Judgment;Abstract — ECLI:EU:C:2021:479
Date: 2021-06-10
Language of the case: Polish
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Anonymised version 
Translation C-303/20 — 1 
Case C-303/20 
Request for a preliminary ruling 
Date lodged: 
8 July 2020 
Referring court: 
Sąd Rejonowy w Opatowie (Poland) 
Date of the decision to refer: 
27 September 2019 
Applicant: 
Ultimo Portfolio Investment (Luxembourg) S.A. 
Defendant: 
KM 
  
[…] 
ORDER 
Opatów, 27 September 2019 
The Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court, Opatów, First 
Civil Division), composed of: 
[…] 
having examined at the hearing on 27 September 2019 in Opatów 
the case brought by Ultimo Portfolio Investment (Luxembourg) S.A. 
with its seat in Luxembourg 
against KM 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 9. 2019 — CASE C-303/20 
 
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for payment, 
orders as follows: 
the following question on a point of law is referred to the Court of Justice of the 
European Union in Luxembourg for a preliminary ruling: 
I Does the penalty of liability for a petty offence that is imposed in 
Article 138c(1) of the Polish Kodeks wykroczeń (Code of Petty Offences) 
for a failure to comply with the obligation to assess a consumer’s 
creditworthiness laid down in Article 8(1) of Directive 2008/48/EC of the 
European Parliament and of the Council of 23 April 2008 on credit 
agreements for consumers and repealing Council Directive 87/102/EEC 
constitute proper and sufficient implementation of the requirement, imposed 
on the Member State in Article 23 of that directive, to lay down in national 
law effective, proportionate and dissuasive penalties for a breach by the 
creditor of the obligation to assess the creditworthiness of a consumer? 
II. Proceedings in the case are stayed (Article 177(1)(31) of the Kodeks 
postępowania cywilnego (Code of Civil Procedure)). [Or. 2] 
GROUNDS 
of the order of 27 September 2019 
I. Provisions of national law. 
(a) Article 9 of the ustawa z 12 maja 2011 r. o kredycie konsumenckim 
(Law of 12 May 2011 on Consumer Credit, consolidated text: Dz. U. (Journal 
of Laws) 2019, item 1083) 
1. Before concluding a consumer credit agreement, the lender shall assess the 
consumer’s creditworthiness. 
2. The assessment of creditworthiness shall be carried out on the basis of 
information obtained from the consumer or on the basis of information obtained 
from the relevant databases or the lender’s data sets. 
3. The consumer shall, at the lender’s request, provide the lender with the 
documents and information necessary to carry out the assessment of his 
creditworthiness. 
4. If the lender is a bank or another institution statutorily authorised to grant 
loans, the creditworthiness assessment shall be carried out in accordance with 
Article 70 of the ustawa z dnia 29 sierpnia 1997 r. — Prawo bankowe (Law on 
Banking of 29 August 1997) and other legislation applicable to those entities, 
taking paragraphs 1 to 3 into account. 
ULTIMO PORTFOLIO INVESTMENT (LUXEMBOURG) 
 
