Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 18 December 2020 – ‘Banka DSK’ EAD v RP

(Case C-689/20)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant: ‘Banka DSK’ EAD

Defendant: RP

Questions referred

Are Article 3(1) of Directive 93/13/EEC, 1 read in conjunction with subparagraphs (e) and (f) of paragraph 1 of the annex to that directive, and Article 15(2) and (3) of the Charter of Fundamental Rights [of the European Union] to be interpreted as meaning that terms are contrary to the requirement of good faith and are to the disadvantage of the consumer if they substantially increase the consumer’s costs under a credit agreement in the event that the consumer does not transfer his or her salary to [an account with] the lending bank each month, taking into account that, under the terms of the agreement, that consumer is obliged to create a pledge on his or her claim to salary, irrespective of how and in which country he or she receives that salary?

If the first question is answered in the negative, is Article 3(1) of Directive 93/13/EEC, read in conjunction with subparagraphs (e) and (f) of paragraph 1 of the annex to that directive, to be interpreted as meaning that terms are contrary to the requirement of good faith and are to the disadvantage of the consumer if they oblige the consumer, in addition to transferring his or her salary to [an account with] the trader granting the credit, to effectively use other services of that trader?

If the second question is answered in the affirmative as a matter of principle, on what criteria should the national court base its assessment of unfairness? In particular, should it take account of the degree of the connection between the subject matter of the credit agreement and the ancillary services which the consumer is obliged to use, the number of services and the national rules on the restriction of tied sales?

Does the principle of interpreting national law in conformity with EU law, as established in paragraph 26 of the judgment in Case 14/83, von Colson, also apply to the interpretation of national legal provisions governing areas of law (in casu, rules on unfair competition) which have a legal subject matter that is different from but related to that of the act of EU law applied by the national court in the proceedings before it (in casu, Directive 93/13/EEC on unfair terms in consumer contracts)?

Are Article 7(2) of Directive 2005/29/EC, 2 read in conjunction with Article 6(1)(d) thereof, and Article 10(2)(f) of Directive 2008/48/EC 3 to be interpreted as prohibiting the indication of a lower borrowing rate in the main consumer credit agreement if the granting of the credit at that borrowing rate is made subject to conditions laid down in an annex to the agreement? Should such an assessment entail an examination of the wording of the conditions for the reduction of the borrowing rate, the loss of such a reduction and the means by which that reduction can be recovered?

Is Article 5(2)(b) of Directive 2005/29/EC to be interpreted as meaning that, when assessing the possibility that the economic behaviour of consumers might be materially altered, the market share of a bank granting consumer loans must be taken into account, having regard to the needs of the consumers who use such products?

Is Article 3(g) of Directive 2008/48/EC to be interpreted as meaning that the costs specified in contracts which relate to a consumer credit agreement and the performance of which results in the granting of a discount on the interest under the consumer credit agreement form part of the annual percentage rate of charge of the loan and must be included in the calculation thereof?

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 event of non-performance of obligations under contracts relating to the credit agreement, which is tied to an increase in the borrowing rate of the loan, the annual percentage rate of charge of the loan must be calculated also on the basis of the increased borrowing rate in the event of non-performance?

Is Article 10(2)(g) of Directive 2008/48/EC to be interpreted as meaning that an incorrect indication of the annual percentage rate of charge in a credit agreement between a trader and a consumer borrower must be regarded as a failure to indicate the annual percentage rate of charge in the credit agreement and that the national court must apply the legal consequences provided for under domestic law for failure to indicate the annual percentage rate of charge in a consumer credit agreement?

Is Article 22(4) of Directive 2008/48/EC to be interpreted as meaning that a penalty provided for by the national legislature, in the form of nullity of the consumer credit agreement, whereby only the principal amount granted is to be repaid, is proportionate in situations where a consumer credit agreement does not contain an accurate indication of the annual percentage rate of charge?

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1 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2 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 (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

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).