Opinion of the Advocate General — ECLI:EU:C:2025:157
Date: 2025-03-06
Language of the case: Polish
Procedure: Reference for a preliminary ruling
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: 
20 September 2023 
Referring court: 
Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (Poland) 
Date of the decision to refer: 
2 August 2023 
Applicant: 
R. S. 
Other parties: 
C. spółka akcyjna in W. 
Syndik masy upadłości (Bankruptcy administrator) for M. S. and 
R. S. 
Syndik masy upadłości (Insolvency administrator) for G. spółka 
akcyjna w upadłości [joint-stock company in liquidation] in W. 
J. J. 
M. G. 
  
Subject matter of the main proceedings 
Establishment of a creditor repayment plan in bankruptcy proceedings concerning 
an individual. 
 
i This case has been given a fictitious name which does not correspond to the real names of any of the parties to the proceedings. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/23 
 
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Subject matter and legal basis of the request 
The possibility to rely on unfair terms in consumer contracts in the context of 
bankruptcy proceedings; Directive 93/13; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 
on unfair terms in consumer contracts be interpreted as precluding rules of 
national law which provide that the bankruptcy court is bound by the list of claims 
approved by the judge-commissioner in bankruptcy proceedings, thereby 
preventing the bankruptcy court which gives the final ruling in the proceedings 
from assessing whether contractual terms are unfair? 
2. Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 
on unfair terms in consumer contracts be interpreted as precluding rules of 
national law which prohibit the ordering of interim measures in bankruptcy 
proceedings and which are therefore liable to deter consumers from availing 
themselves of the protection afforded them by Council Directive 93/13/EEC of 
5 April 1993 on unfair terms in consumer contracts? 
Provisions of European Union law cited 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Articles 6(1) and 7(1) 
Provisions of national law cited 
1. Ustawa z dnia 28 lutego 2003 r. – Prawo upadłościowe (Law of 28 February 
2003 on Bankruptcy and Insolvency, Dziennik Ustaw (Journal of Laws) of 2019, 
item 498, as amended) 
2. Ustawa z dnia 17 listopada 1964 r. – kodeks postępowania cywilnego (Law of 
17 November 1964 – Code of Civil Procedure, Dziennik Ustaw (Journal of Laws) 
of 2021, item 1805, as amended): Articles 730 and 7301 (proceedings to secure 
claims) 
3. Ustawa z dnia 26 czerwca 1974 r. – kodeks pracy (Law of 26 June 1974 – 
Labour Code, Dziennik Ustaw (Journal of Laws) of 2022, item 1510, as 
amended): 
Article 87(3). Deductions may be made within the following limits: 
(1) in the case of maintenance payments – up to three-fifths of the remuneration; 
WISZKIER 
 
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(2) in the case of other fees or the deduction of advance payments – up to half of 
the remuneration. 
Succinct presentation of the facts and procedure in the main proceedings 
By decision dated 15 October 2019, the Sąd Rejonowy dla Łodzi-Śródmieścia w 
Łodzi (District Court for Łódź-Śródmieście in Łódź, Poland) instituted bankruptcy 
proceedings against R. S., an individual not engaged in business. 
The bankruptcy estate included, inter alia, a 50% ownership interest in immovable 
property. That ownership interest was sold for Polish złote (PLN) 350 000. A 
mortgage had been established on the property to secure repayment of a loan plus 
interest and other costs and fees amounting to PLN 832 696.77 to creditor G., 
which is a joint-stock company. Under the distribution plans, creditor G. received 
PLN 360 671.91 in the present bankruptcy proceedings. 
In the bankruptcy proceedings concerning R. S., a list of claims was drawn up, 
which was approved by order of the judge-commissioner of 26 April 2021. The 
list included claims with a total value of PLN 1 247 127.93, with creditor G. 
claiming PLN 975 362. The bankrupt acknowledged all the claims. No objection 
was raised by the bankrupt or by any creditor regarding the list of claims. 
The debt owed to G. arose in connection with the purchase of property. On 
30 March 2007, the bankrupt R. S., together with his wife M. S. and with L. K. 
and A. K., entered into a mortgage loan agreement with the creditor; the loan, 
indexed to the Swiss franc (CHF), amounted to PLN 489 821.63, with a term of 
360 months. Under the indexed loan agreement, the borrowers agreed to repay 
CHF 211 952.23 to the creditor. 
In the court’s opinion, the agreement in question contains unfair contractual terms 
which may render it invalid. This would mean that the debt to G. does not exceed 
PLN 489 821.63, and since bankruptcy proceedings are also pending against L. K. 
and A. K., and the creditor obtained a certain sum from the sale of a 50% 
ownership interest in the property in separate bankruptcy proceedings, the debt 
would amount to PLN 0, which requires additional findings of fact. 
The court before which this case is pending should, using as a guide the list of 
claims established in the bankruptcy proceedings, draw up a plan for the bankrupt 
R. S. to repay his creditors in accordance with his earning capacity and the amount 
of the unsatisfied claims. R. S. requests that his debts be discharged without the 
drawing up of a repayment plan or, alternatively, that a repayment plan be drawn 
up in the amount of PLN 500 for a period of 6 months. Creditor G. requests that a 
repayment plan be drawn up, amounting to a minimum of PLN 2 000 per month 
for 36 months. The other creditors take no position. The insolvency administrator 
requests that a repayment plan be drawn up, amounting to PLN 2 500 per month 
for 36 months. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/23 
 
