Opinion of the Advocate General — ECLI:EU:C:2023:514
Date: 2023-06-22
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-321/22 – 1 
Case C-321/22 
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: 
5 May 2022 
Referring court: 
Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (Poland) 
Date of the decision to refer: 
22 February 2022 
Applicants and counter-defendants: 
ZL 
KU 
KM 
Defendant and counter-applicant: 
Provident Polska S.A. 
  
Subject matter of the main proceedings 
In their actions, ZL, KU and KM seek, in essence, for the loan agreements 
concluded by them to be declared void or ineffective in the part concerning non-
interest credit costs, that is to say, commission fees and the fees charged for a 
flexible repayment plan or front-end fees. 
Subject matter and legal basis of the request 
First, the referring court has doubts as to whether Article 3(1) of Directive 93/13 
allows contractual terms which set the amount of the fees or commissions payable 
to a seller or supplier to be regarded as unfair solely on the ground that those fees 
or commissions are disproportionately high. Second, according to the referring 
court, it is necessary to determine whether Article 7(1) of Directive 93/13 and the 
principle of effectiveness preclude a provision of national law (Article 189 of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
2  
Kodeks Postępowania Cywilnego – Code of Civil Procedure) and the case-law of 
the national courts according to which the absence of legal interest precludes a 
declaratory action. Third, the referring court is considering whether, inter alia in 
the light of Article 6(1) of Directive 93/13, if terms of loan agreements that 
provide for payments thereunder being made exclusively in cash to the lender’s 
employee at the borrower’s place of residence constitute unfair contractual terms, 
the loan agreement may continue in existence or it must be declared void. 
Questions referred for a preliminary ruling 
1. Must Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts be interpreted as permitting a contractual term 
which grants a seller or supplier a fee or commission that is 
disproportionately high in relation to the service offered to be regarded as an 
unfair contractual term? 
2. Must Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts and the principle of effectiveness be interpreted 
as precluding provisions of national law or a judicial interpretation of those 
provisions under which the consumer must have a legal interest in order for 
an action brought by the consumer against a seller or supplier for a 
declaration that a contract or part thereof that contains unfair terms is void or 
ineffective to be upheld? 
3. Must Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts as well as the principles of effectiveness, 
proportionality and legal certainty be interpreted as permitting the finding 
that a loan agreement whose sole term which provides for the manner of 
loan repayment has been found to be unfair must not continue in force after 
that term has been excluded therefrom and is therefore void? 
Provisions of European Union law relied on 
1 Treaty on the Functioning of the European Union – Article 169(1). 
2 Charter of Fundamental Rights of the European Union – Article 38. 
3 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts – recitals 4, 21, 24; Article 3(1); Article 6(1); Article 7(1). 
Provisions of national law relied on 
4 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Constitution of 
the Republic of Poland of 2 April 1997) – Article 76. 
PROVIDENT POLSKA 
 
3 
5 Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 – the 
Civil Code, ‘the CC’) – Article 5, Article 221, Article 431, Article 58(1)–(3), 
Article 65(1), Article 3531, Article 359, Article 3851, Article 3852, Article 405, 
Article 410 and Article 720(1). 
6 Ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Law of 
17 November 1964 – Code of Civil Procedure, ‘the CCP’) – Article 189, 
Article 316(1), Article 363(1) and Article 365(1). 
7 Ustawa z dnia 12 maja 2011 r. o kredycie konsumenckim (Law of 12 May 2011 
on Consumer Credit, ‘the LCC’) – Article 3(1), Article 3(2)(1), Article 4(1)(1), 
Article 5(6)–(8), Article 30(1) and Article 36a(2). 
8 Obwieszczenie Ministra Sprawiedliwości z dnia 7 stycznia 2016 r. w sprawie 
wysokości odsetek ustawowych (Announcement of the Minister of Justice of 
7 January 2016 on the amount of statutory interest).  
Succinct presentation of the facts and procedure in the main proceedings 
9 On 11 September 2019, ZL entered into a cash loan agreement (the ‘Weekly Cash 
Loan’ product) with Provident Polska S.A. (‘Provident’); the term of the 
agreement was 90 weeks. The detailed provisions of the agreement were, inter 
alia, that the amount disbursed to the customer in cash and at the same time the 
total amount of the loan was PLN 8 100 (items A1 and A), the loan arrangement 
fee was PLN 4 050 (item B), the front-end fee was PLN 40 (item C), the fee for 
the Flexible Repayment Plan was PLN 2 066 (item D), the annual interest rate was 
10% (item E), the total amount of interest was PLN 1 275.73 (item E), the gross 
amount of the loan was PLN 14 256 (item F), the total cost of the loan was 
PLN 7 431.73 (item G), the total amount payable by the consumer was 
PLN 15 531.73 (item H) and the annual percentage rate was 132.53% (item I). 
