The Supreme Court has so far failed to consider the judgements of the ECJ in at least three decisive segments and has kept using the criteria that the ECJ explicitly rejected. This is now undoubtedly confirmed by the Constitutional Decision of the Constitutional Court of the Republic of Slovenia, no. Up-14/21 of 13 January 2022, and not only by the case law of the CJEU. Due to the precedent effect of Supreme Court decisions, the "friction" between the Slovenian Supreme Court and the CJEU has gained a systemic dimension of discriminatory and unfair trial in hundreds of Slovenian consumer cases, meaning the violation of Article 6 of the ECHR. According to the author, Slovenia is therefore liable under Article 267 (3) TFEU for the operation of its courts in breach of EU law, in accordance with the criteria set out in Traghetti del Mediterraneo, C-173/03, and Ferreira da Silva, C-160 / 14, regardless of whether this was intentional or gross negligence of Slovenian judges. The courts should have considered the case law of the CJEU on the content of the standard of banks' duty to explain and the (un)fairness of contractual terms.
The decision of the Constitutional Court was undoubtedly expected according to reasonable criteria and the case law of the CJEU. It is to be hoped that the Slovenian regular courts, and in particular the Supreme Court, will now finally change their unconstitutional and logically unsustainable positions. The author believes that the Supreme Court should have done so long ago. At least at a time when many proposals for the admission of consumer audits have repeatedly been made aware of identical arguments as contained in the constitutional complaint. The Supreme Court has so far rejected these requests to allow revisions without exception, despite being aware of the new and undoubtedly clear case law of the CJEU (including the judgement of 10 June 2021 in Case C-609/19, BNP Paribas Personal Finance SA).