OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 3 September 2020 ( 1 )

Case C‑485/19

LH

v

PROFI CREDIT Slovakia s.r.o.

(Request for a preliminary ruling from the Krajský súd v Prešove (Regional Court, Prešov, Slovakia))

(Reference for a preliminary ruling – Directive 93/13/EEC – Directive 2008/48/EC – Consumer protection – Consumer credit agreements – Unjust enrichment of the creditor owing to payment on the basis of an illegal term – Requirement to prove that the unjust enrichment of the creditor was deliberate – Burden of proof on the consumer – Requirements concerning information to be included in the agreement – Elimination of certain requirements on the basis of the case-law of the Court of Justice – Obligation of the national court to interpret the former version of the national legislation in accordance with the Court’s case-law)

I. Introduction

1. Several references for a preliminary ruling have recently been made to the Court concerning the temporal limit on the protection afforded to consumers by EU law. ( 2 ) Having clarified a number of aspects relating to the finding of an infringement of consumer rights and the consequences to be drawn therefrom, the Court is now called upon to rule on questions relating to the bringing of actions to nullify the consequences of an infringement of those rights.

2. The present reference for a preliminary ruling follows that line of cases. By four of its six questions referred, the referring court asks the Court to provide clarification in order to enable it to rule on the compliance with EU law of the limitation rules applicable, under Slovak law, to actions brought by consumers.

3. In accordance with the Court’s request, this Opinion will be confined to an analysis of the first two questions referred for a preliminary ruling. By those questions, the referring court raises the issue of the compatibility with EU law of national provisions which lay down, first, a limitation period of three years, calculated from the time when the unjust enrichment occurred and, secondly, a limitation period of 10 years, which, however, applies only if the consumer can prove that the unjust enrichment was intentional.

II. Legal framework

A. European Union law

1. Directive 93/13/EEC

4. According to Article 6(1) of Directive 93/13/EEC: ( 3 ) ‘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.'

2. Directive 2008/48/EC

5. The purpose of Directive 2008/48/EC, ( 4 ) according to Article 1 thereof, is to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.

6. Article 3(i) of Directive 2008/48 defines the concept of ‘annual percentage rate of charge' (‘APR') as the ‘total cost of the credit to the consumer, expressed as an annual percentage of the total amount of credit, where applicable including the costs referred to in Article 19(2)'.

7. Article 10 of Directive 2008/48, entitled ‘Information to be included in credit agreements', provides, in paragraph 2 thereof: ‘The credit agreement shall specify in a clear and concise manner: … (g) the [APR] and the total amount payable by the consumer, calculated at the time the credit agreement is concluded; all the assumptions used in order to calculate that rate shall be mentioned; (h) the amount, number and frequency of payments to be made by the consumer and, where appropriate, the order in which payments will be allocated to different outstanding balances charged at different borrowing rates for the purposes of reimbursement; (i) where capital amortisation of a credit agreement with a fixed duration is involved, the right of the consumer to receive, on request and free of charge, at any time throughout the duration of the credit agreement, a statement of account in the form of an amortisation table. The amortisation table shall indicate the payments owing and the periods and conditions relating to the payment of such amounts; the table shall contain a breakdown of each repayment showing capital amortisation, the interest calculated on the basis of the borrowing rate and, where applicable, any additional costs; where the interest rate is not fixed or the additional costs may be changed under the credit agreement, the amortisation table shall indicate, clearly and concisely, that the data contained in the table will remain valid only until such time as the borrowing rate or the additional costs are changed in accordance with the credit agreement; …'

B. Slovak law

8. Article 53(1) of the Občiansky zákonník (Civil Code) provides that unfair terms in consumer agreements are invalid.

9. Under Article 107 of that code: ‘(1) The right to reimbursement on grounds of unjust enrichment shall be subject to a limitation period of two years from the moment the person concerned becomes aware of unjust enrichment and discovers who has been enriched to his detriment. (2) The right to reimbursement on grounds of unjust enrichment shall be subject to a limitation period of not more than three years, and of 10 years in the case of intentional unjust enrichment, from the day on which the unjust enrichment occurred. …'

10. Article 451(2) of that code defines ‘unjust enrichment' as ‘a financial advantage obtained by means of a benefit devoid of legal basis, a benefit based on a void legal act or a benefit based on a legal ground which has ceased to exist, as well as a financial advantage from dishonest sources'.

11. 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, ‘Law No 129/2010’), in the version applicable to the dispute in the main proceedings, is intended to transpose Directive 2008/48 into Slovak law.

12. Under Article 11(1) of Law No 129/2010, consumer credit is ‘deemed to be free of interest and charges' if the agreement to which it relates does not contain the information referred to in Article 9(2)(a) to (k) of that law, or does not state correctly the APR to the detriment of the consumer.

III. The facts in the main proceedings, the procedure before the Court and the questions referred for a preliminary ruling

13. In 2011, the applicant in the main proceedings and the credit institution PROFI CREDIT Slovakia s.r.o. concluded a consumer credit agreement for an amount of EUR 1500.

14. After he had repaid the full amount of the loan, namely EUR 3 698.40, the applicant in the main proceedings was informed by a lawyer, in February 2017, that the term in the agreement relating to the charge for deferral was unfair and that the information given to him concerning the APR was incorrect.

15. In May 2017, the applicant in the main proceedings brought an action for reimbursement of the costs which, he claimed, he had been improperly charged. In its defence, PROFI CREDIT Slovakia claimed that the right of the person concerned to bring proceedings was time-barred.

