ECLI:EU:C:2026:697

Full text

Provisional text

OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 3 September 2026 (1)

Case C‑393/25

Okresný súd Banská Bystrica,

interested party:

KRUK Česká a Slovenská republika s.r.o.

(Request for a preliminary ruling from the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic))

( Reference for a preliminary ruling – Consumer protection – Consumer credit – Directive 2008/48/EC – Principle of effectiveness of EU law – Article 8(1) and Article 23 – Obligation on the creditor to assess the consumer’s creditworthiness – National legislation which does not permit the enforcing court to verify of its own motion whether that obligation has been complied with – Impossible to apply the penalty provided for by national law )

Introduction

1. In the present case, the Court has been asked by the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic) to give a preliminary ruling on the interpretation of Article 8(1) and 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. (2)

2. This request provides the Court with an opportunity to examine whether the principle of effectiveness precludes national legislation, as well as subsequent national case-law, which do not permit the enforcing court to review of its own motion whether an obligation arising from consumer law has been complied with where the court which ruled in the proceedings giving rise to the enforcement order had the power to carry out such a review of its own motion but did not exercise it.

Legal framework

European Union law

3. Recitals 26 and 47 of Directive 2008/48 state:

‘(26) 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. … 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. … 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.

…

(47) Member States should lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and ensure that they are implemented. While the choice of penalties remains within the discretion of the Member States, the penalties provided for should be effective, proportionate and dissuasive.’

4. Article 8 of that directive, entitled ‘Obligation to assess the creditworthiness of the consumer’, provides, in paragraph 1:

‘Member States shall 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.’

5. In accordance with Article 23 of that directive, entitled ‘Penalties’:

‘Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.’

Slovak law

6. Paragraph 7(1) of 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 of 9 March 2010 on consumer credit and other credits and loans for consumers and amending and supplementing certain laws), in the version applicable to the dispute in the main proceedings, provided as follows:

‘Before concluding a consumer credit agreement or an amendment to the agreement which involves an increase in the amount of consumer credit, the creditor shall be obliged to carry out with professional diligence an assessment of the consumer’s ability to repay the consumer credit, taking into account in particular the period for which the consumer credit is granted, the amount of the consumer credit, the consumer’s income and, where applicable, the purpose of the consumer credit.’

7. Paragraph 11(2) of that law provides:

‘If a creditor has failed to act with professional diligence in accordance with Paragraph 7(1), it shall not be entitled to require the consumer to make a one-off repayment of the consumer credit. In the event of a serious infringement of the obligation under Paragraph 7(1), the credit shall be deemed to be free of interest and charges. An assessment by the creditor of the consumer’s ability to repay the credit made without obtaining any data on the consumer’s income, expenditure and family situation or without taking account of data from the relevant database or register for the purpose of assessing the consumer’s ability to repay the consumer credit shall be deemed to be a serious infringement of the obligation under Paragraph 7(1). An infringement of Paragraph 7(19) to (42) shall also be deemed to be a serious infringement of the obligation under Paragraph 7(1).’

The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

8. On 25 May 2017, OC (‘the applicant in the main proceedings’ or ‘the consumer’) concluded with a Slovak bank a credit agreement under which the bank granted the applicant in the main proceedings consumer credit in the amount of EUR 20 000, which she undertook to repay in 96 monthly instalments of EUR 343.77, thus a total of EUR 30 000.70. It is not stated in the present case that the bank carried out a comparison between the income and expenses of the applicant in the main proceedings in order to verify her creditworthiness and thus her ability to repay the credit.

9. The applicant in the main proceedings repaid an amount of EUR 9 736.37. On 1 December 2020, on account of late payment by the applicant in the main proceedings, the bank declared the outstanding amount of the loan immediately due and payable. By agreement dated 23 March 2021, the bank assigned the claim to the current creditor, KRUK Česká a Slovenská republika s.r.o. (‘KRUK’).

10. KRUK brought an action before the Okresný súd Považská Bystrica (District Court, Považská Bystrica, Slovakia) seeking payment by the applicant in the main proceedings of the sums provided for in the credit agreement. By judgment of 26 January 2022, that court ordered the applicant in the main proceedings to pay KRUK the remaining amount of the credit, together with costs, default interest, penalties, lawyers’ fees and ancillary costs (‘the enforcement order’).

