Published on 26 September 2022

FOURTH SECTION

Application no. 40669/16 Nina Ivanova DIMITROVA against Bulgaria lodged on 8 July 2016 communicated on 8 September 2022

STATEMENT OF FACTS

1. The applicant, Ms Nina Ivanova Dimitrova, is a Bulgarian national who was born in 1967 and lives in Sofia. She is represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

2. The facts of the case, as submitted by the applicant and as emerging on the basis of the materials she submitted and the publicly available decisions in her case (see paragraphs 19 to 27 below), may be summarised as follows.

3 . In July 2005 the applicant took a twenty-year bank loan of 40,000 euros (EUR) from Tsentralna Kooperativna Banka AD (“the bank”), which she secured with a mortgage on a flat which she bought with that sum. The annual interest rate on the loan was the bank’s base rate, at that time 4%, plus 5.9%, coming in total to 9.9%. The bank could change that rate when altering its base rate owing to “changes in market conditions” and its “interest-rate policy”. The loan, with the interest on it, was to be repaid in uniform monthly instalments, which were at that time fixed at EUR 388.77 and were to start running in November 2005. Penalty interest of 35% per year was due for any delay in their payment. Under an acceleration clause, if the applicant failed to pay two instalments or comply with other duties under the contract, the bank could declare the whole outstanding balance due and enforce it against any security provided by the applicant. In that event, penalty interest at 35% would run on the outstanding principal and contractual interest.

4. In October 2008 the bank increased its base rate to 5%, and as a result the rate on the loan went from 9.9% to 10.9%, and the monthly instalments from EUR 388.77 to EUR 412.74.

5 . In July 2010 the bank and the applicant made an annexe amending the loan. They agreed, among other things, that (a) the outstanding balance came to EUR 39,460.06, which included capitalised interest; (b) the applicant would have a nine-month grace period during which she would only pay 200 Bulgarian levs (BGN) a month; and (c) after that the monthly instalments would go up to EUR 454.36. At the same time, the bank entered into contracts with two sureties guaranteeing the loan.

6. It seems that in late 2012 the applicant stopped repaying her loan regularly.

7 . On 16 October 2014 the bank applied for an order for payment (see paragraphs 28 and 31 below) against the applicant. As required by the rules then in force (see paragraph 33 below), it enclosed with its application excerpts from its records attesting the existence of the applicant’s debt.

8 . As prescribed by the rules of procedure (see paragraph 31 below), the Sofia District Court examined the application on the papers and without notice to the applicant, and on 10 February 2015 made the order sought by the bank for the following sums (plus costs):

(a) EUR 37,279.24 (the outstanding part of the principal of the loan), plus default interest at the statutory rate from 16 October 2014 until settlement;

(b) EUR 7,059.68 in contractual interest for the period from 28 December 2013 to 15 October 2014; and

(c) EUR 856.97 in penalty interest for the period from 21 January 2013 to 15 October 2014.

9 . As possible under the rules governing orders for payment in favour of banks (see paragraph 33 below), at the bank’s request the court directed that the order be enforced immediately and issued a writ of execution on its basis.

10 . Shortly after that the bank brought enforcement proceedings against the applicant, and on 31 March 2015 the enforcement agent invited her to pay the debt and served her with copies of the order and the writ.

11 . In an objection (see paragraph 36 below) lodged with the Sofia District Court on 15 April 2015, the applicant contested the order for payment, saying that her debt had not yet fallen due. In the objection, the applicant gave an address different from that of the flat.

12 . On the same day the applicant also appealed to the Sofia City Court against the direction that the order be enforced immediately (see paragraph 9 above). She argued that the excerpts from records enclosed with the bank’s application (see paragraph 7 above) were not prima facie valid, as that notion was understood in the case-law, as they had not been signed by bank officers duly authorised to do so. Moreover, the excerpts did not specify how many instalments were in arrears, how many payments had been made and when, and when the debt had fallen due. It was hence unclear how the bank had calculated the number of days of delay and the contractual and penalty interest it was claiming. As required by the rules of procedure, the applicant lodged the appeal with the Sofia District Court, which had to send it to the Sofia City Court (see paragraph 42 below).

