Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: High Court, Judgement II Ips 78/2021
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodba vrhovnega sodišča
    • Datum odločbe: 09/02/2022
    • Sodišče: Vrhovno sodišče Republike Slovenije
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: consumer rights, professional diligence, consumer protection, unfair terms, consumer protection
  • Členi direktive
    Unfair Contract Terms Directive, link Unfair Contract Terms Directive, RECITALS Unfair Contract Terms Directive, Article 1
  • Uvodna opomba


    Considering the special nature of the notarial deed as an enforceable title, the amendment of Article 71 of the Enforcement and Security Act enables the postponement of enforcement at the debtor's proposal or ex officio in cases where the debtor consumer files a lawsuit for invalidity of a legal transaction from a directly enforceable notarial deed, ensuring that there are no deviations from the principle of strict formal legality. The Court must carry out the procedure with such an action as a matter of priority without delay. The Court also protects the consumer debtor by referring him in cases where he has not yet filed a lawsuit and it is not obvious that the debtor has no chance of success with the lawsuit, and postponing enforcement

  • Dejstva

    The consumers and the bank entered a mortgage loan on the basis of a directly enforceable notarial deed.

    The bank granted the consumers a loan for the purchase of land in the amount of CHF. The credit obligation with a currency clause was pegged to the Swiss franc (CHF) and the debtors were required to pay it in local currency (EUR) instalments at the reference exchange rate of the European Central Bank on the day of payment. During the execution of the credit agreement, due to the change in the exchange rate (decrease in the EUR exchange rate compared to CHF), the consumers´ credit liabilities increased (they needed higher amounts of EUR to buy CHF to repay their monthly liabilities). Therefore, the consumers brought actions against the bank claiming nullity of agreements due to unfair contractual terms.

  • Pravna zadeva

    Whether the principle of formal legality allows the Executive Court to decide in opposition proceedings whether a credit agreement for a credit with a currency clause concluded in a directly enforceable notarial deed, in the part relating to the main subject of the agreement, contains unfair contract terms under the Consumer Protection Act, or to establish the grounds for annulment and on this basis reject the proposal for enforcement.

  • Odločba

    The Supreme Court has already given its position on the application of the principle of formal legality and the assessment of the nullity of contractual terms of an enforceable notarial deed in the context of enforcement proceedings in decision II Ips 55/2020 of 4 December 2020. According to which (among other things) the Executive Court is bound by the operative part of the judgement; it also applies if the enforceable title is (merely) an enforceable notarial deed. To exercise the debtor's right under Article 23 of the Constitution in addition to deviating from the principle of formal legality, in which the Executive Court would only establish grounds for annulment in opposition proceedings, another approach is possible. The approach, which insists on the concept of strict formal legality, but at the same time allows for a realistically achievable postponement of enforcement, for which the probability of success with an action for annulment and nothing else is decisive.

    An advantage of such an approach is that it ensures the effective right of the debtor to judicial protection, while not challenging the institute of enforceable notarial deed, which is an effective instrument of protection of the creditor's position.

    The Supreme Court also took into account case law of the CJEU, in particular judgement C-407/18. The jurisprudence of the CJEU has not prohibited the expulsion of substantive objections on the unfairness of a contractual condition from a notarial deed from enforcement into a separate procedure (for example, the procedure for annulment of a notarial deed or the procedure for annulment of enforcement). However, it demanded that the legal protection of the consumer as a whole be effective and that the exercise of his rights not be unduly hampered. Therefore, in the present case, it is correct procedure for the Court to warn the debtor, who objected that the contractual conditions of the enforceable notarial deed are unfair and void, of the possibility of filing a lawsuit for such a finding and at the same time postpone enforcement.


    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    The revision is granted, the decision of the Court of Second Instance is annulled, and the case is returned to this Court for a new decision. The decision on the costs of the review procedure is reserved for the final decision. The decision is final.