Judgment — ECLI:EU:C:2026:42
Date: 2026-01-22
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-902/24 – 1 
Case C-902/24 [Herchoski] i 
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: 
22 December 2024 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
19 December 2024 
Applicants: 
RM 
EM 
Defendant: 
Santander Bank Polska S.A. 
  
Subject matter of the main proceedings 
Interpretation of EU law, in particular Articles 6(1) and 7(1) of Council Directive 
93/13/EEC; Article 267 TFEU and the principles of effectiveness, equivalence, 
proportionality and legal certainty 
Subject matter and legal basis of the request 
Declaring a loan agreement invalid on account of the inclusion of unfair 
contractual terms and awarding a sum of money – Raising and upholding a plea of 
set-off filed in the alternative 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-902/24 
 
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Questions referred for a preliminary ruling 
In the context of a mortgage loan agreement declared invalid in its entirety on the 
grounds that it contains unfair terms without which it cannot continue in 
existence, must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts and the principles of effectiveness, 
equivalence, proportionality and legal certainty be interpreted as precluding a 
judicial interpretation of national provisions according to which: 
1. in an action brought by a consumer against a bank for the return of the 
equivalent of the payments made under a loan, the bank may raise an effective 
plea of set-off of its claim for repayment of the equivalent of the loan principal 
against the consumer’s claim; 
2. the bank may effectively raise the above plea of set-off also in the 
alternative, while in principle its plea is that the loan agreement is valid and does 
not contain unfair contractual terms; 
3. the bank may effectively demand that the consumer return the equivalent of 
the loan principal disbursed in the performance of an invalid agreement (as a 
result of which the bank’s claim becomes due), while in principle the bank’s plea 
is that the loan agreement is valid and does not contain unfair contractual terms; 
4. the bank may set a two-week deadline for the return by the consumer of the 
equivalent of the entire loan principal (as a result of which the bank’s claim for 
the return of the equivalent of the entire loan principal becomes due); 
5. the consumer is ordered to pay part of the legal costs to the extent that his or 
her action for payment was dismissed due to the plea of set-off raised by the bank 
being upheld? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29, ‘Directive 93/13’): Article 6(1) and Article 7(1). 
Provisions of national law relied on 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) (Dziennik Ustaw (Journal of Laws) of 2024, item 
1061, as amended) (‘the CC’): Article 58(1), Article 61(1), Article 355(1) and (2), 
Article 363(1), Article 3851(1) and (2), Article 405, Article 410(1) and (2), 
Article 455, Article 471, Article 472, Article 498(1) and (2), and Article 499. 
Ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure) (Dziennik Ustaw of 
2024, item 1568, as amended) (‘the CCP’): Article 98(1) and (3), Article 100, 
HERCHOSKI 
 