13 . Concurrently with her appeal, the applicant asked the Sofia District Court to stay the order’s enforcement (see paragraph 39 below). Her stay request contained the same arguments as those featuring in the appeal.

14 . The Sofia District Court did not process the objection, the appeal and the stay request for many months, and on 24 December 2015 the applicant reiterated the stay request. The applicant claims by early July 2016, when she lodged her application with this Court, the Sofia District Court had still not brought her objection against the order to the bank’s attention, dealt with her stay request, or sent her appeal against its immediate-enforcement direction to the Sofia City Court.

15 . It seems that in late 2018 or early 2019 the Sofia District Court sent the appeal against its immediate-enforcement direction to the Sofia City Court, and on 25 February 2019 the latter quashed the direction (see опр. от 25.02.2019 г. по в. ч. гр. д. № 1285/2019 г., СГС ).

16 . Meanwhile, between 7 December 2015 and 7 January 2016 the agent in charge of the enforcement proceedings against the applicant put her flat up for public sale. Only one person bid for it, and on 8 January 2016 she was declared its buyer, for BGN 80,412.50 (EUR 41,114.26). [1] Having paid the whole price, on 11 January 2016 the buyer was declared owner of the flat. The applicant was informed of that on 14 January 2016; the notice by the enforcement agent mentioned both the address of the flat and another address – the same that the applicant had given in her objection to the order for payment (see paragraph 11 above). The enforcement agent’s decision to transfer the flat to the buyer became final on 23 January 2016.

17 . On 29 January 2016 the enforcement agent distributed the proceeds from the sale. She noted that by that date the applicant owed the bank a total of BGN 102,057.31 (EUR 52,181.07), which broke down as follows:

(a) BGN 72,911.86 (EUR 37,279.24) in outstanding principal;

(b) BGN 9,602.54 (EUR 4,909.70) in default interest on the principal at the statutory rate for the period between 16 October 2014 and 29 January 2016;

(c) BGN 13,807.53 (EUR 7,059.68) in contractual interest for the period between 28 December 2013 to 15 October 2014;

(d) BGN 1,676.08 (EUR 856.97) in penalty interest (as per the writ of execution) for the period from 21 January 2013 to 15 October 2014; and

(e) outstanding costs incurred by the bank to obtain the order for payment (BGN 3,623.84) and enforce it (BGN 435.46).

18 . Having calculated how the proceeds from the sale of the flat were to be distributed among the bank and the applicant’s other creditors who had joined the enforcement proceedings, the enforcement agent found that the bank was to be paid in full the outstanding costs which it had incurred (see paragraph 17 (e) above), and BGN 74,086.36 (EUR 37,879.75) in respect of the outstanding principal and interest on the loan (see paragraph 17 (a) to (d) above). The enforcement agent noted that those two sums, combined with the sum allocated for her own fees (BGN 3,614.71), the costs advanced by another creditor who had joined the enforcement proceedings (BGN 108) and local tax for the flat, plus default interest on it (BGN 2,167.97), depleted the proceeds from the sale.

19 . When the bank was advised of the applicant’s objection against the order for payment (see paragraph 11 above), which appears to have happened in late 2018, it sought a judicial declaration (see paragraph 37 below) that the applicant and her two sureties owed it the sums set out in the order (see paragraph 8 (a) to (c) above).

20 . In reply, the applicant argued, among other things, that the sums had not yet fallen due because the bank had not duly invited her to pay them, and that the clauses in the loan and the 2010 annexe to it (see paragraphs 3 and 5 above) which fixed the way in which contractual and penalty interest were to be calculated were unfair terms, void under the consumer-protection law.

21 . In July 2020 the Sofia City Court made a judicial declaration that the applicant and her two sureties jointly owed the bank:

(a) EUR 33,491.62 in unpaid principal, plus default interest at the statutory rate running from 16 October 2014 until settlement;

(b) EUR 2,751.20 in contractual interest for the period from 28 December 2013 to 15 October 2014; and

(c) EUR 793.33 in penalty interest for the period from 21 January 2013 to 15 October 2014.

22 . The court dismissed the remainder of the claim: EUR 3,787.62 in unpaid principal, EUR 4,308.48 in unpaid contractual interest, and EUR 63.64 in penalty interest.