11. On 13 July 2022, KRUK lodged with the Okresný súd Banská Bystrica (District Court, Banská Bystrica, Slovakia; ‘the enforcing court’) an application for court enforcement of the enforcement order. On 28 July 2022, the enforcing court instructed a bailiff to carry out the enforcement.

12. On 10 February 2023, the applicant in the main proceedings lodged with the bailiff an application for suspension of enforcement, claiming that, in its judgment of 26 January 2022, the Okresný súd Považská Bystrica (District Court, Považská Bystrica) had not verified whether the original creditor had fulfilled its obligation to carry out an assessment of the consumer’s creditworthiness, provided for by the national legislation transposing Article 8 of Directive 2008/48.

13. By order of 18 October 2023, the judicial administrator (3) rejected that application for suspension, taking the view that, in enforcement proceedings, it was not permitted to review the legality of the enforcement order. An appeal against that decision was brought before the enforcing court, which dismissed it by order of 26 August 2024 on the ground that enforcement orders are not subject to substantive review at the enforcement stage.

14. The applicant in the main proceedings then brought a constitutional appeal before the referring court, claiming that the Okresný súd Považská Bystrica (District Court, Považská Bystrica) had not, in the proceedings leading to the adoption of the enforcement order, verified compliance with the obligations incumbent on the original creditor under Paragraph 7(1) and Paragraph 11(2) of Law No 129/2010 of 9 March 2010 on consumer credit and other credits and loans for consumers and amending and supplementing certain laws, as well as Article 8 of Directive 2008/48.

15. The referring court has doubts as to the legality, having regard to Articles 8 and 23 of Directive 2008/48, of national legislation and case-law which do not permit the enforcing court, first, to examine the infringement, by the creditor, of its obligation to assess the consumer’s creditworthiness and, secondly, to impose on the creditor the penalty provided for by the national law transposing that Article 23.

16. In those circumstances, the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Articles 8 and 23 of Directive [2008/48] be interpreted as precluding legislation and the resulting case-law of national courts which, in enforcement proceedings, do not permit examination, of a court’s own motion, of whether a [creditor] has infringed its obligation to carry out an assessment of the consumer’s creditworthiness and which do not permit the penalty of loss of interest to be imposed on a provider who has granted credit to a consumer who is not creditworthy?’

17. Written observations were submitted by the Slovak, Italian and Finnish Governments, the applicant and the defendant in the main proceedings, as well as by the European Commission.

Analysis

18. By its question, the referring court seeks to ascertain, in essence, whether Article 8(1) and Article 23 of Directive 2008/48, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation, as well as subsequent national case-law, which do not permit the court before which enforcement proceedings have been brought to verify, of its own motion, whether the creditor has complied with the obligation to carry out an assessment of the consumer’s creditworthiness and, in the event of an infringement of that obligation, to apply the penalties laid down by national law.

19. In this Opinion, I shall begin by examining the issue of the requirement for the national court to assess of its own motion whether the obligation arising from Article 8(1) of Directive 2008/48 has been complied with. I shall then recall the principles identified in the case-law concerning the implementation of such a requirement at national level before examining the extent to which those principles can be applied in respect of the framework established by that directive and, lastly, applying them to the circumstances of the present case.

The requirement for the national court to verify, of its own motion, whether Article 8(1) of Directive 2008/48 has been complied with

20. The Court has, on numerous occasions, held that national courts are required to examine, of their own motion, whether there has been compliance with certain provisions of EU law in relation to the protection of consumers. (4)

21. In accordance with settled case-law, such a finding is based on two sets of considerations.

22. The first relates to the nature and significance of the public interest underlying the protection of consumers. In that regard, it is common ground that the system of protection introduced by EU consumer protection legislation is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier as regards both bargaining power and level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. (5) Accordingly, in order to guarantee the protection intended by EU legislation, the imbalance between the consumer and the seller or supplier may be corrected only by positive action unconnected with the parties to the contract. (6)

23. The second relates to the nature of the specific provision alleged to have been infringed. It follows from the case-law that national courts are not required to examine of their own motion whether any provision relating to consumer protection has been infringed. It is necessary, in particular, to assess whether the obligation imposed on the seller or supplier by the provision in question is of ‘fundamental importance’ for consumer protection, in so far as it contributes to the attainment of the objective pursued by the secondary legislation to which it relates. (7)

24. As the referring court pointed out, the Court has already had occasion to rule, in the judgment in OPR-Finance, (8) on whether the national court is required to examine of its own motion whether the obligation laid down in Article 8(1) of Directive 2008/48 has been complied with.