10 The loan agreement also included a general part, which was Provident’s standard 
contract template, according to which the total amount of the loan (item A) was 
the sum of all monies made available by the lender to the customer thereunder, not 
including, however, that part of the gross amount of the loan which was made 
available to the customer to cover the credit costs of the loan that the lender made 
available to the customer thereunder, that is to say, the costs payable by the 
customer upon conclusion of the agreement: the loan arrangement fee, the front-
end fee and the fee for the Flexible Repayment Plan, which credit costs were 
deducted from the gross amount of the loan. 
11 Under that general part of the agreement, the gross amount of the loan (item F) 
represented the total amount of the loan granted to the customer thereunder, 
including the total amount of the loan and the portion of the loan that was used to 
cover the credit costs, that is to say, the costs payable by the customer upon 
conclusion of the agreement, the loan arrangement fee, the front-end fee, and the 
fee for the Flexible Repayment Plan, which credit costs were deducted from the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
4  
gross amount of the loan. The gross amount of the loan equals the sum of the total 
amount of the loan (item A) and the fees listed in items B, C, and D. 
12 Next, the total cost of the loan (item G) included all costs that the customer was 
obliged to pay in connection with the loan agreement, including, in particular: a) 
interest, fees and commissions; b) costs of additional services where those had to 
be incurred in order to obtain the loan or to obtain it on the terms and conditions 
offered. The total amount payable by the consumer (item H) was the sum of the 
total cost of the loan and the total amount of the loan. The basis for calculating the 
interest due to the lender from the customer was the gross amount of the loan 
(item F). 
13 In the case of the Weekly Cash Loan, the customer agreed to repay the loan 
exclusively in cash through a relationship manager during the relationship 
manager’s weekly visits to the customer’s place of residence in the Republic of 
Poland.  
14 The ‘Flexible Repayment Plan’ is a package of benefits under the agreement that 
allows the customer to manage his or her loan and consists of Repayment Deferral 
and a Guaranteed Waiver of Repayment Obligations. In exchange for those 
benefits, the lender charges a fee for the Flexible Repayment Plan (item D). 
‘Repayment Deferral’ under the Weekly Cash Loan means that the lender allows 
the customer to defer the payments (from one to four payments) to be made under 
the original schedule set forth in the agreement without having to give a reason. 
‘Guaranteed Waiver of Repayment Obligations’ means, in turn, that in the event 
of the customer’s death during the term of the agreement, the lender releases the 
customer from his or her debt with respect to any obligations outstanding 
thereunder as of the date of the customer’s death. 
15 The loan agreements entered into between KU and Provident and between KM 
and IPF Polska sp. z o.o. (Provident’s legal predecessor) contained terms and 
conditions similar to those described in paragraphs 9–14 above. 
Essential arguments of the parties in the main proceedings 
16 The applicants base their claims on the fact that the provisions of the loan 
agreement concerning the commission and the fee for the Flexible Repayment 
Plan and the front-end fee constitute unfair contractual terms due to their 
disproportionately high amounts. In essence, ZL and KU argue that the defendant 
may derive income from granting the loan, but that income must be limited to 
interest on principal and a reasonable front-end fee, that is to say, PLN 40. 
