Information;Order — ECLI:EU:C:2024:170
Date: 2024-02-19
Language of the case: Polish
Court formation: Eighth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
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: 
18 July 2023 
Referring court: 
Sąd Okręgowy w Poznaniu (Poland) 
Date of the decision to refer: 
15 March 2023 
Applicant: 
OR 
Defendant: 
Getin Noble Bank S.A. 
  
Subject matter of the main proceedings 
Unfair terms in contracts – Application for determination and payment with 
reference to the invalidity of a loan agreement – Procedure in compulsory 
restructuring cases 
Subject matter and legal basis of the request 
Interpretation of EU law, specifically Article 38 of the Charter of Fundamental 
Rights of the European Union, Article 12 TFEU, Article 6(1) and Article 7(1) of 
Council Directive 93/13/EEC, Article 37 of Directive 2014/59/EU of the 
European Parliament and of the Council; Article 267 TFEU 
 
i This case has been given a fictitious name that does not correspond to the real name of any of the parties to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/23 
 
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Questions referred 
(1) Are Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts to be interpreted, in respect of the 
case-law of national courts and of decisions taken by a national consumer 
protection authority which unequivocally find that unfair terms have been used by 
a seller or supplier, as precluding a decision issued on the basis of national 
legislation transposing Directive 2014/59/EU of the European Parliament and of 
the Council of 15 May 2014 [establishing a framework for the recovery and 
resolution of credit institutions and investment firms and amending Council 
Directive 82/891/EEC and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 
2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and 
Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European 
Parliament and of the Council], which has been issued by a national resolution 
authority with no competence in the field of consumer protection, when as a result 
of this decision the consumer is deprived of any real possibility of bringing an 
action for a declaratory judgment against that seller or supplier, and is therefore 
deprived of legal protection? 
(2) In a situation where the national legislation transposing Directive 
2014/59/EU of the European Parliament and of the Council of 15 May 2014 
establishing a framework for the recovery and resolution of credit institutions and 
investment firms leads to national resolution authorities, which have no 
competence in the field of consumer protection, issuing decisions that negate a 
consumer’s real possibility of bringing an action for a declaratory judgment 
against a seller or supplier in implementation of the consumer’s right to have 
contractual terms declared unfair, thereby depriving the consumer of legal 
protection, is compliance of the practice of State authorities with Article 6(1) and 
Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts ensured if Article 12 of the Treaty on the Functioning of the 
European Union requires that consumer protection be taken into consideration in 
defining and implementing other EU policies, while Article 38 of the Charter of 
Fundamental Rights of the European Union reinforces consumer protection by 
providing for a high level thereof? 
(3) Are Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts to be interpreted as precluding the 
protection afforded to consumers under those provisions, in respect of their ability 
effectively to pursue claims against unfair contractual terms applied by a seller or 
supplier, in the event of compulsory restructuring proceedings initiated pursuant 
to Article 37 of Directive 2014/59/EU of the European Parliament and of the 
Council of 15 May 2014 against that seller or supplier? 
Provisions of EU law cited 
Treaty on the Functioning of the European Union: Articles 12, 107 and 108(3) 
WITON 
 
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Charter of Fundamental Rights of the European Union: Article 38 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Articles 3, 6 and 7 
Directive 2014/59/EU of the European Parliament and of the Council of 15 May 
2014 establishing a framework for the recovery and resolution of credit 
institutions and investment firms and amending Council Directive 82/891/EEC, 
and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 
2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 
and (EU) No 648/2012, of the European Parliament and of the Council: recitals 5, 
13, 47 and 50, Article 34(1)(a), (b) and (g), and Article 37 
Provisions of national law cited 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland): 
Articles 2, 32, 45, 77(2) and 78 
Ustawa o Bankowym Funduszu Gwarancyjnym, systemie gwarantowania 
depozytów oraz przymusowej restrukturyzacji z dnia 10 czerwca 2016 r. 
(Law on the Bank Guarantee Fund, the Deposit Guarantee Scheme and 
compulsory restructuring of 10 June 2016, consolidated text, Dz.U (Official 
Journal of Laws) 2022, item 793) 
Article 135 
1. Enforcement or protective enforcement proceedings against the assets of an 
entity undergoing restructuring that were commenced prior to the initiation of 
compulsory restructuring shall be discontinued. 
2. Discontinuation of enforcement proceedings does not preclude the award of 
ownership of property, if the bid was awarded prior to the commencement of the 
compulsory restructuring and the enforcement purchaser pays the bid price on 
time. 
3. Sums obtained in discontinued proceedings and not yet disbursed shall be 
returned to the entity undergoing restructuring, unless they were obtained from 
the sale of assets encumbered in rem. The discontinuation of enforcement 
proceedings shall not preclude distribution of sums obtained from the sale of 
assets encumbered in rem by the enforcement authority. 
4. For the duration of the compulsory restructuring, enforcement and 
safeguarding proceedings may not be initiated against the entity subject to 
restructuring. 
5. [exclusion of discontinuation of enforcement proceedings in respect of 
enforcement of maintenance allowances and pensions] 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/23 
 