25. I would point out that, under that provision, the creditor is required, prior to the conclusion of a credit agreement, to assess 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.

26. The Court has held that the obligation arising from Article 8(1) of Directive 2008/48 pursues a twofold objective. It is intended not only to make the creditor accountable and prevent the granting of credit to consumers who are not creditworthy, (9) but also to protect consumers against the risks of over-indebtedness and bankruptcy. With regard to that second objective, the Court affirmed that the creditor’s pre-contractual obligation to assess the consumer’s creditworthiness contributes to attaining the objective of that directive, namely of ensuring a high and equivalent level of protection of consumers whilst promoting the development of a well-functioning internal market in consumer credit. (10) It also pointed out, in that context, that, according to the case-law, there is a real risk that the consumer, particularly because of lack of awareness, will not rely on the legal rule that is intended to protect him. (11)

27. The Court concluded that the obligation in question is of fundamental significance for consumer protection, with the result that the national court is required to verify of its own motion whether that obligation has been complied with where it has available to it the legal and factual elements necessary for that task. (12)

28. In the present case, the question essentially asks whether the detailed rules for implementing that obligation, laid down by the national legislation at issue, are consistent with EU law. It is appropriate at the outset, in that regard, to recall the relevant case-law.

The case-law relating to the detailed procedural rules for implementing the requirement to carry out an ex officio examination

29. It should be borne in mind that it is for the national legal order of each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that the principles of equivalence and effectiveness are observed. (13) The questions raised by the present case concern the principle of effectiveness only.

30. With regard to that principle, the Court has repeatedly stated that every case in which the question arises whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, and, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. (14) In addition, it has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law implies a requirement for effective judicial protection guaranteed in particular by Article 47 of the Charter of Fundamental Rights of the European Union. The latter applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights. (15)

31. It should be noted that the Court has already ruled on numerous occasions on the compliance with the principle of effectiveness of national legislation which, at the stage of enforcement proceedings, does not allow an examination by a court’s own motion of whether the terms contained in a contract concluded between a seller or supplier and a consumer are potentially unfair in nature in the light of Articles 6 and 7 of Directive 93/13. (16)

32. It is appropriate, at this stage, to set out that case-law.

33. In the judgment in Finanmadrid EFC, (17) the Court held that effective protection of consumers’ rights requires the national procedural system to provide, during the order for payment proceedings or the enforcement proceedings concerning an order for payment, for a court to check of its own motion whether terms contained in a contract concluded between a seller or supplier and a consumer are unfair. According to the Court, in a case in which no check of its own motion by the court is provided for at the enforcement stage of the order for payment, national legislation is liable to undermine the effectiveness of consumer protection if it does not provide for such a check when the order for payment is granted or, in the case where such a check is provided for only when an objection is lodged against the order granted, if there is a significant risk that the consumer concerned will not lodge the objection required. (18)

34. In the judgment in Banco Primus, (19) the Court held that Articles 6 and 7 of Directive 93/13 do not preclude a national rule which prohibits national courts from examining of their own motion the unfairness of contractual terms where the lawfulness of the terms of the contract, taken as a whole, has already been examined in the light of that directive by a decision which has become res judicata. It clarified, however, that, where the unfairness of one or more terms has not been assessed during the examination of the contract in dispute which led to the adoption of that decision, that directive requires that the court hearing a subsequent action is able to examine those terms.