16. The referring court, hearing the case on appeal, ( 5 ) considers that certain circumstances indicate that the credit agreement at issue may, in various respects, be contrary to the rules of EU law applicable to consumer credit. ( 6 )

17. The first circumstance is that, under the agreement at issue, PROFI CREDIT Slovakia could, from the first day of the contractual relationship, receive fees of EUR 367.49 in return for giving the consumer the option of deferring repayment of the loan in the future. Owing to the application of those costs, the applicant in the main proceedings did not receive the agreed amount of EUR 1500, but a residual amount of EUR 1 132.51, that is to say, a reduction of 24%, even though it was not certain that that consumer was going to avail himself of the chargeable option of deferring repayment. The referring court states that those costs were unfair and seems to consider that they were levied by the creditor on the basis of an unfair term. It also refers to the judgment in Radlinger and Radlingerová ( 7 ) in which the Court held that Article 10(2) of Directive 2008/48 must be interpreted as meaning that the total amount of the credit and the amount of the drawdown together designate the sums made available to the consumer. The Court stated that those sums should not include the amounts used by the lender to pay the costs connected with the credit concerned and not actually paid to that consumer.

18. The second circumstance is that the APR mentioned in the agreement (66.31%) is lower than the interest rate (70%), which might be linked to the fact that the APR was not calculated on the basis of the amount actually paid by PROFI CREDIT Slovakia. The referring court states that, under Slovak law, the incorrect indication of the APR is penalised by the loss, for the creditor, of the right to payment of interest and charges relating to the credit.

19. The referring court also states that the Slovak legislation lays down two types of limitation period for actions brought by consumers, namely the subjective limitation period and the objective limitation period.

20. The subjective limitation period is two years and begins to run from the moment the consumer becomes aware of unjust enrichment. ( 8 ) That time limit appears to have been complied with in the present case. The applicant in the main proceedings was informed of the damage in question in February 2017 and brought his action in May 2017.

21. The objective limitation period begins to run from the moment an unjust enrichment has actually occurred and its duration varies: ( 9 ) under the Slovak legislation, it is 10 years in the case of intentional enrichment and three years in the absence of any such intention. ( 10 ) That second period seems to have already expired in the present case, more than three years having elapsed between the payment of the costs at issue (probably in 2011) and the bringing of the action by the applicant in the main proceedings (in May 2017).

22. In that context, the referring court states that the Slovak courts applied the provisions on limitation periods in a manner favourable to consumers. Those courts interpreted ‘flexibly' the intentional nature of unjust enrichment and consequently applied the objective limitation period of 10 years. However, that approach was called into question by the decision of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) of 18 October 2018. According to that decision, which was based in particular on an analogy with the definition of ‘fault' contained in the zákon 300/2005 Z.z., Trestný zákon (Slovak Criminal Code), ( 11 ) it is for the applicant who relies on the special objective limitation period of 10 years, relating to cases of ‘intentional' unjust enrichment, to show that the creditor did indeed intend to enrich itself improperly to his detriment. In the absence of such proof, the general objective limitation period of three years should be applied. However, under the zákon č. 99/1963 Zb., Občiansky súdny poriadok (Law No 99/1963 establishing the Code of Civil Procedure), in the version applicable to the facts in the main proceedings, the lower courts are required to comply with the case-law resulting from the decision of 18 October 2018.

23. In those circumstances the Krajský súd v Prešove (Regional Court, Prešov, Slovakia) by decision of 12 June 2019, received at the Court on 25 June 2019, decided to stay the proceedings and to refer six questions to the Court for a preliminary ruling, the first two of which, referred to in the Court’s request, ( 12 ) are worded as follows: ‘(1) Must Article 47 of the Charter of Fundamental Rights of the European Union [(‘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 [Civil Code] 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? (2) In the event that, despite a lack of awareness on the part of the consumer, the legislation which imposes a 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 [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?’

IV. Analysis

24. By its first question, the referring court asks, in essence, whether Directives 93/13 and 2008/48, Article 47 of the Charter and the principle of effectiveness preclude the application, to an action for restitution of disbursements made under a term declared unfair, of a limitation period of three years which starts to run from the time the unjust enrichment occurred, that is to say, at the time when those disbursements were made. By its second question, that court seeks to ascertain whether those acts of EU law and the principle of effectiveness preclude a limitation period of 10 years, which also starts to run from the time the unjust enrichment occurs, from applying only if the consumer proves that that enrichment is intentional.

25. The wording of those two questions may raise certain doubts as to the link between them, their context and their subject matter. Moreover, those doubts may be found, to some extent, in the observations of some of the parties who challenge the admissibility of those questions. I shall therefore, first of all, make some preliminary observations before analysing those questions as regards their admissibility and substance.

A. Preliminary remarks concerning the questions referred

1. The link between the first two questions referred

26. It should be noted that the link between the first and second questions referred is not very clear.

27. The referring court considers that its second question arises only if the answer to the first question is in the negative. It takes the view that the second question should be addressed only if EU law does not preclude the application of a limitation period of three years, that is to say, if the limitation period for a consumer to bring an action for restitution is three years from the time when an unjust enrichment occurs.

28. In the present case, it appears that more than three years elapsed between the payment of the costs at issue and the bringing of the action by the applicant in the main proceedings. Furthermore, the referring court states that it is, in principle, impossible for the applicant in the main proceedings to prove that an unjust enrichment is intentional and to benefit from the objective limitation period of 10 years.

29. In those circumstances, the objective limitation period of three years seems to have already expired. In accordance with that time limit, the action for restitution brought by the applicant in the main proceedings is, a priori, time-barred. That would not be the case if the national provisions laying down the objective limitation period of three years (first question) or possibly, those which, according to the referring court, impose an excessive burden of proof as regards the objective limitation period of 10 years (second question) were regarded as unenforceable against the applicant in the main proceedings because they do not comply with EU law. I infer from the wording of the questions that, in the first situation, the referring court seems to envisage not making the action brought by the applicant in the main proceedings subject to any objective limitation period. On the other hand, in the second situation, the applicant in the main proceedings might be able to rely on the limitation period of 10 years.

30. Therefore, I shall examine the first and second questions referred in the order in which they were submitted by the referring court.

