Opinion of the Advocate General — ECLI:EU:C:2024:1031
Date: 2024-12-12
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-324/23 – 1 
Case C-324/23 [Myszak] 1 
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: 
25 May 2023 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
26 October 2022 
Applicants: 
OF 
EI 
RI 
Defendant: 
Getin Noble Bank S.A. 
  
Subject matter of the main proceedings 
The applicants, who are consumers, concluded a mortgage loan agreement 
indexed to Swiss francs (CHF) with the defendant bank, and to date have not paid 
all the agreed instalments. They requested a declaration that that agreement 
contains unfair terms, a declaration that the agreement is invalid, and an order that 
the bank repay the instalments paid. 
Special resolution was declared in relation to the defendant bank, and the 
applicants therefore requested that claims be secured by suspending further 
instalments of the loan, which could no longer be recovered on account of the 
restructuring and expected insolvency of the defendant bank. 
 
1 This case has been given a fictitious name which does not correspond to the real name of any of the parties to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-324/23 
 
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Subject matter and legal basis of the request 
Compatibility with Articles 6(1) and 7(1) of Council Directive 93/13/EEC and 
Article 70(1) and (4) of Directive 2014/59/EU of the European Parliament and of 
the Council of national legislation under which it is not permissible, in relation to 
a bank declared to be under special resolution, to grant a consumer’s application 
for an interim measure (securing of the action) to suspend, during the course of 
the court proceedings, the obligation to pay the loan instalments under a loan 
agreement which is likely to be declared invalid by a court as a result of the 
removal of unfair contractual terms from it, on the sole ground that that bank has 
been put under special resolution 
Question referred for a preliminary ruling 
Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts, in the light of the principles of effectiveness 
and proportionality, and also Articles 34(1)(b) and (g) and 70(1) and (4) of 
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, be interpreted as precluding national legislation 
under which, in relation to a bank against which special resolution has been 
initiated, it is not permissible to grant a consumer’s application for an interim 
measure (securing of the action) suspending, during the course of the court 
proceedings, the obligation to pay the capital and interest instalments under the 
loan agreement, which is likely to be declared invalid by a court as a result of the 
removal of unfair contractual terms from it, on the sole ground that that bank has 
been put under special resolution? 
Provisions of European Union law and case-law of the Court of Justice cited 
Treaty on the Functioning of the European Union: Article 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: recitals 50 
and 130, and Articles 34, and 70. 
MYSZAK 
 
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Judgments of the Court of Justice of: 
21 December 2016, Francisco Gutierrez Naranjo, C-154/15, C-307/15 and 
C-308/15, ECLI:EU:C:2016:980, 
14 June 2012, Banco Espańol de Credito SA, C-618/10, ECLI:EU:C:2012:349, 
19 June 1990, Factortame, C-213/89, EU:C:1990:257, 
11 January 2001, Siples, C-226/99, EU:C:2001:14, 
13 March 2007, Unibet, C-432/05, ECLI:EU:C:2007:163, 
10 September 2014, Kuśionova, C-34/13, EU:C:2014:2189, 
14 March 2013, Aziz, C-415/11, EU:C:2013:164, 
26 June 2019, Kuhar, C-407/18, EU:C:1990:257, 
5 May 2022, Banco Santander SA v J.A.C., C-410/20, ECLI:EU:C:2022:351. 
Order of 26 October 2016, Ismael Fernandez Oliva, Joined Cases C-568/14 to 
C-570/14, EU:C:2016:828. 
Opinion of Advocate General Kokott delivered on 19 November 2020, Banco de 
Portugal, Fondo de Resolución, Novo Banco SA v VR, C-504/19, 
ECLI:EU:C:2020:943. 
Provisions of national law cited 
Article 3851 of the Ustawa z 23 kwietnia 1964 roku Kodeks cywilny (Law of 
23 April 1964 establishing the Civil Code), ‘the Civil Code’: 
1. Terms of a contract concluded with a consumer which have not been 
individually negotiated shall not be binding on the consumer if his or her rights 
and obligations are set forth in a way that is contrary to good practice and 
grossly infringes his or her interests (unlawful contractual terms). This provision 
shall not apply to terms setting out the parties’ principal obligations, including 
price or remuneration, provided that they are worded clearly. 