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(b) Article 138c(1a) and (4) of the Code of Petty Offences 
1a. The same penalty [a fine] shall be imposed on anyone who fails to comply 
with the obligation to assess creditworthiness when concluding a consumer credit 
agreement with a consumer. [Or. 3] 
4. If the trader is not a natural person, the liability provided for in paragraphs 1 to 
3 shall be borne by the person in charge of the undertaking or the person 
authorised to conclude agreements with consumers. 
(c) Article 24 of the Code of Petty Offences 
1. Fines shall amount to between PLN 20 and PLN 5 000 unless the law provides 
otherwise. 
2. If detention has been imposed for an offence committed for the purpose of 
financial gain, a fine shall also be imposed in addition to detention unless 
imposing a fine would not serve a useful purpose. 
3. Where a fine is imposed, account shall be taken of the perpetrator’s income, 
personal and family situation, assets and earning potential. 
(d) Article 45 of the Code of Petty Offences 
1. An offence shall cease to be punishable if one year has elapsed since it was 
committed; if proceedings have been instituted within this period, the offence 
shall cease to be punishable after two years have elapsed from the end of this 
period. 
II. Findings of fact and circumstances of the case. 
On 23 May 2018, the lender Aasa Polska S.A., whose seat is in Warsaw, and the 
defendant, KM, concluded loan agreement (consumer credit agreement) 
No 40725167. The total amount of the loan was set at PLN 5 000.00 and the total 
amount to be repaid was PLN 8 626.58. The total amount to be repaid comprised 
the following receivables: PLN 5 000.00 — principal, PLN 536.58 — interest on 
the principal for the entire duration of the agreement, PLN 2 490.00 — front-end 
fee [Or. 4] and PLN 600 — administration fee. The loan was to be repaid from 
22 June 2018 until 22 May 2020 in 24 instalments amounting to PLN 408.00 
each. 
As at the date on which the agreement in question was concluded, the defendant 
was burdened with liabilities under 23 loan agreements. The total liabilities under 
all those agreements amounted to PLN 261 850.00 and the total amount of the 
monthly payments resulting from those liabilities was PLN 8 198.00. As at 
24 June 2019, the total amount of the defendant’s liabilities is PLN 163 500.00. 
REQUEST FOR A PRELIMINARY RULING OF 27. 9. 2019 — CASE C-303/20 
 
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As at the date on which the agreement in question was concluded, the defendant’s 
husband (AB) was burdened with liabilities under 24 loan agreements. The total 
liabilities under all those agreements amounted to PLN 457 830.00 and the total 
amount of the monthly payments resulting from those liabilities was 
PLN 9 974.35. 
As at the date on which the agreement in question was concluded, the defendant 
was employed on the basis of an employment contract with a net salary of 
PLN 2 300.00. The defendant’s spouse did not work or have any other income due 
to illness. 
The agreement in question was concluded via a credit intermediary. Prior to 
concluding the agreement, the lender made no attempt to determine the 
defendant’s financial situation or her liabilities. During the interview preceding 
the conclusion of the loan agreement, no questions were asked about the 
defendant’s financial situation or that of her spouse, in particular about their 
income and liabilities. 
The receivables arising from the loan agreement in question were sold to Ultimo 
Portfolio Investment (Luxembourg) S.A. whose seat is in Luxembourg. 
In the action against KM filed with the District Court, Opatów, on 4 April 2019, 
the lender’s legal successor sought the amount of [Or. 5] PLN 7 139.76 together 
with statutory interest for late payment calculated from the date of filing of the 
action until the date of payment. 
In response, the defendant, KM, sought dismissal of the claim in its entirety. 
By order of 14 June 2019, the applicant’s counsel was obliged to provide 
information on the actions taken by the lender in order to assess the defendant’s 
creditworthiness and to provide the documents obtained during verification of the 
defendant’s creditworthiness. This obligation has not been fulfilled as the 
applicant’s counsel has not provided any information or any documents to date. 
III. Grounds for the request for a preliminary ruling. 
Pursuant to Article 8 of Directive 2008/48/EC of the European Parliament and of 
the Council of 23 April 2008 on credit agreements for consumers and repealing 
Council Directive 87/102/EEC, Member States are to ensure that, before the 
conclusion of the credit agreement, the creditor assesses the consumer’s 
creditworthiness on the basis of sufficient information, where appropriate obtained 
from the consumer and, where necessary, on the basis of a consultation of the 
relevant database. Member States whose legislation requires creditors to assess the 
creditworthiness of consumers on the basis of a consultation of the relevant 
database may retain this requirement. Also, pursuant to Article 23 of the directive 
Member States are to lay down the rules on penalties applicable to infringements 
of the national provisions adopted pursuant to the directive and are to take all 
ULTIMO PORTFOLIO INVESTMENT (LUXEMBOURG) 
 