Charging additional fees to applicants that represent 75.5% (or 92.07% in the case 
of MC) of the principal made available to them is designed to maximise the 
defendant’s profit and, as a result, the consumer is burdened with costs of 
obtaining the loan that are excessive and disproportionate in relation to the amount 
he or she receives when entering into the loan agreement. Such a high commission 
amount is contrary to good practice (including good commercial practice) and the 
PROVIDENT POLSKA 
 
5 
principle that the mutual obligations of the parties should be equivalent; it 
considerably exceeds the normal profit that an honest seller or supplier would 
expect to receive. It is also not justified by the business risk undertaken. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
17 The first question referred concerns the interpretation of Article 3(1) of 
Directive 93/13. According to settled case-law, the jurisdiction of the Court 
extends to the interpretation of the criteria which the national court may or must 
apply when examining a contractual term in the light of the provisions of that 
directive, and in particular when examining whether a term is unfair within the 
meaning of Article 3(1) of that directive, whereby it is for that court to determine 
whether a particular contractual term is actually unfair in the circumstances of the 
case. It is thus clear that the Court must limit itself to providing the referring court 
with guidance which the latter must take into account in order to assess whether 
the term at issue is unfair. 1 
18 The Court of Justice has also repeatedly found that as regards whether, contrary to 
the requirement of good faith, a term causes a significant imbalance in the 
contracting parties’ rights and obligations arising under the contract to the 
detriment of the consumer, the national court must assess whether the seller or 
supplier, dealing fairly and equitably with the consumer, could reasonably assume 
that the consumer would have agreed to such a term in individual contract 
negotiations. 2 
19 Moreover, the Court has held that, in order to determine whether a term causes a 
‘significant imbalance’ in the parties’ rights and obligations under a contract to the 
detriment of the consumer, particular account must be taken of which rules of 
national law would apply in the absence of an agreement by the parties in that 
regard. Such a comparative analysis will enable the national court to evaluate 
whether and, as the case may be, to what extent, the contract places the consumer 
in a legal situation less favourable than that provided for by the national law in 
 
1 See the judgments of 9 November 2010, VB Pénzügyi Lízing, C-137/08, paragraph 44; of 
14 March 2013, Aziz, C-415/11, paragraph 66; of 21 March 2013, RWE Vertrieb, C-92/11, 
paragraph 48; of 16 January 2014, Constructora Principado, C-226/12, paragraph 20; order of 
3 April 2014, Sebestyén, C-342/13, paragraph 25; judgments of 10 September 2014, Kušionová, 
C-34/13, paragraph 73; of 3 October 2019, Kiss and CIB Bank, C-621/17, paragraph 47; of 
27 January 2021, Dexia Nederland, C-229/19 and C-289/19, paragraph 45; of 10 June 2021, 
BNP Paribas Personal Finance, C-609/19, paragraph 60; and of 10 June 2021, BNP Paribas 
Personal Finance, C-776/19 to C-782/19, paragraph 92. 
2 See the judgment of 14 March 2013, Aziz, C-415/11, paragraph 69; the orders of 21 March 
2014, Banco Popular Español, C-537/12, paragraph 66, and of 3 April 2014, Sebestyén, 
C-342/13, paragraph 28; and the judgments of 3 October 2019, Kiss and CIB Bank, C-621/17, 
paragraph 50; of 7 November 2019, Profi Credit Polska, C-419/18 and C-483/18, paragraph 55; 
of 3 September 2020, Profi Credit Polska, C-84/19, C-222/19 and C-252/19, paragraph 93; of 
10 June 2021, BNP Paribas Personal Finance, C-609/19, paragraph 66; and of 10 June 2021, 
BNP Paribas Personal Finance, C-776/19 – C-782/19, paragraph 97. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
6  
force. To that end, an assessment of the legal situation of that consumer having 
regard to the means at his disposal, under national law, to prevent continued use of 
unfair terms, should also be carried out. 3 
20 Finally, the Court of Justice has explained that a significant imbalance can result 
solely from a sufficiently serious impairment of the legal situation in which the 
consumer, as a party to the contract in question, is placed by reason of the relevant 
national provisions, whether this be in the form of a restriction of the rights which, 
in accordance with those provisions, he enjoys under the contract, or a constraint 
on the exercise of those rights, or the imposition on him of an additional 
obligation not envisaged by the national rules. 4 
21 The purpose of the first question referred for a preliminary ruling is to establish 
whether the fact that a contractual term imposes on the consumer an obligation to 
pay an amount which is disproportionately high in relation to the service provided 
by the seller or supplier is sufficient for that contractual term to be regarded as 
unfair. In the view of the referring court, an analysis of the case-law of the Court 
of Justice to date does not provide a clear answer to that question. 
22 In its judgment of 26 March 2020, the Court indicated that ‘Article 1(2) of 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts must be interpreted as meaning that a contractual term which establishes 
non-interest credit costs in accordance with the ceiling value set by a provision of 
national legislation, without necessarily taking the costs actually incurred into 
account, does not fall outside the scope of that directive’. 5 
23 That idea was further developed in the Court’s judgment of 3 September 2020, in 
which it was pointed out that the non-interest credit cost to the consumer, which is 
subject to an upper limit under national law, could nevertheless give rise to a 
significant imbalance within the meaning of the Court’s case-law, even though it 
is set below that upper limit, if the services provided in return were not reasonably 
covered by the services provided in connection with the conclusion or 
management of the credit agreement, or if the amounts charged to the consumer in 
respect of the costs of granting and managing the loan are clearly disproportionate 
in relation to the amount of the loan. It is for the referring court to take account, in 
that regard, of the effect of other contractual terms in order to determine whether 
those terms create a significant imbalance to the borrower’s detriment. In such 
 
3 See the judgment of 14 March 2013, Aziz, C-415/11, paragraph 68; the orders of 21 March 
2014, Banco Popular Español, C-537/12, paragraph 65, and of 3 April 2014, Sebestyén, 
C-342/13, paragraph 27; and the judgment of 27 January 2021, Dexia Nederland, C-229/19 and 
C-289/19, paragraph 48. 