2. The context of the first two questions referred for a preliminary ruling

31. The first two questions asked by the referring court do not mention any acts of EU law other than the Charter. However, it is apparent from the statement of reasons for the reference for a preliminary ruling, and in particular from the case-law of the Court cited therein, that that court considers that the credit agreement concluded by the parties to the main proceedings falls within the scope of Directives 93/13 and 2008/48 and that the action brought by the applicant in the main proceedings relates to those directives. In the same vein, the European Commission analyses those two questions from the perspective of Directive 93/13 and the Slovak Government from that of Directives 93/13 and 2008/48.

32. In order to put those two questions into their context, it must be noted that they concern the limits of the procedural autonomy of the Member States as regards the detailed rules for bringing actions based on an infringement of the provisions of EU law on consumer protection.

33. As it is, neither Directive 93/13 nor Directive 2008/48 lays down such detailed rules. Under the principle of procedural autonomy, it is for the domestic legal order of each Member State to establish such rules, on condition, however, that they are no less favourable than those governing similar domestic actions (principle of equivalence) and do not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness).

34. I should also point out, first of all, that the referring court is not asking the Court to provide clarification to enable it to rule on whether the Slovak limitation rules comply with the principle of equivalence. In any event, there is nothing to indicate that it is a specific regime for actions based on EU law. There is therefore no reason to consider that the principle of equivalence has not been observed in the present case.

35. Next, so far as concerns the principle of effectiveness, the wording of the questions referred may give the impression that the referring court is asking the Court to rule on the principle solely in connection with the second question. The first question contains no express reference to that principle. However, the referring court states, in the introductory sentence of the second question, that that question is raised only in the event that the objective limitation period of three years is consistent with the principle of effectiveness.

36. In those circumstances, it is necessary to examine the reasons which led the referring court to raise those two questions from the perspective of both the principle of effectiveness and Article 47 of the Charter.

37. The Court, in its recent case-law relating to procedural autonomy and Directive 93/13, refers rather to the principle of equivalence and to the right to an effective remedy ( 13 ) – or, more infrequently, to effective judicial protection ( 14 ) – than to the principle of equivalence and the principle of effectiveness. Furthermore, it is difficult to determine how the requirements contained in Article 47 of the Charter relate to those arising from the principle of effectiveness in the context of the consumer protection directives. ( 15 )

38. However, by referring, in its case-law, to the right to an effective remedy, the Court has focused on whether procedural rules laid down by national law, examined in the light of Article 47 of the Charter, give rise to a non-negligible risk of a consumer being deterred from properly defending his rights before the court before which proceedings have been brought by the seller or supplier. ( 16 ) As I have explained in connection with the limitation periods, ( 17 ) viewed from that perspective, the approach based on the right to an effective remedy or to judicial protection is difficult to distinguish from that based on the principle of effectiveness. ( 18 )

39. That said, it seems to me that recourse to the principle of effectiveness is better suited to the challenges posed by such periods, in view of the fact that the limitation rules must be assessed as a whole, as established by the national legislature when secondary law on consumer protection is silent with regard to actions for restitution of disbursements made on the basis of terms contrary to EU law.

40. For the reasons which I have just set out, I shall analyse the first and second questions referred from the perspective of the principle of effectiveness.

3. The subject matter of those questions

41. There seems to be a certain contradiction between the wording of the first question and that of the second question in so far as those questions describe an action to which the limitation periods concerned apply.

42. While the first question expressed concerns a limitation period applicable to a ‘consumer’s right to reimbursement which arises from an unfair contractual term', the second question referred to a limitation period applicable to an action based on the fact that the creditor did not indicate the ‘precise' APR and, consequently, infringed a rule and obtained unjust enrichment by receiving interest. It should be noted, in that context, first, that the referring court explains that an incorrect indication of the APR is punished by a deterrent penalty imposed on the creditor, namely, inter alia, the loss of the creditor’s right to payment of the costs. It is apparent from the national legislation that the same is true as regards the creditor’s right to payment of interest. Secondly, the applicant in the main proceedings seeks a penalty – the reimbursement of the costs and, as the wording of the second question suggests, the repayment of the interest received by the creditor.

43. The first question many thus call to mind Directive 93/13 and the second question Directive 2008/48.

44. That reading of those two questions reflects the content of the request for a preliminary ruling. In the statement of reasons for making the reference for a preliminary ruling, the referring court states that it appears that, in addition to excessive charges, an incorrect APR also constitutes an infringement of the rules on the grant of credit to consumers. That court thus identifies two reasons why the credit agreement concluded between the parties to the main proceedings may be contrary to the rules of EU law applicable to consumer credit. ( 19 )

45. However, the first two questions referred appear to relate to the limitation periods applicable to the same action brought by the applicant in the main proceedings before the Slovak courts. That action appears to be covered by the system of unjust enrichment provided for by Slovak law and I consider that, in the situations to which those two questions relate, the reason why enrichment was unjustly obtained is the same. As regards the second question, it is therefore necessary to consider whether Directives 93/13 and 2008/48 emphasise the intentional nature of the enrichment of the seller or supplier. It cannot be ruled out that, in the present case, the contractual term at issue is capable of producing effects contrary to Directives 93/13 and 2008/48. For that reason, I shall analyse the two questions in the light of those two directives.

46. I shall first examine the admissibility of the first and second questions referred for a preliminary ruling (Section B). Next, in order to give a useful answer to those questions I shall present general considerations relating to the procedural autonomy of the Member States as regards the limitation period for actions for restitution in the context of the consumer protection directives (Section C) and I shall then examine those questions in the order established by the referring court (Sections D and E).

B. Admissibility

47. PROFI CREDIT Slovakia maintains that the irregularity of the procedure followed by the referring court to refer the questions to the Court for a preliminary ruling, in that it did not have the opportunity to comment on the grounds for a stay of proceedings, resulted in the infringement of the right of the parties to the dispute to be given a fair hearing.

48. Moreover, the first and second questions referred for a preliminary ruling in particular concern, in actual fact, the interpretation of rules of national law, since no provision of EU law harmonises the rules of the Member States on limitation. Furthermore, Article 51 of the Charter restricts the application of that instrument to situations in which the Member States implement EU law. Finally, those questions are not necessary for resolving the dispute in the main proceedings.

