Order;Information — ECLI:EU:C:2023:860
Date: 2023-11-08
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-177/23 – 1 
Case C-177/23 
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: 
21 March 2023 
Referring court: 
Tribunalul Specializat Mureș (Romania) 
Date of the decision to refer: 
31 May 2022 
Appellant: 
Investcapital Ltd 
Respondents: 
XF 
KJ 
Banca Comercială Română SA 
Kruk SA 
  
Subject matter of the main proceedings 
Appeal brought by Investcapital Ltd against the judgment of the Judecătoria Târgu 
Mureș (Târgu Mureș Court of First Instance) granting the application of the 
appellants XF and KJ and finding that certain terms of the loan agreement that 
they had entered into, in their capacity as consumers, with Banca Comercială 
Română S.A. were unfair; the loan rights were subsequently assigned to a series 
of debt-collection companies, the last of which is the appellant. 
Subject matter and legal basis of the request 
Pursuant to Article 267 TFEU, interpretation of Article 1(2) of Directive 
93/13/EEC is sought. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-177/23 
 
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Question referred for a preliminary ruling 
Is a contractual term that reflects a rule of law contained in a legislative provision 
conferring on the lender the right to assign claims arising from a loan agreement 
entered into with a consumer, without the consumer’s consent, excluded from the 
declaration of unfairness even if, during legal proceedings in which the consumer 
seeks a declaration that other terms of the same loan agreement are unfair, the 
effects of that assignment and the manner in which these effects are exploited by 
subsequent lenders are such as to worsen the consumer’s procedural position – 
within the meaning of point 1(p) of the Annex to Directive 93/13/EEC [Unfair 
Contract Terms Directive] – such as the delaying effect on the legal procedure in 
question, the additional legal costs incurred by the consumer, etc., and, in the 
event that the term is deemed to be unfair, an apportionment of the non-binding 
effect, for the consumer, of the contractual terms in question among the successive 
assignees? 
Provisions of European Union law and case-law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Article 1(2), Article 6(1), Article 7(1) and paragraph 1(p) of the Annex. 
Judgments of 4 June 2009, Pannon GSM (C-243/08); 27 June 2000, Océano 
Grupo Editorial and Salvat Editores (C-240/98 to C-244/98); 28 June 2016, 
Tomášová (C-168/15), paragraphs 28 to 31; 21 December 2016, Gutiérrez 
Naranjo (C-154/15, C-307/15 and C-308/15); and 14 March 2019, Dunai 
(C-118/17). 
Provisions of national law and case-law relied on 
Legea nr. 193/2000 privind clauzele abuzive din contractele încheiate între 
profesioniști şi consumatori (Law 193/2000 on unfair terms in consumer 
contracts), transposing Directive 93/13 into the national legal system: Articles 4, 
6, 7, 13 and 14 and paragraph 1(n) of the Annex. According to the latter, those 
contractual terms that ‘entitle the seller or supplier to transfer the contractual 
obligations to third parties – agents, representatives, etc. – without the consumer’s 
consent, if that transfer serves to reduce the warranties or other liabilities towards 
the consumer’ are deemed to be unfair. 
Legea nr. 289/2004 privind regimul juridic al contractelor de credit pentru 
consum destinate consumatorilor, persoane fizice (Law 289/2004, on the legal 
system concerning loan agreements with consumers and natural persons): 
Article 12, under which, in the event that the creditor’s rights under a loan 
agreement are assigned to a third party, the consumer is entitled to invoke, against 
that third party, all the contractual rights which he had against the original 
creditor. 
INVESTCAPITAL 
 
