Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 11 July 2023 – D. D., B. Zh. v ‘Financial Bulgaria’ EOOD
(Case C-426/23, Financial Bulgaria)
Language of the case: Bulgarian
Referring court
Sofiyski rayonen sad
Parties to the main proceedings
Applicants: D. D., B. Zh.
Defendant: ‘Financial Bulgaria’ EOOD
Questions referred
1. Are Article 4(2) and Article 6(1) of Council Directive 93/13/EEC 1 on unfair terms in consumer contracts (‘Directive 93/13/EEC’) to be interpreted as meaning that:
where a credit agreement imposes an obligation on the consumer to conclude a contract of guarantee with a guarantor nominated by the creditor, the content of the contract of guarantee is not the ‘main subject matter’ of the contract with that third party but forms part of the content of the credit agreement? Is it relevant in that regard whether the creditor and the guarantor are connected persons?
2. Is point 1(i) of the Annex to Directive 93/13/EEC to be interpreted as meaning that:
where the consumer is required to provide a guarantor in connection with a credit agreement which has already been concluded – one of the options being for him or her to appoint a person nominated by the creditor – the content of the consumer’s obligation under the contract of guarantee concluded later on the day on which the credit agreement was concluded must be regarded as unclear, since it was not possible for the consumer himself or herself to select or propose the person to be nominated by the creditor as the future guarantor?
3. If the answer to the preceding question is that the subject matter of the contract of guarantee is clear, is point 1(i), (j) and (m) of the Annex to Directive 93/13/EEC to be interpreted as meaning that:
where the consumer has undertaken to provide a guarantor in connection with a credit agreement which has already been concluded – one of the options being for him or her to appoint a person nominated by the creditor – the content of the consumer’s obligation under the credit agreement must be regarded as unclear and may lead to the nullity of the credit agreement or particular terms thereof?
4. Is Article 4(1) of Directive 93/13/EEC, read in conjunction with Article 8 of Directive 2005/29/EC 1 concerning unfair commercial practices, to be interpreted as meaning that:
where a person granting credit requires the consumer to conclude an agreement with a person nominated by the creditor to secure the creditor’s claim against the consumer, that always constitutes exploitation of the consumer’s disadvantageous position and is therefore an aggressive commercial practice?
5. If Question 4 is answered in the negative: are Article 4(1) and Article 7 of Directive 93/13/EEC, read in conjunction with Article 8 of Directive 2005/29/EC concerning unfair commercial practices, to be interpreted as meaning that:
in unilateral legal proceedings, such as the order for payment procedure, to which the consumer is not a party, the court may base doubts as to the fairness of a contractual term solely on its suspicion that the term was accepted by the consumer on the basis of an unfair commercial practice, or must the latter be established with certainty?
6. Is Article 15(2) of Directive 2008/48/EC 1 on credit agreements for consumers (‘Directive 2008/48/EC’) to be interpreted as meaning that:
it applies in cases where the credit agreement is linked to an ancillary service, namely the provision of a guarantee by a third party in return for a fee, and allows the consumer not only to pursue his or her claims on grounds of wrongful conduct on the part of the guarantor, such as payment after the expiry of a statutory time limit, but also to rely on procedural objections which rule out the obligation to the guarantor?
7. Does Article 15(2) of Directive 2008/48/EC, taken in conjunction with the principle of effectiveness, or – on the assumption that the credit agreement and the contract of guarantee constitute related transactions – do Articles 5 and 7 of Directive 93/13/EEC, read in conjunction with point 1(b) and (c) of the Annex thereto, permit:
national case-law according to which the guarantor of a contract linked to a consumer credit agreement who has received a fee from the consumer for the collateralisation of the credit agreement and who has paid the principal creditor on the basis of a contractual term, despite the expiry of the period laid down in Article 147 of the Zakon za zadalzheniata i dogovorite (Law on obligations and contracts), which, according to the relevant case-law, extinguishes the guarantee in its entirety, may nevertheless plead that he has succeeded to the rights of the original creditor and, citing contradictory case-law on the application of the law, claim payment from the principal debtor?
8. Is Article 3(g) of Directive 2008/48/EC, read in conjunction with Article 5 of Directive 93/13/EEC, to be interpreted as meaning that:
in the case of an obligation under a credit agreement to conclude a linked contract of guarantee, which has the effect of increasing the total amount of the credit liability, the annual percentage rate of charge (APR) for the credit must also be calculated on the basis of the increased instalments resulting from the fee paid to the guarantor? Is it relevant in that regard who selected the guarantor and whether he is a person connected with the principal creditor?
9. Is Article 10(2)(g) of Directive 2008/48/EC to be interpreted as meaning that:
the incorrect indication of the APR in a credit agreement concluded between a seller or supplier and a consumer-borrower must be regarded as a failure to indicate the APR in the credit agreement and that the national court must apply the legal consequences laid down by national law for failure to indicate the APR in a consumer credit agreement? Is it to be assumed that those consequences must also apply to the guarantor who has paid in his relationship with the consumer?
10. Is the second sentence of Article 23 of Directive 2008/48/EC to be interpreted as meaning that:
the penalty for which the national legislature provides, namely the nullity of the consumer credit agreement, whereby only the principal amount granted is repayable, must be regarded as proportionate in cases where the consumer credit agreement does not contain a precise indication of the APR in that it does not indicate the cost of a commercial guarantor selected by the creditor, even though the APR is indicated in numerical form in the text of the credit agreement?
11. Is Article 2(2) of Directive 2009/138/EC 1 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (‘Directive 2009/138/EC’), read in conjunction with point 14 of Part A of Annex 1 to that directive, to be interpreted as meaning that:
the professional pursuit of a remunerated activity as guarantor, in the context of which the guaranteeing company pays, in all cases of default, the total amount of credit contracted by a consumer who is the principal debtor and the fee is paid with each instalment of credit, irrespective of the consumer’s default, constitutes an ‘insurance activity’ within the meaning of that directive?
12. If Question 11 is answered in the affirmative: is Article 14(1) of Directive 2009/138/EC to be interpreted as meaning that:
a person pursuing the activity referred to in Question 11 is subject to an obligation to obtain authorisation from the national regulatory authorities responsible for granting authorisations to insurers?
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1 OJ 1993 L 95, p. 29.
1 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).
1 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).
1 Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (OJ 2009 L 335, p. 1).