23 . The court noted that by January 2019 the enforcement proceedings against the applicant had yielded EUR 26,320.79. It found that the bank had not duly invited the applicant to pay her debt before applying for the order for payment (and had thus not duly triggered the acceleration clause – see paragraph 3 above), and that only the serving of the claim for a declaratory judgment on the applicant in March 2019 could be seen as an invitation to pay. It also found that the clause allowing the bank to change the contractual-interest rate (ibid.) was an unfair term, void under consumer-protection law, and that the loan’s outstanding balance was hence to be calculated in line with the initial contractual-interest rate (9.9%). However, the court came to the opposite conclusion with respect to the penalty-interest clauses: although envisaging a rate of 35% and interest on interest, they were valid, as the rate could still be seen as fair and not excessive, and as the two types of interest (contractual and penalty) served different purposes. The capitalisation clause in the 2010 annexe (see paragraph 5 above) was also void since the law did not permit the capitalisation of interest. The capitalised sum of EUR 3,204.32 was hence to be discounted from the applicant’s debt. In the light of those points and the evidence, the outstanding debt came to EUR 33,491.62 in principal, EUR 2,751.20 in contractual interest, and EUR 793.33 in penalty interest (see реш. № 4461 от 22.07.2020 г. по гр. д. № 15707/2018 г., СГС ).

24 . The applicant and her two sureties appealed. They challenged, among other points, the Sofia City Court’s ruling on the penalty-interest clauses.

25 . In April 2021 the Sofia Court of Appeal partly quashed the lower court’s judgment and declared that the applicant owed (a) EUR 21,118.47 in unpaid principal, and (b) EUR 231.30 in penalty interest. The court left undisturbed the lower court’s declaration with respect to contractual interest (see paragraph 21 (b) above), with the result that the total sum of the applicant’s judicially-acknowledged debt came to EUR 24,100.97.

26 . The court held, among other things, that the penalty-interest clauses (see paragraph 3 above) were unfair terms, void under consumer-protection law, as they envisaged an excessive rate, and that only the portion of the debt which had already fallen due by the end of the oral argument before it was to be included in the declaration sought by the bank (see реш. № 351 от 09.04.2021 г. по гр. д. № 4234/2020 г., САС ).

27 . The bank appealed on points of law, but on 3 February 2022 the Supreme Court of Cassation refused to admit its appeal for examination (see опр. № 75 от 03.02.2022 г. по гр. д. № 2929/2021 г., ВКС, III г. о. ).

RELEVANT LEGAL FRAMEWORK

28 . The order-for-payment procedure ( заповедно производство ), which had existed in Bulgarian law between 1898 and 1951, was re-introduced with the enactment of the 2007 Code of Civil Procedure, which came into force in March 2008. It is governed by Articles 410 to 425 of that Code.

29 . The explanatory notes to the 2006 Government bill (no. 602-01-38) which led to the enactment of the Code said, among other things, that the order-for-payment procedure would guarantee the interests of debtors and creditors in the same way. It does not appear that the specific parameters of that procedure, in particular as regards immediately enforceable orders issued in favour of banks, were touched upon during the deliberations on the bill by Parliament’s Legal Affairs Committee ( link , link , link and link ), held before the first plenary reading. The Committee’s report ( link ) did not dwell on the point either. During the bill’s first plenary reading in August 2006 ( link ), several members of Parliament made remarks about the utility or otherwise of an order-for-payment procedure, but there was no detailed discussion of its parameters. One member of Parliament noted that although debtors could object to the order, and thus move the dispute to full adversarial proceedings, the order’s immediate enforcement would guarantee the rights of some types of creditors, such as public utilities. At the bill’s second plenary reading in July 2007 ( link ), its relevant part was adopted unanimously without debate.

30 . In 2014-18 order-for-payment proceedings represented approximately half of all civil cases in the district courts. There were 162,846 such cases in 2014, 183,368 in 2015, 181,346 in 2016, 225,756 in 2017, and 198,008 in 2018, vastly outnumbering other types of cases (see Институт за пазарна икономика, Кратък преглед на заповедното производство , 2019 г. , pp. 4-5). The highest number of such cases came before the Sofia District Court (50,835 in 2018), leading to a backlog ( ibid. , p. 6).

