On April 22, 2021, the CJEU issued a judgment in the Profi Credit Slovakia case (C-485/19), which should be applied directly to the courts’ interpretation of the Polish provisions of the Civil Code regarding the commencement of the limitation period for consumer loans.
The case concerned a Slovak consumer who, after repaying the entire loan, was informed by a lawyer that the provisions of the contract were unfair. Therefore, he brought an action for the reimbursement of – in his opinion – unduly collected fees. On the other hand, the loan company raised the statute of limitations for his right to pursue claims. The Slovak limitation system applicable to consumer claims includes, among others, a three-year limitation period, starting from the time of unjust enrichment. The right to bring an action becomes time-barred even if the consumer is not in a position to judge for himself whether a contract term is unfair or was not aware that such a term was unfair. Therefore, the event that triggers the commencement of this period is the payment made by the consumer with the intention to perform the contract. This deadline should be calculated separately for each payment made by the consumer during the performance of the contract.
The Advocate General was apt to point out in pt. 72 that if the commencement of the three-year limitation period is each payment made by the borrower, it may be that, under a contract that is performed for more than three years, individual claims of that borrower are time-barred before the contract ends.
In pt. 60 of this judgment, the Court held that, as regards the commencement of the limitation period in question, in circumstances such as that in the present case, there is a significant risk that the consumer concerned will not invoke the rights conferred on him by EU law within the time limit set for that purpose. This would therefore prevent the consumer from pursuing these rights (see, to that effect, judgment of 5 March 2020, OPR-Finance, C-679/18, EU:C:2020:167, paragraph 22).
In justifying its position, the Court referred to the fundamental assumption that consumers are in a worse position than companies, both in terms of negotiating power and the degree of information, and that it is possible that consumers are not aware of the scope of their rights under the Directive 93/13 or Directive 2008/48 or do not understand them (see, to that effect, judgments of July 9, 2020, Raiffeisen Bank and BRD Groupe Société Générale, C-698/18 and C-699/18, EU: C: 2020: 537, pts. 65 to 67, July 16, 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C-224/19 and C-259/19, EU:C:2020:578, pt. 90 and the case-law cited therein).
In pt. 64 of this judgment, the Court found that the procedural rules – which require the consumer to bring an action within three years from the date on which the unjust enrichment took place, where such enrichment may take place during the performance of the contract for a significant period – render excessively difficult exercise of the rights conferred on the consumer by Directive 93/13 or by Directive 2008/48, thereby infringing the principle of effectiveness (see, to that effect, judgments of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale, C-698/18 and C-699/18, pts. 67 and 75, of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C-224/19 and C-259/19, pt. 91).
The Court also noted that the intention of the company which applied a contract term deemed unfair does not affect the rights that consumers are entitled to under the provisions of Directive 93/13, just as Art. 10 sec. 2 of Directive 2008/48. Thus, the consumer cannot be required, in order to invoke the rights under these provisions, to demonstrate the intentional nature of the conduct of the company concerned.
In conclusion, the Court held that the principle of effectiveness must be interpreted as precluding national legislation providing that an action brought by a consumer for the recovery of amounts unduly paid on the basis of unfair contract terms within the meaning of Directive 93/13 or terms contrary to the requirements of Directive 2008/48 is subject to a three-year limitation period commencing on the day on which the unjust enrichment took place.