49. The Slovak Government considers that, in so far as the request for a preliminary ruling concerns the first question, that request does not satisfy the requirements of Article 94(c) of the Rules of Procedure of the Court of Justice. That request does not state the reason why the referring court has doubts as to whether the objective limitation period of three years complies with EU law. Moreover, if the first question were inadmissible, there would be no reason, in particular, to address the second question.

50. I do not share either the reservations expressed by PROFI CREDIT Slovakia or those expressed by the Slovak Government.

51. As regards, first of all, the doubts of PROFI CREDIT Slovakia as to the regularity of the procedure followed by the referring court, it is not for the Court to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and legal proceedings. ( 20 )

52. As regards, next, the reservation expressed by PROFI CREDIT Slovakia concerning the questions referred, which it claims do not concern EU law, it is true that the first two questions do not mention acts of EU law other than the Charter. However, as I have stated in points 31 to 33 of this Opinion, those two questions seek clarification in order to enable the referring court to rule on the compatibility with Directives 93/13 and 2008/48 of the national rules on limitation periods laid down in accordance with the principle of procedural autonomy. ( 21 )

53. It is apparent from the Court’s settled case-law that it is solely for the national court before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it refers to the Court. ( 22 )

54. It follows that questions raised by national courts enjoy a presumption of relevance and that the Court may refuse to rule on those questions only if it appears that the interpretation sought bears no relation to the actual facts or subject matter of the dispute in the main proceedings, the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to those questions. In the light of the considerations presented in points 31 to 33 of this Opinion, such a conclusion does not apply in the present case.

55. Finally, as regards the reservation expressed by the Slovak Government, although the statement of reasons which led the referring court to ask its first question is not a model of clarity, it nevertheless makes it possible to understand the concerns underlying that question.

56. As I have stated in point 29 of this Opinion, the action brought by the applicant in the main proceedings is, in principle, subject to the objective limitation period of three years. That period appears to have already expired in the present case. In order for that action not to be time-barred, that period would have to be regarded as unenforceable against the applicant in the main proceedings. Such unenforceability may be the consequence of the non-compliance of that period with EU law. In that context, the referring court states that, as opposed to the limitation period of 10 years by means of which Slovak courts ensure consumer protection in accordance with the case-law stemming from the judgment in Gutiérrez Naranjo and Others, ( 23 ) the three-year period is disadvantageous to the consumer and restricts his rights, sometimes even depriving him of those rights. The referring court thus appears to consider that the objective limitation period of three years may render it impossible in practice to exercise the rights conferred on consumers by EU law or that, at the very least, that period creates a non-negligible risk of a consumer being deterred from properly defending his rights before the court before which proceedings have been brought by the seller or supplier.

C. The procedural autonomy of the Member States and the limitation period for actions for restitution in the context of the consumer protection directives

1. The limitation period for actions for restitution

57. As I have stated in point 33 of this Opinion, in view of the silence of the EU legislature regarding the detailed rules for bringing actions for restitution of amounts levied on the basis of contractual terms which are contrary to Directives 93/13 and 2008/48, it is for the Member States to establish those detailed rules. They may then submit such actions to limitation periods.

58. It is indeed true that, in the judgment in Gutiérrez Naranjo and Others, ( 24 ) the Court held that the determination by a court that a contractual term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he would have been in if that term had not existed. Moreover, it considered that the obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts.

59. However, in my recent Opinion in Joined Cases Raiffeisen Bank and BRD Groupe Société Générale, ( 25 ) I presented several arguments in favour of the view that that judgment does not preclude actions for the recovery of payments made on the basis of unfair terms being time-barred. In that regard, I shall simply point out that, in that judgment, the Court, called upon to rule on national case-law which placed a temporal limit on restitutory effects, drew a distinction between limitation of the effects of an interpretation of a rule of EU law and the application of a procedural rule, such as a reasonable limitation period. ( 26 )

60. The same is true of other judgments in which the Court has held that actions for restitution based on Directives 93/13 and 2008/48 could be time-barred.

61. That is the case of the judgment in OPR-Finance. ( 27 ) It is true that the Court found that the principle of effectiveness precludes the condition that the penalty of nullity of the credit agreement linked with an obligation to return the principal sum, applicable in the event of failure by the creditor to comply with the obligation provided for in Article 8 of Directive 2008/48, must be raised by the consumer within a limitation period of three years. However, that finding must be read in the light of the context of the dispute which gave rise to the reference for a preliminary ruling in that case. In that dispute, which was brought against a consumer, the referring court could not raise of its own motion the nullity of the credit agreement and therefore had to uphold the creditor’s claim. That situation was due to the fact that the non-compliance of the national legislation was based on the prohibition on conducting an ex officio examination of compliance with the obligation laid down in Article 8 of Directive 2008/48. ( 28 )

62. The same is true of the judgment in Cofidis ( 29 ) in which, in the context of Directive 93/13, the Court held that a procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.

63. As regards the Slovak legislation, as explained by the referring court in the present case, there is nothing to indicate that the expiry of the objective limitation periods precludes the court from raising of its own motion the incorrect indication of the APR, which distinguishes this reference for a preliminary ruling from that which gave rise to the judgment in OPR-Finance. ( 30 ) Under Paragraph 11(1) of Law No 129/2010, such an indication appears to be automatically penalised by exemption from interest and charges.

64. Moreover, it is not apparent from that legislation that the expiry of those objective limitation periods prohibits the national court from finding of its own motion that contractual terms are unfair, which also distinguishes the present reference for a preliminary ruling from that which gave rise to the judgment in Cofidis. ( 31 ) Under Article 53(1) of the Civil Code, unfair terms used in a contract concluded with a consumer are invalid. The Commission understands that provision to mean that it is a case of absolute nullity and that, according to Slovakian academic lawyers, such nullity is taken into consideration by the court even in the absence of an application by the parties and without any temporal limitation. In any event, I note that Article 107 of the Civil Code seems to concern not actions for a declaration that contractual terms are unfair but only actions for restitution which are covered by the system of unjust enrichment.