31 . A creditor may apply to the competent district court for an order for payment. Such order may as a rule be sought only in relation to money claims falling within the jurisdiction of the district courts – that is, claims for up to BGN 25,000 (EUR 12,782.30) (Articles 410 § 1 (1) and 411 § 1, read together with Articles 103 and 104, point 4). But if the order is sought by a bank and the application for it is based on bank records attesting its claim (see paragraph 33 below), there is no such ceiling (Article 417, point 2). The court must examine the application on the papers and without notice to the debtor, and, if all preconditions are in place, make the order in three days (Article 411 § 2). According to a new point 3, added to Article 411 § 2 in December 2019, the court must refuse to make the order if the application for it is based, or reasonably appears to be based, on an unfair term in a contract with a consumer. A new Article 7 § 3, also added in December 2019, directs the courts to check of their own motion for unfair terms in contracts with consumers in all sorts of proceedings.

32 . The explanatory notes to the February 2019 bill (no. 954-01-11 ) which led to the December 2019 amendment – which was chiefly advocated by the Ombudsman of the Republic and meant to make order-for-payment proceeding in favour of banks more consumer-friendly (see paragraphs 33, 36, 40 and 42 below) – stated that under the existing statutory scheme debtors risked losing their possessions before any judicial examination of the claims against them. This was because (a) the courts were not required to scrutinise of their own motion whether applications for orders for payment, in particular those made by banks, related to claims based on contracts with consumers containing unfair terms or on incorrect calculations of the sum of the debt, and because (b) the enforcement of such orders could only be stayed in rare cases. That ran counter to European Union (“EU”) law, as interpreted by the Court of Justice of the European Union (“the CJEU”), and had prompted infringement proceedings against Bulgaria. [2]

33 . If the application for an order for payment has been made by, among other types of creditors, a bank, and is accompanied by, among other things, a document or an excerpt from the bank’s records which attests the claim, the bank can ask the court to direct that the order be immediately enforceable and issue a writ of execution on its basis (Article 418 § 1, read together with Article 417, point 2). In December 2019 Article 417, point 2, was amended to specify that, so far as banks are concerned, the application’s enclosures must comprise not only an excerpt from their records, but also the instrument from which the claim flows, together with any annexes or general terms. A new Article 410 § 3, also added in December 2019, prescribes that if the claim stems from a contract with a consumer, the application must be accompanied by the contract along with any annexes, amendments or general terms.

34 . If the court finds that the documents accompanying the bank’s application are prima facie valid and show the existence of an enforceable claim against the debtor, it must issue a writ of execution (Article 418 § 2).

35 . The order for payment and the documents enclosed with the application for it must be served on the debtor by the agent in charge of the ensuing enforcement proceedings against him or her (Article 418 § 5).

36 . The order for payment itself is not amenable to appeal (Article 413 § 1), but the debtor can object to it, without necessarily giving reasons for that (Article 414 § 1). Until December 2019, the time-limit to object was two weeks, and was then prolonged to one month; no extensions of time are possible (Article 414 § 2, as worded before and after December 2019).

37 . If an objection is made within that time-limit, the court instructs the creditor in whose favour the order has been made to seek a judicial declaration for the underlying claim (Article 415 §§ 1 (1) and 3). The creditor must bring the proceedings within one month; failure to do so results in the rescission of the order and any related writ of execution (Article 415 §§ 4 and 5).

38 . If those proceedings result in a judicial declaration that the creditor’s claim is ill-founded, the order’s enforcement is stopped and the court issues a reverse writ of execution directing the creditor to repay the debtor any sums obtained as a result of the enforcement, as well as any fees or costs which the debtor has paid in its course (Article 420 § 3). In a June 2014 interpretative decision, the Supreme Court of Cassation clarified that such reverse writ of execution must be issued if the creditor’s claim is, in particular, declared (wholly or partly) ill-founded because based on a void contract. In that case, the writ must be for the portion of the claim which has been disallowed and cover solely the sums which the creditor has really obtained as a result of the order’s enforcement (see тълк. реш. № 4 от 18.06.2014 г. по тълк. д. № 4/2013, ВКС, ОСГТК, т. 13 ).

