–

Pohotovosť s.r.o., by J. Fuchs,

–

the Slovak Government, by B. Ricziová, acting as Agent,

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the European Commission, by A. Tokár, G. Goddin and C. Valero, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 10(2)(h) and (i) and (3) 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 (OJ 2008 L 133, p. 66; corrigenda OJ 2009 L 207, p. 14; OJ 2010 L 199, p. 40; OJ 2011 L 234, p. 46, and OJ 2015 L 36, p. 15).

2

The request has been made in proceedings between TE and Pohotovosť s.r.o. concerning the latter’s liability for having failed to specify, in a credit agreement, the breakdown of each repayment showing capital amortisation, interest and, where applicable, any additional costs.

3

Recitals 9, 19, 30 and 31 of Directive 2008/48 state:

…

…

4

Under Article 1 of that directive, headed ‘Subject matter’:

‘The purpose of this directive is to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.’

5

Article 10 of the directive, entitled ‘Information to be included in credit agreements’, provides:

‘1.   Credit agreements shall be drawn up on paper or on another durable medium.

All the contracting parties shall receive a copy of the credit agreement. This article shall be without prejudice to any national rules regarding the validity of the conclusion of credit agreements which are in conformity with Community law.

2.   The credit agreement shall specify in a clear and concise manner:

…

…

…

3.   Where paragraph 2(i) applies, the creditor shall make available to the consumer, free of charge and at any time throughout the duration of the credit agreement, a statement of account in the form of an amortisation table.

4.   In the case of a credit agreement under which payments made by the consumer do not give rise to an immediate corresponding amortisation of the total amount of credit, but are used to constitute capital during periods and under conditions laid down in the credit agreement or in an ancillary agreement, the information required under paragraph 2 shall include a clear and concise statement that such credit agreements do not provide for a guarantee of repayment of the total amount of credit drawn down under the credit agreement, unless such a guarantee is given.

…’

6

Article 14 of the directive, entitled ‘Right of withdrawal’, states in paragraph 1:

‘The consumer shall have a period of 14 calendar days in which to withdraw from the credit agreement without giving any reason.

That period of withdrawal shall begin

7

Article 22 of Directive 2008/48, entitled ‘Harmonisation and imperative nature of this directive’, is worded as follows:

‘1.   In so far as this directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this directive.

…

3.   Member States shall further ensure that the provisions they adopt in implementation of this directive cannot be circumvented as a result of the way in which agreements are formulated, in particular by integrating drawdowns or credit agreements falling within the scope of this directive into credit agreements the character or purpose of which would make it possible to avoid its application.

…’

8

In Annex II to Directive 2008/48, concerning the ‘Standard European consumer credit information’, section 2, entitled ‘Description of the main features of the credit product’, contains the heading ‘Instalments and, where appropriate, the order in which instalments will be allocated’. The following description is given under that heading:

‘You will have to pay the following:

[The amount, number and frequency of payments to be made by the consumer]

Interest and/or charges will be payable in the following manner:’

9

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 credit and other forms of credit and loans for consumers, amending certain other laws) was intended to transpose Directive 2008/48 into Slovak law.

10

Under Article 9(2) of that law, in the version applicable on 1 October 2015:

‘A consumer credit agreement must, in addition to the general requirements set out in the Civil Code, state the following:

…

…’

11

Article 9(2) of Law No 129/2010, in the version applicable as of 1 May 2018, is worded as follows:

‘A consumer credit agreement must, in addition to the general requirements set out in the Civil Code, state the following:

…

…’

12

Article 11(1) of Law No 129/2010, in the version applicable on 1 January 2013, provides:

‘Any consumer credit granted shall be deemed to be free of interest and charges if:

…

13

On 1 October 2015, TE entered into a consumer credit agreement with Pohotovosť in the amount of EUR 350 for a term of one year with the obligation to repay the sum of EUR 672. The agreement provided for interest of EUR 224 and ‘commission’ of EUR 98.

14

After agreeing on a single repayment, the parties decided, on the same day, on repayment by means of 12 monthly instalments of EUR 56. The annual percentage rate (APR) applicable to the credit which was to be repaid in a single payment was 28% while the APR for the credit repayable in monthly instalments increased to 281.64%.

15

The General Conditions of the agreement stipulated that ‘the APR is calculated on the basis of the total amount borrowed, the amount of commission, the time limit for repayment of the capital and the commission (with the exception of interest, notarial fees, penalties for non-performance of the contract and other charges excluded from calculation of the APR by specific legislation)’.

16

The agreement at issue in the main proceedings did not state why interest was not included in the calculation of the APR and does not explain why the APR of 28% was calculated on the basis of only the ‘commission’, and not also on the basis of other ancillary charges, particularly interest.

17

In addition, the agreement did not include any breakdown of the monthly repayments of the credit showing capital amortisation and other elements of the credit cost.

18

TE brought an action before the Okresný súd Humenné (District Court, Humenné, Slovakia) seeking to establish Pohotovosťs liability for infringement of the obligation set out in Article 9(2)(l) of Law No 129/2010 in the version applicable on 1 October 2015.

