Judgment;Summary — ECLI:EU:C:2024:297
Date: 2024-04-11
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-183/23–1 
Case C-183/23 
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: 
22 March 2023 
Referring court: 
Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (Poland) 
Date of the decision to refer: 
27 February 2023 
Applicant: 
Credit Agricole Bank Polska SA 
Defendant: 
AB 
      
Subject matter of the main proceedings 
Action for payment of a sum due under a short-term loan agreement concluded by 
a foreign borrower in absentia 
Subject matter and legal basis of the request 
Article 267 TFEU – Regulation (EU) No 1215/2012 of the European Parliament 
and of the Council – Jurisdiction over consumer contracts – Short-term loan 
agreement – Foreign borrower – Appearance entered for the defendant by a 
representative in absentia – Service of the application 
Questions referred for a preliminary ruling 
1. Is Article 6(1) of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters 
(recast) to be interpreted as meaning that the provisions of that regulation apply to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-183/23 
 
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the determination of jurisdiction in a case against a consumer in absentia who is 
not a national of any Member State and regarding whom, first, it is known that his 
or her last known place of residence was in a Member State and, second, there is 
credible evidence that he or she is no longer domiciled in the territory of that 
Member State, where there is no credible evidence suggesting that he or she has 
left the territory of the European Union to return to the State of which he or she is 
a national? 
2. Is Article 26(1) and (2) of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters to be 
interpreted as meaning that an appearance entered by a representative appointed in 
accordance with the national law of a Member State to represent that consumer in 
absentia replaces the appearance of the consumer and permits the assumption that 
a court of that Member State has jurisdiction despite the existence of credible 
evidence that the consumer is no longer domiciled in the territory of the Member 
State concerned? 
Provisions of European Union law relied on 
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 
12 December 2012 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters (OJ 2012 L 351, p. 1) – Article 6, 
Article 17(1), Article 18(2), Article 26(1) and (2), and Article 28(1) 
Judgment of the Court of Justice of 15 March 2012, G (C-292/10, 
EU:C:2012:142) 
Judgment of the Court of Justice of 17 November 2011, Hypotečni banka 
(C-327/10, EU:C:2011:745) 
Judgment of the Court of Justice of 2 April 2009, Gambazzi (C-394/07, 
EU:C:2009:219) 
Judgment of the Court of Justice of 10 October 1996, Hendrikman and Feyen 
(C-78/95, EU:C:1996:380) 
Provisions of national law relied on 
Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure), Article 69(3), 
Article 1391(1) and (2), Article 144(1), and Article 146 (codified text – Dziennik 
Ustaw of 2021, item 1805) 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By application of 22 December 2021 brought before the Sąd Rejonowy dla 
Warszawy-Śródmieścia w Warszawie (District Court, Warsaw‑ Śródmieście, 
Warsaw, Poland) (‘the referring court’), the applicant, Credit Agricole Bank 
Polska SA (‘the applicant’), requested that it be awarded the amount of 10 591.64 
zlotys (PLN) (approximately EUR 2 250) plus interest and legal costs under a 
credit agreement dated 16 July 2020 for the purchase of movable property (an 
Apple 11 Pro phone) concluded by the applicant with the defendant [AB] (‘the 
defendant’). Both the credit agreement and the application indicated an address for 
the defendant. 
2 In the present case, it is common ground that that agreement was concluded by the 
defendant as a consumer, that is to say, there was no connection with his 
professional or gainful activity. The referring court has established that, in the 
present case, if Regulation No 1215/2012 were applicable, the jurisdiction of the 
court would have to be established on the basis of Article 17(1)(b) and Article 18 
of that regulation. 
3 On 30 March 2022, the referring court issued an order for payment in the context 
of writ-of-payment proceedings, by which it ordered the defendant to pay the 
applicant the sum of PLN 10 591.64, together with contractual interest at the 
maximum rate of interest for late payment of PLN 9 952.30 for the period from 
18 May 2021 to the date of payment, and a sum of PLN 770.69 by way of 
reimbursement of legal costs, together with statutory interest for late payment 
from the date on which the order for payment became final until the date of 
payment. 