2. If a term of that contract is not binding on the consumer pursuant to 
paragraph 1, the other terms of the contract shall otherwise continue to be 
binding on the parties. 
3. The terms of a contract which have not been individually negotiated are those 
contractual terms over whose content the consumer has had no actual influence. 
They include, in particular, contractual terms taken from a standard contract 
proposed to that consumer by his or her co-contracting party. 
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4. Whosoever alleges that a term has been individually negotiated shall have the 
burden of proving that allegation.’ 
Article 405 of the Civil Code: 
‘Any person who, without legal basis, has obtained a pecuniary benefit at the 
expense of another person shall be required to return that benefit in kind and, 
where that is not possible, to make good the value thereof.’ 
Article 410 of the Civil Code: 
‘1. The provisions of the preceding articles shall apply in particular to undue 
performance. 
2. A performance shall be undue if the person who rendered it was not under an 
obligation to render it or was not under an obligation to render it to the person to 
whom it was rendered, if the basis for the performance has ceased to exist, if the 
objective of the performance has not been achieved or if the legal act requiring 
that same performance was invalid and has not become valid since the 
performance was rendered.’ 
Article 189 of Ustawa z 17 listopada 1964 roku Kodeks postępowania cywilnego 
(Law of 17 November 1964 establishing the Code of Civil Procedure), ‘the Code 
of Civil Procedure’. 
Article 7301 of the Code of Civil Procedure: 
1. Any party to the proceedings may request preventive measures provided that it 
demonstrates the prima facie existence of its claim and of an interest in seeking 
those measures. 
2. The interest in seeking the grant of preventive measures exists where the failure 
to grant those measures would prevent or seriously impede the enforcement of the 
forthcoming judgment in the case concerned or would otherwise prevent or 
seriously impede the achievement of the purpose of the proceedings in that case. 
21 […]. Sufficient prima facie evidence of an interest in seeking the grant of 
preventive measures shall be deemed to exist where the person seeking such 
measures is an applicant pursuing a payment due in connection with a 
commercial transaction within the meaning of the Law of 8 March 2013 on 
counteracting excessive delays in commercial transactions, provided that the 
value of that transaction does not exceed seventy-five thousand zlotys, and the 
amount claimed has not been paid and at least three months have elapsed from 
the date of expiry of the time limit for the payment thereof. 
3. When ruling on a request for preventive measures, the court must take into 
account the interests of the parties to the proceedings so as to guarantee the 
MYSZAK 
 
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beneficiary adequate legal protection and not oblige the debtor more than 
necessary.’ 
Article 731 of the Code of Civil Procedure, 
Article 755 of the Code of Civil Procedure 
1. Where a request for the grant of preventive measures does not relate to 
pecuniary claims, the court shall order the protective measures it considers 
appropriate in the circumstances of the case, without excluding the grant of 
protective measures provided for in respect of pecuniary claims. In particular, the 
court may: 
(1) fix the rights and obligations of the parties or participants in the 
enforcement proceedings concerned for the duration thereof; 
(2) prohibit the disposal of the assets or rights concerned by those proceedings; 
(3) suspend those proceedings or any other proceedings for the enforcement of 
the decision concerned; … .’ 
Article 146 of the Ustawa z 28 lutego 2003 r. Prawo upadłościowe (Law of 
28 February 2003 on insolvency) 
Article 135 of the Ustawa z 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’, in 
particular paragraph 4: 
‘4. During the period of special resolution, it is not permissible to initiate 
enforcement proceedings and proceedings to secure claims against the entity 
undergoing restructuring.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2007, OF, together with his parents RI and EI, concluded a CHF-indexed 
mortgage loan agreement with the defendant Getin Noble Bank SA in Warsaw for 
an amount of PLN 185 375.71 (approximately EUR 40 000) for a period of 
360 months. Under Paragraph 9(2) of the mortgage loan agreement, the amount of 
the loan on the date of disbursement was to be converted into CHF at the purchase 
rate set out in the bank’s table. Under Paragraph 10(3) of the agreement, loan 
instalments (calculated in CHF) were to be converted into PLN at the sale rate set 
out in the bank’s table on the due date. 