19

By judgment of 27 November 2017, that court dismissed TE’s action.

20

TE brought an appeal against that judgment before the Krajský súd v Prešove (Regional Court, Prešov, Slovakia).

21

The referring court states that, in order to comply with the judgment of the Court of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraphs 51 to 59), the Slovak legislature amended Law No 129/2010 by removing, from Article 9(2)(l) of that law, in its version applicable on 1 October 2015, the obligation to indicate, in a credit agreement, ‘dates of repayments of capital, interest and other charges’. That obligation was replaced with the obligation, provided for in Article 9(2)(i) of that law, in the version applicable as of 1 May 2018, to indicate in the credit agreement ‘the frequency of payments’.

22

In that regard, in the first place, the referring court notes that Law No 129/2010, in the version applicable on 1 October 2015, did not expressly provide that ‘dates of repayments of capital, interest and other charges’ had to be indicated in the form of an amortisation table. By amending that law with effect from 1 May 2018 the Slovak legislature removed the obligation to set out, in a credit agreement, the breakdown of repayments between capital, interest and other charges not only in the form of an amortisation table but also in any other form.

23

In the case in the main proceedings, TE did not require that an amortisation table be annexed to the credit agreement she entered into, but that the agreement indicated, at least summarily, the breakdown referred to in the preceding paragraph.

24

As regards the interpretation of Articles 10(2)(h) and (i) and 22(1) of Directive 2008/48, as set out in the judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842), the referring court is of the view that those provisions merely preclude a Member State from laying down in its national legislation an obligation to specify the breakdown of repayment of capital in the form of an amortisation table.

25

In the second place, the referring court states that a breakdown of the repayment of credit showing capital amortisation, interest and other charges makes it possible to ascertain more clearly whether the payments include interest which should be included in the calculation of the APR.

26

In the third place, the referring court is doubtful as to whether, in order to ensure the effective implementation of Directive 2008/48, it is required to apply the provisions of Law No 129/2010, in its version applicable as of 1 May 2018, to the agreement at issue in the main proceedings, which was entered into on 1 October 2015.

27

In that regard, by a judgment of 22 February 2018, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) held that, as regards credit agreements entered into before 1 May 2018, the Slovak courts are required to interpret national law in accordance with EU law and thus achieve the result arising from Law No 129/2010 in the version applicable as of 1 May 2018.

28

However, the referring court fears that such interpretation of the national provisions at issue is made contra legem and conflicts with the principle of legal certainty.

29

In those circumstances, the Krajský súd v Prešove (Regional Court, Prešov) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

The other questions are referred by the referring court only if the Court answers question 1(c) in the affirmative.

30

In its written observations, Pohotovosť claims that the questions are inadmissible.

31

As regards the first question, Pohotovosť claims that the principle of legal certainty invoked by the referring court is a matter of national law, and the Court has jurisdiction to interpret only EU law.

32

In addition, it claims that it is for the national court and not the Court of Justice to assess whether, in the case in the main proceedings, national law can be interpreted in accordance with EU law.

33

As regards the second and third questions, Pohotovosť notes that, as is clear from the order for reference, the agreement at issue in the main proceedings provides for the repayment of credit without capital amortisation. In these circumstances, the questions concerning the amortisation table are irrelevant in the case in the main proceedings.

34

According to Pohotovosť, the Slovak legislation does not establish any penalty in the event that a credit agreement does not include an amortisation table or a summary of the periods and conditions for the payment of the interest and of any associated recurrent and non-recurrent charges. Therefore, the questions concerning the breakdown of each repayment showing capital amortisation, interest and, where applicable, any additional costs have no practical significance in the present case.

35

In addition, without formally claiming that the request for a preliminary ruling is inadmissible, the Slovak Government and the European Commission state that, as is clear from the order for reference, the APR indicated in the credit agreement was incorrect. The Slovak Government considers that, if the APR indicated in that agreement is lower than the real effective rate, the credit is exempt from interest and charges in accordance with Article 11(1) of Law No 129/2010. In those circumstances, that penalty can be applied in the present case irrespective of any answer the Court gives to the questions referred.

36

In that regard, it should be recalled that, in accordance with the settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it and to understand the reasons for the referring court’s view that it needs answers to those questions in order to rule in the dispute before it (judgment of 8 May 2019, PI, C‑230/18, EU:C:2019:383, paragraph 40 and the case-law cited).

37

In the present case, the referring court asks questions concerning the interpretation of EU legislation, namely Directive 2008/48, and, in that respect, asks for clarification of the judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842).

38

As regards the argument raised by the Slovak Government and the Commission that, since the APR indicated is incorrect, the national court may decide, in accordance with national legislation, that the agreement at issue is exempt from interest and charges, it should be borne in mind that the case in the main proceedings concerns a request from a consumer seeking to establish Pohotovosťs liability for infringement of the obligation to indicate in the credit agreement all the mandatory information in accordance with national legislation and Directive 2008/48. In those circumstances, the fact that the national court is able to penalise Pohotovosť for indicating the wrong APR, assuming that possibility is confirmed by that court, cannot, in any event, render completely useless, for the purposes of resolving the dispute, clarification by the Court of the requirements laid down by that directive as regards the other elements which must always be included in a consumer credit agreement, given that the directive concerns both the payment of the credit with amortisation of the capital and payment of fees and interest without amortisation of capital.

