Request for a preliminary ruling from the Općinski sud u Zadru (Croatia) lodged on 2 April 2019 — R. D., A. D. v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

(Case C-277/19)

(2019/C 187/57)

Language of the case: Croatian

Referring court

Općinski sud u Zadru

Parties to the main proceedings

Applicants: R.D., A.D.

Defendant: Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

Questions referred

1. What is the scope and extent of the consumer protection granted by Directive 2[0]11/83/[EU] (1) of the European Parliament and of the Council of 2[5] October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC [of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council], and by Directive 2[0]14/17/EU (2) of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC (3) and 2013/36/EU (4) and Regulation (EU) No 1093/2010? (5)

2. Are the applicants consumers within the meaning of the provisions of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 [on consumer rights], amending Council Directive 93/13/EEC and Directive 1999/44/EC [of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council], and Directive 2[0]14/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, account being taken of the fact that the defendant denies the applicants the status of consumer?

3. Are the national provisions contained in Article 3(1)(a) of the Law on consumer credit […] at odds with the provisions contained in Article 4 of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 [on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010], and Article 3 of Directive 2008/48/EC, and with the remaining consumer protection objectives and purposes established in the preamble to Directive 2014/17/EU, in so far as they fix the maximum limit for consumer protection at a certain amount, namely Kuna 1000 000?

4. [Must] Article 5(1) of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 [on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010] be interpreted […] as meaning that a situation in which the defendant is a credit cooperative registered in the Republic of Austria which held no authorisation from the Central Bank of Croatia to grant consumer credit in 2007 and 2008, nor any special authorisation from the Ministry of Finance in accordance with Article 22 of the ZPP, and does not have a registered representative or a subsidiary in the Republic of Croatia, constitutes a ground for a declaration as to the nullity of the credit agreement and an infringement of the provisions of that directive because that situation has the (potential) effect of directly jeopardising the rights of consumers who are natural persons in the territory of the Republic of Croatia, in so far as the defendant was not subject to the supervision provided for in law for the purpose of protecting consumers and establishing uniform rules and criteria for the grant of consumer credit in the case of mortgage credits, as mentioned in the preamble to Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014?

5. May the view be taken that this is a situation in which there is an infringement of Articles 18, 19 and 20 of Directive 2014/17/EU, account being taken of the fact that the principles of good faith and loyalty constitute a legal standard, which is to say that, at the time when the credit agreement was concluded, an infringement of the aforementioned directive occurred, given that the credit was granted at an actual interest rate of 9.4%, while the defendant grants domestic consumers of Austrian nationality an interest rate of 4 % — Article 1000 of the ABGB (Allgemeines bürgerliches Gesetzbuch, Austrian Civil Code) —, and given, moreover, that that this is a variable rate, meaning that the defendant, as a credit institution, changes it unilaterally, and that the defendant grants credit only on the basis of a mortgage?

6. May the view be taken that there has been an infringement of the provisions of Directive 2014/17/EU in conjunction with Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, account being taken of the provisions of Articles 2 and 5(1), point 2, of the Law on credit institutions, if the defendant, as a credit institution, is allowed to grant consumer credit to Croatian citizens in the territory of the Republic of Croatia without authorisation from or supervision by the national authorities, and may the view be taken that, in such a situation, the aforementioned national provisions do not afford adequate protection to natural persons who are consumers in the manner prescribed in Article 5 of Directive 2014/17/EU — competent authorities —, and that the defendant did not act in accordance with the principles of good faith and loyalty provided for in Article 4 of the ZOO, meaning that the provisions of the credit agreement are therefore void?

7. [Was there] a formal defect in the conclusion of the credit agreement, which is to say that, in the main proceedings, there was an infringement of Articles 13, 14 and 16 of Directive 2014/17/EU, inasmuch as clause A of the single-repayment credit agreement stipulates — on page 2—: ‘Actual annual interest rate of 9,4%. For the notional annual interest in the event of late repayment, see the counter notice’?

8. May the view be taken that, in a situation such as that in the main proceedings, there is an infringement of Articles 13, 14 and 16 of Directive 2014/17/EU, account being taken of the fact that the credit agreements at issue are pre-formulated standard contracts which are drafted by the defendant, printed in German and not fully translated into the applicants’ mother tongue, and the fact that the conclusion of the agreement is preceded by advertising via the defendant’s network of intermediaries (cooperative) in the Republic of Croatia, who, like the defendant, did not, in accordance with Croatian law, hold any authorisation from the Central Bank of Croatia to conclude credit transactions, nor any authorisation from the Ministry of Finance to grant consumer credit in the territory of the Republic of Croatia?

9. May the view be taken that, in a situation [such as] that in the main proceedings, there is an infringement of the provisions of Directive 2014/17/EU in conjunction with Directives 2008/48/EC and 2013/36/EU (6) and Regulation (EU) No 1093/2010 (7), where the national provisions, that is to say Article 2(1), (2) and (3) and Article 5(1), points 1 and 2, of the Law on credit institutions allow the defendant, as a credit institution under Austrian law, to conclude consumer credit transactions for Croatian citizens in the territory of the Republic of Croatia without authorisation from the Croatian national supervisory authority, and may the view be taken that, in such a situation, those national provisions do not afford adequate protection to natural persons who are consumers in the manner prescribed in Article 5 of Directive 2014/17/EU — competent authorities —, and that the defendant did not act in accordance with the principles of good faith and loyalty provided for in Article 4 of the ZOO, meaning that the provisions of the credit agreement are therefore void?

10. Has the fact that, at the time when the 2007 and 2008 credit agreements were concluded, the Croatian legal system lacked any adequate implementing provisions laying down detailed rules governing the right, and the conditions applicable to the right, of Croatian citizens to incur debt abroad caused a significant imbalance in the position of borrowers, on the one hand, and banks, on the other, which is contrary to the provisions of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014, in particular Article 13 thereof?

(1) Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

(2) Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34).

(3) 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 (OJ 2008 L 133, p. 66).

(4) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC Text with EEA relevance (OJ 2013 L 176, p. 338).

(5) Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12).

(6) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC Text with EEA relevance (OJ 2013 L 176, p. 338).

(7) Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12).