3 
Article 102, the first sentence of Article 108(1), Article 203(1), Article 2031(1), 
Article 2031(3), Article 316(1), and Article 355. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2008, a mortgage loan agreement was concluded, under which the defendant 
bank granted the applicants a loan amounting to PLN 360 000 for a period of 
360 months. The loan bears interest at a variable rate and is denominated in 
(indexed to) the Swiss franc (CHF) (paragraph 2(1)). The amount of the loan 
denominated in (indexed to) CHF or a tranche of the loan is determined according 
to the foreign exchange buying rate for the aforementioned currency in 
accordance with the ‘Table of exchange rates’ in effect at the bank on the day on 
which the loan or loan tranche is drawn down (paragraph 2(2)). The loan is drawn 
down in Polish zlotys (PLN), and the amount of the loan is converted according to 
the foreign exchange buying rate for CHF in accordance with the ‘Table of 
exchange rates’ in effect at the bank on the day on which the loan or loan tranche 
is drawn down (paragraph 4(1a)). The repayment of combined principal and 
interest, and of interest, is made in PLN after the principal and interest payments 
are converted at the foreign exchange buying rate for CHF in accordance with the 
‘Table of exchange rates’ in effect at the bank on the payment date. 
2 In the statement of claim filed on 17 November 2022, the applicants requested that 
the above loan agreement be declared invalid and that the amount of PLN 327 338 
be awarded against the defendant together with statutory default interest from 
7 September 2022 until the date of payment. In its statement of defence, dated 
13 October 2023, the defendant requested that the action be dismissed and that the 
applicants be ordered to pay its legal costs. On 18 July 2024, the applicants were 
served with a letter in which the defendant demanded the return, by 5 August 
2024, of the equivalent of the loan principal disbursed under the loan agreement in 
the amount of PLN 360 000. On 9 August 2024, the applicants were served with a 
declaration from the defendant, in which it indicated that it was setting off its 
claim for the return of the equivalent of the loan principal amounting to 
PLN 360 000 against the claim asserted by the applicants in their statement of 
claim. In a pleading dated 14 August 2024, the defendant referred to the 
aforementioned demand for payment and declaration of set-off, and raised a plea 
of set-off of its claim against the applicants’ claim asserted in their statement of 
claim. In a pleading dated 10 September 2024, the applicants requested that the 
plea of set-off be dismissed, indicating that the plea had not been raised 
effectively; moreover, they stated that the setting of a deadline of around two 
weeks for the applicants to pay the amount of PLN 360 000 was unrealistic, and 
therefore the demand for payment was fictitious. The total value of the claim in 
the present case is PLN 687 338, of which PLN 360 000 relates to the request that 
the agreement be declared invalid, and PLN 327 338 relates to the demand for 
payment. To date, the applicants have incurred legal costs amounting to 
PLN 17 334 in total; the defendant has incurred legal costs amounting to 
PLN 10 834. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-902/24 
 
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3 On 19 December 2024, the referring court gave a partial judgment, in which it 
found that the loan agreement entered into by the parties was invalid due to the 
inclusion therein of conversion clauses (among others, paragraph 2(2) and 
paragraph 4(1a) of the agreement) that constitute unfair contractual terms 
(Article 3(1) of Directive 93/13), and the fact that the agreement was not capable 
of continuing in existence without those terms (Article 6(1) of Directive 93/13). 
Essential arguments of the parties in the main proceedings 
4 In support of their claim, the applicants indicated that the loan agreement 
contained unfair contractual terms regarding the PLN/CHF exchange rate, that the 
agreement was not capable of continuing in existence without those terms, and 
that therefore the agreement was invalid. At the same time, they indicated that the 
effect of the agreement being invalid was that the bank was obliged to return the 
equivalent of the payments made by them, since all the payments made in the 
performance of the agreement had been undue. The applicants also requested that 
the defendant be ordered to pay their legal costs. The defendant, on the other 
hand, indicated that the agreement was valid and did not contain unfair contractual 
terms. In addition, the applicants drew attention to the internal contradiction in the 
defendant’s reasoning: the defendant claimed, on the one hand, that the loan 
agreement was valid and did not contain unfair contractual terms, and on the 
other, it raised a plea of set-off of the claim, to which it could be entitled only if 
the loan agreement were found to be invalid. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The loan agreement concluded by the parties contains unfair contractual terms 
(Article 3(1) of Directive 93/13) without which it is not capable of continuing in 
existence (Article 6(1) of Directive 93/13). The present case relates to the 
consumers’ claims against the bank arising from the invalidity of the loan 
agreement. Each of the parties is entitled to a separate claim vis-à-vis the other 
party for the return of an undue obligation. Under the ‘two claims’ theory 
generally accepted in national case-law, the claims of both parties arising from an 
invalid agreement are independent. This means that each party may assert a claim 
against the other party in an action, but the court deciding one party’s action for 
payment is not authorised to offset the parties’ mutual claims ex officio. However, 
such a possibility arises if the defendant, as in the present case, raises a plea of set-
off. In the view of the referring court, the defendant in principle fulfilled all of the 
requirements provided for in national law – both concerning the plea of set-off 
(Article 2031 of the CCP) and concerning the declaration of set-off (Articles 498 
and 499 of the CC), which is the basis for the plea of set-off (subject to the 
condition that the claim submitted for set-off is due). Therefore, having regard to 
the wording of those provisions, the referring court should uphold the plea of set-
off and, as a result, dismiss the consumer’s action for payment in part, as well as 
order the consumer to pay part of the legal costs to the extent that his or her claim 
HERCHOSKI 
 