35. The judgments in Ibercaja Banco (20) and in SPV Project follow on from that case-law.

36. As regards the judgment in Ibercaja Banco, the Court held that national legislation infringed Articles 6 and 7 of Directive 93/13, read in the light of the principle of effectiveness, in so far as, by virtue of res judicata, it did not allow the mortgage enforcement court to review of its own motion whether the contractual terms were unfair, or the consumer, after the expiry of the period for lodging an objection, to raise that unfairness himself or herself. While it is true that the court which authorised the mortgage enforcement had carried out an examination of its own motion of the terms concerned, the decision authorising that enforcement contained no statement of reasons, even of a summary nature, which made it possible to establish the existence of that examination.

37. In the case giving rise to the judgment in SPV Project, the Court was called upon to examine legislation prohibiting, at the enforcement stage, an examination of the court’s own motion of the potential unfairness of the contractual terms on which an order for payment was based, on the ground that such an examination was deemed to have taken place and to be covered by res judicata even where there is no statement of reasons on that point in the decision issuing that order. In its judgment, it held that the requirement of effective judicial protection necessitates that the court hearing the enforcement proceedings is able to assess, including for the first time, that unfairness. (21) The Court subsequently clarified, in the judgment in Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms), that that conclusion must be drawn, a fortiori, where no review by a court of its own motion of the potential unfairness of terms of the contract concerned is deemed to have taken place. (22)

38. A similar prohibition was at issue in the case which gave rise to the judgment in Investcapital, on account of a time-barring mechanism precluding a further review of whether contractual terms were unfair where such a review had already been carried out by a court in the course of the order for payment procedure. In its judgment, the Court nevertheless held that such a prohibition does not conflict with the principle of effectiveness where the decision given in the course of the order for payment procedure sets out, albeit in summary form, the reasons why the terms concerned are deemed not to be unfair and it states that, if the remedies provided for under national law have not been exercised within the time limit set for that purpose, the consumer will be time-barred from subsequently relying on the possible unfairness of those terms. (23)

39. According to the Slovak and Italian Governments, that case-law must be interpreted as meaning that the principle of effectiveness is not infringed where the national legislation at issue permits the court, in the context of the proceedings leading to the issue of an enforcement order, to review compliance with an obligation such as that laid down in Article 8 of Directive 2008/48, even if, subsequently, the enforcing court does not have the power to carry out a fresh examination of the substance of that order. (24)

40. That position does not reflect my own view.

41. I consider that the interpretation advocated by those governments does not follow from the case-law of the Court.

42. It is clear from the judgment in Finanmadrid and from subsequent case-law that compliance with the principle of effectiveness cannot be inferred solely from the fact that national legislation allows for judicial review of the potentially unfair nature of the contractual terms in question at the stage of the procedure which led to the enforcement order being issued. Such a possibility is, in fact, a necessary but insufficient condition for ensuring the effectiveness of the protection afforded to consumers by EU law.

43. I note, in that regard, that, on the basis of its legal reasoning, the Court has now consistently held that observance of the rights of consumers cannot be guaranteed without ‘effective’ review of whether contractual terms are unfair. It follows, according to the Court, that the conditions laid down in the national laws, to which Article 6(1) of Directive 93/13 refers, may not adversely affect the ‘substance’ of the right that consumers acquire under that provision not to be bound by a term deemed to be unfair. (25)

44. That principle is illustrated in the judgment in Ibercaja Banco. It is true that the Court recognised that consumer protection is not absolute and that it does not require a national court to disapply national rules on res judicata. It nevertheless held that a review cannot be regarded as effective where judicial decisions are recognised as having the force of res judicata without it being apparent from their statement of reasons that an examination of the unfairness of contractual terms has actually been carried out. (26) Such an extension of res judicata would have the effect of covering situations in which no check as to whether contractual terms are unfair could be carried out during the national proceedings as a whole.

45. In short, the requirement of a statement of reasons showing that a court has carried out a review of its own motion demonstrates that the mere recognition, in national law, of the power to carry out such a review does not suffice. It is also required that that power must actually have been exercised and the judicial decision must make it possible to establish that that is the case.

46. In its written observations, the Italian Government advocates a more restrictive interpretation of the case-law which I have just examined. In its view, recognition of the power of the enforcing court to examine of its own motion whether the terms of a contract concluded between a seller or supplier and a consumer is warranted only where the proceedings leading to the issue of the enforcement order did not allow for such a review on account of their simplified nature.