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The old Cod civil (1865) (Civil Code), in force when the loan agreement at issue 
was entered into: Articles 1391 to 1396, which constituted the ordinary rules 
governing the assignment of claims; under Article 1393 of the old Civil Code, the 
assignee could invoke his right against third parties only after notifying the debtor 
of the assignment. 
The new Cod civil (2009) (Civil Code), which entered into force on 1 October 
2011: Articles 1566 to 1568, 1573 to 1582, 1585 and 1586, which govern the 
assignment of claims in general. 
Codul de procedură civilă (Code of Civil Procedure): Article 39 on the procedural 
position of the assignor and his successors, and Articles 61 to 67 on optional 
intervention. 
Decision No 4 of the Înalta Curte de Casație și Justiție – Completul pentru 
dezlegarea unor chestiuni de drept (High Court of Cassation and Justice – Section 
on questions of law) of 20 January 2020, which reaffirmed the possibility, already 
recognised by case-law, of transferring locus standi at any stage of the 
proceedings, and therefore during the appeal, as a consequence of the parties’ 
right to acquire or transfer rights during the proceedings, and specifically in 
relation to the claims brought before the court. According to that decision, the 
intervention in the proceedings of the particular successor, of its own motion or at 
the request of one of the original parties, the universal successors or their 
universal successors or at the initiative of the purchaser of the particular right 
himself is a separate procedural principle, which does not correspond to any of the 
forms of intervention of third parties in the proceedings, and may occur at any 
time during the proceedings, including during the appeal, while the substitution of 
the assignor shall be assessed by the court, taking into account the circumstances 
of the case. Therefore, the purchaser of the particular right may participate in any 
proceedings, at any time, without complying with the procedures governed by 
Article 61 et seq. of the Romanian Code of Civil Procedure. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 22 January 2008, natural persons XF and KJ, in their capacity as borrowers, 
entered into a loan agreement with Banca Comercială Română S.A. (‘BCR S.A.’), 
in its capacity as lender, with a total value of 55 522.50 Romanian lei (RON), of 
which the sum of RON 55 000.00 represented the loan itself, and the sum of 
RON 522.50 represented the credit granting fee. The loan repayment term was 
120 months, and the related interest was 13.05% per annum; XF and KJ were also 
obliged to bear various costs related to the loan agreement, such as early 
repayment fees, the credit granting fee, management fees and risk supervision 
fees. 
2 According to its submissions during the trial, on 29 June 2011, owing to the 
borrowers’ breach of their contractual obligations, the credit institution invoked 
the early termination of the contract, at which time the obligation arose for the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-177/23 
 
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consumer to repay the outstanding loan, amounting to RON 52 652.40, the 
overdue loan, amounting to RON 4 513.38, the current interest on the loan 
agreement, amounting to RON 45.69, the overdue interest, amounting to 
RON 9 657.27, the interest charged on the overdue loan, amounting to 
RON 509.75, and fees amounting to RON 1 865.52. 
3 The credit institution did not prove the declaration of early termination directly, 
but only implicitly, by entering into a contract, on the same date of 29 June 2011, 
for the assignment of all these claims to the debt collection company Kruk S.A., 
established in Poland, which, in turn, appointed its Romanian subsidiary, Kruk 
România S.R.L, as administrator for the collection of these claims. 
4 The debtors XF and KJ were notified of that assignment. 
5 On 13 October 2014, thanks to the enforceable instrument represented by the loan 
agreement entered into by the lender BCR S.A. and the consumers XF and KJ, 
another alleged assignee of the same claims, namely the debt collection agency 
Secapital S.à.r.l., established in Luxembourg, having appointed the same 
company, Kruk România S.R.L., as administrator for the collection of those 
claims, approached a bailiff, following the issuance of an enforcement 
authorisation by the Târgu Mureș Court of First Instance. 
6 According to a document dated 30 March 2016, drawn up by the bailiff, XF, in his 
capacity as debtor subject to enforcement, gave an undertaking to extinguish the 
enforceable claims by means of monthly payments amounting to RON 300. 
7 On 2 September 2020, XF and KJ brought a direct action before the Târgu Mureș 
Court of First Instance against the credit institution BCR S.A. for a declaration 
that several terms of the loan agreement of 22 January 2008 were unfair and, 
therefore, that those terms were not binding on the consumers, and for an order 
that the defendant repay the sums received in respect of those terms. 
8 After proving the assignment of the claims arising from the loan agreement, the 
assignor Kruk S.A., established in Poland, and the administrator appointed by the 
latter, Kruk România S.R.L, were admitted to the case as interveners on 
15 February 2021. 
9 Without providing appropriate evidence, another debt collection agency, 
Investcapital Ltd., Malta, invoked its right, as assignee, to the same claim on 
29 April 2021. The Târgu Mureș Court of First Instance agreed to take into 
consideration the claims of that de facto intervener, even though at no time were 
the procedural requirements complied with in regard to the latter, since it had not 
been called as a party to the proceedings and did not sufficiently justify its locus 
standi. 
10 On 25 June 2021, the Târgu Mureș Court of First Instance partially upheld the 
consumers’ action. Firstly, it found that the terms of paragraph 5 and 
paragraph 9(a), (b), (c) and (f) of the loan agreement of 22 January 2008 were 
INVESTCAPITAL 
 
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unfair. Secondly, by applying the non-binding effect of those terms with regard to 
the consumers, accepting the defence advanced by the de facto intervener 
Investcapital Ltd, established in Malta, it apportioned the obligation to repay the 
consumers the sums received on the basis of the terms declared to be unfair, 
having regard to the time of the first assignment of claims of 29 June 2011, 
establishing that, until that date, that obligation was to be borne by the defendant 
BCR S.A., and after that date was to be borne by the de jure intervener Kruk S.A., 
or by the administrator appointed by the latter, Kruk România S.R.L. 
11 On 6 August 2021, the de facto intervener Investcapital Ltd, established in Malta, 
disputed that decision before the referring court, the Tribunalul Specializat Mureș 
(Mureș Specialised Court), requesting that, following a fresh examination of the 
merits, the consumers’ civil action be dismissed in its entirety. 
12 The consumers, XF and KJ, responded to the appeal by requesting that it be 
dismissed. The credit institution BCR S.A. and the de jure intervener Kruk S.A., 
established in Poland, through the administrator Kruk România S.R.L, specifically 
constituted in an ad litis consortium in favour of the de facto intervener appellant, 
asked that the appeal be upheld. 
13 In its decision of 8 February 2022, the Mureș Specialised Court found substantive 
and procedural anomalies in relation to the series of assignments of claims arising 
from the loan agreement, and also considered a possible inadequate application of 
the non-binding effect for the consumers in the context of enforcement 
proceedings in which they were being pursued for claims arising from that loan 
agreement by the assignee Investcapital Ltd, established in Malta. 
14 It was only at the express request of the referring court that the appellant produced 
the contract for the assignment of claims entered into on 7 December 2017 with 
the assignor Secapital S.à.r.l., established in Luxembourg, without adequately 
demonstrating that the debtors had been notified of that assignment. 
15 The appellant also showed the referring court certain documents from which it is 
apparent that Investcapital Ltd was subrogated as the creditor seeking enforcement 
in place of the assignor Secapital S.à.r.l. in the enforcement proceedings, namely 
an injunction dated 21 September 2021 issued by the bailiff, from which it appears 
that a claim arising from the enforcement instrument represented by the loan 
agreement at issue in the present case is being enforced, in the amount of 
RON 52 615.62, plus certain enforcement costs, amounting to RON 5 409.20, and 
a decision dated 18 February 2022 issued by the same bailiff is also being 
enforced, which proposes the following apportionment of the sum of RON 300.00, 
collected on 16 February 2022 from the debtor XF: RON 60.00 in respect of 
enforcement costs, and RON 240.00 to be paid into a bank account in the name of 
Kruk România S.R.L. 
16 The referring court decided to examine of its own motion whether the contractual 
term allowing the assignment of the creditor’s rights under the loan agreement is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-177/23 
 
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unfair, in particular in the light of paragraph 1(n) of the Annex to Law 193/2000 
transposing the provisions of paragraph 1(p) of the Annex to Directive 13/93 into 
the national legal system. 
17 In those circumstances, the Mureș Specialised Court, in its capacity as court of 
last instance, decided, of its own motion, to refer a question to the Court of Justice 
for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
18 XF and KJ consider it appropriate and legitimate to bring the matter before the 
Court. The other parties to the proceedings have not expressed a view on the 
request for a preliminary ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
19 The referring court considers that the binding effect and the erga omnes effects of 
Decision No 4 of the High Court of Cassation and Justice of January 2020 resulted 
in the difficulties of the court of first instance which, on the basis of a simple 
argument advanced by the credit institution, authorised the intervention in the case 
of the assignee of the claims under the loan agreement, Kruk S.A., established in 
Poland, and when a subsequent assignee – the appellant Investcapital Ltd, 
established in Malta – intervened in the action, it relied on the latter’s defence 
against the appellant consumers and, moreover, although the court rejected the 
more incisive arguments of a procedural nature, it took account of the substantive 
ones when applying the non-binding effect on the consumers of the contract terms 
that it had found to be unfair. The same situation would also have arisen in the 
context of the enforcement proceedings brought by the successive creditors 
against the consumers for the recovery of the claims arising from the agreement. 
In practice, that decision of the High Court would allow successive assignees of 
those claims to intervene through procedural subrogation at any time and without 
any formalities. 
20 The referring court has no doubt as to the substance of the right granted to each 
creditor to assign its claims to third parties, as enshrined as ordinary law by the 
Romanian legislature. As a general rule, the exercise of such a right leads to the 
replacement of an assignor creditor with the assignee and the debtor undertakes, 
as soon as he has been duly informed of that assignment, to make a valid payment 
only to the account of the assignee. 
21 The rules of national law governing the assignment of claims reinforce the 
presumption reflected in Article 1(2) of Directive 93/13, as transposed into 
national law by Article 3(2) of Law 193/2000, and have the effect of excluding 
from the assessment of unfairness a contractual term that reflects it. 
INVESTCAPITAL 
 
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22 The referring court’s reservations are based, first, on the finding that the way in 
which the successive creditors used the assignment of the claims, in particular by 
asserting the procedural rights arising therefrom, is such as to hinder the legal 
action brought by the consumers seeking a declaration that certain terms of the 
loan agreement at issue are unfair and, second, on the way in which the non-
binding effect of terms found to be unfair has been applied, in circumstances 
where the assignee creditor simultaneously brings enforcement proceedings 
against the consumers for the enforcement of certain claims arising under the 
disputed terms. 
23 The credit institution with which the appellant consumers entered into the loan 
agreement immediately indicated to the court of first instance the assignee of the 
claims arising after the unilateral declaration of early termination of the loan 
agreement, namely Kruk S.A., in an attempt to avoid the procedural obligation 
imposed by the referring court to produce all the pre-contractual and contractual 
documents relating to the loan agreement at issue, arguing that this had been 
handed over to the assignee. 
24 Although the court of first instance, by attempting to obtain all of the details and 
information relevant to the examination of the applicant consumers’ application, 
admitted that assignee company to the proceedings, the company that reacted 
procedurally was a subsequent assignee, Investcapital Ltd., which, without 
providing the information requested by the court, relied on an entire arsenal of 
defences with the aim of formally and/or substantively paralysing the consumer’s 
action. 
25 Those unforeseeable changes and the procedural interventions not only paralysed 
the procedural conduct of the consumers, but also confused the court of first 
instance which, despite having found most of the terms at issue to be unfair, 
strangely apportioned the obligation to repair the damage, based on the time when 
the first assignment of the claim took place. 
26 What is more, without having in any way proven the assignment of the claims, the 
first assignee transferred the claims to another entity, Secapital S.à.r.l., which 
initiated enforcement proceedings against the consumers and, subsequently, 
transferred the claims to Investcapital Ltd., which subrogated itself in the 
enforcement proceedings, as an enforcing creditor. 
27 In the course of the enforcement proceedings, the bailiff applied the non-binding 
effect for the consumers of the terms found to be unfair, which was profoundly 
inadequate, interpreting it only in the sense of enforcing the outstanding claim 
amounting to RON 52 652.40 from the credit institution on 29 June 2011, the date 
of the alleged, but not proven, declaration of early termination. 
28 That being so, the referring court questions whether, in the specific circumstances 
and for the reasons set out above, in order to fully guarantee the rights conferred 
on the consumers, it may assess of its own motion the contractual term conferring 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-177/23 
 
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on the seller or supplier the discretionary power to assign claims arising from a 
contract entered into with consumers, a power that is also recognised by the 
Romanian legislature by means of a legislative provision and that, therefore, 
would automatically be excluded from such an assessment, in order to have the 
possibility, following the exercise of the judicial powers conferred on it, of taking 
appropriate measures to give concrete, substantive effect to the non-binding effect 
for consumers of the contractual terms found to be unfair.