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The bankrupt R. S. remains employed. He receives approximately PLN 3 500 per 
month in remuneration paid into his bank account, while the remaining part of his 
remuneration, also amounting to approximately PLN 3 500, is remitted to the 
bankruptcy estate in order to pay off his creditors, including G. 
G. was declared bankrupt on 20 July 2023, and the proceedings are continuing 
with the participation of the bankruptcy administrator. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
1 Bankruptcy proceedings conducted against consumers essentially have two 
objectives – to satisfy the bankrupt’s creditors and to enable the bankrupt to have 
his or her debt discharged. Those proceedings are managed by a judge-
commissioner – a judicial authority that performs all actions with the exception of 
those reserved for the bankruptcy court. In the course of consumer bankruptcy 
proceedings, the bankrupt’s assets are liquidated, a list of claims is established, 
assets are distributed to creditors, and the proceedings conclude with the drawing-
up of a creditor repayment plan for up to 36 months. 
2 The list of claims includes the creditors participating in the proceedings and the 
amounts of their claims. As a rule, the list is not subject to substantive review by 
the judge-commissioner. The insolvency administrator lists the claims, and the 
bankrupt has the right to file a statement as to whether he or she acknowledges 
those claims or not. After drawing up the list, the judge-commissioner announces 
it, and the bankrupt and creditors have the right to challenge the list by filing an 
objection. Such objections may be filed only within two weeks from the date of 
the announcement. After that date, the parties to the proceedings can no longer 
challenge the list. If no objections have been filed, the judge-commissioner 
approves the list, which is binding during the proceedings unless amended in the 
appropriate manner. 
3 It is common ground that neither the insolvency administrator nor the judge-
commissioner reviewed the agreement concluded with creditor G. with respect to 
unfair contractual terms. The judge-commissioner did not introduce any changes 
to the list of his own motion either. 
4 The bankrupt filed a statement acknowledging the claims in full, which may 
suggest that he was not seeking protection related to the company’s use of unfair 
contractual terms. However, in a letter submitted to the court after the hearing had 
closed, the bankrupt’s authorised agent pointed out that the agreement with G. 
might be invalid due to the use of unfair contractual terms, and the repayment 
amounts might be reduced as a result. 
5 There is no mention in the bankruptcy case file that the bankrupt was informed 
that the terms of the agreement with G. might be unfair or that the bankrupt 
knowingly declared that he did not wish to avail himself of the protection afforded 
WISZKIER 
 
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by Directive 93/13. Until 3 November 2022, the bankrupt was also not represented 
by a lawyer in the proceedings. 
6 The applicable national laws do not permit a bankruptcy court, when drawing up a 
creditor repayment plan, to review independently whether contractual terms are 
unfair. Where a bankruptcy court has doubts as to the unfairness of contractual 
provisions, it may postpone examination of the case and refer the matter to the 
judge-commissioner in order to enable the latter to consider whether to amend the 
list of claims of his own motion. This causes an unreasonable delay in the 
examination of the case, since, during the hearing convened to establish the 
repayment plan, the court usually already has at its disposal all the information 
necessary to determine whether contractual terms are unfair. Furthermore, all 
actions related to the liquidation and distribution of assets, and to the list of 
claims, have already been completed. Amending the list of claims is a formal 
procedure: it requires a statement of reasons to be drawn up, the amendments to 
be delivered to the parties, and an announcement to be made. Moreover, the 
judge-commissioner is not bound by the position of the bankruptcy court and may 
determine that there are no grounds for amending the list of his own motion. 
7 Taking into account the unfairness of contractual terms, the bankruptcy court 
ruling on the bankrupt’s repayment plan could set a lower repayment amount or 
not draw up a plan at all if it turns out that the assets already collected are 
sufficient to satisfy all claims. That will require further findings of fact, which will 
depend on whether the referring court has the possibility to grant the bankrupt 
legal protection. 
8 During the bankruptcy proceedings, the bankrupt did not have the opportunity to 
bring an action independently in order to protect his rights under Directive 93/13 
as his assets were (and continue to be) managed by the bankruptcy administrator. 
9 The bankrupt did have the opportunity to challenge the list of claims. However, 
filing an objection involves a proportional fee to be paid from the bankrupt’s own 
funds (50% of his remuneration is garnished by the insolvency administrator and 
remitted to the bankruptcy estate). An objection is also a formal document that 
must include all pleas and evidence relied on. Furthermore, on the date on which 
the list was drawn up during the bankruptcy proceedings, the bankrupt may also 
have been unaware that the terms of the agreement with G. were unfair. 
10 As the Court of Justice stressed in its judgment of 5 March 1996 in Joined Cases 
C-46/93 and C-48/93, Brasserie du Pêcheur and Factortame, EU law must, when 
conferring rights upon individuals, also provide means for their effective exercise. 
As a rule, EU law does not regulate procedural issues related to the assertion of 
claims based on EU law, which it leaves to the Member States (the principle of 
procedural autonomy), and that freedom is circumscribed by the principles of 
equivalence and effectiveness. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/23 
 