4 A letter containing a copy of the application together with a copy of the order for 
payment and instructions for the defendant was sent to the address indicated in the 
application and was returned as not having been received by the addressee. In 
accordance with national law, the referring court required the applicant’s 
representative to serve a copy of the application and the order for payment 
through a bailiff within two months on pain of a stay of proceedings. 
5 By letter of 15 September 2022, the applicant’s representative informed the 
[referring] court that service through a bailiff had not taken place, since the bailiff 
had not found the addressee at that address. 
6 By order of 4 October 2022, the referring court appointed a representative in 
absentia, who is a lawyer, for the defendant. A notice of appointment of the 
representative was displayed, in accordance with national law, on the notice 
boards of the referring court and the urząd miasta (City Hall), and was also served 
on the appointed representative, together with copies of the application and the 
order for payment. 
7 By letter of 26 October 2022, the appointed representative in absentia for the 
defendant lodged a statement of opposition to the order for payment of 30 March 
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2022, in which he stated that the applicant had not submitted a claim as to its 
amount, referring to the substance of the application. He also stated that, despite 
various attempts, he had not managed to establish the place of residence of the 
defendant. However, he did not raise an objection of a lack of jurisdiction on the 
part of the Polish court. 
8 By successive decisions, the [referring] court consulted several entities in order to 
ascertain whether there was any information in their databases regarding the 
defendant that would make it possible to establish his residential address. 
9 Thus, the referring court verified the defendant’s data in the Powszechny 
Elektroniczny System Ewidencji Ludności (Universal Electronic System for 
Registration of the Population) (PESEL) database. As a result of those actions, the 
last registered address contained in the PESEL database in Poland was 
established, the defendant having stated that he had left that address in June 2018. 
10 The referring court verified, in the NOE-SAD system (the Centralna Baza Danych 
Osób Pozbawionych Wolności (Central Database of Persons Deprived of 
Liberty)) (in which persons deprived of liberty in Poland are registered), whether 
the defendant had been deprived of his liberty, and it was established that the 
defendant had not been deprived of his liberty in Poland. 
11 Subsequently, the referring court asked the Mazowiecki Urząd Wojewódzki w 
Warszawie (Masovian Voivodeship Office in Warsaw, Poland) (public 
administrative body competent for legalisation of residence, namely the issuing of 
work permits to foreign nationals residing in the Masovian Voivodeship) whether 
the defendant currently had a residence permit in Poland and whether his current 
residential address was known. The Masovian Voivodeship Office stated that the 
defendant had not applied for legalisation of his residence in Poland. 
12 The [referring] court also asked the Straż Graniczna (Border Guard) (‘the SG’) 
whether there was any information relating to one or more instances of the 
defendant crossing the border in the databases of the SG. In its reply, the SG 
informed the referring court that only one crossing by the defendant of the Polish 
border had been registered in respect of the period from 9 January 2013 to 
8 January 2023, namely an arrival at a Warsaw airport on 29 September 2017. 
There were no records of any other crossings of the Polish border. 
13 At the same time, the referring court ordered the applicant’s representative to 
prove that the defendant has his place of residence in Poland, failing which the 
issue of the Polish court’s jurisdiction would be assessed ex officio. He was 
informed of the wording of Article 18(2) of Regulation No 1215/2012. The 
applicant’s representative has stated that he does not have any information 
regarding the defendant’s current residential address. 
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The essential arguments of the parties in the main proceedings 
14 The arguments of the parties have not been set out in detail in the order for 
reference. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 Regarding the first question referred: given the facts of the case as described 
above, in the first place the referring court has doubts as to whether – in the event 
that an action is brought against a consumer in absentia who is not a national of 
any Member State and regarding whom, first, it is known that his or her last 
known place of residence was in one of the Member States (namely Poland), and, 
second, there is credible evidence that he or she is no longer domiciled in the 
territory of that Member State, where there is no credible evidence suggesting that 
he or she has left the territory of the European Union to return to the State of 
which he or she is a national – the provisions of Regulation No 1215/2012 even 
apply, or whether it must resolve the issue of its jurisdiction exclusively on the 
basis of provisions of national law. 
16 The defendant in the main proceedings is not a national of a Member State. Thus, 
the most obvious connection between the main proceedings and EU law, namely 
the nationality of the defendant, is lacking. 