47. In my view, although the simplified nature of the proceedings may reveal the lack of such a review, the mere fact that national legislation permits such scrutiny is insufficient, in the light of the Court’s case-law, to establish compliance with the principle of effectiveness. I consider that, in order to comply with that principle, such legislation must be framed in such a way that the consumer benefits in all circumstances from the ‘guarantee’, to use the Court’s own words, (27) that judicial review of whether the relevant provisions of consumer law have been complied with will take place at any time during the proceedings. (28)

48. Moreover, the interpretation advocated by the Italian Government leads, in essence, to making the protection conferred on the consumer dependent on his or her participation in the proceedings giving rise to the adoption of the enforcement order and on the bringing of an action against the decision constituting that order. Although the Court has repeatedly stated that ‘the need to comply with the principle of effectiveness cannot be stretched so far as to make up fully for the complete inaction on the part of the consumer concerned’, (29) I consider that the case-law lays down a higher level of consumer protection and, accordingly, adopts a view of consumer inaction which is significantly more restrictive than that underlying the Italian Government’s interpretation.

49. It should be noted that, as is apparent from the judgments in Ibercaja Banco and in Investcapital, national legislation which excludes any review, by the enforcing court, as to whether contractual terms are unfair is compatible with the principle of effectiveness only if the decision authorising enforcement sets out, in a sufficient statement of reasons, the reasons why the terms concerned are not unfair. That decision must also clearly state that, in the absence of an objection within the period laid down by national law, the consumer will be definitively deprived of the possibility of subsequently relying on the unfairness of those terms. (30) In the absence of such a statement of reasons and such information, the consumer would not be in a position to assess, in full knowledge of the facts, whether it is appropriate to bring an appeal against that decision. In those circumstances, the consumer cannot be accused of inaction.

50. Moreover, the fact that the consumer does not participate in the main proceedings cannot, in itself, justify the interpretation advocated by the Italian Government or result in the loss of the protection afforded to the consumer by EU law. (31)

The possibility of applying that case-law to infringements of Article 8(1) of Directive 2008/48

51. It its written observations, the Slovak Government submits that the case-law examined to date cannot be applied in situations in which there has been an infringement of Article 8(1) and Article 23 of Directive 2008/48. In its view, those provisions differ from Articles 6 and 7 of Directive 93/13 both by their nature and by the objectives which they pursue. Therefore, the principles developed by the Court in the context of the interpretation of Articles 6 and 7 of Directive 93/13 would not apply mutatis mutandis to Article 8(1) and Article 23 of Directive 2008/48.

52. The argument put forward by that government may be summarised as follows. While Article 6 of Directive 93/13 provides that unfair terms are not binding on the consumer, Article 8(1) of Directive 2008/48 requires the Member States to ensure compliance with an obligation to take action consisting of, on the part of the creditor, verifying the consumer’s creditworthiness in advance. That provision therefore does not directly affect the content of the contractual terms agreed between the seller or supplier and the consumer. Accordingly, its infringement cannot, in itself, render the contractual terms concerned void, unlike the mechanism established by Article 7 of Directive 93/13. According to that analysis, failure to comply with the obligation to check creditworthiness requires only the implementation of the measures necessary to ensure the effective application of the penalties laid down by national law, in accordance with Article 23 of Directive 2008/48.

53. For my part, I find it difficult to see the relevance of such a distinction. The requirement to raise ex officio an infringement of consumer law is based on the consideration that the provision concerned protects a public interest of such importance that it justifies the intervention of the courts irrespective of any initiative on the part of the consumer. It also has as its basis the fundamental role played by that provision in the attainment of the objectives pursued by the legislative instrument to which it belongs.

54. In those circumstances, once it is accepted that such a requirement exists in respect of a given provision, the nature of that provision and the legal consequences of its infringement appear to me to be irrelevant for the purposes of applying the Court’s case-law on the detailed procedural rules governing the implementation of that requirement.

