Information;Order — ECLI:EU:C:2024:203
Date: 2024-02-20
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 January 2023 
Referring court: 
Sąd Okręgowy w Koszalinie (Poland) 
Date of the decision to refer: 
30 December 2022 
Applicant: 
RF 
Defendant: 
Getin Noble Bank S.A. 
      
Subject matter of the main proceedings 
Action for a declaration of invalidity in respect of a mortgage loan agreement 
denominated in Swiss francs (CHF) concluded with the defendant bank and for 
payment of a sum of money, and also an application by the applicant to secure a 
non-pecuniary claim by regulating the rights and obligations of the parties to the 
proceedings for the duration thereof by suspending the applicant’s obligation to 
repay loan instalments in the amounts and on the dates laid down in that 
agreement. 
Subject matter and legal basis of the request 
Interpretation of Article 70(1) of Directive 2014/59 with a view to determining 
whether the prohibition set out in that provision relates only to the possibility of 
securing a pecuniary claim by way of enforcement or also to the introduction of 
any proceedings to secure claims in relation to an entity under special resolution. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-34/23 
 
2  
Question referred for a preliminary ruling 
‘Does the prohibition laid down in Article 70(1) Directive 2014/59/EU of the 
European Parliament and of the Council of 15 May 2014 establishing a framework 
for the recovery and resolution of credit institutions and investment firms and 
amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 
2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU 
and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of 
the European Parliament and of the Council, relate only to the possibility of 
securing a pecuniary claim by way of enforcement or also to the institution of any 
proceedings to secure claims in relation to an entity under special resolution?’ 
Provisions of EU law cited 
Treaty on the Functioning of the European Union, Articles 12 and 169(1) 
Charter of Fundamental Rights of the European Union, Article 38 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, fourth, twenty-first and twenty-fourth recitals, and Articles 6(1) and 
7(1) 
Directive 2014/59/EU of the European Parliament and of the Council of 15 May 
2014 establishing a framework for the recovery and resolution of credit 
institutions and investment firms and amending Council Directive 82/891/EEC, 
and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 
2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 
and (EU) No 648/2012, of the European Parliament and of the Council, recital 5 
and Article 70(1) 
Provisions of national law cited 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland), 
Article 76 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code), Articles 5, 221, 431, 44, 45, 58(1) to (3), 3531, 
3581(1) to (4), 359(1) and (2), and 3851(1) to (4) 
Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Law of 29 August 1997 on 
banking), Article 69(1) and (2) (as it was worded at 31 August 2007) 
Ustawa z dnia 10 czerwca 2016 r. o Bankowym Funduszu Gwarancyjnym, 
systemie gwarantowania depozytów oraz przymusowej restrukturyzacji (Law of 
10 June 2016 on the Bank Guarantee Fund, the deposit guarantee scheme and 
special resolution (‘Law on the Bank Guarantee Fund’), Article 135(1) and (4) 
GETIN NOBLE BANK 
 
3 
Ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure), Articles 13(2), 
199(1), 730(1) and (2), 7301(1), (2), (21) and 3, 731, 737, 738, 743(1) and (2), and 
755 
Succinct presentation of the facts and procedure in the main proceedings 
1 A case brought by RF against GETIN Noble Bank SA in Warsaw for a declaration 
and payment is pending before the referring court. The applicant is seeking a 
declaration that the mortgage loan agreement denominated in CHF concluded with 
the defendant on 31 August 2007 is invalid. The applicant is further claiming 
payment to him by the defendant of the amount of PLN 80 657.30, plus ancillary 
claims. As a subsidiary claim, the applicant has requested a declaration that the 
provisions of the above agreement, which the applicant describes in detail, 
constitute unlawful contractual clauses and are not binding on him. Together with 
that request, the applicant claimed payment of PLN 28 780.01, plus ancillary 
claims. 
2 Together with the application, the applicant requested that a non-pecuniary claim 
be secured by regulating the rights and obligations of the parties to the 
proceedings for the duration thereof by suspending the applicant’s obligation to 
repay loan instalments in the amounts and on the dates laid down in the agreement 
from the date on which the claim is secured until the time at which the judgment 
concluding proceedings in the case becomes final. As grounds for that request, he 
stated that the legal interest in the claim being secured for the duration of the 
proceedings arises from the fact that failure to secure the claim could expose him 
to financial loss, since he pays the capital and interest instalments on a regular 
basis, which could lead to encumbrance of his assets and unjust enrichment of the 
defendant. 
The essential arguments of the parties in the main proceedings 
3 The applicant claims that the abovementioned mortgage loan agreement is invalid 
and contains unlawful contractual clauses which are not binding on him. In his 
view, he has a legal interest in the above non-pecuniary claim being secured on 
account of the risk of financial loss. 
4 The defendant has not yet responded to the application because, at the time when 
the order for reference was made, it had not yet been served with a copy of the 
application since it is at first instance that the referring court decides on an 
application for a non-pecuniary claim to be secured. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-34/23 
 