2. The limits of the procedural autonomy of the Member States

65. The fact that Member States may make actions for restitution subject to limitation periods does not mean that their freedom of action in that regard is unlimited. The limitation rules must comply with the requirements of the principle of effectiveness. The case-law of the Court provides several clarifications regarding compliance with that principle as regards the limitation periods for actions relating to consumer protection. Having recently had the opportunity to analyse that case-law in a context similar to that of the present case, ( 32 ) I shall confine myself to giving a summary of the conclusions which may be drawn from it.

66. When examining the compatibility of national provisions with the principle of effectiveness, it is necessary to take into consideration, where appropriate, the principles which underlie the national judicial system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. A consumer may therefore be required to exercise a certain degree of vigilance with regard to protecting his interests without the principle of effectiveness being infringed. From that point of view, the setting of reasonable time limits for bringing actions, after which they are time-barred in the interests of legal certainty, will not render it in practice impossible or excessively difficult to exercise the rights conferred by EU law. On the other hand, a time limit cannot be regarded as a reasonable time limit if it gives rise to a non-negligible risk of a consumer being deterred from properly defending his rights before the court before which proceedings have been brought by the seller or supplier. In other words, a reasonable time limit must be sufficient in practical terms to enable the consumer to prepare and bring an effective action. ( 33 )

67. Next, whether or not a time limit is reasonable – and, therefore, whether it complies with the principle of effectiveness – cannot be determined solely on the basis of its duration. It is necessary to take into account all the detailed rules relating to that time limit and, in particular, the event which starts it running. ( 34 )

68. Finally, a limitation period, taken together with all the relevant rules, will be regarded as complying with the principle of effectiveness if it is adapted to the specific nature of the area concerned so as not to nullify the full effectiveness of the relevant provisions of EU law.

69. It is in the light of these clarifications from case-law that the questions referred must be analysed. It is necessary, more specifically, to determine whether the limitation periods laid down in Slovak law may be regarded as reasonable within the meaning of the case-law of the Court of Justice.

D. The first question referred

70. It is apparent from the explanations given by the referring court that the objective limitation period of three years begins to run when the moment of unjust enrichment actually occurs. I infer from this that the payment made by the consumer with the intention of performing the contract constitutes an event which starts that limitation period running. That time limit must therefore be calculated separately for each payment made by the consumer during the performance of the contract. ( 35 )

71. Credit agreements, such as that concluded between the parties to the main proceedings, are, in principle, performed over periods of a considerable length. The economic function of credit agreements consists, inter alia, in the immediate provision of a specific amount which, plus costs and interest, is then gradually repaid by the borrower.

72. In that context, if the event which triggers the limitation period of three years is any payment made by the borrower, it may be that, under a contract performed over a period of more than three years, certain actions of that borrower will be time-barred before the contract comes to an end. ( 36 ) That is particularly true of actions relating to payments made immediately after the conclusion of the contract, which may encourage sellers or suppliers to ‘expedite' most of the payments to be made by their clients.

73. In those circumstances, the limitation rules may systematically deprive consumers of the possibility of claiming restitution of payments made pursuant to contractual terms which are contrary to the consumer protection directives, before the contract in question comes to an end. It is not inconceivable that a consumer, not fully aware that the contract does not comply with EU law and fearing that the seller or supplier might bring an action against him, would be inclined to perform his contractual obligations. In those circumstances, it does not seem unusual for the consumer to consult a lawyer or legal adviser regarding such non-compliance after the end of the contract. That is the case in particular for contracts which are performed over many years, which is not a sufficiently long period to be able to require a consumer, with due vigilance as to the protection of his interests, to inquire about such non-compliance.

74. In the light of the foregoing, it must be considered that the principle of effectiveness precludes national legislation or an interpretation thereof which provides that the limitation period of three years applicable to actions for restitution based on contractual terms held to be unfair within the meaning of Directive 93/13 and/or on contractual terms contrary to the requirements laid down by Directive 2008/48 begins to run from the time unjust enrichment actually occurs.

75. In view of the answer given to the first question, it is not necessary to answer the second question, which was submitted only in the event of a negative answer to the first question. I will nonetheless continue my analysis in case the Court does not share my view on the first question.

E. The second question referred

1. Introductory remarks on the second question referred

76. For the purpose of the contextualisation of the problem raised by the second question, it should be pointed out that, under Slovak law, unlike the objective limitation period of three years, the limitation period of 10 years applies only if it is proved the unjust enrichment was intentional. It seems, therefore, that this is not a general limitation period, applicable as a matter of principle, but a special time limit.

77. On the basis of that premiss, the Slovak Government points out that the second question, raised only if the general objective limitation period of three years is held to be compatible with the requirements of EU law, is irrelevant, because the special limitation period of 10 years offers an additional advantage, which in theory might not even exist. In any event, according to the Slovak Government, EU law does not preclude national legislation which makes that benefit conditional on the consumer proving that the unjust enrichment was intentional. Moreover, that consideration is not called into question by the judgment in CA Consumer Finance, ( 37 ) mentioned by the referring court, since the situation which gave rise to that judgment is not comparable to that in the present case.

78. The Commission, for its part, argues that a situation in which the consumer must establish the intentional fault of the lender in order for the objective limitation period of 10 years to be applicable is contrary to EU law on consumer protection.

79. It maintains, first of all, that a term is unfair within the meaning of Article 3(1) of Directive 93/13 if it has not been the subject of individual negotiation and leads, contrary to the requirement of good faith, to a significant imbalance to the detriment of the consumer. The Commission infers from that provision that the lender alone is liable for the existence of an unfair contractual term and that the existence of that term presupposes that the lender has not acted in good faith.