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11 When examining the case at hand with respect to the drawing-up of a repayment 
plan, the court came to the conclusion that the applicable national legislation 
might make it excessively difficult, or even impossible, for a bankrupt consumer 
to avail himself or herself of the protection afforded by Directive 93/13. 
Bankruptcy law, however, does not permit the court before which the case 
concerning the drawing-up of a repayment plan is pending to review whether the 
agreement contains unfair terms. 
12 The Court of Justice has repeatedly stressed that ex officio examination of unfair 
contractual terms is a duty incumbent on the national courts, and excessive 
workload or other practical difficulties do not release the courts from that 
obligation (for instance, order of 26 November 2020, DSK Bank EAD, C-807/19). 
13 In bankruptcy proceedings, however, it is difficult to determine which authority 
involved in the proceedings is responsible for carrying out that examination, and 
therefore in practice it is not carried out at all. The judge-commissioner merely 
examines the claims in formal terms and then forwards them to the insolvency 
administrator, who conducts a substantive assessment and draws up a list of 
claims. The judge-commissioner has no legal possibility to amend the list before it 
is approved, unless an authorised party files an objection. In the case at hand, no 
objections were filed, and thus the judge-commissioner approved the list of 
claims. 
14 During the proceedings before the judge-commissioner, the bankrupt did not rely 
on the unfair nature of the terms of the agreement concluded with creditor G., and 
therefore the judge-commissioner was not obliged under national law to verify the 
claim included on the list. The objection referred to above was only raised by the 
bankrupt’s authorised agent before the referring court, whose task is to rule on 
drawing up a creditor repayment plan or discharging the bankrupt’s debts, which 
will end the bankruptcy proceedings. 
15 It should also be noted that, according to the bankrupt’s testimony, after the 
garnishments from his remuneration, which are remitted to the bankruptcy estate, 
he is left with PLN 3 500, which is insufficient to meet his needs and those of his 
family. The laws applicable to the bankruptcy proceedings pending in the present 
case do not permit the court or the judge-commissioner to amend the amount of 
that garnishment in any manner. 
16 Of course, the assets collected during the bankruptcy proceedings are to be used to 
satisfy all creditors, not just G.; however, given the amount of assets in the 
bankruptcy estate and the amount of other claims, it may turn out in the not-too-
distant future that the assets collected are sufficient to satisfy those claims (except 
for the disputed claim). Under national law, the bankrupt’s remuneration forms 
part of the bankruptcy estate, and only at the end of the bankruptcy proceedings 
will any surplus be disbursed to the bankrupt. 
WISZKIER 
 
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17 In its judgment of 15 June 2023, Getin Noble Bank, C-287/22, the Court of Justice 
has already ruled that Article 6(1) and Article 7(1) of Directive 93/13 must be 
interpreted as precluding national case-law according to which a national court 
may dismiss an application for the grant of interim measures lodged by a 
consumer seeking the suspension, pending a final decision on the invalidity of the 
loan agreement concluded by that consumer on the ground that that loan 
agreement contains unfair terms, of the payment of the monthly instalments due 
under that loan agreement, where the grant of those interim measures is necessary 
to ensure the full effectiveness of that decision. 
18 In bankruptcy proceedings, however, no provision is made for interim measures to 
be ordered by the court either upon a motion from a party or of its own motion. 
19 It is true that the bankrupt may request that part of his remuneration be excluded 
from the bankruptcy estate; however, that would require a creditors’ meeting to be 
convened and a resolution to be passed by a two-thirds majority of the creditors. 
As a result, the bankrupt has no way of obtaining protection without G.’s 
approval, which means that that remedy is completely ineffective. 
20 In its judgment of 19 June 1990, Factortame I, C-213/89, the Court of Justice 
stressed that, under EU law, effective interim measures must be available to 
protect rights which derive from EU law. 
21 Obviously, ordering interim measures in bankruptcy proceedings would require 
the court to weigh the interests not only of the bankrupt, but also of the other 
creditors involved in the proceedings. In the court’s view, since bankruptcy 
proceedings by their nature involve universal enforcement of the debtor’s assets, 
this precludes the use of interim measures to reduce the repayments made by the 
bankrupt. 
22 However, a rule that excludes the use of interim measures may discourage a 
bankrupt from claiming protection under Directive 93/13, or even persuade the 
bankrupt to declare that he or she does not wish to avail himself or herself of that 
protection, thereby undermining the purpose of the directive, which is to ensure 
that contracts with consumers do not contain unfair terms.