Judgment;Summary — ECLI:EU:C:2025:89
Date: 2025-02-13
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 July 2023 
Referring court: 
Sąd Rejonowy dla m.st. Warszawy w Warszawie (Poland) 
Date of the decision to refer: 
21 June 2023 
Applicant: 
L. sp. z o.o. 
Defendant: 
A.B.S.A. 
  
Subject matter of the main proceedings 
Consumer credit agreement – Interest charged by a bank not only on the capital 
drawn down but also on the costs of the credit – Situation in which the annual 
percentage rate of charge would be lower than that stated in the agreement if 
interest were charged only on the capital drawn down – Failure to fulfil the 
obligation to provide information – Claim by the legal successor to the creditor for 
interest and costs relating to the conclusion of the consumer credit agreement – 
Proportionality of a penalty providing that, in the event of failure to fulfil the 
obligation to provide information, irrespective of the type of failure, the credit is 
considered to be free of interest and charges 
Subject matter and legal basis of the request 
Article 10(2)(g) of Directive 2008/48/EC – Unfair term in a consumer credit 
agreement – Failure to fulfil the obligation to provide information in a case where 
the annual percentage rate of charge stated by the creditor is higher than that in the 
case where the contractual term is considered to be not binding – Article 10(2)(k) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-472/23 
 
2  
of Directive 2008/48/EC – No possibility for the consumer to verify whether there 
is a situation giving rise to an increase in charges relating to performance of the 
agreement – Compatibility with Article 23 of Directive 2008/48/EC of the only 
penalty laid down in national law for failure by the creditor to fulfil the obligation 
to provide information under which the credit is deemed to be free of interest and 
charges 
Questions referred for a preliminary ruling 
1. Must Article 10(2)(g) 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, read in the context of recitals 6, 8 
and 31 thereof, be interpreted as meaning that where, because some of the 
terms of a consumer credit agreement are deemed to be unfair, the annual 
percentage rate of charge stated by the creditor on conclusion of the 
agreement is higher than if it is assumed that the unfair contractual term is 
not binding, the creditor has failed to fulfil its obligation under that 
provision? 
2. Must Article 10(2)(k) 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, read in the context of recitals 6, 8 
and 31 thereof, be interpreted as meaning that it is sufficient to inform the 
consumer of how often, in what situations, and by what maximum 
percentage charges related to performance of the agreement may be 
increased, even if the consumer is unable to verify whether a particular 
situation arises and the charge may consequently be doubled? 
3. Must Article 23 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, read in the context of recitals 6, 8, 
9 and 47 thereof, be interpreted as precluding national law which provides 
for only one penalty for failure to fulfil the obligation imposed on the 
creditor to provide information, irrespective of the degree of the failure to do 
so and the effect thereof on the consumer’s decision to conclude the credit 
agreement, where that penalty involves making the credit free of interest and 
charges? 
Provisions of EU law [and EU case-law] cited 
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: recitals: 6, 8, 9, 19, 31 and 47; Articles 10(2)(g), 10(2)(k), and 23. 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Article 6(1). 
L. 
 
