Pravna literatura

Unfair Contract Terms Directive, Article 6 Unfair Contract Terms Directive, Article 7

In the case law of Slovenian courts, there is still no uniform, clear and established position on when the limitation period for repayment of borrowers begins to run due to the nullity of credit agreements denominated in Swiss francs. The extremely rich jurisprudence of the CJEU emphasises Article 6 of Directive 93/13 / EEC as essential in the system of consumer protection, which in many cases explicitly defines it as cogent, i.e., coercive in nature, emphasising that it is a provision that protects public order and public interest. In this context, the CJEU's position that the provision cited must be interpreted in such a way that a contractual condition declared unfair must, in principle, be regarded as never having existed and must not have any effect on the consumer. Therefore, a judicial finding of an unfair condition must result in the establishment of the legal and factual situation of the consumer in which he would have been in the absence of that unfair condition. Thus, a court finding of unfairness of a contractual condition has a restitutional effect. The author emphasises that in Joined Cases C-224/19 the CJEU has taken the view that, notwithstanding the procedural autonomy of the Member States provided for in the national law of those countries, the principle of equivalence and the principle of effectiveness must be respected.

The author concludes that the Slovenian courts will have to use the moment of the five-year limitation period, which is used as a general limitation period for a lawsuit claiming the restitution effects of annulment of an unfair condition, very carefully, in accordance with these principles. Special caution and restraint will also be necessary because Slovenian regulations do not stipulate the beginning of this period - unlike other national laws of the Member States, which have already been subject to an assessment of compliance with EU law in proceedings before the CJEU.

The author also points out the judgement of the Supreme Court of the Republic of Croatia of 30 January 2020. It ruled that the limitation period in the case of a restitution claim based on a null contract as a consequence of annulment begins to run from the day the court decision annulling the contract becomes final. The latter is important because Croatian national law, like Slovenian law, does not stipulate the beginning of the limitation period for claims resulting from the nullity of credit agreements and on the basis of Articles 6 and 7 of the Directive93/13/EEC.