4 See the judgments of 16 January 2014, Constructora Principado, C-226/12, paragraphs 21, 23; 
of 3 October 2019, Kiss and CIB Bank, C-621/17, paragraph 51; of 3 September 2020, Profi 
Credit Polska, C-84/19, C-222/19 and C-252/19, paragraph 92; and of 27 January 2021, Dexia 
Nederland, C-229/19 and C-289/19, paragraph 49. 
5 Judgment of 26 March 2020, Mikrokasa, C-779/18, paragraph 58. 
PROVIDENT POLSKA 
 
7 
circumstances, taking into account the requirement of transparency arising from 
Article 5 of Directive 93/13, it cannot be considered that the seller or supplier 
could reasonably expect, when dealing with the consumer in a transparent manner, 
that the consumer would agree to such a term in contract negotiations. It follows 
from the above that Article 3(1) of Directive 93/13 must be interpreted as meaning 
that a contractual term relating to non-interest credit costs, which sets that cost 
below a statutory upper limit and which passes on to the consumer the costs of the 
lender’s economic activity, is liable to cause a significant imbalance in the parties’ 
rights and obligations arising under the contract to the detriment of the consumer, 
where it imposes on that consumer costs which are disproportionate to the services 
provided and to the amount of the loan received, which it is for the referring court 
to ascertain. 6 
24 In addition, in its judgment of 16 July 2020 the Court of Justice held that a term in 
a loan agreement concluded between a consumer and a financial institution which 
requires the consumer to pay an arrangement fee is capable of creating, to the 
detriment of the consumer, a significant imbalance in the rights and obligations of 
the parties as arising from that agreement, contrary to the requirement of good 
faith, where the financial institution does not demonstrate that that fee corresponds 
to services actually provided and to costs it has incurred, which is a matter for the 
referring court to verify. 7  
25 In turn, in its judgment of 26 February 2015, the Court of Justice held that, in so 
far as they require the consumer to pay commission of a substantial amount which 
aims to ensure the repayment of the loan, even though that risk is already 
guaranteed by a mortgage and, in exchange for that charge, the bank does not 
provide a real service to the consumer, contractual terms must be regarded as 
unfair within the meaning of Directive 93/13. 8  
26 It appears from the above judgments that the Court of Justice allows the terms of a 
loan agreement setting the amount of a commission or fee to be regarded as unfair 
if those commissions or fees are disproportionately high or if the consumer does 
not receive any real service in return. However, an analysis of some other 
judgments of the Court of Justice seems to lead to different conclusions. 
27 Namely, in its judgment of 16 April 2014, the Court of Justice indicated that the 
existence of a ‘significant imbalance’ does not necessarily require that the costs 
charged to the consumer by a contractual term have, as regards that consumer, a 
significant economic impact having regard to the value of the transaction in 
question, 9 and the question whether that significant imbalance exists cannot be 
 