17 The referring court found, on the basis of the SG’s data, that the defendant had not 
crossed the Polish external border. However, it should be noted that the SG does 
not carry out checks at Poland’s borders with other States party to the Schengen 
Agreement, and thus it is not possible to establish whether the defendant has left 
Poland for another Member State. At the same time, there is credible evidence 
(the lack of addresses for the defendant in the State databases since 2018) that this 
is the case. In the light of those factors, the referring court considers that it is most 
likely that the defendant is currently in the territory of a Member State other than 
Poland; however, that court is not in a position to verify this definitively. 
18 Under Article 6(1) of Regulation No 1215/2012, if a defendant is not domiciled in 
a Member State, jurisdiction is in principle determined by the national law of that 
Member State. That provision reproduces Article 4(1) of the regulation previously 
in force, namely Council Regulation (EC) No 44/2001 of 22 December 2000 on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters. The Court of Justice has ruled on several occasions on the 
interpretation of that provision of Regulation No 44/2001. 
19 In its judgment of 15 March 2012, G (C-292/10, EU:C:2012:142), the Court held 
that Article 4(1) of Regulation No 44/2001 must be interpreted as meaning that it 
does not preclude the application of Article 5(3) of that regulation to an action for 
liability arising from the operation of an Internet site against a defendant who is 
probably a European Union citizen but whose whereabouts are unknown if the 
court seised of the case does not hold firm evidence to support the conclusion that 
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the defendant is in fact domiciled outside the European Union. In paragraph 40 of 
that judgment, the Court pointed out that the expression ‘is not domiciled in a 
Member State’, used in Article 4(1) of Regulation No 44/2001, must be 
understood as meaning that application of the national rules rather than the 
uniform rules of jurisdiction is possible only if the court seised of the case holds 
firm evidence to support the conclusion that the defendant, a citizen of the 
European Union not domiciled in the Member State of that court, is in fact 
domiciled outside the European Union (see, to that effect, judgment of 
17 November 2011, Hypotečni banka, C-327/10, EU:C:2011:745). 
20 This suggests that EU law requires, in principle, that the scope specified in 
Article 6(1) of Regulation No 1215/2012 be considered as broadly as possible, 
that is to say, that the provision applies whenever it is not certain that a defendant 
is domiciled outside the European Union. This allows for more extensive 
harmonisation of the issue of jurisdiction between Member States and ensures that 
no one who is domiciled in the territory of the European Union (even where this is 
not certain) will be deprived of the protection of EU law. 
21 However, the referring court has doubts as to whether Article 6(1) of Regulation 
No 1215/2012 should also be understood in this way in cases involving a 
defendant who is not a national of any Member State. 
22 In principle, the criterion of the EU nature of cross-border proceedings within the 
meaning of the provisions on jurisdiction contained in Regulation No 1215/2012 
is based not on nationality but on domicile. That principle is fully expressed in 
Article 4(1) of Regulation No 1215/2012, under which persons domiciled in a 
Member State are, whatever their nationality, to be sued in the courts of that 
Member State. 
23 However, in the judgment in Hypotečni banka, the Court of Justice considered the 
criterion of nationality – where domicile is unknown – to be a relevant criterion in 
favour of the EU nature of the issue of jurisdiction (see paragraph 32 of that 
judgment). For that reason, the referring court has doubts as to whether a specific 
presumption that Regulation No 1215/2012 applies to persons in respect of whom 
it is most likely that they are domiciled in the territory of one of the Member 
States, without it being certain – or possible for the court concerned to establish – 
in which of those States a given person resides, can also be applied where those 
persons are not nationals of any Member State. 
24 According to the referring court, the principle of effectiveness of judicial 
protection under EU law and the need to protect the rights of individuals who may 
(but are not certain to) be domiciled in the territory of the European Union require 
that the principles stated in Regulation No 1215/2012 be applied to them, in 
particular where those persons remain consumers, that is to say, individuals 
specially protected by EU law (see Article 169 TFEU). It should be noted that that 
regulation provides for a high level of protection of consumer rights on the basis 
that, in principle, a consumer may be sued exclusively in the courts of the State in 
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which he or she is domiciled (Article 18(2) of Regulation No 1215/2012). 