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measures necessary [Or. 6] to ensure that they are implemented. The penalties 
provided for are to be effective, proportionate and dissuasive. Finally, according 
to recital 47 of the directive, Member States should lay down rules on penalties 
applicable to infringements of the national provisions adopted pursuant to the 
directive and ensure that they are implemented. While the choice of penalties 
remains within the discretion of the Member States, the penalties provided for 
should be effective, proportionate and dissuasive. 
Pursuant to Article 9 of the Law of 12 May 2011 on Consumer Credit 
(consolidated text: Dz. U. (Journal of Laws) 2019, item 1083), before concluding 
a consumer credit agreement, the lender is to assess the consumer’s 
creditworthiness (paragraph 1). The assessment of creditworthiness is to be 
carried out on the basis of information obtained from the consumer or on the basis 
of information obtained from the relevant databases or the lender’s data sets 
(paragraph 2). The consumer is, at the lender’s request, to provide the lender with 
the documents and information necessary to carry out the assessment of his 
creditworthiness (paragraph 3). If the lender is a bank or another institution 
statutorily authorised to grant loans, the creditworthiness assessment is to be 
carried out in accordance with Article 70 of the ustawa z dnia 29 sierpnia 1997 
r. — Prawo bankowe (Law on Banking of 29 August 1997) and other legislation 
applicable to those entities, taking paragraphs 1 to 3 into account (paragraph 4). 
Under Polish law, failure to observe the obligation to check the consumer’s 
creditworthiness is penalised under Article 138c(1a) and (4) of the Code of Petty 
Offences. Failure to assess the consumer’s creditworthiness is an offence 
punishable by a fine of between PLN 20 and PLN 5 000. It should be noted that 
the penalty of liability for this offence is the only penalty provided for in Polish 
law for failure to comply with the obligation to check the consumer’s 
creditworthiness. In accordance with Polish legal literature and the case-law of 
Polish courts, non-performance or improper performance of this obligation does 
not result in the agreement being invalid and does not [Or. 7] lead to the lender’s 
liability for damages vis-à-vis the consumer or the guarantor or other third parties 
who provide security for the repayment of consumer credit. Moreover, a negative 
assessment of the consumer’s creditworthiness does not impose an obligation on 
the lender to refuse the loan. 1 
In the view of the national court, the penalty for this offence provided for under 
Polish law does not comply with the requirements of Directive 2008/48/EC of the 
European Parliament and of the Council of 23 April 2008 on credit agreements for 
consumers and repealing Council Directive 87/102/EEC. 
 
1 Czech Tomasz, Kredyt konsumencki. Komentarz, 2nd edition, SIP Lex; judgment of the Sąd 
Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) of 7 May 2014, Ref. No VI ACa 
945/13, LEX No 1469473; judgment of the Sąd Okręgowy w Kielcach (Regional Court, Kielce, 
Poland) of 11 June 2014, Ref. No II Ca 452/14, LEX No 1511361; judgment of the Sąd 
Apelacyjny w Białymstoku (Court of Appeal, Białystok, Poland) of 6 November 2014, Ref. No 
I ACa 452/14, LEX No 1566930; resolution of the Sąd Najwyższy (Supreme Court) (sitting in a 
panel of 7 judges) of 30 September 1996, Ref. No III CZP 85/96, OSP 1997 No 7-8, item 139. 
REQUEST FOR A PRELIMINARY RULING OF 27. 9. 2019 — CASE C-303/20 
 