4  
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 With regard to the need to refer the above question for a preliminary ruling, the 
referring court has noted that it is necessary to interpret EU law in order to enable 
it to apply correctly the provisions of national law relating to the possibility of 
securing a non-pecuniary claim in a situation where a special restoration 
procedure had been initiated against the defendant (on 29 September 2022), as a 
result of which the bank’s business was transferred to a bridge bank set up by the 
Bank Guarantee Fund. 
6 In the view of the referring court, the applicant’s request for the non-pecuniary 
claim in the present case to be secured should in principle be granted as he has 
provided prima facie evidence for the claim and demonstrated the existence of a 
legal interest in the claim being secured. 
7 However, under Article 135 of the Law on the Bank Guarantee Fund enforcement 
proceedings or proceedings to secure claims against the assets of an entity under 
restoration initiated prior to the initiation of restoration proceedings are to be 
discontinued (paragraph 1), whilst during the period of special restoration no 
enforcement proceedings or proceedings to secure claims may be initiated in 
relation to an entity under restoration (paragraph 4). The latter provision was 
transposed into Polish law pursuant to Directive 2014/59, on the basis of 
Article 70(1) thereof. 
8 When considering the application, the referring court was uncertain as to the 
construction of Article 70(1) of Directive 2014/59 with regard to the interpretation 
of whether the prohibition laid down in that provision relates only to the 
possibility of securing a pecuniary claim by way of enforcement or also to the 
institution of any proceedings to secure claims in relation to an entity under 
special resolution. 
9 The referring court took the view that it is possible to find that the prohibition laid 
down in Article 70 of Directive 2014/59 can apply only to items which already 
form part of the assets of an entity under resolution and that any enforcement or 
securing of claims could result in them being removed from those assets following 
the enforcement or securing of claims. In its view, the prohibition on initiating 
proceedings to secure claims cannot therefore apply to items which have not yet 
become part of those assets. In such a situation, the provision referred to would 
not preclude the applicant’s request from being granted. 
10 From the point of view of EU law, the referring court has indicated that, in 
accordance with recital 5 of Directive 2014/59, it is difficult to find any reason 
why it would not be possible to secure such non-pecuniary claims against a bank 
under restoration, which, under the directive, are to be conducted in accordance 
with the principle that no creditor should be worse off than it would have been 
under normal insolvency proceedings. 
GETIN NOBLE BANK 
 
5 
11 In view of the circumstances set out above, the referring court has proposed that 
the Court of Justice’s answer to its question should be that Article 70(1) of 
Directive 2014/59 relates only to the possibility of securing a pecuniary claim by 
way of enforcement. 
12 The referring court has further pointed out that the past practice of the Court of 
Justice has focused exclusively on the literal interpretation of Article 70(1) of 
Directive 2014/59, which, however, makes it impossible to attain the objectives 
adopted in the provisions of EU law. The referring court has accordingly pointed 
to the need to ensure the full practical effectiveness of that law. 
13 Lastly, the referring court has requested that an expedited procedure be applied 
pursuant to Article 105 of the Rules of Procedure of the Court of Justice since the 
nature of the case, arising from the need to consider an application for the 
securing of a non-pecuniary claim, which, under the Code of Civil Procedure, 
must be heard without delay, requires an immediate decision.