Slovakia, Supreme Court of the Slovak Republic, 10 March 2015 8 MCdo 6/2014

Identification of the case

• Art 93 Civil Procedure Code

• Art 47 CFREU
• Art 6 Directive 93/13/EEC

Summary of the case

Defendant – consumer (debtor) was sued for payment of outstanding consumer credit debt by the claimant, who acquired the receivable from the original creditor. The 1st instance court issued an order for payment (summary decision issued without a hearing only on the basis of the claimant's application and supporting documents), which was duly served on the defendant, who was free to file an opposition within 15 days.

During this term, a consumer association filed the opposition and stated, it wanted to become an intervener under Art 93 of Civil Procedure Code.

1st instance court rejected the opposition as it deemed the association not allowed to file it.

Appellate court quashed that decision and remanded the case for further consideration, relying on Art 6 of Directive 93/13/EEC. Supreme Court quashed the appellate decision.

• Civil judicial enforcement

Monetary claim

A third party (including consumer association) may intervene in a civil proceeding under Art 93 of Civil Procedure Code from the moment, when the proceeding has become adversary. The proceedings for issuing the order of payment becomes adversary, as soon as the defendant's opposition is filed. As a result, an opposition cannot be filed by the prospective intervener.

Consumer's rights under EU law are guaranteed by the Civil Procedure Code, which does not allow the court to issue an order for payment, when the underlying contract contains unfair terms. In its judgment C-470/12, the CJEU has stated that it is not required either by Art 6 of Directive 93/13/EEC or Art 47 of CFREU to allow consumer associations as interveners in civil procedures. This does not preclude the consumer association from asserting its right under Art 7 of Directive 93/13/EEC.

Role of the Charter and role of the general principles on enforcement

Charter was implicitly found applicable, as it was considered by CJEU in its judgment C-470/12, which dealt with a similar subject matter.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court

The Supreme Court did not rely on Art 47 CFREU as a legal basis for accepting the rights of the party (intervener) in the proceedings, but rather as a negative demarcation line in order to support its conclusion that accepting the consumer association's position as an intervener in the proceedings for order of payment is not required. On the basis of the CJEU's judgment C-470/12, the Supreme Court concluded that Art 47 CFREU does not guarantee the access to court to consumer associations as interveners.

• Equivalence
• Effectiveness

Not allowing consumer associations to file opposition against an order for payment does not contravene the principle of equivalence. Situations within the scope of EU law are not treated differently in this respect from purely intra-state situations.

Not allowing consumer associations to file opposition against an order for payment does not contravene the principle of effectiveness. The consumers' rights are safeguarded by the provision. guaranteed by the Civil Procedure Code, which does not allow the court to issue an order for payment, when the underlying contract contains unfair terms.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-470/12, Pohotovost'

Conform interpretation with EU law as interpreted by the CJEU.

To solve a conflict between different trends of national caselaw.

Additional notes on the decision

In the new Civil Procedure Code (effective from 1st July 2016), a third party (including consumer associations) may intervene only with the main party's consent.

Generally followed by lower courts – oppositions filed by consumer associations were rejected accordingly.