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The penalty in question is ineffective because it does not persuade lenders, 
especially those operating in the so-called shadow banking sector, which offer 
payday loans, to assess consumers’ creditworthiness. A clear example of this is 
the present case as well as other cases involving identical facts which have been 
heard by the national court. An analysis of the facts of the case at issue as well as 
a number of other cases unequivocally shows that loans are granted to highly 
indebted persons who have little or no income and are often already subject to 
enforcement by court enforcement officers. The information provided by lenders 
about the checks conducted in databases with respect to persons applying for loans 
is generally inaccurate and does not reflect the actual state of affairs. In the 
opinion of the national court, the present case is an example of such a practice and 
this conclusion is justified by the fact that the applicant has so far provided no 
information concerning the assessment of the defendant’s creditworthiness or [Or. 
8] information on the defendant obtained from databases, including in particular 
the databases of Biuro Informacji Gospodarczej InfoMonitor S.A., whose seat is 
in Warsaw, Krajowy Rejestr Długów Biura Informacji Gospodarczej S.A., whose 
seat is in Wrocław, Biuro Informacji Kredytowej S.A., whose seat is in Warsaw, 
Rejestr Dłużników ERIF Biura Informacji Gospodarczej S.A., whose seat is in 
Warsaw, and the database maintained by the Związek Banków Polskich (Polish 
Bank Association). It should be pointed out that it follows from the content of the 
information form concerning the loan taken out by the defendant that, prior to the 
conclusion of that agreement, the lender declared that it had checked the data 
available on the defendant in the aforementioned databases, and that in the loan 
agreement the defendant granted the lender power of attorney to apply to credit 
information bureaux for information subject to bank secrecy. In the loan 
agreement itself, it was also stipulated that granting power of attorney for the 
carrying out of these activities was a condition for carrying out the assessment of 
the customer’s creditworthiness required by law, and thus also a condition for 
concluding the loan agreement and granting the loan. 
In the context of the evidence gathered by the national court in the course of the 
proceedings, in particular information on the number and amount of liabilities 
incurred by the defendant and her spouse, the lender’s actions described above 
cannot be regarded as anything other than hollow claims which have nothing to do 
with fulfilling the obligation to check the customer’s creditworthiness thoroughly. 
Indeed, it should also be noted that foregoing an assessment of the consumer’s 
creditworthiness is regarded as a factor which attracts customers and an important 
part of the lender’s advertising. It is common to find advertisements which 
explicitly mention the granting of loans without prior assessment of the 
consumer’s creditworthiness: ‘loan in 5 minutes without a credit information 
bureau’, ‘self-certification loans’ or even ‘loan in 15 minutes for those subject to 
enforcement’. It should be noted that the negative consequences of such practices 
have been recognised by the Polish authorities and were indicated in [Or. 9] the 
explanatory memorandum to a draft law of the government amending certain laws 
in order to combat usury (Sejm Document No 3600). 2 However, it should be 
 