2 The loan was intended to cover part of the purchase price of immovable property 
and the costs related to taking out the loan. The loan agreement provided that the 
principal would be converted into Swiss francs (CHF) at the purchase rate set by 
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the bank, whilst the instalments – calculated in francs – would be paid at the sale 
rate also set by the bank. The applicants were provided with information on the 
impact of variations in the interest and exchange rates in the form of a table 
containing a comparison of the amount of the loan instalments assuming a 20% 
increase in the amount of the loan and in the event of a 9.21% increase in the 
exchange rate (which corresponded to the difference between the highest and 
lowest exchange rate over the last year). 
3 On 9 September 2022, the Bank Guarantee Fund, acting pursuant to the Law on 
the Bank Guarantee Fund, adopted a decision to initiate special resolution in 
relation to the defendant bank using a bridge bank set up. Pursuant to the decision, 
a new entity named VELO Bank S.A. was established, to which almost all rights 
and obligations of the defendant Getin Noble Bank S.A. were transferred, with the 
exception, however, of in-rem rights arising from de facto, de jure or unlawful 
acts relating to credit and loan agreements denominated in Swiss francs (CHF) or 
indexed to the exchange rate of Swiss franc (CHF), and claims arising from those 
in-rem rights, including those covered by civil and administrative proceedings, 
irrespective of the date on which they were raised. This means that the bank’s 
assets consist mainly of claims arising from loan agreements which, like the 
applicants’ agreement, contain unfair contractual terms and may also be 
challenged retrospectively. That decision is the subject of a question referred for a 
preliminary ruling by another court in Case C-118/23. 
4 It appears from media statements of the Bank Guarantee Fund that an application 
for insolvency of the defendant bank and its winding up will be submitted within a 
year. 
The essential arguments of the parties in the main proceedings 
5 The applicants (borrowers) brought an action before this court and are now 
seeking a declaration that the agreement in question is invalid and the award of 
PLN 48 352.97 and CHF 27 171.82 (which at current exchange rates corresponds 
to approximately 95% of the capital drawn down), plus statutory default interest 
and legal costs. The applicants stated that the loan agreement contained unlawful 
contractual terms concerning the indexation of the loan amount to a foreign 
currency. The amount claimed represents the sum of the payments made by the 
applicants, constituting an undue performance received by the defendant. In the 
alternative, the applicants requested the possibility of continuing the agreement, 
once the unfair terms had been removed from it. 
6 The defendant bank sought dismissal of the action and the award of legal costs. 
The defendant raised formal objections and denied that the terms of the contract 
were unlawful. It submitted documents to confirm the lawfulness of those terms. It 
also argued that the bank had a claim for repayment of the entire capital drawn 
down and for remuneration for the use of that capital. 
MYSZAK 
 
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7 Following commencement of the restructuring, the applicants requested that the 
claim for a declaration of invalidity be secured by fixing the rights and obligations 
of the parties to the proceedings for the duration of the thereof by: 
i. suspending the obligation to pay the loan instalments in the amounts and on 
the dates specified in the agreement for the period from the lodging of the action 
until the final conclusion of the proceedings, 
ii. prohibiting the defendant from issuing a notice of termination, 
iii. prohibiting the defendant from publishing information with the Biuro 
Informacji Gospodarczej (Economic Information Office) about the failure by the 
applicants to make payments on the loan in the period from the grant of the 
security until the conclusion of the proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The referring court has already referred a question for a preliminary ruling in a 
similar case concerning the general possibility of securing claims by suspending 
the performance of a loan agreement, and the arguments raised therein remain 
valid (C-287/22). In particular, in the view of the referring court it is permissible 
to grant security by suspending the obligation to pay loan instalments. The 
fundamental difference in the facts of this case lies in the declaration of special 
restoration in relation to the defendant bank, which has fundamental consequences 
for the permissibility of instituting proceedings to secure claims and continuing 
proceedings which have already commenced. 
9 The Court of Justice has, on a number of occasions, made general statements on 
the need for national courts to be able to adopt interim measures for the full 
effectiveness of court decisions concerning the protection of rights granted by EU 
law (see judgment of 19 June 1990, Factortame, C-213/89, EU:C:1990:257, 
paragraph 21; judgment of 11 January 2001, Siples, C-226/99, EU:C:2001:14, 
paragraph 19; and judgment of 13 March 2007, Unibet, C-432/05, paragraph 67). 