39 . In the case of an order for payment which is not sought by a bank on the basis of its records, the question of a stay of its enforcement does not arise when it is first made. Such an order does not become operative before the time-limit to object to it expires or, if an objection is made, before the ensuing judicial-declaration proceedings end in the creditor’s favour (Article 416). Moreover, such orders cannot be made immediately enforceable (Article 418 § 1). But if the court directs that an order for payment be immediately enforceable because the application for it is based on, among other types of documents, bank records (see paragraphs 33 and 34 above), the objection against it does not stay its enforcement. Enforcement can then be stayed only if (a) when making the objection the debtor provides security for the creditor (which must cover the full value of the claim – see опр. № 163 от 01.03.2010 г. по ч. т. д. № 504/2009 г., ВКС, II т. о. ; опр. № 453 от 25.06.2010 г. по ч. т. д. № 478/2010 г., ВКС, II т. о. ; and опр. № 14 от 06.11.2011 г. по ч. гр. д. № 685/2010 г., ВКС, IV г. о. ), or (b) the district court which has directed immediate enforcement allows a timely request by the debtor that enforcement be stayed which is based on “convincing written evidence” (Article 420 §§ 1 and 2, as worded before October 2017). In October 2017 the word “convincing” was deleted from Article 420 § 2, and it was amended to clarify that the debtor need not provide security to obtain a stay on the basis of written evidence. The Supreme Court of Cassation has emphasised that the district court must examine such a stay request on the papers and without notice to the creditor, and do so quickly because the order’s enforcement can otherwise go ahead unimpeded (see опр. № 454 от 29.12.2008 г. по ч. гр. д. № 2260/2008 г., ВКС, III г. о. ).

40 . The December 2019 amendment to Article 420 §§ 1 and 2 prescribed that (a) if the debtor is a consumer, the amount of security required for a stay cannot exceed one third of the debt, and that (b) the stay request may be granted even if the debtor does not provide security, provided that the written evidence underlying the request shows that the claim is not due, flows from an unfair term in a contract with a consumer, or has been incorrectly calculated (again if based on a contract with a consumer).

41 . The bill leading to the amendment (see paragraph 32 above) at first proposed, as one alternative for amending Article 420, that the debtor’s objection against an immediately enforceable order for payment in favour of a bank should have suspensive effect. That alternative was opposed by, among others, the Ministry of Justice (based on the need to preserve the efficiency of that type of order-for-payment procedure), but the bill, as originally framed, was approved unanimously at its first reading by Parliament’s Legal Affairs Committee, held in the presence of various stakeholders, who debated the proposal at length ( link ). The bill was then also approved, again unanimously but without debate, at its first plenary reading ( link ). At its second reading of the bill ( link ), the Committee, following a long discussion, approved (by thirteen votes for, no votes against, and seven abstentions) another alternative for amending Article 420, which did not envisage a suspensive effect of the objection. At the bill’s second plenary reading ( link ), only two members of Parliament spoke about this specific amendment. The first suggested reverting to the suspensive-effect proposal, which was in his view a key feature of the legislative package and would provide proper protection to debtors turning out not to owe in full the sums sought from them. The second replied that this would bring back the difficulties with the collection of debts, and that the amendment, as approved by the Committee, gave consumers enough protection. Parliament adopted the Committee’s alternative by seventy-five votes for, no votes against, and thirteen abstentions.

42 . The debtor may appeal to the regional court against the district court’s direction that order for payment be immediately enforceable (see paragraph 33 above). Until late 2019, the time-limit for doing so was two weeks, but the December 2019 amendment prolonged it to one month. The appeal must be lodged with the district court, alongside the objection against the order (see paragraph 36 above). Until December 2019, the appeal could only be based on arguments relating to the documents enclosed with the application for the order; after that, that limitation was repealed. The appeal does not stay the order’s enforcement. The December 2019 amendment prescribed that the regional court must quash the immediate-enforcement direction if (a) it finds that the documents enclosed with the application for the order were not prima facie valid and did not attest an enforceable claim, or (b) the claim is based on an unfair term in a contract with a consumer (Article 419 §§ 1 to 3, as worded before and after December 2019).