39

Accordingly, the reference for a preliminary ruling must be held to be admissible.

40

By the second and third questions, which should be considered first and together, the referring court asks, in essence, whether Article 10(2)(h) to (j) of Directive 2008/48, in conjunction with Article 22(1) of that directive, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a credit agreement must specify the breakdown of each repayment showing, where applicable, capital amortisation, interest and other charges.

41

As a preliminary point, it should be borne in mind, first, that Directive 2008/48 was adopted in order both to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit (see, to that effect, judgments of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 61, and of 2 May 2019, Pillar Securitisation, C‑694/17, EU:C:2019:345, paragraph 38).

42

Second, the obligation to provide information set out in Article 10(2) of Directive 2008/48 contributes, along with the obligations prescribed under Articles 5 and 8 of that directive, to the attainment of the objective pursued by that directive (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 61).

43

Under Article 10(2)(h) of Directive 2008/48, a credit agreement is to include, in a clear and concise manner, 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.

44

It is apparent from Article 10(2)(i) and (3) of the directive that, where capital amortisation of a credit agreement with a fixed duration is involved, only on request by the consumer made at any time throughout the duration of the agreement is the creditor under an obligation to provide him, free of charge, with a statement of account in the form of an amortisation table.

45

In that regard, the Court has held that, in view of the clear wording of Article 10(2)(h) and (i) of Directive 2008/48, it does not impose an obligation to include in the credit agreement such a statement of account in the form of an amortisation table (judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 54).

46

It should be added that any form of structured presentation of the breakdown of each repayment of credit showing capital amortisation, the interest and, where applicable, any additional costs must be considered to be an amortisation table for the purposes of Article 10(2)(i) of Directive 2008/48.

47

However, it is important to note that, under Article 10(2)(j) of that directive, if charges and interest are to be paid without capital amortisation, the credit agreement must include a statement showing the periods and conditions for the payment of the interest and of any associated recurrent and non-recurrent charges.

48

In the light of the foregoing considerations, it must be held that Directive 2008/48 does not impose an obligation to include in a credit agreement, in any particular form, a breakdown of the payments to be made by the consumer showing the repayment of the capital if it is amortised by those payments, interest and other charges due under that contract.

49

At the same time, it is important to note that, under Article 22(1) of Directive 2008/48, in so far as it contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in that directive.

50

In that regard, the Court has already held that Article 10(2) of Directive 2008/48 provides for such harmonisation as regards the information which must imperatively be included in a credit agreement (judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 56).

51

In those circumstances, the answer to the second and third questions is that Article 10(2)(h) to (j) of Directive 2008/48, in conjunction with Article 22(1) of that directive, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a credit agreement must specify the breakdown of each repayment showing, where applicable, capital amortisation, interest and other charges.

52

By its first question, the referring court seeks to ascertain, in essence, whether Articles 10(2) and 22(1) of Directive 2008/48, as interpreted by the judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842), are applicable to a credit agreement, such as the one at issue in the main proceedings, which was entered into before that judgment was handed down and before the national legislation was amended in order to comply with the interpretation adopted in that judgment.

53

In that regard it should be recalled that, in accordance with the settled case-law of the Court, the interpretation which the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established after the entry into force of that rule and before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the courts having jurisdiction are satisfied (see, to that effect, judgment of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph 56 and the case-law cited).

54

In the case in the main proceedings, it is for the referring court to interpret the national law, as applicable at the material time — which in the present case is the date the agreement concerned was entered into, namely 1 October 2015 — in so far as possible in accordance with Directive 2008/48 as interpreted by the judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842), provided that a contra legem interpretation is not required.

55

In that regard, as the Slovak Government and the Commission note in their written observations, a national court cannot validly consider that it is impossible for it to interpret a provision of national law in conformity with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 73).

56

That obligation to interpret national law in conformity with EU law is limited by the general principles of law, particularly those of legal certainty, and that obligation cannot serve as the basis for an interpretation of national law contra legem (see, to that effect, judgment of 16 July 2009, Mono Car Styling, C‑12/08, EU:C:2009:466, paragraph 61). However, although the obligation to interpret national law in a manner consistent with EU law cannot serve as the basis for an interpretation of national law contra legem, national courts must change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgment of 8 May 2019, Związek Gmin Zagłębia Miedziowego, C‑566/17, EU:C:2019:390, paragraph 49 and the case-law cited).

57

In the light of all the foregoing considerations, the answer to the first question is that Articles 10(2) and 22(1) of Directive 2008/48, as interpreted by the judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842), are applicable to a credit agreement, such as the one at issue in the main proceedings, which was entered into before that judgment was handed down and before the national legislation was amended in order to comply with the interpretation adopted in that judgment.

58

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules: