Opinion of the Advocate General — ECLI:EU:C:2020:259
Date: 2020-04-02
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

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Translation C-84/19 — 1 
Case C-84/19 
Request for a preliminary ruling 
Date lodged: 
31 January 2019 
Referring court: 
Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie 
(Poland) 
Date of the decision to refer: 
28 December 2018 
Applicant: 
Profi Credit Polska SA, established in Bielsko-Biała 
Defendant: 
QJ 
  
[…] 
O R D E R  
The Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie (District 
Court for Szczecin — Prawobrzeże and Zachód, Szczecin, Poland), 3rd Civil 
Division […] 
in the case brought by PROFI CREDIT Polska Spółka Akcyjna, established in 
Bielsko-Biała, 
against QJ 
concerning payment 
has decided: 
EN 
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pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
to refer the following questions to the Court of Justice for a preliminary ruling: 
1. Must Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 
be interpreted as precluding the application of the provisions of the 
directive in regard to the examination of the fairness of individual 
contractual terms concerning non-interest credit costs, in the case where 
the legislative provisions in force in a Member State impose an upper 
limit on those costs by providing that non-interest credit costs arising 
from a consumer credit agreement are not payable in excess of the 
maximum non-interest credit costs calculated in the manner prescribed 
by law or the total amount of the credit? 
2. Must Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 
be interpreted as meaning that a non-interest cost incurred and paid by 
a borrower together with a loan, in addition to interest, related to the 
conclusion [Or. 2] of the agreement and the granting of the loan itself (in 
the form of a fee, commission or otherwise), as a term of that 
agreement, is, if expressed in plain intelligible language, not subject to 
the assessment expressed in that provision in the context of its 
unfairness? 
3. Must Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 
be interpreted as meaning that contractual terms which introduce 
various types of costs associated with the granting of a loan are not 
expressed ‘in plain intelligible language’ if they do not explain in return 
for what specific services they are charged and do not allow the 
consumer to determine the differences between them? 
 […] [Or. 3] 
STATEMENT OF GROUNDS […] 
I. Subject matter of the dispute in the main proceedings and relevant 
facts 
The subject matter of the proceedings is an action for payment brought by an 
entity whose business is the provision of loans on a professional basis against a 
defendant who is a consumer. The applicant requested the issuing of an order for 
payment in an order for payment procedure on the basis of a promissory note 
issued by the defendant. In the case, the court handed down a default judgment, 
against which the defendant lodged an objection. In the objection, the defendant 
has alleged, inter alia, that the provisions of the agreement, the performance of 
which was secured by the promissory note, were abusive. As a result of the 
allegations raised by the defendant, the dispute moved to the level of the basic 
legal relationship, i.e. the loan agreement of 19 September 2016. The agreement 
had been concluded on the basis of the model used by the applicant. The applicant 
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granted the defendant a loan in the amount of PLN 9 000. The defendant 
undertook to repay the loan in 36 monthly instalments together with costs 
consisting in a front-end fee of PLN 129, a commission of PLN 7 771, a ‘Twój 
Pakiet’ — Pakiet Extra [‘Your Package’ — Extra Package] fee of PLN 1 100 as 
well as contractual interest at a fixed interest rate of 9.83%. The agreement did not 
define the terms ‘front-end fee’ and ‘commission’, nor did it indicate to which 
specific mutual services of the applicant the aforementioned fees corresponded. 
‘Your Package’ gave the consumer the right, on a one-off basis, to defer the 
payment of two instalments or to reduce the amount of 4 instalments, and at the 
same time to extend the duration of the agreement (in the event of deferral) or to 
pay the instalments at a later date (in the event of reduction). The agreement did 
not specify in a clear and intelligible manner in what capacity the person with 
whom the defendant concluded the agreement was operating (it was indicated that 
this person was a proxy financial adviser/credit intermediary). 
[…] 
In the course of the proceedings, the applicant explained that the commission 
constituted remuneration for the fact of granting the loan and that the front-end fee 
corresponded to the actual costs incurred in concluding the agreement. The 
interest, on the other hand, constituted remuneration for the borrower’s use of the 
lender’s funds. 
II. Applicable law 
EU law 
(1) Treaty on the Functioning of the European Union of 9 May 2008 [Or. 4] 
Article 169 
1. In order to promote the interests of consumers and to ensure a high level of 
consumer protection, the Union shall contribute to protecting the health, safety 
and economic interests of consumers, as well as to promoting their right to 
information, education and to organise themselves in order to safeguard their 
interests. 
2. The Union shall contribute to the attainment of the objectives referred to in 
paragraph 1 through: 
(a) measures adopted pursuant to Article 114 in the context of the completion of 
the internal market; 
(b) measures which support, supplement and monitor the policy pursued by the 
Member States. 
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3. The European Parliament and the Council, acting in accordance with the 
ordinary legislative procedure and after consulting the Economic and Social 
Committee, shall adopt the measures referred to in paragraph 2(b). 
4. Measures adopted pursuant to paragraph 3 shall not prevent any Member 
State from maintaining or introducing more stringent protective measures. Such 
measures must be compatible with the Treaties. The Commission shall be notified 
of them. 
(2) Charter of Fundamental Rights of the European Union of 7 December 
2000 […] 
Article 38 
Union policies shall ensure a high level of consumer protection. 
(3) 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 […] 
Recital (19) 
In order to enable consumers to make their decisions in full knowledge of the 
facts, they should receive adequate information, which the consumer may take 
away and consider, prior to the conclusion of the credit agreement, on the 
conditions and cost of the credit and on their obligations. To ensure the fullest 
possible transparency and comparability of offers, such information should, in 
particular, include the annual percentage rate of charge applicable to the credit, 
determined in the same way throughout the Community. As the annual percentage 
rate of charge can at this stage be indicated only through an example, such 
example should be representative. Therefore, it should correspond, for instance, to 
the average duration and total amount of credit granted for the type of credit 
agreement under consideration and, if applicable, to the goods purchased. When 
determining the representative example, the frequency of certain types of credit 
agreement in a specific market should also be taken into account. As regards the 
borrowing [Or. 5] rate, the frequency of instalments and the capitalisation of 
interest, creditors should use their conventional method of calculation for the 
consumer credit concerned. 
Recital (20) 
The total cost of the credit to the consumer should comprise all the costs, 
including interest, commissions, taxes, fees for credit intermediaries and any other 
fees which the consumer has to pay in connection with the credit agreement, 
except for notarial costs. Creditors’ actual knowledge of the costs should be 
assessed objectively, taking into account the requirements of professional 
diligence. 
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Recital (31) 
In order to enable the consumer to know his rights and obligations under the credit 
agreement, it should contain all necessary information in a clear and concise 
manner. 
Article 3. Definitions. 
For the purposes of this Directive, the following definitions shall apply: 
… 
(c) ‘credit agreement’ means an agreement whereby a creditor grants or 
promises to grant to a consumer credit in the form of a deferred payment, 
loan or other similar financial accommodation, except for agreements for the 
provision on a continuing basis of services or for the supply of goods of the 
same kind, where the consumer pays for such services or goods for the 
duration of their provision by means of instalments; 
(4) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts […] 
From the recitals: 
… whereas the statutory or regulatory provisions of the Member States which 
directly or indirectly determine the terms of consumer contracts are presumed not 
to contain unfair terms; whereas, therefore, it does not appear to be necessary to 
subject the terms which reflect mandatory statutory or regulatory provisions and 
the principles or provisions of international conventions to which the Member 
States or the Community are party; whereas in that respect the wording 
‘mandatory statutory or regulatory provisions’ in Article 1(2) also covers rules 
which, according to the law, shall apply between the contracting parties provided 
that no other arrangements have been established; 
… [Or. 6] 
Article 1 
… 
2. The contractual terms which reflect mandatory statutory or regulatory 
provisions and the provisions or principles of international conventions to which 
the Member States or the Community are party, particularly in the transport area, 
shall not be subject to the provisions of this Directive. 
Article 3 
1. A contractual term which has not been individually negotiated shall be 
regarded as unfair if, contrary to the requirement of good faith, it causes a 
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significant imbalance in the parties’ rights and obligations arising under the 
contract, to the detriment of the consumer. 
… 
Article 4 
… 
2. Assessment of the unfair nature of the terms shall relate neither to the 
definition of the main subject matter of the contract nor to the adequacy of the 
price and remuneration, on the one hand, as against the services or goods supplied 
in exchange, on the other, in so far as these terms are in plain intelligible 
language. 
Polish law 
(5) Ustawa z dnia 12 maja 2011 r. o kredycie konsumenckim (Law of 
12 May 2011 on Consumer Credit) […] 
Article 3 
1. A consumer credit agreement is defined as a credit agreement the amount of 
which does not exceed PLN 255 550 or the equivalent in a currency other than the 
Polish currency, with the creditor granting or promising to grant the credit to the 
consumer in the course of the creditor’s business. 
… 
2. The following in particular are considered to be consumer credit agreements: 
(1) loan agreements; 
… 
Article 5. For the purposes of this Law: 
… 
(6) total cost of the credit — means all the costs which the consumer is obliged 
to pay in connection with the credit agreement, including in particular: 
(a) interest, charges, fees, taxes and margins, if known to the creditor, and 
[Or. 7] 
(b) costs of ancillary services, in particular insurance, if these must be incurred 
in order to obtain the credit or to obtain it on the terms and conditions marketed, 
except for notarial costs borne by the consumer; 
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(6a) non-interest credit costs — means all costs that the consumer bears in 
connection with the consumer credit agreement, excluding interest; 
(7) total amount of the credit — means the maximum amount of all funds 
exclusive of credit costs covered by the credit that the creditor makes available to 
the consumer under the credit agreement and, in the case of agreements for which 
no maximum amount has been provided for, the total amount of funds exclusive 
of credit costs covered by the credit that the creditor makes available to the 
consumer under the credit agreement; 
(8) total amount payable by the consumer — means the sum of the total cost of 
the credit and the total amount of the credit; 
… 
Article 36a 
1. The maximum amount of non-interest credit costs shall be calculated as 
follows: 
 
where the meaning of the individual symbols is as follows: 
MPKK — the maximum amount of non-interest credit costs, 
K — the total amount of the credit, 
n — repayment period expressed in days, 
R — the number of days in a year. 
2. Non-interest credit costs throughout the entire lending period may not 
exceed the total amount of the credit. 
3. Non-interest credit costs arising from a consumer credit agreement shall not 
be payable in the part that exceeds the maximum non-interest credit costs 
calculated in the manner set out in paragraph 1 above or the total amount of the 
credit. 
(6) Ustawa z dnia 23 kwietnia 1964 r. — Kodeks cywilny [Law of 23 April 
1964 — The Civil Code […] 
Article 3851 
§ 1. Provisions of a contract concluded with a consumer which have not been 
agreed individually shall not be binding on the consumer if they define his rights 
and obligations in a way that is contrary to good practice, flagrantly infringing his 
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interests (prohibited contractual provisions). This shall not apply in regard to 
provisions [Or. 8] defining the principal obligations of the parties, including price 
or remuneration, if they are worded explicitly. 
§ 2. If a contractual provision is not binding on the consumer pursuant to § 1, the 
contract shall otherwise continue to be binding on the parties. 
§ 3. Provisions of a contract which are not agreed individually are those over the 
content of which the consumer had no genuine influence. This shall refer in 
particular to contractual provisions taken from a standard contract proposed to a 
consumer by a contracting party. 
§ 4. The burden of proving that a provision has been agreed individually rests 
with the person seeking to rely on that provision. 
Article 720 
§ 1. By a loan agreement, the lender undertakes to transfer to the ownership of 
the borrower a certain amount of money or quantity of items marked only in terms 
of their type, and the borrower undertakes to return the same amount of money or 
the same quantity of items of the same type and quality. 
III. Statement of grounds 
[…] The structure of the [loan] agreements varies. The general problem faced by 
the courts in such cases is assessing the fairness of the terms of such agreements, 
in particular the grossly excessive costs incurred by the borrower in connection 
with their conclusion. 
The first question raised by the referring court in the present case concerns the 
applicability of the provisions of Directive 93/13 and therefore the examination of 
the fairness of contractual clauses under the rules provided for in that directive, 
having regard to the wording of Article 36a of the Polish Law on Consumer 
Credit. Article 1(2) of Directive 93/13, which covers terms that reflect mandatory 
statutory or regulatory provisions, establishes an exclusion from the scope of that 
directive. The Court of Justice has already held that that exclusion requires two 
conditions to be met. First, the contractual term must reflect a statutory or 
regulatory provision and, secondly, that provision must be mandatory (see, to that 
effect, judgment of 20 September 2017, Andriciuc and Others, C-186/16, 
EU:C:2017:703, paragraphs 27 and 28, and the case-law cited). That exclusion of 
the application of the rules of Directive 93/13 is justified by the fact that, in 
principle, it may legitimately be supposed that the national legislature has struck a 
balance between all the rights and obligations of the parties to certain contracts 
(see, to that effect, judgment of 21 March 2013, RWE Vertrieb, C-92/11, 
EU:C:2013:180, paragraph 28). However, the Court has also held that a national 
court must [Or. 9] take account of the fact that, having regard to the purpose of 
that directive, namely the protection of consumers against unfair terms included in 
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contracts concluded with consumers by sellers or suppliers, the exception 
provided for in Article 1(2) of the directive is to be strictly construed (see, to that 
effect, judgment of 20 September 2017, Andriciuc and Others, C-186/16, 
EU:C:2017:703, paragraph 31, and the case-law cited). 
It should be clarified at this juncture that Article 36a of the Polish Law on 
Consumer Credit introduces a limit on the amount of non-interest credit costs both 
in regard to the specific repayment period (paragraph 1) and in regard to the 
maximum limit for the consumer credit agreement as a whole (paragraph 2). This 
provision was introduced when the law was amended on 5 August 2015 and has 
been in force since 11 March 2016. The explanatory memorandum to the 
amendment indicates that the legal rationale for the introduction of this provision 
is the fact that limiting the ability to charge excessive interest under 
Article 359(21) of the Civil Code is insufficient to protect the consumer’s interests 
in circumstances where sellers or suppliers, while complying with the regulations 
concerning the maximum amount of interest, at the same time reserve the right to 
charge high commissions and additional non-interest fees. […] The provision does 
not implement any rule arising from EU law. 
In the circumstances of the present case, the non-interest credit costs provided for 
in the agreement were set at the upper limit provided for [in] Article 36a of the 
legislation cited. The agreement in this regard, i.e. in terms of the total cost of the 
credit, meets the statutory requirement. It is unclear, however, whether the fact 
that the total non-interest credit costs are within the statutory limit means that the 
statutory condition is met by the clauses relating to individual costs, not only in 
terms of the adequacy of those costs, but above all in terms of the manner in 
which they are formulated. Non-interest credit costs may include various costs 
such as fees, commissions, margins, insurance, additional services and others. In 
the circumstances of the present case, such costs comprised a front-end fee, a 
commission and an additional package fee. The commission alone accounted for 
approximately 86% of all the costs and thus also 86% of the disbursed loan 
amount. The court seised of this case wishes to assess the fairness of those terms. 