80. Referring to the judgment in Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen, ( 38 ) the Commission states, next, that placing on the consumer the burden of establishing the conditions for application of a limitation period which is longer than the limitation period of three years would be contrary to what the Court held, namely that, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6 thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy.

81. Finally, unlike the Slovak Government, the Commission considers that the judgment in CA Consumer Finance ( 39 ) is relevant in the context of the present case.

82. Thus, the referring court has doubts as to the answer to be given to the second question in the light of the three matters which are disputed by the parties: the role of intent in the systems established by Directives 93/13 and 2008/48, the coexistence of objective limitation periods in Slovak law and the relevance of the judgment in CA Consumer Finance. ( 40 )

2. The role of intent in the systems established by Directives 93/13 and 2008/48

83. The arguments which the Commission draws from Article 3(1) of Directive 93/13 seem to be based on an interpretation of that directive according to which, under the system established by the directive, the existence of an unfair contractual term presupposes the intentional fault of the seller or supplier which inserted that term into the consumer contract.

84. It is true that the criterion relating to good faith (or rather the absence thereof) appears in Article 3(1) of Directive 93/13. However, that criterion is by no means used to reflect the psychological phenomena which accompany the conclusion of the contract. That provision refers to that criterion in order to describe the result which must be achieved by a contractual term if it is to be regarded as unfair. By reproducing the wording of that provision, such a term must create a significant imbalance, contrary to the requirement of good faith.

85. It is therefore not a subjective, but an objective criterion. ( 41 ) That interpretation corresponds to recital 16 of Directive 93/13, which emphasises the objective elements of the assessment of the requirement of good faith. ( 42 ) In that vein, the Court has repeatedly held that, in so far as concerns that requirement, the national court must determine whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations. ( 43 )

86. It is also true that Article 3(1) of Directive 93/13 provides that no unfair term has been individually negotiated. It follows that the inclusion of an unfair term in the contract and the content of that term are beyond the control of the consumer. Of course, it might be argued that those two elements are, on the other hand, solely under the control of the seller or supplier. However, it cannot be inferred from this that that directive requires the seller or supplier to have intentionally inserted the unfair term in the contract concluded with the consumer or that it introduces a presumption to that effect.

87. In the system established by Directive 93/13, the intention to insert an unfair term in the contract or to create a significant imbalance to the detriment of the consumer is irrelevant. Such a system strengthens consumer protection, since it precludes the possibility of initiating a debate as to whether the seller or supplier is at fault for the purposes of Article 6 of that directive or, possibly, whether he succeeds in rebutting the presumption established by the directive. ( 44 ) The liability of the seller or supplier must be classified as strict liability, owing merely to the fact that he has used an unfair term.

88. Furthermore, even if the system established by Directive 93/13 were based on the idea that the unfair nature of a contractual term is conditional on the intentional fault of the seller or supplier, such fault, within the meaning of that directive, would not necessarily coincide with the concept of ‘intentional fault' within the meaning of the law of a Member State. Accordingly, the existence of an unfair term within the meaning of that directive does not necessarily mean that the conditions for applying the objective limitation period of 10 years, provided for in Slovak law, are satisfied.

89. The same is true of Article 10(2) of Directive 2008/48, according to which an incorrect indication of the APR is contrary to that provision, and the intention of the seller or supplier may not affect his rights or those of the consumer.

90. Consequently, the system established by Directive 93/13 is not based on the idea that any unfair term is a result of intentional or culpable conduct on the part of the seller or supplier. That directive, therefore, does not require the consumer to be able to rely on a special limitation period which applies in the case of intentional unjust enrichment. That also applies with regard to the system established by Directive 2008/48 and the incorrect indication of the APR.

3. The coexistence of limitation periods

91. The Slovak Government and the Commission emphasise the fact that the objective limitation period of 10 years constitutes a period which supplements the three-year period. They disagree regarding the implications of the coexistence of those periods for the compatibility of the longer period with EU law.

92. On the assumption that the general limitation period of three years, considered in isolation, does not make it impossible in practice or excessively difficult to exercise the rights conferred on consumers by EU law, ( 45 ) it is hard to believe that a special limitation period of 10 years, which supplements the three-year period, does not satisfy the requirements laid down by the principle of effectiveness.

93. Every case in which the question arises as to whether a national provision complies with the principle of effectiveness must be analysed by reference to the role of that provision in the procedure as a whole, its progress and its special features, before the various national bodies. In the context of the review of compliance with that principle, all the detailed rules relating to a limitation period must be taken into account. ( 46 ) Following that line of reasoning, in that review, the fact that it is a limitation period which supplements a general limitation period, the compatibility of which with the principle of effectiveness has been verified, cannot be disregarded.

94. Moreover, contrary to what the Commission maintains, the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers cannot call into question the finding that it is unlikely that a special limitation period of 10 years, supplementing the three-year period which is consistent with the principle of effectiveness, does not satisfy the requirements laid down by that principle. Although the intention of the seller or supplier as regards his enrichment is irrelevant from the point of view of EU law, ( 47 ) it must be considered that EU law does not require, in so far as concerns intentional enrichment, that a consumer must be able to rely on a special limitation period which is longer than the general limitation period.

4. The relevance of the judgment in CA Consumer Finance

95. In the judgment in CA Consumer Finance, ( 48 ) the Court held that Directive 2008/48 precludes national rules according to which the burden of proving the non-performance of the obligations laid down in Articles 5 and 8 thereof (provision of pre-contractual information and assessment of the consumer’s creditworthiness) lies with the consumer on the ground that those rules undermine the principle of effectiveness. The Court observed that the consumer does not have the means at his disposal to enable him to prove that the creditor has not fulfilled those obligations. It also stated that the effective exercise of the rights conferred by that directive is ensured by a national rule according to which the creditor is, in principle, required to prove to the court that those obligations have been fulfilled. ( 49 )

96. First of all, I should point out, that, in the judgment in CA Consumer Finance, ( 50 ) the context in which legal issue of the burden of proof was raised was different from that in the present case. As in the judgment in OPR-Finance, ( 51 ) analysed briefly in point 61 of this Opinion, it was an action brought by the seller or supplier against the consumer.