Application to the present case

55. Under Slovak law, courts before which enforcement proceedings are brought have jurisdiction only in respect of matters relating to the conduct of enforcement proceedings and the review of their legality. By contrast, disputes concerning substantive rights fall, in principle, within the jurisdiction of the ordinary courts, which are called upon to rule in civil disputes. Generally speaking, the enforcing court is bound by the enforcement order resulting from the decision handed down by the ordinary court and cannot review the merits of that decision. (32) That prohibition imposed on the enforcing court does not stem from the final nature of that decision, but simply from the separation between the substantive proceedings and the enforcement proceedings, which reflects considerations of legal certainty. (33)

56. Such an unconditional prohibition does not, however, appear to be consistent with the principle of effectiveness in a situation such as that in the main proceedings.

57. The enforcement order does not indicate that there has been any ex officio examination of compliance with the obligation, laid down in Article 8(1) of Directive 2008/48, to assess the creditworthiness of the consumer. Nor does it contain any indication that, in the absence of an appeal lodged within the time limit laid down by national law, the consumer would be definitively time-barred from subsequently relying on the failure to comply with that obligation.

58. In those circumstances, and subject to the assessments which it is for the referring court to carry out, it cannot be held, as the Italian Government has submitted, that the consumer concerned displayed ‘inertia on two counts’, solely on the ground that, first, she did not appear in the proceedings before the Okresný súd Považská Bystrica (District Court, Považská Bystrica) and, secondly, she did not bring an appeal against the decision handed down by that court. In the light of the case-law examined above, such conduct could not be interpreted as constituting a waiver of the rights conferred on her by EU law.

59. In those circumstances, and in the light of the foregoing considerations, the principle of effectiveness requires that the Slovak legislation permit the enforcing court to carry out a review of the merits of the enforcement order in order to verify, where necessary for the first time, whether the obligation to assess the creditworthiness of the consumer has been complied with and to draw the legal consequences provided for by national law. (34)

60. Therefore, I propose that the Court’s answer to the question referred for a preliminary ruling should be that Articles 8 and 23 of Directive 2008/48, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation, as well as subsequent national case-law, which do not permit the court before which enforcement proceedings are brought to verify, of its own motion, whether the creditor has complied with that obligation and, if that obligation has been infringed, to apply the penalties laid down by national law, where that review was not carried out by a court in the context of the proceedings which led to the enforcement order being issued.

Conclusion

61. In the light of the foregoing considerations, I propose that the Court of Justice answer the question referred for a preliminary ruling by the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic) as follows:

Articles 8 and 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 Directive 87/102/EEC, read in the light of the principle of effectiveness,

must be interpreted as precluding national legislation, as well as subsequent national case-law, which do not permit the court before which enforcement proceedings are brought to verify, of its own motion, whether the creditor has complied with the obligation to carry out an assessment of the consumer’s creditworthiness and, if that obligation has been infringed, to apply the penalties laid down by national law, where that review was not carried out by a court in the context of the proceedings which led to the enforcement order being issued.

1 Original language: French.

2 OJ 2008 L 133, p. 66.

3 A State official who acts independently on behalf of a court by delegation of a judge.

4 See, with regard to Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12), judgment of 3 October 2013, Duarte Hueros (C‑32/12, EU:C:2013:637, paragraph 39); see, with regard to Article 4 of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31), see judgment of 17 December 2009, Martín (C‑227/08, EU:C:2009:792, paragraph 29); see, with regard to Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), judgment of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 32). See, with regard to Directive 2008/48, see judgment of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 70).

5 See judgment of 4 June 2020, Kancelaria Medius (C‑495/19, EU:C:2020:431, paragraph 30 and the case-law cited).

6 See judgment of 29 February 2024, Investcapital (C‑724/22, ‘the judgment in Investcapital’, EU:C:2024:182, paragraph 56 and the case-law cited).

7 See judgment of 21 April 2016, in Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 64).

8 Judgment of 5 March 2020 (C‑679/18, ‘the judgment in OPR-Finance’, EU:C:2020:167).

9 See recital 26 of Directive 2008/48.

10 See the judgment in OPR-Finance (paragraphs 20 and 21).

11 See the judgment in OPR-Finance (paragraph 22).

12 See the judgment in OPR-Finance (paragraphs 21 and 23). See, also, judgment of 24 October 2024, Horyzont (C‑339/23, EU:C:2024:918, paragraph 31).