3 
Judgment of the Court of Justice of 9 November 2016, C-42/15, Home Credit 
Slovakia (EU:C:2016:842). 
Provisions of national law cited 
Article 3851(1) and (2) of the Kodeks cywilny (Civil Code): 
‘1. The terms of a contract concluded with a consumer which have not been 
individually negotiated shall not be binding on the consumer if his or her rights 
and obligations are set out in a manner that is contrary to good practice and 
grossly infringes his or her interests (unlawful terms). This shall not apply to 
terms setting out the principal obligations to be performed by the parties, 
including price or remuneration, on condition that they are worded clearly. 
2. If a contractual term is not binding on the consumer pursuant to paragraph 1, 
the contract shall otherwise continue to be binding on the parties.’ 
Article 30(1)(7) and (10) of the Ustawa z dnia 12 maja 2011 r. o kredycie 
konsumenckim (Law of 12 May 2011 on consumer credit): 
‘7. Subject to Articles 31 to 33, a consumer credit agreement must indicate the 
annual percentage rate of charge and the total amount payable by the consumer set 
on the date on which the credit agreement is concluded, also mentioning all the 
assumptions used in order to calculate that rate. 
[…] 
10. Subject to Articles 31 to 33, a consumer credit agreement must set out 
information on the other costs which the consumer is required to pay in 
connection with the consumer credit agreement, in particular charges, including 
charges for maintaining one or several accounts recording both payment 
transactions and drawdowns, together with charges for using a means of payment 
for both payment transactions and drawdowns, charges, margins and the costs of 
ancillary services, in particular insurance, if known to the creditor, and the 
conditions under which those costs may change’. 
Article 45(1) of the Law of 12 May 2011 on consumer credit: 
‘In the event of failure by the creditor to comply with Article 29(1), 
Article 30(1)(1) to (8), (10), (11), (14) to (17), Articles 31 to 33, Article 33a and 
Articles 36a to 36c, the consumer shall, after submitting a written declaration to 
the creditor, repay the credit, without interest and any other credit costs due to the 
creditor, within the time limit and in the manner laid down in the agreement’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-472/23 
 
4  
Succinct presentation of the facts and procedure in the main proceedings 
1 D.K. concluded a credit agreement with the defendant for credit amounting to 
PLN 40 000. The total amount payable as at the date of the agreement was 
PLN 64 878.45 and included the total amount of the credit and the total cost of the 
credit. The total cost of the credit consisted of interest in the amount of 
PLN 19 985 and commission in the amount of PLN 4 893.38. The annual credit 
rate was set at 11.18%. 
2 The agreement states that the bank levies charges and commissions, as provided 
for in the agreement and the tariff of charges and commissions, for activities 
related to serving the credit and changes in the terms of the agreement. Changes in 
charges and commissions may occur if at least one of the following conditions 
obtains: a change in the amount of the minimum wage and the level of indicators 
published by the Główny Urząd Statystyczny (Polish Central Statistical Office): 
inflation, the average monthly remuneration in the corporate sector, changes in the 
prices of energy, telecommunications, postal services, interbank settlements and 
interest rates set by the Narodowy Bank Polski (National Bank of Poland), 
changes in the prices of services and operations used by the bank in carrying on 
individual banking and non-banking activities, changes in the scope or form of 
services provided by the bank (including changes or addition of new functionality 
relating to the servicing of a particular product), in so far as such changes affect 
the costs incurred by the bank or have an impact on the costs incurred by the bank 
in connection with performance of the agreement, a change in tax law and/or rules 
on accounting applied by the bank, in so far as such changes affect the costs 
incurred by the bank in connection with performance of the agreement, and the 
variation or delivery of new court rulings, rulings of administrative authorities, 
instructions or recommendations issued by authorised bodies, in so far as such 
changes affect the costs incurred by the bank in connection with performance of 
the agreement. 
3 The charges are set in the ‘A.B.S.A. Tariff of Charges and Commissions for 
Individual Customers’. That table details the charges such as the charge for 
issuing a bank opinion, certificate, or credit account history, sending letters to 
customers, including reminders and letters of formal notice, and letters sent with 
acknowledgement of receipt. The tariff also sets out one-off charges related to 
drawing down the loan, which are one-off and not charged (they are set at ‘0’) and 
also charges for concluding an addendum and a charge for failure to pick up cash 
ordered for a payment in złotys. 
4 That table also lays down a mechanism for increasing charges, under which 
changes in the amount of charges and commissions may take place no more 
frequently than four times a year, charges and commissions may not decrease or 
increase by more than 200% of the amount of the previous charge or commission 
(that restriction does not apply to charges which previously did not exist or were 
calculated at ‘0’), a change in the amount of a particular charge or commission is 
to take place no later than six months after the condition for introducing such a 
L. 
 