43 . As a result of the above-mentioned statutory limitation on the points capable of being raised in such an appeal, at the material time the Sofia City Court was refusing to engage with arguments by debtors going beyond the validity or content of those documents and relating to the reality of the underlying debt (see, among other decisions, опр. № 14219 от 24.07.2013 г. по в. ч. гр. д. № 9599/2013 г., СГС ; опр. № 15384 от 19.08.2013 г. по в. ч. гр. д. № 10976/2013 г., СГС ; опр. № 16042 от 03.09.2013 г. по в. ч. гр. д. № 11613/2013 г., СГС ; опр. № 9278 от 07.05.2014 г. по в. ч. гр. д. № 5707/2014 г., СГС ; опр. № 17163 от 19.08.2014 г. по в. ч. гр. д. № 10760/2014 г., СГС ; опр. № 2028 от 27.01.2015 г. по в. ч. гр. д. № 18421/2014 г., СГС ; опр. № 3226 от 09.02.2015 г. по в. ч. гр. д. № 1644/2015 г., СГС ; and опр. № 18110 от 22.07.2016 г. по в. ч. гр. д. № 7975/2016 г., СГС ).

44 . In mid-2012 the Ombudsman of the Republic asked the Constitutional Court to declare Article 417, point 2 of the Code of Civil Procedure (see paragraph 33 above) unconstitutional. He argued that it impermissibly placed banks in a privileged position and was hence discriminatory.

45 . In October 2012 the Constitutional Court unanimously dismissed the request. It noted, among other things, that the safeguards surrounding the order-for-payment procedure available to banks, combined with the remedies against immediately enforceable orders, including the possibility of seeking a stay of their enforcement, were sufficient to ensure that undue debts would not be enforced. The court went on to say that there existed sound reasons – relating to, among other things, the stability of the economy and the protection of depositors – to enable banks to collect the loans they extended more easily. Moreover, the strict requirements toward bank records ensured their reliability. The argument by some third parties that banks could calculate the interest on loans incorrectly, or based on unclear criteria or their unilateral decisions to increase rates, could not put the constitutionality of the rules governing orders for payment in favour of banks into doubt, and had in any event not been raised by the Ombudsman (see реш. № 12 от 02.10.2012 г. по к. д. № 4/2012 г., КС, обн. ДВ, бр. 79/2012 г. ).

RELEVANT CASE-LAW OF THE CJEU

46 . The CJEU has extensive case-law on the application of EU consumer-protection law to order-for-payment and enforcement proceedings, including a 2020 order pursuant to a reference from the Sofia District Court (see DSK Bank and FrontEx International , C-807/19, EU:C:2020:967 ). Its judgments and orders potentially relevant to the present case appear to be the following.

47 . In Banco Español de Crédito (C-618/10, EU:C:2012:349 , §§ 38-57), which concerned order-for-payment proceedings in favour of a bank, the CJEU, going against the opinion of its Advocate-General, held that EU consumer-protection law precluded national rules barring a court examining an application for such an order from assessing of its own motion, in limine litis or at any other stage of the proceedings, whether a term in the underlying loan, if taken by a consumer, was unfair.

48 . In Aziz (C-415/11, EU:C:2013:164 , §§ 43-64), the CJEU held that EU consumer-protection law precluded national rules barring a court hearing a claim by a consumer against a bank that a term in his (mortgage-secured) loan was unfair to stay the enforcement proceedings brought by the bank pending the determination of that claim. To reach that conclusion, the CJEU noted, among other things, that (a) a post hoc compensatory remedy could not protect effectively the consumer’s rights, and (b) the property against which enforcement was directed was the consumer’s home, which could be lost as a result of the operation of those rules ( ibid. , §§ 60-61).

49 . In Banco Popular Español and Banco de Valencia (C-537/12 and C ‑ 116/13, EU:C:2013:759 , §§ 38-60), the CJEU held that EU consumer ‑ protection law precluded national rules barring a court in charge of mortgage-enforcement proceedings from checking whether the loan being enforced contained unfair terms, or from staying enforcement pending the determination of such a claim by the consumer in separate proceedings.