However, it has doubts as to whether such an assessment is possible and whether 
the situation introduced by the Polish legislature in Article 36a of the cited law is 
covered by the instruction contained in Article 1(2) of the directive. Following the 
line of reasoning adopted in the Court’s judgment of 20 September 2018 (OTP 
Bank and OTP Faktoring, C-51/17, EU:C:2018:750, paragraph 65), it can be 
assumed that the fulfilment of a statutory condition concerning the upper total cost 
limit does not mean that clauses related to individual costs are excluded from the 
scope of that directive and cannot therefore be examined in the light of the 
directive. As the Court has repeatedly held, Article 1(2) of Directive 93/13 
[Or. 10] is to be strictly construed. Thus, the fact that some terms which reflect 
statutory provisions fall outside the scope of that directive does not mean that the 
validity of other terms, which are included in the same agreement and are not 
covered by statutory provisions, may not be assessed by the national court in the 
light of that directive. However, a different interpretation is possible, especially as 
the provision in Article 36a of the law has been formulated in such a way that it 
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can be interpreted as meaning that all costs coming within the limit are payable, 
which the legislature accepted having performed detailed research and 
calculations. The EU legislature, on the other hand, in accordance with the recitals 
of Directive 93/13, considers that such a cost limit, proposed by a Member State, 
is fair. 
Assuming that it is possible to assess the terms of the agreement relating to the 
individual cost of the credit, the referring court has doubts as to whether such an 
assessment is possible in the light of the wording of Article 4(2) of the directive. 
In this respect, it should be noted that the Court of Justice has ruled that, since 
Article 4(2) of Directive 93/13 lays down an exception to the mechanism for 
reviewing the substance of unfair terms, such as that provided for in the system of 
consumer protection put in place by that directive, that provision must be strictly 
interpreted (see, to that effect, judgments of 30 April 2014, Kásler and Káslerné 
Rábai, C-26/13, EU:C:2014:282, paragraph 42; and of 23 April 2015, Van Hove, 
C-96/14, EU:C:2015:262, paragraph 31). As regards the category of contractual 
terms coming within the notion of the ‘main subject matter of the contract’, within 
the meaning of Article 4(2) of Directive 93/13, the Court has held that those terms 
must be understood as being those that lay down the essential obligations of the 
contract and, as such, characterise it (judgments of 3 June 2010, Caja de Ahorros 
y Monte de Piedad de Madrid, C-484/08, EU:C:2010:309, paragraph 34; and of 
23 April 2015, Van Hove, C-96/14, EU:C:2015:262, paragraph 33). By contrast, 
terms ancillary to those that define the very essence of the contractual relationship 
cannot come within the notion of the ‘main subject matter of the contract’, within 
the meaning of that provision (judgments of 30 April 2014, Kásler and Káslerné 
Rábai, C-26/13, EU:C:2014:282, paragraph 50; and of 23 April 2015, Van Hove, 
C-96/14, EU:C:2015:262, paragraph 33). 
It does not follow from the definition of a loan agreement under national law that 
the amount of fees in the form of, inter alia, a commission fee is one of the 
principal obligations of the parties to the agreement, since these obligations 
consist only in the provision of the loan amount by the lender and the repayment 
of the loan amount by the borrower […] [reference to national case-law]. 
Nevertheless, the expressions ‘main subject matter of the contract’ and ‘the 
adequacy of the price and remuneration, on the one hand, as against the services 
or goods supplied in exchange, on the other’, in Article 4(2) of Directive 93/13, 
must normally be given an autonomous and uniform interpretation throughout the 
European Union, [Or. 11] which must take into account the context of that 
provision and the purpose of the legislation in question (judgment of 26 February 
2015, Matei, C-143/13, EU:C:2015:127, paragraph 50). 
