Opinion of Advocate General Tanchev delivered on 14 November 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0630
• ECLI: ECLI:EU:C:2018:908
• Date: 14 November 2018
• Docket Number: C-630/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 14 November 2018(1)

Case C‑630/17

Anica Milivojević

v

Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

(Request for a preliminary ruling from the Općinski sud u Rijeci (Municipal Court, Rijeka, Croatia))

(Free movement of services — Contracts for provision of credit concluded prior to Accession of Croatia to the European Union — Retroactive Member State law providing for nullity of such contracts when they feature international elements — Admissibility)

I. Introduction

1. This reference for a preliminary ruling from the Općinski sud u Rijeci (Municipal Court, Rijeka, Croatia; ‘the referring court’) essentially concerns the compatibility with EU law of a Croatian law providing for the nullity from their date of conclusion of loan contracts, secured by mortgages on Croatian properties, that were made between Croatian debtors and foreign lenders who were not authorised to provide credit services in Croatia by the Hrvatska narodna banka (‘the National Bank of Croatia’). The terms of the Treaty of Accession of Croatia to the EU (2) also come into play, given that the law in issue encompasses loan agreements concluded prior to Croatian accession on 1 July 2013.

2. The referring court has sent three questions which are concerned with the interpretation of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters, (3) and one addressing the element of the dispute detailed above, which entails consideration of EU free movement law and the Court’s case-law on the impact ratione temporis of EU law upon accession of a new Member State. As requested by the Court, this Opinion will address these latter issues.

A. Legal framework

1. EU law

3. The first paragraph of Article 56 TFEU states:

‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.’

4. Article 63(1) TFEU states:

‘Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.’

2. Member State law

5. The Zakon o ništetnosti ugovora o kreditu s međunarodnim obilježjima sklopljenih u Republici Hrvatskoj s neovlaštenim vjerovnikom (Law on the nullity of loan contracts with international features concluded in the Republic of Croatia with an unauthorised creditor, ‘the Law of 14 July 2017’) (4) states as follows in the first paragraph of Article 1, Articles 2 to 5 and 7 to 11:

‘Law on the nullity of loan contracts with international features concluded in the Republic of Croatia with an unauthorised creditor

Object of the law

Article 1

(1) The present law applies to credit contracts featuring international elements which have been concluded in the Republic of Croatia between debtors and unauthorised lenders, with the exception of contracts which have been concluded by the following debtors;

…

(2) The present law equally applies to other legal acts established in the Republic of Croatia between debtors and non-authorised lenders that are aimed at a credit contract featuring international elements in the sense of the first paragraph of the present article or which are founded on such a contract.

Definitions

Article 2

In the sense of the present law, the term:

- “debtor” refers to all physical or moral persons to whom a credit has been granted by virtue of a credit contract featuring international elements, or all persons who profit from a person to whom such a credit has been granted in its capacity as a co-debtor, debtor creditor, co-debtor creditor, or guarantor.

- “non-authorised lender” refers to all moral persons who have agreed to provide a credit to a debtor pursuant to a credit contract featuring international elements, and whose statutory seat is situated outside of the Republic of Croatia at the date of the contract featuring international elements and which propose or supply credit services in the Republic of Croatia, even though such a lender does not satisfy the conditions required by regulation for the supply of such services, and more precisely, it does not have the authorisations and/or agreement of the competent authorities of the Republic of Croatia.

…

Nullity of credit contracts

Article 3

(1) Credit contracts featuring international elements which have been concluded in the Republic of Croatia between debtors and unauthorised lenders are null and void.

(2) By way of derogation from paragraph 1 of the present article, nullity cannot be invoked when a contract has been completed in its entirety.

Nullity of other legal acts

Article 4

All acts of a notary established on the basis of, or having a link with, a null and void contract in the sense of Article 3 of the present law shall be null and void.

Exclusion of forced execution

Article 5

When a judgment establishing the nullity of a credit contract or the nullity of an act of a notary founded on a null and void contract has acquired the status of res judicata, all execution procedures against the debtor before courts or financial agencies shall be closed at the request of the debtor.

…

Effects of nullity

Article 7

Each contracting party is bound to give restitution to the other party of everything it has received by virtue of the null and void contract, and if that is not possible or if the nature of that which was executed precludes restitution, an appropriate pecuniary indemnity must be provided, which is to be fixed as a function of the price in place on the date on which the judicial decision is rendered.

Competence

Article 8

(1) In the framework of litigation concerning credit contracts featuring international elements, in the sense of the present law, an action initiated by the debtor against an unauthorised lender can be brought either before the courts of the State on the territory of which the unauthorised lender has its seat (whatever the seat of the unauthorised creditor) or before the courts of the place where the debtor has his domicile or his seat.

(2) The action instituted against the debtor by the unauthorised lender, in the sense of paragraph 1 of the present article, can only be brought before the courts of the State on the territory on which the debtor has his domicile or seat. The law applicable to null and void contracts in the sense of the present law is, exclusively, the law of Croatia and the court seised of an action concerning the nullity of such a contract will apply the present law to such an action, without examining if there exist presumptions for the application of the law of the place of the conclusion of the contract by virtue of other legislative instruments

Transitory and final provisions

Article 9

The present law is without prejudice to rights conferred on debtors by special laws when they are more favourable.

Article 10

(1) Credit contracts featuring international elements, in the sense of the present law, which have been concluded in the Republic of Croatia, before the entry into force of the present law, between debtors and unauthorised creditors, are null and void from the date of their conclusion, resulting in the effects indicated in Article 7.

(2) Other legal acts established in the Republic of Croatia, before the entry into force of the present law, between debtors and unauthorised creditors, which follow from a credit contract featuring international elements aimed at paragraph 1 of the present article which are founded on such a contract, are null and void from the date of their establishment, entailing the effects set out in Article 7.

Article 11

The present law enters into force 8 days after its publication in “Narodne novine”

Zagreb, 14 July 2017.’

II. The facts in the main proceedings and the questions referred for a preliminary ruling

6. On 5 January 2007, Anica Milivojević (‘the applicant’), a national of the Republic of Croatia, and her husband, since deceased, concluded with Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen (‘the defendant’), whose registered office is in the Republic of Austria, a single-loan contract in the amount of EUR 47 000. This sum was transferred in cash in the defendant’s office in Austria, and the contract in issue was concluded with the help of an intermediary resident in Croatia who was paid a commission. (5) The credit was sought with a view to enlargement and renovation of the applicant’s home, partly for private reasons and partly to rent out apartments on the tourism market. (6) It is common ground that the defendant had no authorisation from the National Bank of Croatia to provide financial services involving the grant of mortgage loans within the territory of the Republic of Croatia.

7. To guarantee repayment of the loan, on 12 January 2007 the applicant signed a memorandum of guarantee before a notary on the basis of which a mortgage on her immovable property was registered in the Land Registry.

8. On 23 April 2015, the applicant commenced proceedings in the referring court against the defendant, seeking a declaration of nullity of the single-loan contract of 5 January 2007 (‘the contract’) and of the memorandum of guarantee signed before a notary on 12 January 2007, and also seeking cancellation of the mortgage entry made in the Land Registry.

9. The referring court brought the proceedings to an end on 3 July 2017, but re-opened the case by decision of 10 August 2017 owing to the entry into force of the Law of 14 July 2017, on the basis that its provisions might be applicable to the main proceedings. The Government of the Republic of Croatia declared in its Opinion of 25 May 2017 that the, then, draft Law of 14 July 2017 should be...