10 The referring court [starts] from the premiss that the inclusion in the agreement of 
unlawful contractual terms placing an exchange rate risk on the consumer and 
containing a reference to exchange rates set by the bank means that the overall 
agreement cannot continue to be valid after those unfair terms have been removed 
from it, which amounts to the invalidity thereof under national law (Article 3851 
of the Civil Code). Consequently, each party to an agreement which has been 
declared invalid will have a claim against the other party for repayment of the 
sums paid (Article 410 of the Civil Code), and those claims may also be settled by 
offsetting. 
11 Article 3851 of the Civil Code implements Directive 93/13 in Polish law. 
Therefore, that provision should be interpreted in a way that ensures the maximum 
effective attainment of the objectives of that directive. As the Court of Justice has 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-324/23 
 
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already pointed out, Article 6(1) of Directive 93/13 must be interpreted as 
meaning that a contractual term held to be unfair must be regarded, in principle, as 
never having existed, so that it cannot have any effect on the consumer. Therefore, 
the determination by a court that such a term is unfair must, in principle, have the 
consequence of restoring the consumer to the legal and factual situation that he 
would have been in if that term had not existed. 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 (see judgment of 21 December 2016, Francisco 
Gutierrez Naranjo, C-154/15, C-307/15 and C-308/15, ECLI:EU:C:2016:980, 
paragraphs 61 and 62). 
12 Where the removal of unlawful contractual terms involves a declaration of 
invalidity of the loan agreement, the restitutory effect consists in a claim arising 
against the bank for the repayment of sums paid under the loan agreement. The 
consumer thus becomes a creditor of the bank and may exercise his or her claim 
by way of enforcement (after obtaining a court judgment) or by way of offsetting 
against the bank’s claim for repayment of the capital drawn down. The declaration 
of special resolution rules out the possibility of enforcement against the bank and 
therefore the only effective means of producing the restitutory effect becomes 
offsetting. If, however, the consumer has paid the bank an amount greater than the 
capital drawn down, he or she is deprived of that possibility as regards the 
overpaid amount. 
13 In the view of the referring court, the duration of the loan agreement and the 
specific nature of the situation following a declaration of invalidity of such an 
agreement raise doubts as to the relationship between Directive 93/13 and 
Directive 2014/59. Directive 2014/59 does not lay down special rights for 
consumers and therefore it is necessary to consider that in a situation of special 
resolution it is permissible to limit the rights of consumers as creditors of the 
bank. The principle of Directive 2014/59 is not to make the position of creditors 
less favourable than it is in ordinary insolvency proceedings and to treat creditors 
of the same category in the same way. Therefore, depriving the consumer of an 
effective possibility of claiming repayment of sums paid in excess of the amount 
of the capital drawn down – although disadvantageous to the consumer – appears 
to meet the objectives of Directive 2014/59 since in that respect consumers are 
treated in the same way as other creditors. 
14 However, the amount of the bank’s liabilities to other creditors is limited by the 
date on which special restoration is declared. After that date, the amount of claims 
against the bank (for example, arising from bonds that have been written down) 
will not increase and therefore the negative effects of the restructuring (losses) 
related to the reduced possibility of satisfaction, or even to the writing down of the 
liability, will no longer increase. On the other hand, a consumer who pays sums to 
the bank after the announcement of the restoration pursuant to an agreement 
containing unfair terms increases the amount of his or her losses as he or she will 
no longer be able to recover the sums paid. The possibility of offsetting is limited 
MYSZAK 
 
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to the amount of the bank’s claim and will be limited by additional formal 
requirements in the expected insolvency proceedings. The consumer will therefore 
find him or herself in a less favourable situation than other creditors. 
15 In the view of the referring court, an interpretation of the abovementioned 
provisions of Directive 93/13 and Directive 2014/59, which would make it 
impossible to suspend performance of a loan agreement in relation to a consumer 
by means of an appropriate court order, would be contrary to the principle of 
effectiveness. The consumer would then not only be deprived of the possibility of 
actually freeing him or herself from an agreement containing unfair terms, but 
would be obliged to perform such a contract with no possibility of any subsequent 
restitutory effect. There would then be no deterrent effect of Directive 93/13 as 
agreements containing unfair terms would continue to be performed, generating 
the expected revenue for the trader. In such a situation, the declaration of 
restoration by a State authority acting under EU law would result in consumers 
giving up exercise of their rights, which are protected in particular under, inter 
alia, Article 38 of the Charter of Fundamental Rights. 
