where necessary, on the basis of a 
consultation of a database that makes it possible to assess the creditworthiness of 
the consumer or on the basis of other sources. The provider shall provide the 
consumer credit only if the results of the creditworthiness assessment show that 
there is no reasonable doubt as to the consumer’s ability to repay the consumer 
credit. 
12 Paragraph 86(2) of Law 257/2016 on consumer credit, as amended, pursuant to 
which in assessing a consumer’s creditworthiness, the provider shall assess, in 
particular, the consumer’s ability to pay the agreed regular consumer credit 
repayments, on the basis of a comparison of the consumer’s income and expenses 
and the manner of repayment of his or her existing debts. The value of assets shall 
be taken into account only if it follows from the consumer credit agreement that 
the consumer credit is to be paid off, in part of in full, from the proceeds of the 
sale of the consumer’s assets, rather than by regular repayments, or if it follows 
from the consumer’s financial position that he or she will be able to repay his 
consumer credit regardless of his or her income. 
13 Paragraph 87(1) of Law 257/2016 on consumer credit, as amended, according to 
which if a provider provides consumer credit to a consumer in violation of 
Paragraph 86(1), second sentence, the agreement is void. A court shall take the 
agreement’s invalidity into account of its own motion. The consumer shall return 
the consumer credit principal within a period appropriate to his or her abilities. 
14 Paragraph 2054(1) of zákon č. 89/2012 Sb., občanský zákoník (Law 89/2012, the 
Civil Code), as amended (‘CC’), according to which the payment of interest shall 
be deemed to constitute a recognition of the debt in respect of the amount on 
which the interest is paid.  
15 Paragraph 2054(2) of the CC, according to which if a debtor fulfils his debt in 
part, the partial performance shall serve as recognition of the rest of the debt, as 
REQUEST FOR A PRELIMINARY RULING OF 1. 8. 2022 – CASE C-755/22 
 
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long as it can be inferred from the circumstances that the debtor recognised the 
rest of the debt by such performance.  
16 Paragraph 574 of the CC, according to which: Legal transactions are preferably 
to be considered valid rather than invalid.  
17 Paragraph 580(1) of the CC, according to which: ‘Legal transactions that run 
contrary to good morals shall be void, as well as legal transactions that 
contravene a statute, if so required by the meaning and purpose of the statute. 
IV. Grounds for the submission  
18 In the opinion of the referring court, in order to render a decision in the matter, it 
is necessary to find out whether the purpose of Directive 2008/48/EC of 23 April 
2008 is to penalise credit providers for failing to fully examine the consumer’s 
creditworthiness, even in cases when the consumer has paid off the credit in its 
entirety and did not raise any objections in the performance of his or her 
contractual obligation.  
19 Certain national courts of appeal hold that the answer to the above question is in 
the affirmative; this court, however, holds that the issue at hand has not yet been 
addressed by the Court of Justice of the European Union and that the answer also 
allows for the opposite interpretation, based on a balance of the interest of both 
parties to the agreement, and also with a view to the fact that the consumer is 
responsible for his actions. 
20 This court also took into account the principle that a binding interpretation of EU 
law may be laid down only by the Court of Justice of the European Union as well 
as the principle that a national court, albeit a court of first instance, is entitled to 
make a reference of such a question, in search of such an interpretation, directly 
pursuant to Article 267 of the Treaty on the Functioning of the European Union 
(formerly Article 234 of the Treaty [establishing the European Community]). 
21 It is evident from the recitals of the Directive (in particular recitals 26 to 28, 
quoted above), that its purpose is to protect the consumer against an ill-considered 
taking out of credit which could result in his or her inability to pay off the debt or 
his or her insolvency. 
22 In simple terms: the purpose of Article 8 of the Directive is to keep a consumer 
out of financial trouble in repaying his or her credit.  
23 In a situation when a consumer pays off his or her entire debt without raising any 
objections while doing so, it is impossible to infer any harmful consequence in 
respect of which the consumer is protected under the Directive.  
24 The credit provider’s obligation to examine the consumer’s creditworthiness is not 
the main purpose of the Directive, but rather a means whereby its purpose is to be 
attained. 
NÁROKUJ 
 