6 Judgment of 3 September 2020, Profi Credit Polska, C-84/19, paragraphs 95–97. 
7 Judgment of 16 July 2020, Caixabank, C-224/19 and C-259/19, paragraph 79. 
8 Judgment of 26 February 2015, Matei, C-143/13, paragraphs 70–71. 
9 Judgment of 16 January 2014, Constructora Principado, C-226/12, paragraph 31. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
8  
limited to a quantitative economic evaluation based on a comparison between the 
total value of the transaction which is the subject of the contract and the costs 
charged to the consumer under that clause. 10  
28 Similarly, in its judgment of 18 November 2021, the Court of Justice indicated 
that the examination of whether there is a significant imbalance in the parties’ 
rights and obligations arising under the agreement, to the detriment of the 
consumer, cannot be limited to a quantitative economic evaluation based on a 
comparison between the total value of the transaction which is the subject of the 
contract, on the one hand, and the costs charged to the consumer under that clause, 
on the other. 11 
29 On the other hand, in its judgment of 3 October 2019, the Court held that 
Article 4(2) and Article 5 of Directive 93/13 must be interpreted as meaning that 
the requirement that a contractual term be drafted in plain, intelligible language 
does not require that non-individually negotiated contractual terms in a loan 
contract concluded with a consumer, such as those at issue in the main 
proceedings, which specify the exact amount of management charges and of a 
disbursement commission to be borne by the consumer, their method of 
calculation and the time when they have to be paid, also have to indicate all of the 
services provided in return for the amounts concerned. 12 That conclusion is 
particularly significant if, in addition, account is taken of the view expressed in 
the same judgment that the transparent nature of a contractual term, as required 
under Article 5 of Directive 93/13, is one of the elements to be taken into account 
in the assessment of whether that term is unfair, which is for the national court to 
carry out pursuant to Article 3(1) of that directive. In that context, it is for that 
court to assess, having regard to all the circumstances of the case, first, the 
possible failure to observe the requirement of good faith and, second, the possible 
existence of a significant imbalance to the detriment of the consumer within the 
meaning of that provision. 13 The above considerations led the Court of Justice to 
conclude that Article 3(1) of Directive 93/13 must be interpreted as meaning that a 
contractual term such as that at issue in the main proceedings in relation to 
charges for the management of a loan contract, when it cannot be unequivocally 
determined what specific services are provided in return for those charges, does 
not in principle cause, contrary to the requirement of good faith, a significant 
imbalance in the parties’ rights and obligations arising under the contract to the 
detriment of the consumer. 14  
 
10 Judgment of 16 January 2014, Constructora Principado, C-226/12, paragraph 22. 
11 Judgment of 18 November 2021, A.S.A., C-212/20, paragraph 66. 
12 Judgment of 3 October 2019, Kiss and CIB Bank, C-621/17, paragraph 45. 
13 Judgment of 3 October 2019, Kiss and CIB Bank, C-621/17, paragraph 49. 
14 Judgment of 3 October 2019, Kiss and CIB Bank, C-621/17, paragraph 56. 
PROVIDENT POLSKA 
 
9 
30 In the opinion of the referring court, it is understandable that lenders are 
businesses and therefore their main objective is to generate profit. A seller or 
supplier of that kind must not only cover the various costs associated with the 
operation of their business (employees, renting premises, taxes, office supplies 
and so on), but must also receive remuneration from consumers in an amount that 
guarantees a sufficiently high profit. It is also understandable that Provident must 
assume that some of its customers will not repay the monies lent to them, since 
their financial or personal circumstances will prevent them from doing so, and it is 
also possible that some borrowers will act in bad faith, effectively preventing the 
company from recovering the monies lent. 
31 Nevertheless, the referring court takes the view that even after all the above facts 
have been taken into account, Provident is not justified in charging the amounts of 
remuneration shown in the agreements included in the case file. 
32 The court points to the fact that in the case of the fee for the Flexible Repayment 
Plan, in exchange for being able to defer loan repayments a few times, which is a 
fairly minor benefit, the consumer is required to pay a very substantial fee. Of 
particular importance here is the fact that the borrower is unable to opt out of the 
above service, since each loan offered by Provident necessarily includes that 
service and thus requires that a significant fee be paid. This leads to the 
conclusion that, essentially, the service in question and the fee charged for it are 
primarily intended to increase the income Provident earns from each loan 
agreement rather than to offer borrowers a useful service. Thus, the service in the 
form of the Flexible Repayment Plan is indeed fictitious, and the real purpose of 
the terms and conditions relating to that service is to justify the additional fee 
charged to the consumer. 
33 As far as the commission is concerned, Provident does not offer any service in 
return besides granting the loan itself, and thus the commission constitutes 
exclusively the lender’s profit on the one hand, and the borrower’s cost on the 
other. A similar conclusion applies to the so-called front-end fee, since it does not 
involve anything other than the granting of the loan itself, while the costs of 
presenting the agreement to the consumer (printer toner, paper, involvement of a 
company employee and so forth) are negligible and can in principle be ignored. 
34 The figures related to the loans in question indicate that Provident appears to base 
its business model chiefly on providing fairly small loans (between PLN 4 000 
and PLN 11 000) to consumers for terms ranging from one to two years. The 
company derives profit from interest, but it primarily derives profit from very high 
commissions and fees (mainly for the Flexible Repayment Plan). Although those 
charges fall within the upper limit stipulated in the provisions of the LCC, they 
represent a significant burden for the borrowers, usually amounting to between 
70% and 90% of the loan amount (only in one case do they amount to ‘just’ 46% 
of the loan principal. Moreover, a significant proportion of Provident’s customers 
are repeat customers, since many consumers who take out short-term loans are 
those who have trouble managing their finances and are therefore unable to obtain 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
10  
a loan from a bank. As a result, they rely on the services of lenders offering loans 
on very unfavourable terms. The high cost of those loans means that the 
consumers concerned are unable to meet their obligations and take out further 
loans to repay the previous ones, thus falling into a debt spiral. 
35 For instance, a person taking out a loan of PLN 5 000 with costs amounting to 
90% of the loan amount will have to repay a total of PLN 9 500. If the consumer 
is unable to repay that amount and takes out a second loan, this time of 
PLN 9 500, but also with costs amounting to 90% of the loan amount, then the 
amount to be repaid will rise to PLN 18 050. If this cycle is repeated a few more 
times, the consumer will have to pay back: PLN 34 295 on the third loan, 
PLN 65 160 on the fourth, PLN 123 805 on the fifth, PLN 235 229 on the sixth, 
and finally PLN 446 936 on the seventh loan. In this scenario the lender’s actual 
contribution (PLN 5 000) will constitute only 1% of the amount due, while 99% 
will be the lender’s actual profit. 
36 The above example clearly shows that even when the first loan is relatively small, 
but is taken out on very unfavourable terms, this pushes the consumer into a spiral 
of (exponentially rising) debt. This results in the consumer being unable to meet 
their obligations, and in extreme cases in losing all of their assets and having to 
declare bankruptcy. The danger of debt spirals has already been recognised in 
national law and has resulted in the introduction of provisions on maximum 
interest (Article 359(2¹) of the CC), which currently stands at 7.2% per annum, as 
well as on maximum non-interest consumer credit costs (Article 36a(2) of the 
LCC), which cannot exceed the total loan amount. Nevertheless, there are no 
provisions in national or Union law that would preclude the serial granting of very 
expensive short-term loans to consumers. Therefore, the only solution that offers a 
chance to protect consumers from falling into a debt spiral is to declare 
contractual terms that provide for disproportionately high fees and commissions to 
be unfair. This is because, essentially, the harm to the consumer does not arise 
from the fact that the seller or supplier has worded the agreement in the part 
concerning the cost of the loan in an incomprehensible manner or has failed to 
explain its consequences, but rather from the fact that the consumer has been 
burdened with disproportionately high costs. 
37 By its second question, the referring court asks whether the requirement that legal 
interest be demonstrated when bringing an action for a declaration that an 
agreement or part thereof is void or ineffective is contrary to Article 7(1) of 
Directive 93/13 and the principle of effectiveness. The problem is that if a 
consumer seeks such a declaration and demonstrates the ineffectiveness or 
invalidity of the agreement or part thereof, but fails to demonstrate a legal interest, 
the national court will be forced, under Article 189 of the CCP, to dismiss the 
consumer’s claim solely due to the lack of legal interest. 
38 Pursuant to Article 189 of the CCP, a necessary prerequisite for the court to 
uphold a declaratory action is to establish legal interest, which must exist as at the 
date on which the hearing is brought to a close (Article 316(1) of the CCP). The 
PROVIDENT POLSKA 
 
11 
concept of legal interest has not been defined in national law, but has been 
repeatedly analysed in the case-law of Polish courts.  
39 According to the case-law of the Sąd Najwyższy (Supreme Court, Poland), legal 
interest should be understood as an objective need to protect the applicant’s rights 
which are or may be threatened, or whose existence or essence is uncertain. The 
assessment of legal interest must be made on a case-by-case basis, using flexible 
criteria that take into account the purpose of an action under Article 189 of the 
CCP. One of the prerequisites examined when considering the purpose of a 
declaratory action is the significance that a declaratory judgment would have for 
the applicant’s legal situation. The existence of a legal interest is indicated by the 
possibility of decisively resolving the dispute by way of such a judgment, whereas 
the possibility that the applicant could obtain more complete protection of his or 
her rights by way of another action militates against the existence of such interest. 
40 Since the concept of ‘legal interest’ is not defined in national law, the assessment 
of whether an applicant has an interest in bringing proceedings is a matter for the 
national court to decide in each individual case. This means that in certain 
situations, the question of legal interest may be assessed differently by courts in 
very similar or even identical cases. For instance, in similar cases concerning the 
declaration of agreements concluded by consumers with Provident to be void or 
ineffective, some panels of the Sąd Rejonowy dla Warszawy-Śródmieścia w 
Warszawie (District Court for Warsaw-Śródmieście in Warsaw) found that the 
consumers in question had a legal interest, while other panels of that court found 
that there was no legal interest, which constituted grounds for the dismissal of 
those actions. Significantly, in all of those cases, the courts were unanimous in 
their assessment that the terms of the defendant company’s agreements setting 
disproportionately high commissions and fees for the Flexible Repayment Plan 
were unfair. It follows, therefore, that differences of opinion on whether an 
applicant has a legal interest in bringing proceedings may exist even within a 
single court. This fact may, in turn, hinder the attainment of the objectives of 
Directive 93/13 since, even where the terms of an agreement concluded with a 
seller or supplier are clearly unfair, a consumer may be uncertain as to whether he 
or she should bring an action for those contractual terms to be declared void or 
ineffective, for fear that a court may find that he or she has no legal interest in 
bringing proceedings and may dismiss the action on that ground alone, ordering 
the consumer to pay the costs.  