2 http://www.sejm.gov.pl/sejm8.nsf/druk.xsp?nr= 3600 
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added that due to the end of the eighth (2015–2019) term of the Sejm, the draft 
law did not get through parliament and has not been pursued further; the changes 
it envisaged have not ultimately been adopted. 
The penalty provided for in Polish law is not dissuasive either, and this is 
evidenced by the fact that business activities consisting in the granting of loans are 
advertised as foregoing the assessment of a prospective customer’s 
creditworthiness. Furthermore, it should be added that foregoing the assessment of 
a consumer’s creditworthiness or failing to conduct this assessment properly is a 
common practice which results in loans being granted to persons in debt and 
persons who cannot guarantee repayment of the loan. Such practices, in the view 
of the national court, preclude the attainment of one of the objectives of the 
directive, which is envisaged in recital 26, namely, promoting responsible 
practices during all phases of the credit relationship and deterring creditors from 
engaging in irresponsible lending or giving out credit without prior assessment of 
creditworthiness. Tolerating such practices also breaches the Member State’s 
obligation to carry out the necessary supervision to avoid such behaviour and 
determine the necessary means to punish creditors in the event of such situations 
arising. 
In the view of the national court, the absence of a dissuasive effect is due to the 
penalties for breaching the obligation to check the creditworthiness of the 
consumer being excessively lenient. Failure to assess the consumer’s 
creditworthiness is a petty offence which is punishable only by a fine of between 
PLN 20 and PLN 5 000. As a rule, a petty offence ceases to be punishable if one 
year has elapsed since it was committed, and if [Or. 10] proceedings have been 
instituted within this period, the offence ceases to be punishable after two years 
have elapsed from the end of this period. Only natural persons can be liable for a 
petty offence; legal persons and unincorporated organisational units cannot. This 
is of crucial importance because the overwhelming majority of entities which 
grant loans on the Polish market are legal persons. A lender that is a legal person 
or an organisational unit cannot be subject to a penalty for this offence — it may 
be imposed only on a natural person who acts as a lender himself or who manages 
an undertaking or is a person authorised to conclude agreements with consumers. 
A lender that is a legal person cannot in fact be held liable for failure to comply 
with the obligation to check a consumer’s creditworthiness before concluding an 
agreement. Failure to comply with this obligation does not in any way affect the 
validity of the concluded agreement and does not deprive the lender of the 
benefits arising from it, in particular of the right to charge interest or fees. In the 
view of the national court, the widespread failure to observe the obligation to 
assess consumers’ creditworthiness demonstrates that the penalties provided for 
under Polish law are not dissuasive and do not deter lenders from engaging in 
irresponsible lending. A lender who has granted a loan in breach of the obligation 
to assess the consumer’s creditworthiness does not lose any of the benefits arising 
from the loan agreement concluded. Only individuals can be held liable for this 
offence, and this has no direct or indirect impact on the lender itself. 
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In the view of the national court, the penalty for the offence in question is also not 
proportionate to the seriousness of breach of the obligation to assess the 
consumer’s creditworthiness. It should be noted here [Or. 11] that the creditor’s 
obligation to assess the borrower’s creditworthiness is intended to protect 
consumers against the risks of over-indebtedness and bankruptcy; it contributes to 
attaining the objective of Directive 2008/48, namely to provide, as regards 
consumer credit, full and mandatory harmonisation in a number of key areas, 
which is regarded as necessary in order to ensure that all consumers in the 
European Union enjoy a high and equivalent level of protection of their interests 
and to facilitate the emergence of a well-functioning internal market in consumer 
credit. The obligation to assess a consumer’s creditworthiness is intended to 
ensure the effective protection of consumers against the irresponsible granting of 
credit agreements which are beyond their financial capacities and which may 
bankrupt them. 3 
In the light of the foregoing, in the view of the national court, the obligation to 
assess a consumer’s creditworthiness is extremely important in order to achieve 
the objectives of the directive and cannot be regarded as an insignificant or even 
unnecessary burden. Measures taken by lenders to assess a consumer’s 
creditworthiness must not be spurious; they must be genuine and appropriate for 
fulfilment of that obligation. The lack of appropriate penalties for breaching the 
obligation to assess a consumer’s creditworthiness encourages uncontrolled 
borrowing, resulting in a debt spiral. This is the case with the defendant, since the 
amount of her debt is significant and the lender’s failure to comply with its 
obligation to check the consumer’s creditworthiness has materially contributed to 
that indebtedness. In the absence of appropriate penalties, lenders are also not 
induced to change their practices with a view to ensuring rigorous compliance 
with their obligations under Directive 2008/48 and the legislation [Or. 12] 
transposing that directive into the domestic law of the Member States. This 
negatively affects the achievement of one of the directive’s objectives, namely, 
ensuring the effective protection of consumers against the irresponsible granting 
of credit which is beyond their financial capacities and which may bankrupt them. 
The national court considers that this request for a preliminary ruling is necessary 
in order to clarify the doubts discussed above and also in order for the national 
court to give a correct ruling in the present case. The answer to this question will 
be of direct relevance to assessing the consequences of a failure to meet the 
obligation to assess a consumer’s creditworthiness and will also serve as a point of 
reference both in this case and in other cases which are identical or similar in fact 
and in law. The Court’s answer is required owing to the absence of direct 
statements by the Court referring to the issues touched upon in this request and 
also owing to the aforementioned practice of neglecting the obligation to assess a 
consumer’s creditworthiness, which hinders the achievement of the objectives of 
the directive and seriously undermines the effectiveness of EU legislation. 
 
3 Judgment of the Court of Justice of 27 March 2014, C-565/12. 
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In these circumstances and having regard to the above, the court has ruled as 
stated in point I of the operative part of this order. 
[…] [Or. 13] [stay of proceedings] 
[…] [national procedure]