7 
25 Hence, the question arises whether a separate purpose of the Directive is to 
penalise credit providers if a negative consequence has not occurred or if there is 
no evidence of a harmful consequence occurring (there is merely a hypothesis that 
the consumer may become insolvent in the future; this was not either claimed or 
proven in the present case). Furthermore, the receivable is currently being claimed 
by a business corporation. 
26 If a sanction were permitted even in the contested case and invalidity inferred in 
respect of an agreement that has been fulfilled without any objection having been 
made, it is appropriate to point to the position of other consumers in respect of 
which the entrepreneur conducted a creditworthiness test pursuant to Article 8 of 
the Directive (a proper examination of assets and liabilities) but the consumers 
later did not fulfil their obligation under the agreement. In such cases, the 
invalidity of the agreement due to a breach of Article 8 of the Directive cannot be 
inferred and the consumers are liable for their entire obligation, including the 
agreed associated amounts and interest, unless a different ground for the invalidity 
of the credit agreement were to be established. 
27 From this, this court infers inequality between consumers, as in the case of those 
who have fulfilled the agreement without the occurrence of an adverse 
consequence in respect of which the Directive is intended to provide protection, 
the agreement will be invalid (solely due to the entrepreneur failing to duly 
complete the procedure), whereas in the case of those consumers who have 
become insolvent but with respect to whom the entrepreneur has conducted a 
creditworthiness test in full in line with Article 8 of the Directive, the agreement’s 
invalidity due to breach of that article will not be inferred. 
28 Hence, this court is of the opinion that creditworthiness cannot be assessed in 
isolation, based solely on what an entrepreneur requests from a consumer, but also 
on the basis of how the entire contractual relationship developed in terms of the 
protective purpose of the Directive.  
29 In the opinion of the referring court, the question at hand must also be viewed 
through the lens of general legal principles that have formed European legal 
culture for millennia and played a decisive role in the establishment and 
development of contractual law in individual EU Member States. These include, 
above all, good faith and legal certainty, which are to benefit both contracting 
parties, regardless of whether they are entrepreneurs or consumers, as observance 
of those principles is directly linked to trust in the law. 
30 If the creditor arranged a credit with a consumer, which was later provided and 
which the consumer repaid in a due fashion, the creditor may trust that, by his 
payments, the consumer was paying off the debt arising from the agreement. 
31 Even implied (tacit) legal transactions establish good faith and legal certainty for 
the other party. In the Czech legal system, this institution can be found in the 
provisions of Paragraph 2054 of the CC, quoted above; this institution has been 
REQUEST FOR A PRELIMINARY RULING OF 1. 8. 2022 – CASE C-755/22 
 
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well known in Czech law for a long time (formerly embodied in Paragraph 407 of 
zákon č. 513/1991 Sb., obchodní zákoník (Law 513/1991 Commercial Code), 
which was in effect from 1 January 1992 to 31 December 2013, or Paragraph 97 
of zákon č. 141/1951 Sb., občanský zákoník (Law 141/1951, the Civil Code), or 
Paragraph 1497 of zákon č. 946/1811 Sb., obecný zákoník občanský (Law 
946/1811, General Civil Code) (ABGB)). 
32 The above provisions attributed meaning to legal transactions made implicitly, 
either by laying down an assumption with respect to recognition of an obligation 
or leading to an interruption of the periods for the limitation and prescription of a 
right. In other words: implicit actions had and have a direct link to the trust of the 
other party to the legal relationship, unless it could be inferred from the 
circumstances that the party acting had no intention of giving rise to such trust. 
33 A principle applied in Czech civil law is to view legal transactions preferably as 
valid rather than invalid, as parties to private law transactions enjoy freedom – and 
also bear responsibility – for the creation of their own legal relations; therefore, 
private law should respect the feature of freedom and responsibility in transactions 
and look for ways of interpretation to maintain it, rather than to negate it. 
34 A sanction is meaningful if a protected interest has been violated and if the 
sanction is required to remedy its consequence or to dissuade the offender from 
future harmful transactions. The application of a sanction solely for preventative 
reasons, without a harmful consequence having occurred, makes no sense; it is 
unnecessary and runs contrary to the principle of freedom. 
35 It is unclear from the Directive whether its purpose is to sanction the credit 
provider for failing to observe the given obligation if the situation for the purpose 
of which the Directive in fact came into being has not arisen. 
36 In practice, cases such as this are beginning to arise (the relinquishment of the 
entire interest on credit is being sought after the repayment of a loan in full). This 
question has yet to be addressed at the EU level, and the referring court deems it 
desirable for the Court of Justice of the European Union to address it, in order to 
ensure uniform interpretation. 
[…] [national proceedings] 
Prague, 1 August 2022 
[…]