5 
change is met, and the setting of the rates of charges or commissions for activities 
for which the bank has not charged charges/commissions thus far and the setting 
of the amount of charges/commissions for new products or services is to take 
account of the degree of labour-intensiveness of the activities carried out in that 
connection and the level of costs incurred by the bank. 
5 The evidence provided shows that, in the course of performing the credit 
agreement, the bank charged interest not only on the amount that was disbursed 
directly to the consumer, but also on the total cost of the credit. If interest had 
been charged only on the total amount of the credit, the annual percentage rate 
would have been lower than that stated in the credit agreement. 
6 L. sp. z o.o. acquired from D.K. all claims that the latter may have against the 
creditor, including claims arising from the application of the penalty relating to 
free credit under Article 45 of the Law on consumer credit. 
7 L. sp. z o.o. is seeking payment from the defendant of the amount of 
PLN 12 905.80, plus statutory interest, from 29 April 2021 to the date of payment, 
by way of costs and interest related to a consumer credit agreement, in 
conjunction with the penalty laid down in Article 45 of the Law on consumer 
credit. 
The essential arguments of the parties in the main proceedings 
8 In the view of the applicant, there has been an infringement of the provisions of 
the law concerning the obligation to provide information [Article 30(1)(7) of the 
Law on consumer credit, transposing Article 10(2)(g) of Directive 2008/48/EC] 
and concerning the total amount payable when the agreement was concluded since 
the creditor charged the interest due not only on the amount made available to the 
borrower, but also on the costs of the credit. The defendant failed to state precisely 
the conditions under which the charges relating to the credit agreement could be 
increased [infringement of Article 30(1)(10) of the Law on consumer credit, 
transposing Article 10(2)(k) of Directive 2008/48/EC]. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The court is uncertain whether an infringement of Article 10(2)(g) of Directive 
2008/48/EC, consisting in an overstatement of the annual percentage rate of 
charge in the agreement and failure to fulfil the obligation to provide information 
under Article 10(2)(k) of that directive, justifies the application of the penalty 
introduced pursuant to Article 23 thereof, that penalty being to declare that the 
credit is free of charges (without interest and costs) pursuant to Article 45 of the 
Law on consumer credit. 
10 The court has doubts as to whether the mere listing of the conditions under which 
the charges are increased, and also stating the mechanisms for increasing those 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-472/23 
 
6  
charges, is sufficient for the view to be taken that the obligation to provide 
information has been fulfilled. If not, the court seeks to ascertain whether it can be 
concluded that the provision of insufficient information constitutes a lack of 
information justifying the application of the penalty under Article 45 of the Law 
on consumer credit. 
11 The court’s uncertainties also concern the proportionality of the penalty which 
may be imposed irrespective of the type of failure to comply with the obligation to 
provide information and the effect of the failure to do so on the consumer’s 
decision to conclude the agreement. 
12 The court shares the uncertainties and considerations of the referring court set out 
in Case C-678/22 currently pending before the Court of Justice, concerning the 
unfairness of a contractual term allowing the creditor to charge interest not only 
on the amount of credit disbursed but also on the cost of the credit. If such a term 
were to be considered unfair and therefore invalid, it would have to be concluded 
that the annual percentage rate of charge is lower than that originally stated in the 
agreement. 
13 The referring court takes the view, however, that, although in such a situation 
incorrect information about the annual percentage rate of charge and, 
consequently, also about the total amount payable by the consumer, is 
incorporated into the consumer credit agreement, that action cannot have had any 
real effect on the consumer’s decision. While an offer which understates the 
annual percentage rate of charge set out in the agreement, relative to reality, 
would deprive the consumer of that opportunity and could lead him or her to enter 
into the agreement in the belief that the terms thereof are more favourable to him 
or her than they actually are, such a situation does not arise if the creditor 
overstates the amount thereof, in which case its offer is less attractive to the 
consumer and cannot encourage him or her to enter into the agreement. 
14 In this connection, the court is uncertain whether incorrect information concerning 
the annual percentage rate of charge, where it does not make the creditor’s offer 
more attractive, can be regarded as equivalent to a lack of information or a failure 
to fulfil the obligation to provide information justifying the application of a 
penalty. On the one hand, the consumer is informed that his or her liability is 
higher than it actually is, but, on the other, that does not necessarily have a 
negative effect on the process by which the consumer chooses an offer. At the 
same time, the consumer has available legal instruments arising under the 
directive relating to unfair terms in consumer contracts in order to obtain 
protection in respect of incorrectly charged interest. 
15 Since the objective of the consumer credit directive is not only to protect 
consumers, but also to protect the internal market and to ensure that all creditors 
enjoy comparable conditions under which to operate on that market, as is clear 
from recitals 6, 8 and 9 of Directive 2008/48/EC, the referring court takes the 
view that Article 10(2)(g) must be interpreted as meaning that a failure to fulfil the 
L. 
 