5 
was dismissed. The referring court has doubts as to the compatibility of such a 
ruling with the provisions of EU law and, in particular, with the provisions of 
Directive 93/13 and the related legal principles. 
6 As regards the question of whether the bank’s plea of set-off may violate the 
consumer’s right to pursue restitution claims arising from the inclusion of 
unfair contractual terms in the agreement (point 1 of the question), it should be 
stressed that, in addition to the requirement that the defendant must be entitled to a 
claim under the same legal relationship as the claim asserted by the applicant 
(Article 2031(1)(1) of the CCP), the requirement that the claims to be set off must 
involve money or generic goods of the same quality, and be due and enforceable 
before a court or other state body (Article 498(1) of the CC), must also be met. 
Furthermore, the creditor should submit a declaration of set-off to the other party 
(Article 499 of the CC), and then serve that declaration on the other party in such 
a manner that the other party can learn its contents (Article 61(1) of the CC). In 
the present case, the defendant has complied with all of the requirements for a 
declaration of set-off and a plea of set-off. As a result of the set-off, both claims 
cancel each other out up to the amount of the lesser claim (Article 498(2) of the 
CC). In the present case, this means that the defendant’s claim of PLN 360 000 is 
extinguished in full, while the applicants’ claim is extinguished in part. Thus, if 
the court upholds the plea of set-off, it will award the remaining amount of 
PLN 41 195 from the defendant to the applicants, with statutory default interest 
from 6 August 2024 to the date of payment, and dismiss the claim for payment in 
the remaining part (the finding that the agreement is invalid has already been 
made by the court in its partial judgment). 
7 The referring court has doubts as to whether the effects of set-off, which consist in 
the consumer’s claim being partially extinguished and the consumer’s action for 
payment being dismissed to such a significant extent, are not in conflict with 
Articles 6(1) and 7(1) of Directive 93/13 and the principle of effectiveness. It 
follows from the case-law of the Court of Justice that ‘the obligation for the 
national court to exclude an unfair contract term imposing the payment of 
amounts that prove not to be due entails, in principle, a corresponding restitutory 
effect in respect of those same amounts. The absence of such restitutory effect 
would be liable to call into question the dissuasive effect that Article 6(1) of 
Directive 93/13, read in conjunction with Article 7(1) of that directive, is designed 
to attach to a finding of unfairness in respect of terms in contracts concluded 
between consumers and sellers or suppliers’. 1 Accordingly, to grant the 
consumer’s claim for payment only in part may be considered a limitation of the 
restitutory effect, which in turn may be contrary to the indicated provisions. On 
the other hand, the set-off has the effect of extinguishing not only the consumer’s 
claims, but also the bank’s claims (Article 498(2) of the CC), which entails certain 
benefits for the consumer. After the proceedings are concluded, there will be no 
 
1 See the judgment of the Court of Justice (Grand Chamber) of 21 December 2016, Gutièrrez 
Naranjo, Joined Cases C-154/15, C-307/15 and C-308/15, paragraphs 62–63. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-902/24 
 