50 . In KuÅ¡ionová (C-34/13, ECLI:EU:C:2014:2189 , §§ 45-68), the CJEU held that the possibility for a consumer to obtain without excessive difficulty an interim measure preventing the sale of her home to enforce a loan allegedly tainted by an unfair term protected sufficiently her rights under EU consumer ‑ protection law, as well as her right to respect for her home under Article 7 of the Charter of Fundamental Rights.

51 . In Finanmadrid EFC SA (C-49/14, ECLI:EU:C:2015:746 , §§ 34-55) and Aktiv Kapital Portfolio (C-122/14, EU:C:2016:486 , §§ 24-39), the CJEU held that EU consumer-protection law precluded national rules barring a court deciding on the enforcement of an order for payment from checking of its own motion whether a term in a loan with a consumer was unfair, when the judge or non-judicial authority dealing with the initial application for the order was also incompetent to assess that.

52 . In Kuhar (C-407/18, EU:C:2019:537 , §§ 41-68), the CJEU held that EU consumer-protection law precluded national rules barring a court deciding on the enforcement of a (mortgage-secured) loan with a consumer from checking whether that loan contained unfair terms and on that basis staying the enforcement. To reach that conclusion, the CJEU noted, among other things, that apparently under Slovenian law a court hearing a claim by a consumer that a loan contained unfair terms could only stay enforcement if a risk of damage which was either irreparable or difficult to make good was shown, and subject to the provision of full security by the debtor ( ibid. , § 60).

53 . In Impuls Leasing România (C-725/19, EU:C:2022:396 , §§ 38-60), the CJEU held that EU consumer-protection law precluded national rules under which a court dealing with an objection against the enforcement of a debt owed by a consumer was barred from checking whether the terms of the contract being enforced were unfair, if the court hearing a parallel claim on the point could only stay that enforcement pending its own decision if the consumer provided a security equivalent to the value of the debt.

COMPLAINTS

54 . The applicant complains under Article 1 of Protocol No. 1 that her flat was sold in the enforcement proceedings brought by the bank against her before her legal challenges against the order for payment in favour of the bank and its immediate enforcement were examined. According to her, that was due to both the way in which order-for-payment proceedings in favour of banks were regulated by Bulgarian law and the Sofia District Court’s inertia in processing her challenges.

55 . She also complains under Article 6 § 1 of the Convention that she was deprived of access to a court in relation to the order for payment against her.

56 . She further complains under Article 8 of the Convention that she was deprived of her only home based on the bank’s claim against her without a prior judicial examination of the dispute between her and the bank.

57 . Lastly, she complains under Article 13 of the Convention that she did not have effective remedies in respect of her complaints under Articles 6 § 1 and 8 of the Convention and under Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Article 1 of Protocol No. 1? In particular, was the interference with the applicant’s possessions – in the form of a forced sale of her flat – surrounded by sufficient safeguards? More specifically, was the applicant given an effective opportunity to have the enforcement of the order for payment against her stayed pending a proper judicial consideration of the validity of the bank’s claim against her? Were any post hoc remedies capable of redressing the situation which arose as a result of the non ‑ examination of the applicant’s legal challenges against the order’s enforcement before the sale of her flat?

2. Has there been a breach of Article 8 of the Convention? In particular, was the applicant’s flat her “home” and her only “home” at the material time? If the flat was her “home”, was its forced sale “in accordance with the law” and “necessary in a democratic society”, in the light of, more specifically, the points mentioned in question no. 1 above?

[1] . Since 1999 the exchange rate between the euro and the Bulgarian lev has been fixed by law (section 29(2) of the Bulgarian National Bank Act 1997, and decision no. 223 of the Bulgarian National Bank of 31 December 1998, taken together with sections 1 and 2 of the Lev Denomination Act 1999): EUR 1 equals BGN 1.95583.

[2] . In those infringement proceedings, conducted under Article 258 of the Treaty on the Functioning of the European Union, the European Commission sent Bulgaria a letter of formal notice on 24 January 2019. The case (INFR(2018)4083) is apparently still active.