Case C-571/26, Kahmus – res judicata over a question nobody asked
Finality is supposed to mean the argument is over. This reference asks what finality is worth when the record does not show the argument was ever had.
Facts
In Estonian consumer insolvency proceedings, claims arising from consumer credit agreements are deemed uncontested once the list of creditors is approved, where those claims rest on a final judicial decision. The difficulty identified by the referring court is what such a decision does not say: its grounds do not reveal whether any court examined the creditor’s compliance with the obligation under Article 8 of Directive 2008/48 to assess the consumer’s creditworthiness before the agreement was concluded. National law does not permit the insolvency court to examine that of its own motion either. The Riigikohus (Supreme Court, Estonia) has referred four questions, running from the compatibility of that scheme to whether the court must apply the directive’s civil-law consequences on its own initiative. (Kahmus is a fictitious case name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
According to the Official Journal notice, the Riigikohus asks:
1. Must Articles 8 and 23 of Directive 2008/48/EC be interpreted as precluding national legislation under which, in consumer insolvency proceedings, claims arising from consumer credit agreements are deemed to be uncontested when the list of creditors is approved, where those claims have been upheld by a final judicial decision but it is not apparent from the grounds of that decision whether the court examined whether the creditor had duly assessed the consumer’s creditworthiness prior to the conclusion of the consumer credit agreement?
2. If the answer to the preceding question is in the affirmative: Must a national court disapply a provision of national law that is contrary to EU law and under which, when approving the list of claims in consumer insolvency proceedings, claims arising from consumer credit agreements and upheld by a final judicial decision are deemed to be uncontested?
3. Must Articles 8 and 23 of Directive 2008/48/EC be interpreted as precluding national legislation which, in consumer insolvency proceedings, does not permit a national court to examine of its own motion whether the creditor fulfilled its obligation to assess the consumer’s creditworthiness, where the claim arising from the consumer credit agreement has been upheld by a final judicial decision but it is not apparent from the grounds of that decision whether the court examined the relevant circumstances?
4. If the answer to the preceding question is in the affirmative: Does the principle of effectiveness require a national court, in consumer insolvency proceedings, to apply of its own motion the civil-law consequences provided for in national law in accordance with Article 23 of Directive 2008/48/EC, where it considers that the creditor has not duly assessed the consumer’s creditworthiness?
Sources
OJ notice C/2026/4174 (EUR‑Lex) · Case file on CURIA · Directive 2008/48/EC
Comment
The phrase carrying the weight here is “it is not apparent from the grounds”. Estonian law does not say the creditworthiness question was decided; it says a final judgment exists, and treats that as sufficient. Res judicata normally attaches to what a court determined. This scheme attaches it to what a court might have determined, on a record that does not say either way — and the earlier judgment may well have come out of the very summary procedure at issue in the companion reference, C‑572/26, Kangi, where no court is permitted to look at the point at all.
The Court has confronted the insolvency version of this before. In Case C‑377/14, Radlinger (ECLI:EU:C:2016:283) it held that Article 7(1) of Directive 93/13 precludes national legislation which, in insolvency proceedings, does not permit the court to examine of its own motion the unfairness of contractual terms on which the declared claims are based, even where it has the necessary matters of law and fact before it — and, in the same judgment, that Article 10(2) of Directive 2008/48 requires a court hearing a dispute over claims based on a credit agreement to examine compliance with the information obligations of its own motion and to draw the consequences under national law. Kahmus asks the Court to complete that line: same forum, same directive, the creditworthiness duty in Article 8 rather than the information duties in Article 10.
Question 4 is the one that will unsettle practitioners. It is not enough, on the referring court’s account, for the insolvency court to be permitted to notice a breach; the question is whether the principle of effectiveness obliges it to apply the national civil-law consequences of that breach on its own initiative — reducing or extinguishing the claim without anyone asking. Case C‑679/18, OPR‑Finance (ECLI:EU:C:2020:167) already requires the court both to examine compliance of its own motion and to draw the consequences arising under national law, and it rejected a scheme in which the sanction applied only if the consumer invoked it in time. And Case C‑565/12, LCL Le Crédit Lyonnais (ECLI:EU:C:2014:190) supplies the reason: Article 23 demands penalties that are effective, proportionate and dissuasive, and the Court refused to accept a regime that left the lender substantially whole in practice. A duty that the court may notice but need not act on would leave the lender whole in exactly that way.
What makes the pairing of these two references worth watching is the sequence they describe. A consumer credit claim can pass through a summary order for payment where nobody may examine the lending decision, survive enforcement where nobody examines it either, and arrive in insolvency carrying a final judgment whose silence is read as approval. Each stage is defensible on its own terms; the Riigikohus has referred both halves at once because the defence only works if you never look at the whole. Whether the Court accepts that framing will matter well beyond Estonia, since summary recovery followed by consumer insolvency is the standard path for defaulted consumer credit across the Union.