41 In the view of the referring court, the applicants’ legal interest in bringing a 
declaratory action has not been demonstrated. In that regard, the applicants are 
relying solely on the need to determine the amount of their liabilities, and thus on 
circumstances that are of purely subjective importance to them, rather than on an 
objective need to resolve a legal dispute. First and foremost, however, the 
applicants have other remedies which would allow them to exercise their rights to 
a greater degree than a declaratory action. Of relevance here is the fact that each 
of the applicants has already repaid part of the amounts due for the disputed 
commissions and fees, while the rest remains outstanding and is claimed by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
12  
Provident from each of the applicants in its counterclaim. In those circumstances, 
the amounts already repaid may be claimed by each of the applicants by way of an 
action for the return of undue payments (Article 405 of the CC read in conjunction 
with Article 410 of the CC), and thus the applicants may bring an action that goes 
further than a declaratory action. On the other hand, the outstanding amounts due 
for the fees and commissions charged have become the subject of court 
proceedings in the form of counterclaims lodged by Provident, and therefore the 
applicants (counter-defendants) may invoke the unfairness of contractual terms 
precisely within the framework of those counterclaims, and the judgment of the 
referring court in that regard will settle the dispute between the parties. 
42 The third question referred is a reference to the question referred by the Sąd 
Rejonowy w Siemianowicach Śląskich (District Court in Siemianowice Śląskie) 
in its order of 10 November 2021 (case C-717/21 before the Court of Justice), 
which concerns the possibility of treating as unfair contractual terms which 
provide that loan repayment is only possible in cash via a Provident employee 
(‘Relationship Manager’) during weekly visits by the Relationship Manager to the 
borrower’s place of residence. That contractual provision is standard in 
Provident’s agreements and was also included in Section 6.a of the agreements 
concluded by ZL and KU. Although the applicants did not dispute the content of 
the provision, the referring court, in discharging its obligation under Directive 
93/13 to examine consumer contracts for unfair terms, concluded that the 
provision in question should be regarded as unfair.  
43 As regards the reasons for finding the above contractual terms unfair, the referring 
court shares, in principle, the position presented by the District Court in 
Siemianowice Śląskie in its order of 10 November 2021. First and foremost, 
however, the referring court is of the opinion that the purpose of stipulating that 
the loan may only be repaid in cash to the defendant’s employee and preventing 
the consumer from repaying the loan by bank transfer in an era of cashless 
transactions is to exert emotional pressure on the consumer to settle his or her 
liabilities in a timely manner. Moreover, while those provisions set out the 
principal obligations of the parties, they are not expressed in plain intelligible 
language (Article 4(2) of Directive 93/13), for while it is true that Section 6.a of 
the loan agreements provides for payment of the amounts due during visits by a 
Provident employee to the consumer’s place of residence, the general framework 
of those visits, their duration and permissible actions by the company’s employee 
in the consumer’s home and so on are not stipulated. Moreover, in the view of the 
referring court, a business which reserves for itself such a far-reaching right to 
interfere in a consumer’s private life should give that consumer sufficient 
instruction (warning) of the potentially dangerous consequences of visits by a 
stranger to his or her home, particularly where that stranger is employed by the 
consumer’s creditor. The analysed agreements lacked any such warnings. At the 
same time, the provisions in question are part of a standard contract drafted in 
advance by Provident, and thus they could not be individually negotiated 
(Article 3(2) of Directive 93/13). 
PROVIDENT POLSKA 
 
13 
44 However, the referring court wishes to consider the further effect of the consumer 
not being bound by those contractual terms in the event that they are found to be 
unfair, including, in particular, whether the loan agreement is capable of 
continuing in existence without those terms (Article 6(1) of Directive 93/13) in a 
situation where the term providing for the only possible method of repayment of 
the loan is found to be unfair. The answer to that question appears to be negative 
because, if Section 6.a is removed from the loan agreements in question, the 
agreements contain no provisions on how the borrower is to repay the loan. At the 
same time, it would be unacceptable to conclude in those circumstances that the 
borrower is simply relieved of his or her obligation to repay the loan, since this 
would essentially mean transforming the loan into a donation, and thus a 
completely different type of agreement that the parties certainly did not intend to 
conclude. 