7 
obligation to provide information, consisting in an overstatement of the annual 
percentage rate of charge and, consequently, an overstatement of the total amount 
payable, cannot be regarded as justifying application of the penalty referred to in 
Article 45(1) of the Law on consumer credit, which implements Article 23 of that 
directive. 
16 In the present case, the court is uncertain whether the statement in the consumer 
credit agreement as a reason justifying a change in the amount of the charges of 
such elements, which are not verifiable by the consumer, fulfils the condition 
referred to in Article 30(1)(10) of the Law on consumer credit, which transposes 
Article 10(2)(k) of Directive 2008/48/EC. When the agreement was entered into, 
and subsequently performed, the consumer has no knowledge of the prices of the 
services used by the bank, and the agreement does not impose an obligation on the 
creditor to state which costs have increased and how those costs relate to the 
increase in the charge. The reference to court rulings which may have an effect on 
the costs related to performance of the agreement is even more wide-ranging since 
it cannot be ruled out that, as a result of certain contractual terms being declared 
unfair, the creditor will incur higher costs related to performance of the 
agreement, which should not, however, justify passing those costs on to the 
consumer. 
17 The court is uncertain whether, in the light of Article 10(2)(k) of the directive, the 
mention of the reasons enabling an increase in charges and the limits on a one-off 
increase are sufficient to conclude that the consumer has been informed of the 
rules governing increases in charges related to the credit agreement concluded. A 
statement by the creditor of reasons which justify an increase in charges, the 
existence of which is not verifiable, without stating directly in the agreement the 
obligation to refer to those reasons, and also without the possibility of checking 
the effect of a particular reason on the amount of the charges, does not constitute 
fulfilment of the obligation contained in that provision. In the view of the court, it 
does not seem sufficient to point out to the consumer in a separate document that 
the charges can only be changed four times a year and that there is an upper limit 
for a single change. Although, literally, the creditor has stated the conditions 
under which an increase in charges may occur, the consumer essentially does not 
know, and has no guarantee, that he or she will be informed that the condition has 
been met and that that condition has caused an increase in costs justifying a 
change in the charge. 
18 The court is uncertain whether it can be considered sufficient under EU law where 
national law provides for only one penalty irrespective of the type of infringement 
in relation to the information contained in the credit agreement. In the view of the 
court, it seems likely that the issues relating to the charges in question, since they 
concern ancillary issues, the technical servicing of the credit, and also in particular 
the mechanism for increasing or abolishing them, are not of significant importance 
to the consumer when entering into the agreement. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-472/23 
 
8  
19 In the context of the foregoing, the court is uncertain whether Article 23 of the 
directive, in particular in the light of the obligation relating to the proportionality 
of the penalty imposed, precludes the national legislation transposing that 
provision of the directive, which national legislation lays down only one penalty 
for failure by the creditor to fulfil the obligations to provide information when the 
agreement is entered into, irrespective of the type and degree of failure to fulfil the 
obligation imposed by the provisions transposing the directive into the national 
legal order. If it is found that the penalty is disproportionate, the referring court 
seeks to ascertain whether, in such a situation, it should confine itself to refusing 
to apply it or whether it may apply it in part.