National law does not provide for such a far-reaching standard of protection of 
consumer rights as regards the jurisdiction of a court. Thus, to find that the 
standard of protection stated in Regulation No 1215/2012 is not applicable to a 
defendant in a situation such as that at issue in the main proceedings solely 
because it is not possible to certify unequivocally that he or she is domiciled in 
one of the Member States and on the basis of the criterion of nationality, which is 
not provided for in that regulation, could constitute an unjustified refusal on the 
part of the court concerned to grant him or her the protection of EU law. 
25 The referring court is of the view that the answer to the question must, in 
principle, balance the consequences of two risks. The first is the risk of presuming 
(wrongly) that a defendant is domiciled in the territory of the European Union 
when he or she is not so domiciled, and the second is the risk of presuming 
(wrongly) that a defendant is not domiciled in the territory of the European Union, 
when in fact he or she is domiciled there. In the first situation, the risk is that 
grounds of jurisdiction provided for in Regulation No 1215/2012 will be applied 
without there being any real basis for doing so. Since the provisions of that 
regulation offer the consumer more extensive protection in this regard than 
national law, this will not prejudice the consumer. However, in the second 
scenario, this would undermine the effectiveness of the regulation, since a 
consumer domiciled in a Member State would be deprived of effective protection 
under EU law solely because the court was not in a position to establish his or her 
place of residence definitively. 
26 In the light of the foregoing, the referring court is of the view that the first 
question referred for a preliminary ruling should be answered in the affirmative. 
27 By the second question referred, the referring court seeks to ascertain whether, in 
proceedings such as those in the main proceedings, a defendant may be regarded 
as having entered an appearance and thus as having recognised the jurisdiction of 
a Polish court by virtue of the fact that a representative in absentia appointed for 
him or her has done so on his or her behalf. 
28 The Court of Justice has stated on several occasions that Regulation No 44/2001 
does not preclude the application of a provision of national procedural law of a 
Member State which, with a view to avoiding situations of denial of justice, 
enables proceedings to be brought against, and in the absence of, a person whose 
domicile is unknown, if the court seised of the matter is satisfied, before giving a 
ruling in those proceedings, that all investigations required by the principles of 
diligence and good faith have been undertaken with a view to tracing the 
defendant (judgment of 17 November 2011, Hypotećni banka, C-327/10, 
EU:C:2011:745). A similar approach should now be adopted regarding Regulation 
No 1215/2012. 
29 The institution of curator absentis is known in the vast majority of civil 
proceedings in the Member States. It exists to guarantee the right of an applicant, 
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who, for reasons beyond his or her control, is not in a position to establish where a 
defendant is currently domiciled, to have access to a court or tribunal. In this 
regard, it should be reiterated, on behalf of the Court of Justice (judgment in 
Hypotećni banka, paragraph 53), that the possibility of taking further steps in the 
proceedings without the defendant’s knowledge by means, as in the case in the 
main proceedings, of notification of the action served on a representative 
appointed by the court seised, constitutes a restriction of the defendant’s rights of 
defence. That restriction is, however, justified in the light of an applicant’s right to 
effective protection, given that, in the absence of such proceedings, that right 
would be meaningless (see also judgment of 2 April 2009, Gambazzi, C-394/07, 
EU:C:2009:219). 
30 The referring court does not intend to challenge the validity of the existence of 
that institution. However, it has doubts as to whether a representative in absentia 
appointed for a consumer may recognise the jurisdiction of a court, where such 
jurisdiction is not conferred on that court under Regulation No 1215/2012 in 
accordance with Article 26(1) thereof, by entering an appearance on the merits 
without raising an objection of a lack of jurisdiction. 
31 Indirectly, the Court of Justice provided clarification regarding that question in its 
judgment of 10 October 1996, Hendrikman and Feyen (C-78/95, EU:C:1996:380), 
stating that the entering of an appearance by a representative who was not him- or 
herself authorised by the defendant could not be interpreted as constituting an 
entering of an appearance by the defendant for the purposes of Article 27(2) of the 
Brussels I Convention (the predecessor to Article 34[(2)] of Regulation 
No 44/2001 and subsequently, indirectly, Article 45[(1)](b) of Regulation 
No 1215/2012). 