45 In view of the above, the only way for the loan agreements in question to continue 
in existence if the contractual terms included in Section 6.a are declared unfair 
would be to ‘supplement’ the agreements by allowing the consumer to repay the 
amounts due by bank transfer. However, such a solution appears to be 
incompatible with Article 6(1) of Directive 93/13. 
46 Nevertheless, the Court has repeatedly indicated that an unfair condition is not 
binding in its entirety, not just in the part which is unfair, 15 and it is also in 
general not possible for a court to change the content of an unfair term 16 or 
interpret such a term so as to mitigate its unfairness. 17 On the other hand, a court 
may replace an unfair term with a supplementary provision of national law, but 
only if the elimination of the unfair term results in the entire contract that exposes 
the consumer to particularly unfavourable consequences being declared void. 18 
 
15 See the judgments of 26 March 2019, Abanca Corporación Bancaria and Bankia, C-70/17 and 
C-179/17, paragraph 64, and of 29 April 2021, Bank BPH, C-19/20, paragraphs 70 and 80. 
16 See the judgments of 14 June 2012, Banco Español de Crédito, C-618/10, paragraphs 69–73; of 
30 May 2013, Asbeek Brusse and de Man Garabito, C-488/11, paragraphs 57–58; of 30 April 
2014, Kásler and Káslerné Rábai, C-26/13, paragraphs 77–79; of 21 January 2015, Unicaja 
Banco and Caixabank, C-482/13, C-484/13, C-485/13 and C-487/13, paragraphs 28, 31–32; of 
21 April 2016, Radlinger and Radlingerová, C-377/14, paragraphs 97–98; of 21 December 
2016, Gutiérrez Naranjo, C-154/15, C-307/15 and C-308/15, paragraphs 57, 60; of 7 August 
2018, Banco Santander and Escobedo Cortés, C-96/16 and C-94/17, paragraph 73; of 
13 September 2018, Profi Credit Polska, C-176/17, paragraph 41; of 26 March 2019, Abanca 
Corporación Bancaria and Bankia, C-70/17 and C-179/17, paragraphs 53–54; of 7 November 
2019, Kanyeba, C-349/18 – C-351/18, paragraph 67; of 3 March 2020, Gómez del Moral 
Guasch, C-125/18, paragraphs 59–60; of 25 November 2020, Banca B., C-269/19, 
paragraphs 30–31; of 27 January 2021, Dexia Nederland, C-229/19 and C-289/19, 
paragraphs 63–64; of 29 April 2021, Bank BPH, C-19/20, paragraphs 67–68; and of 
18 November 2021, A. S.A., C-212/20, paragraphs 68–69, 71. 
17 See the judgment of the Court of 18 November 2021, A S.A., C-212/20, paragraph 79. 
18 See the judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑ 26/13, paragraphs 80–85; 
of 21 January 2015, Unicaja Banco and Caixabank, C‑ 482/13, C‑ 484/13, C‑ 485/13 and 
C‑ 487/13, paragraph 33; of 7 August 2018, Banco Santander and Escobedo Cortés, C‑ 96/16 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C 321/22 
 
14  
47 In the present cases, however, no such negative consequences can be discerned, 
since if the loan agreements at issue were declared void, the consumers would 
only be obliged to repay the loan principal without interest, commissions, fees or 
any other costs. Therefore, in the view of the referring court, in the light of 
Article 6(1) of the directive, the effect of excluding from the loan agreement 
contractual terms such as those included in Section 6.a of the agreements 
concluded by ZL and KU must be to render those agreements void in their 
entirety. 
      
and C‑ 94/17, paragraph 74; of 20 September 2018, OTP Bank and OTP Factoring, C‑ 51/17, 
paragraphs 60–61; of 14 March 2019, Dunai, C‑ 118/17, paragraph 54; of 26 March 2019, 
Abanca Corporación Bancaria and Bankia, C‑ 70/17 and C‑ 179/17, paragraphs 56–59, 64; of 
3 October 2019, Dziubak, C‑ 260/18, paragraphs 48–49, 58–59; of 7 November 2019, Kanyeba, 
C‑ 349/18 to C‑ 351/18, paragraph 70; of 3 March 2020, Gómez del Moral Guasch, C‑ 125/18, 
paragraphs 61–64; of 25 November 2020, Banca B., C‑ 269/19, paragraphs 32–34.