As regards the loan agreement itself, in Case C-186/16 (Andriciuc and Others 
EU:C:2017:703, paragraph 38) the Court observed that, under a loan agreement, 
the lender undertakes, in particular, to make available to the borrower a certain 
sum of money and the latter undertakes, in particular, to repay that sum, usually 
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with interest, on the scheduled payment dates. This is also, in principle, how a 
loan agreement is defined in Directive 2008/48/EC. Therefore, the essential 
obligations of such a contract relate to a sum of money which is a different 
amount in the case of disbursement and a different amount in the case of 
repayment (because it is increased by interest and possibly by additional costs). In 
its judgment of 20 September 2018 (EOS KSI Slovensko s.r.o. v Ján Danko and 
Margita Danková, C-448/17, EU:C:2018:745, paragraph 62), the Court of Justice, 
incidentally, while considering a different matter, expressed the view that a term 
in a credit agreement relating to the cost of that agreement concerns the main 
subject matter of that agreement. In Case C-143/13 (Matei, EU:C:2015:127, 
paragraph 78), in turn, the Court generally held that it is for the referring court to 
determine, having regard to the nature, general scheme and the stipulations of the 
loan agreement, and its legal and factual context, whether the term concerned 
constitutes an essential element of the debtor’s obligations, consisting in the 
repayment of the amount made available by the lender (Kásler and Káslerné 
Rábai, EU:C:2014:282, paragraphs 49 to 51). The last part of the sentence may 
suggest that only repayment of the amount made available constitutes the debtor’s 
principal obligation, which is in line with the mainstream view of national case-
law in this regard. 
However, it follows from Article 4(2) of Directive 93/13 that there is a second 
category of terms that cannot be examined as regards unfairness. The scope of that 
exclusion is limited, for it concerns only the adequacy of the price or remuneration 
as against the services or goods supplied in exchange, and the exclusion is 
explained by the fact that no legal scale or criterion exists that can provide a 
framework for, and guide, a review of that relationship (Kásler and Káslerné 
Rábai, EU:C:2014:282, paragraphs 54 and 55). 
It seems, therefore that, in the context of the commissions and fees provided for in 
the agreement examined in the present case, we are rather dealing with that second 
category of exclusions. One should note here the different regulation of 
Article 4(2) of the directive to that of Article 3851(1) of the Polish Civil Code. In 
its official translation, Article 4(2) of the directive provides that ‘assessment of the 
unfair nature of the terms shall relate neither to the definition of the main subject 
matter of the contract nor to the adequacy of the price and remuneration, on the 
one hand, as against the services or goods supplied in exchange, on the other, in so 
far as these terms are in plain intelligible language’, while Article 3851(1) of the 
Civil Code provides that ‘provisions of a contract concluded with a consumer 
which have not been agreed individually shall not be binding on the consumer if 
they define his rights and obligations in a way that is contrary to good practice, 
grossly infringing his interests (prohibited [Or. 12] contractual provisions). This 
shall not to apply to provisions defining the essential obligations of the parties, 
including price or remuneration, if they are worded explicitly’. The above 
differences, although seemingly minor, may introduce interpretative chaos and 
result in an interpretation according to which, under the directive, any relation 
between price and remuneration to the goods and services supplied in exchange is 
not subject to assessment and, under the Polish Civil Code, such an assessment is 
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excluded only if the price and remuneration relate to the essential obligations of 
the parties, whereas the Polish Civil Code does not explicitly state that 
examination of the relation (adequacy, proportionality) between price and 
remuneration to the goods and services supplied in exchange is excluded. Under 
the directive, compared with the Polish Civil Code, the possibilities for assessing 
contractual terms appear to be more limited. The referring court does not know 
whether Poland notified the Commission of the introduction of more extensive 
consumer protection under Article 8a of Directive 93/13. 
If, therefore, the front-end fee is the flat-rate cost of concluding the agreement, 
and the commission is remuneration for the fact of granting the loan, it would 
seem that the contractual provision introducing the fee and commission and 
specifying their amounts relates to the ‘adequacy of the price and remuneration’ as 
against the service supplied. However, this is not clear to the referring court. It 
should also be noted that the EU legislature used the notions of ‘price and 
remuneration’, which in principle do not operate within the scope of consumer 
credit regulations. In its English version, the directive essentially does not refer to 
the notions of price or remuneration. One might question whether the reference in 
Directive 93/13 solely to price and remuneration is a reference to examples of 
costs incurred by the consumer (in the form of price and remuneration) or whether 
the use of such formulations and not other formulations has a different 
justification. Finally, it is necessary to consider whether excluding the possibility 
of examining the relation between price and remuneration to the goods and 
services supplied means that it is not possible to regard the price and remuneration 
as ‘grossly excessive’ or excessive ‘at first sight’. In other words, it is necessary to 
consider whether the directive is to be interpreted as meaning that, below a certain 
threshold, an assessment of the appropriateness (relevance, adequacy) of the price 
and remuneration is excluded, but above a certain threshold, the price or 
remuneration is to be regarded as grossly inappropriate, unfair to a flagrant extent, 
which would indicate that it was determined in isolation from any relation to the 
goods or services offered in exchange. 