13 See judgment of 4 May 2023, BRD Groupe Société Générale and Next Capital Solutions (C‑200/21, EU:C:2023:380, paragraph 28 and the case-law cited).

14 See judgment of 17 May 2022, SPV Project 1503 and Others (C‑693/19 and C‑831/19, ‘the judgment in SPV Project’, EU:C:2022:395, paragraph 60 and the case-law cited).

15 See judgment of 19 March 2026, UniCredit Bank and Momentum Credit (C‑679/24, EU:C:2026:223, paragraph 64 and the case-law cited).

16 Article 6(1) of Directive 93/13 provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms’. Article 7(1) of that directive reads as follows: ‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’.

17 Judgment of 18 February 2016 (C‑49/14, ‘the judgment in Finanmadrid’, EU:C:2016:98).

18 The judgment in Finanmadrid (paragraphs 45, 46 and 52).

19 Judgment of 26 January 2017 (C‑421/14, EU:C:2017:60).

20 Judgment of 17 May 2022 (C‑600/19, ‘the judgment in Ibercaja Banco’, EU:C:2022:394).

21 The judgment in SPV Project (paragraphs 65 and 66).

22 Judgment of 18 January 2024 (C‑531/22, EU:C:2024:58, paragraph 59).

23 The judgment in Investcapital (paragraph 52).

24 It should be observed that the Slovak legislature itself appears to have adopted such an interpretation, as is apparent from Paragraph 53(3)(e) of zákon č. 233/1995 Z. z. Exekučný poriadok (Law No 233/1995 of 14 September 1995 on bailiffs and the enforcement of the Code of Civil Procedure). Under that provision, the court is to reject the application for enforcement if the enforcement order was issued in proceedings in which it was not possible to invoke or review unfair terms and where the existence of an unfair term affects the right the enforcement of which is sought and which arises from a contract concluded with a consumer.

25 See judgment of 17 May 2022, Unicaja Banco (C‑869/19, EU:C:2022:397, paragraphs 30 and 31 and the case-law cited).

26 The judgment in Ibercaja Banco (paragraphs 42 and 50).

27 See judgment of 20 September 2018, EOS KSI Slovensko (C‑448/17, EU:C:2018:745, paragraph 49). See, also, the judgment in Investcapital (paragraphs 37 and 38).

28 It should be noted that the Court considers that consumer protection cannot be regarded as effective where the check as to whether contractual terms are unfair takes place only after enforcement. If enforcement is completed before the court ruling on the substance of the case gives judgment, the consumer will receive only protection a posteriori which is limited to compensation for the consequences of the damage suffered. Such protection is deemed to be incomplete and insufficient to ensure that that protection is fully effective. See judgments of 26 June 2019, Addiko Bank (C‑407/18, EU:C:2019:537, paragraphs 61 and 62), and of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396, paragraph 54 et seq.).

29 See judgment of 18 December 2025, Soledil (C‑320/24, EU:C:2025:993, paragraph 41 and the case-law cited).

30 The judgments in Ibercaja Banco (paragraph 51) and in Investcapital (paragraphs 45 and 48).

31 See, in that regard, judgment of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615).

32 It is apparent from the order for reference that the only exception provided for under Slovak law concerns the order for payment procedure.

33 Those procedural rules are by no means unique to the Slovak legal system. In that regard, the Italian Government notes, in its written observations, that the Corte suprema di cassazione (Supreme Court of Cassation, Italy) has held that, in the context of an objection to enforcement, the principle of the ‘inviolability of the enforcement order’ applies to all events prior to or contemporaneous with its issue and it becoming final in nature. That principle stems from the fact that all questions relating to the merits of the right established by the enforcement order are reserved to the court ruling on the substance. It follows that, where a judicial enforcement order serves as the basis for an enforcement measure, the enforcing court cannot carry out a review of the content of that order, that is to say a review seeking to call into question its effectiveness in the light of exceptions or defences which should have been relied on in the proceedings which led to it being issued.

34 In the present case, this would be a penalty consisting of the creditor’s loss of the right to interest.

Opinion of Advocate General Spielmann delivered on 3 September 2026.###

Full text

Continue your research in ChatGPT or Claude