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need to settle the parties’ mutual claims, and as a result of the bank’s claim being 
extinguished in its entirety, the bank will not be able to sue the consumer for 
payment of that claim, nor will it be able to demand statutory default interest from 
the consumer (Article 481(1) and (2) of the CC) or the payment of legal costs 
should the consumer lose the case brought by the bank (Article 98(1) of the CCP). 
8 Despite those advantages, the question arises whether it should be up to the 
consumer to decide whether the claims of both parties should be mutually 
cancelled. Indeed, the provisions on set-off stipulate that set-off is a unilateral act, 
and thus if the prerequisites for it are met, the claims of the parties cancel each 
other out irrespective of whether the other party agrees. On the other hand, to 
completely deprive the bank of the ability to raise a plea of set-off may violate the 
principles of equivalence, proportionality and legal certainty, and as a result limit 
the bank’s right to a court, as this would significantly constrain the defendant’s 
ability to defend itself in a case, especially where national laws allow a plea of set-
off to be raised. 
9 Nevertheless, the referring court is aware that, in a somewhat analogous situation, 
the plea of retention, which is also regulated by the Civil Code (Articles 496–497 
of the CC), was disallowed by the Court of Justice in an action brought by a 
consumer against a seller or supplier. 2 
10 Regarding point 2 of the question referred, that is to say, the bank’s ability to 
raise a plea of set-off in the alternative, when it simultaneously claims that the 
agreement is valid and does not contain unfair contractual terms, it should be 
clarified that national case-law has established two permissible ways for a 
defendant to take advantage of a plea of set-off. The first defence, known as an 
unconditional plea of set-off, limits the entire reasoning to the plea of set-off (the 
defendant admits the facts alleged by the applicant, stating that as a result of the 
effective set-off of the parties’ mutual claims, the applicant is not entitled to a 
claim for payment against the defendant). The second possible defence, which the 
defendant has chosen in the present case, is to raise a plea of set-off together with 
other, more far-reaching pleas. In this instance, the defendant argues that in 
principle the applicant is not entitled to any claim, but in the event that the court’s 
assessment is different, the defendant raises a plea of set-off as a procedural 
precaution. The defendant’s plea of set-off is referred to as a ‘plea of set-off in the 
alternative’, since the defendant raises that plea only in the event that its other 
pleas are not accepted. In such a case, the dispute between the parties covers a 
wide range of circumstances, and thus the court first determines whether the 
applicant’s claim is justified in principle and amount, and assesses the validity of 
the plea of set-off only at the end, if all the other pleas raised by the defendant 
prove unfounded. 
 
2 See the judgment of the Court of Justice of 14 December 2023, Getin Noble Bank, C-28/22, 
paragraph 87; order of the Court of Justice of 8 May 2024, Santander Bank Polska, C-424/22, 
paragraph 38. 
HERCHOSKI 
 
7 
11 The referring court has doubts as to whether upholding a plea of set-off in the 
situation presented above will not violate EU law, in particular Article 7(1) of 
Directive 93/13 and the principle of effectiveness. The raising by the defendant of 
a plea of set-off in the alternative puts the applicant in a difficult procedural 
position. That is because, as a general rule, the applicant’s response to a successful 
plea of set-off by the defendant should be to withdraw the action with respect to 
the demand for payment (Article 203(1) of the CCP) because if the plea of set-off 
is effective, it would mean that the claim asserted by the applicant is extinguished, 
and therefore the applicant should not maintain the demand for payment. In 
practice, however, it is difficult to expect the applicant to withdraw his or her 
claim when the dispute between the parties is not limited to assessing the 
effectiveness of the set-off plea, but primarily involves assessing the merits of the 
applicant’s claim. Moreover, although the defendant may raise a plea of set-off in 
the alternative, the rules of Polish civil procedure do not provide for the applicant 
to respond in an analogous manner, that is, to withdraw his or her action in the 
alternative. Meanwhile, if the applicant withdraws his or her action, the court will 
have to issue an order to discontinue the proceedings (Article 355 of the CCP), in 
which the court will not assess the merits of the claim, but merely state that the 
withdrawal of the action was effective. In the situation presented above, however, 
the applicant risks having his or her claim dismissed in part, and as a result being 
ordered to pay part of the legal costs. 
12 In contrast, the applicant’s procedural situation would be much less complex if the 
defendant only raised an unconditional plea of set-off, since this would mean that 
the bank admits that the loan agreement entered into by the parties contains unfair 
contractual terms and is consequently invalid, and that the applicant is in principle 
entitled to a claim for payment that includes the return of the equivalent of the 
payments made under the loan. On the other hand, the referring court has doubts 
as to whether the presented method of limiting the bank’s ability to raise a plea of 
set-off does not violate the principles of equivalence, proportionality and legal 
certainty, and whether, as a result, it does not limit the bank’s right to a court. 
Indeed, as indicated above, the provisions of the Civil Code and the Code of Civil 
Procedure do not exclude the possibility of the defendant raising a plea of set-off 
in the alternative, and national case-law has for several years permitted such a 
defence. 
13 As regards the fulfilment of the condition that the claim submitted for set-off 
must be due, if the bank demands that the consumer return the equivalent of the 
loan principal while maintaining that the agreement is valid and does not 
contain unfair contractual terms (point 3 of the question), it should be recalled 
that the condition that the claim submitted for set-off must be due arises from 
Article 498(1) of the CC. National case-law indicates that under that article, the 
claim is due within the deadline arising from Article 455 of the CC. 3 The 
 