32 The situation in the main proceedings is substantially different from that in the 
proceedings which gave rise to the questions referred for a preliminary ruling in 
Hendrikman and Feyen. Although, in that case, the individual that entered an 
appearance was incorrectly appointed a representative, the main proceedings in 
the present case concern a representative in absentia appointed for the defendant, 
appointed in accordance with national law and, under national law, empowered to 
perform all actions related to the case. Furthermore, in Hendrikman and Feyen, 
the appearance concerned grounds for refusal of recognition of a judgment and not 
jurisdiction by recognition. 
33 A situation similar to that at issue in the main proceedings in the present case 
existed in the main proceedings in the case giving rise to the judgment in 
Hypotečni banka. As Advocate General Trstenjak observed in her Opinion of 
8 September 2011, Article 16(2) of Regulation No 44/2001 is intended to protect a 
consumer from being sued before courts other than those of his or her Member 
State. If the entering of an appearance by a representative appointed without a 
defendant’s consent or knowledge were attributed to that defendant, and the 
jurisdiction of the court which appointed that representative were thus established, 
the practical effect of Article 16(2) of that regulation could be restricted (see 
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point 82 of that Opinion). However, in the judgment in Hypotečni banka itself, the 
Court did not expressly address this issue. 
34 However, the facts in the main proceedings in the case giving rise to the judgment 
in Hypotečni banka are different from those of the present case. In the former, (a) 
the proceedings concerned a long-term mortgage loan agreement, (b) it was 
apparent from the terms of the agreement that the consumer was required to 
disclose any change of domicile, and (c) the action was brought while the 
agreement was in effect. In the latter, the subject matter of the proceedings is a 
short-term loan agreement. Thus, it is difficult to criticise the defendant for not 
having informed the other party to that agreement of the change of domicile. 
35 In the same vein, it should be noted that Article 26(2) of Regulation 
No 1215/2012 lays down a specific obligation to protect consumers against 
jurisdiction by recognition where this occurs due to the fact that a consumer was 
unaware of, on the one hand, the provisions of that regulation relating to 
jurisdiction and, on the other, the consequences of not raising an objection of a 
lack of jurisdiction. Thus, equally, in order for it to be possible to find that a 
consumer has accepted the jurisdiction of a court that does not derive from 
Regulation No 1215/2012 (essentially, given the wording of Article 18(2) of that 
regulation, the jurisdiction of a court of the place where he or she is domiciled), it 
is necessary that that consumer be informed of his or her right to contest the 
jurisdiction of that court and of the consequences of entering or not entering an 
appearance. 
36 The referring court considers that the assumption that providing a consumer with 
information may be replaced by potentially providing a representative in absentia 
appointed for a defendant with information runs counter to the essential purpose 
of Article 26(2) of Regulation No 1215/2012, which is to protect consumers 
against the negative effects of ignorance of that regulation. Only the consumer 
him- or herself, acting directly and in full knowledge of the ensuing consequences, 
is able to decide freely to waive the rights conferred by the regulation, that is to 
say, to recognise the jurisdiction of a State other than the State in which he or she 
is domiciled. Although a curator absentis is required to represent the consumer’s 
interests and, under national law, is entitled to perform all actions related to the 
case, the fact remains that, having regard to the principle of the effectiveness of 
the protection conferred by Regulation No 1215/2012, it cannot be accepted that 
that curator absentis may also recognise jurisdiction by entering an appearance on 
the merits. 
37 Recognition of jurisdiction as provided for in Article 26 of Regulation 
No 1215/2012 reflects the adversarial nature of civil proceedings in the Member 
States, in which it is for the parties, and not for a court, to safeguard those parties’ 
procedural interests. However, in order to attain that objective, it is necessary that 
both parties be parties to the dispute or, at the very least, have the opportunity to 
be parties to the dispute, that is to say, they have in fact been notified accordingly. 
Although the fiction of notifying a party through the notification of a 
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representative enables the proceedings to be conducted and the right of an 
applicant to have access to a court or tribunal to be exercised, it cannot, according 
to the referring court, have the effect of depriving a defendant consumer of the 
right to the jurisdiction of a court of the place where he or she is domiciled solely 
because that representative has not raised any objection in that regard. 
38 The referring court is therefore of the view that the second question referred for a 
preliminary ruling should be answered in the negative.