97. Next, the legal issue relating to the burden of proof which was the subject of that judgment concerned omissions by the seller or supplier which could serve as a basis for an action brought by the consumer or an objection raised by the national court of its own motion. On the other hand, the intentional nature of the conduct of the seller or supplier is irrelevant in the systems established by Directives 93/13 and 2008/48, in so far as the latter concerns the incorrect indication of the APR.

98. If the Court were to consider that the objective limitation period of three years, such as that which is the subject of the first question, does not pose any problem from the point of view of the principle of effectiveness in circumstances such as those of the present case, I would propose that it should be held that, as a general rule, that principle also does not preclude an objective limitation period of 10 years, which supplements the three-year limitation period, such as that which is the subject of the second question.

99. That being said, without prejudice to the foregoing additional observations, relating to the second question, I maintain the position which I put forward in point 74 of this Opinion.

V. Conclusion

100. In the light of the foregoing considerations, I propose that the Court should answer the first and second questions referred for a preliminary ruling by the Krajský súd v Prešove (Regional Court, Prešov, Slovakia) as follows: The principle of effectiveness precludes national legislation or an interpretation thereof which provides that the limitation period of three years applicable to actions for restitution based on contractual terms held to be unfair within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and/or on contractual terms contrary to the requirements laid down by 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 begins to run from the time when the unjust enrichment actually occurs.

( 1 ) Original language: French.

( 2 ) See my Opinion in Joined Cases Raiffeisen BankandBRD Groupe Societé Générale (C‑698/18 and C‑699/18, EU:C:2020:181). See, also, judgment of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria (C‑224/19 and C‑259/19, EU:C:2020:578).

( 3 ) Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

( 4 ) Directive of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

( 5 ) In that regard, the request for a preliminary ruling does not specify what decision was taken at first instance. However, PROFI CREDIT Slovakia states in its written observations that the court of first instance held that the credit agreement concluded between the parties to the dispute did not contain an agreement concerning the APR and that, therefore, the loan was free of interest and charges, and it consequently ordered PROFI CREDIT Slovakia to refund to the consumer the amount which he had repaid in addition to the loan.

( 6 ) I note that the fifth and sixth questions referred for a preliminary ruling relate to the implications of the Court's judgments relating to the interpretation of Article 10(2) of Directive 2008/48. Those questions are raised in the context of infringements of EU law other than those referred to in the first four questions. As the referring court acknowledges, this is a possible legal ground for the reimbursement of costs claimed by the applicant in the main proceedings, other than that referred to in the first four questions.

( 7 ) Judgment of 21 April 2016 (C‑377/14, EU:C:2016:283).

( 8 ) See Article 107(1) of the Civil Code.

( 9 ) See Article 107(2) of the Civil Code.

( 10 ) I note that the referring court states that that objective three-year limitation period applies in cases of enrichment which was ‘the result of negligence'. However, that criterion does not appear in Article 107(2) of the Civil Code. That statement is, moreover, contested by the Slovak Government in its written observations. In any event, the objective limitation period of 10 years seems to be an exception to the limitation period of three years, for the application of which the requirements concerning the person unjustly enriched are lower.

( 11 ) The referring court considers that that analogy is ‘unacceptable' because the resources available to the public prosecutor and the police in criminal proceedings cannot in any way be compared with those of an uninformed consumer. However, the Slovak Government maintains in its written observations that, by using that analogy with criminal law in its decision of 18 October 2018, the referring court is distorting the objective pursued by the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), which was not to determine who should bear the burden of proof but to define the concepts of ‘fault' and‘intentional fault'.

( 12 ) See point 3 of this Opinion. The third to sixth questions are not reproduced in this Opinion. For the sake of completeness, I note that the third and fourth questions relate to the circumstances which an applicant must establish in order to be able to rely on the objective limitation period of 10 years. The fifth and sixth questions concern the interpretation in accordance with EU law, by the courts of a Member State, of a national rule declared incompatible with the requirements arising under Article 10(2)(h) and (i) of Directive 2008/48, and the possible direct effect of this last provision in circumstances such as those of the dispute in the main proceedings.

( 13 ) See judgments of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 57), and of 3 April 2019, Aqua Med (C‑266/18, EU:C:2019:282, paragraph 47). See also order of 28 November 2018, PKO Bank Polski (C‑632/17, EU:C:2018:963, paragraph 43).

( 14 ) See judgment of 31 May 2018, Sziber (C‑483/16, EU:C:2018:367, paragraph 35).

( 15 ) See my Opinion in Joined Cases Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:181, point 65 and footnote 19). See also, Szpunar, M., Quelques aspects procéduraux de la protection des consommateurs contre les clauses abusives : le contrôle d’office dans le cadre des procédures accélérées et simplifiées, in Paschalidis, P., and Wildemeersch, J. (dirs.), L’Europe au présent ! Liber amicorum Melchior Wathelet, Bruylant, Brussels, 2018, pp. 699-701.

( 16 ) See judgments of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 61), and of 3 April 2019, Aqua Med (C‑266/18, EU:C:2019:282, paragraph 54). See also order of 28 November 2018, PKO Bank Polski, (C‑632/17, EU:C:2018:963, paragraph 45).

( 17 ) See my Opinion in Joined Cases Raiffeisen Bank and BRD Groupe Societé Générale (C‑698/18 and C‑699/18, EU:C:2020:181, paragraph 65 and footnote 19).

( 18 ) It is true that, in referring to effective judicial protection in one of its judgments, the Court emphasised, inter alia, the importance of determining whether the national rules have a disproportionate effect on the consumer’s right to effective judicial protection. See judgment of 31 May 2018, Sziber (C‑483/16, EU:C:2018:367, paragraphs 51 and 52). However, it should be noted that the references to case-law in that judgment mainly concern case-law relating to the principle of effectiveness, whereas the passage relating to the disproportionate restriction on effective judicial protection was intended only to balance the interests of consumers and the sound administration of justice.