3 See the resolution of the Sąd Najwyższy (Supreme Court, Poland) of 5 November 2014, No III 
CZP 76/14; – order of the Supreme Court of 12 February 2019, No II CSK 413/18. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-902/24 
 
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defendant’s claim concerns the return of an undue payment made in the 
performance of an invalid agreement, and therefore constitutes a claim without a 
specified due date, 4 which, in light of Article 455 of the CC, becomes due upon a 
demand for payment. The Civil Code does not stipulate any formal requirements 
as to the content of a demand for payment, and thus it can be submitted in any 
form. 5 Nevertheless, case-law indicates that for a demand for payment to be 
effective, it should specify the amount sought. 6 In addition, the demand for 
payment should be delivered to the debtor in such a way that the debtor can learn 
its contents (Article 61(1) of the CC), and the burden of proof in that regard rests 
on the creditor 7 (here – the defendant bank). The evidence taken by the referring 
court shows that the defendant served the applicants with a demand for payment 
in the amount of PLN 360 000 as repayment of the equivalent of the loan 
principal, and it is therefore due. 
14 Nevertheless, the referring court has doubts as to whether, given the facts of the 
case, recognising the defendant’s claim as due is not precluded by Article 7(1) of 
Directive 93/13 and the principle of effectiveness. Indeed, it should be borne in 
mind that the applicant’s claim could exist only if the loan agreement were 
declared invalid due to the unfair contractual terms contained therein. Meanwhile, 
throughout the trial the defendant maintained that the agreement was valid and did 
not contain unfair contractual terms. Therefore, the defendant, by demanding the 
return of the amount disbursed in performance of an invalid loan agreement, in a 
sense contradicts its own assertions that the agreement does not contain unfair 
contractual terms and is therefore valid. Consequently, the referring court has 
doubts as to whether recognising the defendant’s demand for payment under those 
circumstances would not be contrary to the objectives of Directive 93/13. Indeed, 
it can be considered that the applicants were confused after receiving the demand 
for payment from the defendant, since the defendant demanded that they repay the 
principal of the loan disbursed in performance of an invalid loan agreement, while 
at the same time claiming that the agreement was valid and did not contain unfair 
contractual terms. 
15 As regards point 4 of the question referred on whether the two-week deadline for 
the return of the equivalent of the entire loan principal is unreasonably short, it 
should be recalled that under Article 455 of the CC ‘the obligation shall be 
performed promptly after the debtor has been called upon to perform it’. The 
provisions of Polish law do not specify what is to be understood by the term 
 
4 See the judgment of the Supreme Court of 3 April 1998, No III CKN 436/97; judgment of the 
Supreme Court of 28 April 2004, No V CK 461/03. 
5 See W. Borysiak [in:] Kodeks cywilny. Komentarz, W. Borysiak (ed.), Warsaw 2023, 
Article 455, point 40. 
6 See the judgment of the Supreme Court of 17 September 2010, No II CSK 178/10. 
7 See K. Zagrobelny [in:] Kodeks cywilny. Komentarz, E. Gniewek, P. Machnikowski (eds), 
Warsaw 2023, Article 455, paragraph 5. 
HERCHOSKI 
 