16 On the other hand, the relevant provisions of national law are interpreted by the 
courts in such a way as to exclude the possibility of instituting proceedings to 
secure claims against a bank under special restoration. Such an interpretation 
completely disregards the provisions of Directive 93/13 and deprives the 
consumer of his or rights under that directive. Consequently, the courts refuse to 
secure consumers’ claims. 
17 In the view of the referring court, those provisions of national law constitute 
incorrect implementation of Article 70(1) and (4) of Directive 2014/59/EU since 
that provision imposes an obligation on Member States to ensure that the 
resolution authority (the Bank Guarantee Fund in the present case) only has the 
power to restrict secured creditors of an institution under resolution from 
enforcing security interests in relation to any assets of that institution and only 
from publication of a notice of the restriction in the Member State of the 
resolution authority of the institution under resolution. 
18 On the other hand, the Article 135(1) and (4) of the Law on the Bank Guarantee 
Fund completely disregards the conditions laid down in Article 70(1) and (4) of 
Directive 2014/59. In essence, therefore, there has been an extensive transposition 
of Directive 2014/59 into the national legal order as a result of which the 
institution of any proceedings to secure claims against an entity under resolution 
has been prohibited in advance, which also infringes the rights of consumers 
under Directive 93/13. 
19 Subject to the Court of Justice’s future judgment in Case C-287/22, the referring 
court is of the view that granting security by suspending the obligation to pay loan 
instalments under the agreement under consideration in the main proceedings 
would also be permissible in insolvency proceedings. The security concerns a 
non-pecuniary claim for a declaration that the agreement is invalid and such a 
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claim has no direct pecuniary consequences for the insolvent person. Such 
security does not constitute security over the insolvent person’s assets within the 
meaning of Article 146(3) of the Law on insolvency. The property consequences 
for the insolvent person arise from pecuniary claims for the recovery of sums paid 
but not due as a restitutory effect arising from the application of Directive 93/13 
and the implementing provisions, for example Article 3851(1) of the Civil Code. 
Therefore, security of the second claim is not permissible. 
20 Since securing a claim as in the main proceedings would be permissible in 
insolvency proceedings, an interpretation of Article 135(1) and (4) of the Law on 
insolvency, which does not permit security of such a claim to be granted, would 
disadvantage a creditor who is a consumer in relation to insolvency proceedings. 
Thus, adopting such an interpretation would be contrary to Article 34(1)(g) of 
Directive 2014/59. 
21 In the view of the referring court, Articles 6(1) and 7(1) of Directive 93/13, in the 
light of the principle of effectiveness, require, even where special resolution has 
been declared, that, where proceedings have been instituted by a consumer against 
a trader (a bank) seeking a declaration that the terms of a loan agreement are 
unfair and, consequently, the agreement is invalid, and seeking repayment of sums 
paid by the consumer under the invalid agreement (restitution), the national court 
may suspend the performance of such a loan agreement. Such security does not 
constitute more favourable treatment in comparison with other creditors since it 
does not concern claims for repayment of sums already paid to the bank. 
22 However, account must be taken of the fact that the defendant bank has a claim 
for the repayment of the capital drawn down which is the main asset where special 
resolution has been declared. Suspending payments before the amount of the 
bank’s claim has been reached would appear to run counter to the purpose of that 
resolution since it restricts or slows down the process of recovering funds which 
also serve to satisfy other creditors. Furthermore, it cannot yet be precluded that, 
in addition to the claim for repayment of the capital drawn down, the bank may 
have other claims, as referred to in the preliminary questions in Cases C-520/21 
and C-756/22. 
23 In the light of the foregoing, the referring court proposes that the question thus 
referred should be answered to the effect that, in the light of the principles of 
effectiveness and proportionality, the provisions set out therein must be 
interpreted as precluding national legislation and case-law which prevent an 
application to secure claims by suspending the performance of a loan agreement 
such as that at issue in the main proceedings, despite the bank having been put 
under special resolution, from being granted where the consumer has already paid 
the sums owed to the bank, which it is for the national court to establish.