( 19 ) See points 17 and 18 of this Opinion.

( 20 ) See, inter alia, judgment of 26 June 2019, Kuhar (C‑407/18, EU:C:2019:537, paragraph 37 and the case-law cited).

( 21 ) In that connection, I note that the interpretation according to which the Charter also applies to national provisions established in accordance with the principle of procedural autonomy is corroborated by the precedents in which the Court has referred rather to the right to an effective remedy (see judgments of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 57) and of 3 April 2019, Aqua Med, (C‑266/18, EU:C:2019:282, paragraph 47)) or to effective judicial protection (see judgment of 31 May 2018, Sziber (C‑483/16, EU:C:2018:367, paragraph 35)), as provided for in Article 47 of the Charter.

( 22 ) Judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 46 and the case-law cited).

( 23 ) Judgment of 21 December 2016 (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 75).

( 24 ) Judgment of 21 December 2016 (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 61).

( 25 ) C‑698/18 and C‑699/18, EU:C:2020:181, points 76 and 77.

( 26 ) See also, to that effect, judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 56).

( 27 ) Judgment of 5 March 2020 (C‑679/18, EU:C:2020:167, paragraph 36).

( 28 ) Moreover, Advocate General Kokott considered, in her Opinion in Cofidis and OPR-Finance (C‑616/18 and C‑679/18, EU:C:2019:975, points 62 to 70), that a national limitation period may be compatible with the principle of effectiveness.

( 29 ) Judgment of 21 November 2002 (C‑473/00, EU:C:2002:705, paragraph 36).

( 30 ) Judgment of 5 March 2020 (C‑679/18, EU:C:2020:167, paragraph 36).

( 31 ) Judgment of 21 November 2002 (C‑473/00, EU:C:2002:705).

( 32 ) See my Opinion in Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:181, points 67 to 69). See, also, points 37 and 38 of this Opinion.

( 33 ) See also, to that effect, judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 62).

( 34 ) See also, to that effect, judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 61).

( 35 ) That fact distinguishes the request for a preliminary ruling in the present case from that in the case in which I delivered my Opinion. See my Opinion in Joined Cases Raiffeisen Bank and BRD Groupe Société Générale (C‑698/18 and C‑699/18, EU:C:2020:181).

( 36 ) See, to that effect, as regards the repercussions of the consideration that the limitation period applicable to actions under the enrichment rules begins to run from the time the consumer makes a payment, Łętowska, E., Kwalifikacje prawne w sprawach o sanację kredytów frankowych – da mihi factum dabo tibi ius. Stanowisko prof. Ewy Łętowskiej dla Forum Konsumenckiego przy RPO (Position prepared for the Consumer Forum operating with the Polish Ombudsman), https://www.rpo.gov.pl/sites/default/files/Prof._Ewa_Łętowska_Kwalifikacje_prawne_w_sprawach_o_sanację_kredytów_frankowych_da_mihi_final_29.06.20.pdf, pp. 17 and 18.

( 37 ) Judgment of 18 December 2014 (C‑449/13, EU:C:2014:2464).

( 38 ) Judgment of 17 May 2018 (C‑147/16, EU:C:2018:320).

( 39 ) Judgment of 18 December 2014 (C‑449/13, EU:C:2014:2464, paragraph 32).

( 40 ) Judgment of 18 December 2014 (C‑449/13, EU:C:2014:2464).

( 41 ) See also Mikłaszewicz, P., ‘Komentarz do art. 3851 k.c.', in Osajda, K. (dir.), Kodeks cywilny. Komentarz, Legalis, Warsaw, 2020 (26th ed.), commentary on Article 3851 of the Polish Civil Code, paragraph 10, which states that it constitutes an ‘infringement of good faith' in an objective sense.

( 42 ) That recital states, inter alia, that the assessment, in accordance with the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved, and that this constitutes the requirement of good faith.

( 43 ) See, recently, judgment of 3 October 2019, Kiss and CIB Bank (C‑621/17, EU:C:2019:820, paragraph 50).

( 44 ) It is indeed true that a national system of unjust enrichment may attach importance to the fact that the consumer or the seller or supplier is aware of the lack of grounds for the payments made by the former. In particular, such a scheme may provide that payments made by a person who was aware of the lack of grounds are not reimbursed by the person who has enriched himself. However, it is necessary to examine whether that scheme is compatible with Directives 93/13 and 2008/48 and with the effectiveness thereof. As regards the issue of the awareness of the parties to the contract in the context of unfair terms, see Łętowska, E., Kwalifikacje prawne w sprawach o sanację kredytów frankowych – da mihi factum dabo tibi ius. Stanowisko prof. Ewy Łętowskiej dla Forum Konsumenckiego przy RPO (Position prepared for the Consumer Forum operating with the Polish Ombudsman), https://www.rpo.gov.pl/sites/default/files/Prof._Ewa_Łętowska_Kwalifikacje_prawne_w_sprawach_o_sanację_kredytów_frankowych_da_mihi_final_29.06.20.pdf, p. 17. In any event, that issue does not arise, in the present case, particularly if the second question referred is analysed only if the objective limitation period of three years is held to be compatible with those directives.

( 45 ) See points 70 to 74 of this Opinion.

( 46 ) See, also, point 67 of this Opinion.

( 47 ) See points 83 to 90 of this Opinion.

( 48 ) Judgment of 18 December 2014 (C‑449/13, EU:C:2014:2464).

( 49 ) Judgment of 18 December 2014, CA Consumer Finance (C‑449/13, EU:C:2014:2464, paragraphs 27 and 28).

( 50 ) Judgment of 18 December 2014 (C‑449/13, EU:C:2014:2464).

( 51 ) Judgment of 5 March 2020 (C‑679/18, EU:C:2020:167, paragraph 36).