9 
‘promptly’, but the case-law indicates that ‘performing the obligation promptly 
within the meaning of Article 455 of the CC does not mean paying the amount 
claimed immediately, but rather without unreasonable delay. This must be a 
realistic time limit, and in determining it, the place and time, as well as the type 
and amount of the obligation should be taken into account’. 8 ‘The exact meaning 
of “promptly” should be determined on a case-by-case basis depending on the 
circumstances. It refers to the time necessary to fulfil the obligation, assuming that 
the debtor acts, taking into account all the circumstances affecting the 
performance of the obligation, without unreasonable delay. Thus, it is only after 
the period denoted by the term “promptly” has expired that a claim without a 
specified due date becomes due’. 9 It is pointed out in the case-law that ‘in 
practice, this period most often ranges from a few to around a dozen days after the 
demand’, 10 and furthermore, ‘in typical situations, when circumstances do not 
suggest otherwise, it should be assumed that performing the obligation promptly 
after the debtor has been called upon to perform it means performing it within 
14 days of the demand’. 11 The two-week deadline set by the defendant in the 
demand for payment would be sufficient, and therefore the defendant’s claim 
would be due on the date on which the declaration of set-off was served on the 
applicants, and thus the defendant’s declaration of set-off would be effective and 
result in the mutual cancellation of the parties’ claims. Nevertheless, the referring 
court has doubts as to whether recognising the above deadline as effective is not 
contrary to Article 7(1) of Directive 93/13 and the principle of effectiveness. It is 
difficult to expect that the applicants would be able, within two weeks, to pay the 
defendant the amount that under the agreement was to be divided into 
360 monthly payments, which have so far amounted to around PLN 2 000 each. 
On the other hand, the applicants, who are represented by a professional attorney 
and were informed by the referring court during the course of the proceedings 
about the effects of the loan agreement being declared invalid, should be prepared 
to return such an amount. 
16 The answer to the above question is material to the outcome of the present case. 
Indeed, if it were found that the deadline set by the defendant for the payment of 
PLN 360 000 by 5 August 2024 was too short in light of the objectives of 
Directive 93/13, and therefore the defendant’s claim was not due on the date on 
which the applicants were served with the declaration of set-off, this would mean 
that the set-off had no legal effects. 
 
8 See the judgment of the Supreme Court of 15 December 2021, No IV CSKP 82/21. 
9 See the judgment of the Supreme Court of 26 January 2023, No II CSKP 298/22. 
10 See the grounds for the Supreme Court’s resolution of 22 November 2013, No III CZP 72/13. 
11 See the judgment of the Supreme Court of 28 May 1991, No II CR 623/90; judgment of the 
Supreme Court of 6 July 2011, No I CSK 576/09; and judgment of the Supreme Court of 
15 December 2021, No IV CSKP 82/21. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-902/24 
 
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17 As regards point 5 of the question referred, namely whether the consumer can be 
ordered to pay part of the legal costs in the event of partial dismissal of his or 
her claim due to a plea of set-off being upheld, it should first be recalled that in 
the event that claims are only partially upheld, legal costs cancel each other out or 
are proportionally shared (Article 100 of the CCP). 
18 The action for declaring the agreement invalid has already been upheld, so the 
applicants have won the case in that regard. If the referring court were to disregard 
the plea of set-off and award the applicants the entire amount sought, the 
applicants would win the case in its entirety, and therefore the court would award 
the entire legal costs of PLN 17 334 from the defendant to the applicants pursuant 
to Article 98(1) of the CCP. If the plea of set-off were found to be valid, the 
applicants would accept that plea and therefore withdraw their action with regard 
to the demand for payment in the amount of PLN 286 143 (Article 203(1) of the 
CCP), in which case the court would discontinue the proceedings in that regard 
(Article 355 of the CCP) and would award the remaining amount of PLN 41 195 
from the defendant to the applicants. In the case at hand, the applicants did not 
accept the defendant’s plea of set-off and stated that the plea of set-off was 
ineffective. If, on the other hand, the plea of set-off were found to be effective, the 
referring court, when deciding on the claim for payment, would award the amount 
of PLN 41 195 plus statutory default interest from the defendant to the applicants, 
while dismissing the claim for payment with respect to the demand to award the 
remaining amount of PLN 286 143 plus statutory default interest for the period 
from 7 September 2022 to 5 August 2024. In that eventuality, the action would 
have to be dismissed in part, because if the plea of set-off were found to be 
effective, it would have to be concluded that the applicants’ claim for payment of 
the principal amount of 286 143 PLN had been extinguished. 
19 In a situation where a claim for payment is partially dismissed, there is a well-
established principle in national case-law that it is not possible to consider the 
applicant as the party that won the case in part. Namely, since the applicant has 
not withdrawn the action despite the fulfilment of the defendant’s obligation 
(here: an effective set-off of claims) and consequently maintains the demand for 
payment to which the applicant was entitled on the date the action was brought, 
but to which he or she is no longer entitled on the date the hearing is closed 
(Article 316 of the CCP), this means that the applicant’s claim is partially 
unfounded, and therefore the action should be partially dismissed and the 
applicant should be ordered to pay the legal costs in that regard. 12 The court 
should therefore order those costs to be proportionally shared (the first sentence of 
Article 100 of the CCP). If, in the situation presented above, the applicant lost the 
case in whole or in substantial part, it would be possible to refrain from awarding 
legal costs from the applicant to the defendant (Article 102 of the CCP). 
 