However, the foregoing does not exhaust all the doubts of the referring court. 
The agreement concluded between the parties merely indicates that a front-end fee 
and commission are charged in specified amounts and that these receivables are 
repaid in instalments together with the repayment of the loan itself. The agreement 
does not explain what the commission and front-end fee are or to what services in 
return they correspond. Such an explanation appeared only in the applicant’s 
position that was presented in a pleading submitted to the case file. Doubts arise, 
therefore, as to whether the contractual terms in this regard are expressed in plain 
intelligible language. [Or. 13] 
In its case-law, the Court has explained on numerous occasions that the 
requirement of transparency of contractual terms cannot be reduced merely to 
their being formally and grammatically intelligible, but that, to the contrary, since 
the system of protection introduced by Directive 93/13 is based on the idea that 
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the consumer is in a position of weakness vis-à-vis the seller or supplier, in 
particular as regards his level of knowledge, that requirement of plain and 
intelligible drafting of contractual terms, and, therefore, the requirement of 
transparency, must be understood in a broad sense (judgment of 20 September 
2017, Andriciuc and Others, C-186/16, EU:C:2017:703, paragraph 44 and the 
case-law cited). In the light of the above, the requirement that a contractual term 
must be drafted in plain intelligible language is to be understood as requiring also 
that the contract should set out transparently the specific functioning of the 
mechanism to which the relevant term relates and the relationship between that 
mechanism and that provided for by other contractual terms, so that that consumer 
is in a position to evaluate, on the basis of clear, intelligible criteria, the economic 
consequences for him which derive from it (judgments of 30 April 2014, Kásler 
and Káslerné Rábai, C-26/13, EU:C:2014:282, paragraph 75; and of 23 April 
2015, Van Hove, C-96/14, EU:C:2015:262, paragraph 50). 
If one assumes that the basic form of remuneration for the use of other people’s 
money is interest, and the agreement introduces other additional forms of 
remuneration which exceed the cost of the interest many times over, it would 
seem necessary to indicate in the agreement precisely to what services in return 
the individual fees correspond. Not only does the analysed agreement not indicate 
this, but it also uses the phrase ‘the lender charges’, which might suggest that the 
requirement to charge the fees in question may arise, for instance, from a statutory 
obligation. 
The referring court has doubts as to whether an agreement which introduces 
interest, fees and commissions, without explaining the differences between those 
individual costs, can be regarded as having been drafted in intelligible language. 
In setting out the subject matter of the proceedings and the relevant factual 
findings in section III of this request [for a preliminary ruling], the court noted 
that the lender did not ensure that the agreement specified precisely in what 
capacity the person signing the agreement on behalf of the lender was acting. The 
fact that the agreement defines the commission as commission-based 
remuneration may suggest that the consumer remunerates the person with whom 
he concludes the agreement, especially as the provisions of Directive 2008/48 in 
their Polish translation use the notion of remuneration in only one instance, i.e. 
precisely when determining the remuneration of the intermediary. In any case, the 
agreement contains no indications that would allow the consumer to assess the 
nature and substance of the individual costs. 
In the light of the doubts set out above, at the hearing on 28 December 2018 the 
court decided to stay the proceedings in the case and, pursuant to Article 267 of 
the Treaty on the Functioning of the European Union, to refer the following 
questions to the Court of Justice for a preliminary ruling. [Or. 14] 
[…]