12 Ibid. 
HERCHOSKI 
 
11 
20 In the circumstances of the present case, the application of the above principles 
developed in national case-law means that it is necessary to assume that the 
applicants won 58% of the case (due to their claim that the agreement was invalid 
being upheld, which amounts to PLN 360 000, and their claim for payment of the 
amount of PLN 41 195 being upheld), while the defendant won 42% (due to the 
applicants’ claim for payment of the amount of PLN 286 143 being dismissed). 
However, the referring court has doubts as to whether a costs order that would 
result in the applicants being reimbursed only a small portion of the legal costs 
they have incurred would be compatible with Article 7(1) of Directive 93/13 and 
the principle of effectiveness. Indeed, in the proposed costs order, the applicants 
would recover from the defendant only one-third of the total legal costs incurred. 
That could discourage them from pursuing their claims under Directive 93/13. In 
light of the case-law of the Court of Justice, the court fees for which the successful 
consumer must be able to obtain reimbursement, by the unsuccessful party, must 
constitute a sufficient amount in relation to the total cost of the court proceedings 
in order for there to be no deterrent effect as regards that consumer’s recourse to 
the legal protection afforded to him or her by Directive 93/13. 13 Moreover, it also 
follows from that case-law that Article 6(1) and Article 7(1) of Directive 93/13 
and the principle of effectiveness must be interpreted as meaning that they 
preclude a system whereby the consumer may be made to bear part of the costs of 
proceedings depending on the level of the unduly paid sums which are refunded to 
him or her following a finding that a contractual term is void for being unfair, 
given that such a system creates a substantial obstacle that is likely to discourage 
consumers from exercising the right to an effective judicial review of the potential 
unfairness of contractual terms such as that conferred by Directive 93/13. 14 The 
situation in the present case appears to be similar, but not identical. In that regard, 
the referring court also has doubts as to whether the principle derived from the 
case-law of the Court of Justice also applies in a case where the partial dismissal 
of the action is due to a plea of set-off being upheld and the fact that the applicants 
did not withdraw their action in part. That similarity may suggest that likewise in 
the present case, Articles 6(1) and 7(1) and the principle of effectiveness preclude 
national case-law which allows the applicants to be awarded only part of the legal 
costs. However, in the case at issue, such a conclusion may be opposed by the fact 
that the applicants could have won the case in its entirety had they withdrawn their 
action in part in response to the defendant’s declaration of set-off. However, since 
the applicants decided to maintain their action in its entirety, awarding them the 
full costs of the proceedings in that situation could have negative consequences, as 
it would mean accepting the applicants’ pursuit of a claim to which they were no 
 
13 See the judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, paragraph 55. 
14 See the judgments of the Court of Justice of 16 July 2020, Caixabank, C‑224/19 and C‑259/19, 
paragraphs 98–99; of 22 September 2022, Servicios prescriptor y medios de pagos E.F.C. 
S.A.U., C‑215/21, paragraphs 37–38; of 13 July 2023, CAJASUR Banco SA, C‑35/22, 
paragraphs 26–27; and of 21 March 2024, Profi Credit Bulgaria, C‑714/22, paragraphs 83–84 
and 88. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-902/24 
 
12  
longer entitled and failing to draw any consequences from their incorrect 
procedural decision.