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Article 174(4) 
Article 109 [Obligation of the Fund, the Financial Supervision Authority and the 
entity undergoing restructuring to post promptly on their websites decisions on 
the initiation of forced restructuring proceedings or information about such 
decisions and their causes and consequences, in particular for private individuals, 
as well as information on the conditions for the discontinuation of settlement of 
liabilities, of the right to call in collateral and of the right to notification]. 
Article 138 [Objectives and content of the assessment of business assets], and 
Article 101(3) and (10). 
Article 101(7)(2) and (3) 
Subject to all of the following conditions: 
(1) the national entity is at risk of insolvency, 
(2) there are no reasonable indications that action by the national entity 
or the institutional protection scheme or supervisory action, including early 
intervention measures, will allow the risk of insolvency to be removed in 
good time, 
(3) measures in respect of the national entity are necessary in the public 
interest 
- the Fund shall take a decision to initiate compulsory restructuring in respect of 
the national entity or a decision to write down or convert capital instruments or 
eligible liabilities within the meaning of Article 70(1)(1). 
Article 112(3) [Possibility of support from compulsory restructuring funds to 
apply a takeover or transfer tool, such as a guarantee to cover, in whole or in 
part, losses arising from risks relating to all or selected property rights or 
liabilities of the entity undergoing restructuring] 
Article 6(5) 
Article 66 
The objectives of compulsory restructuring are: 
(1) to preserve financial stability, in particular by safeguarding 
confidence in the financial sector and ensuring market discipline; 
(2) to limit the commitment of public funds or the likelihood of their 
commitment to the financial sector or its individual entities for the purposes 
of the objectives referred to in points 1 and 3 to 5; 
(3) to ensure that the entity continues to fulfil its critical functions; 
WITON 
 
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(4) to protect depositors and investors covered by the compensation 
scheme; 
(5) to protect the funds entrusted to the entity by customers. 
Ustawa z dnia 29 sierpnia 1997 r. – Prawo bankowe (Law of 29 August 1997 
on Banking, consolidated text, Dz.U. 2020, item 1896, of 28 October 2020); 
Article 144(6) 
Ustawa z dnia 23 sierpnia 2007 o przeciwdziałaniu nieuczciwym praktykom 
rynkowym (Law of 23 August 2007 on combatting unfair commercial 
practices) 
Article 12 
1. In the case of unfair commercial practices, a consumer whose interests have 
been threatened or infringed may seek: 
(1) discontinuation of that practice; 
(2) elimination of the consequences of that practice; 
(3) submission of a single or repeated statement of the relevant content in 
appropriate form; 
(4) compensation for any damage caused under general rules, in 
particular by requiring the termination of the contract with the obligation of 
mutual restitution of the consideration and reimbursement by the trader of 
the costs associated with the purchase of the product; 
(5) an order awarding an appropriate sum of money for a specific public 
purpose connected with the promotion of Polish culture, the safeguarding of 
national heritage or the protection of consumers. 
2. [… ] 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 20 January 2021, the applicant brought an action against Getin Noble Bank 
S.A., with its seat in Warsaw, seeking a declaration of the non-existence or nullity 
of a Swiss franc (CHF)-linked mortgage loan agreement dated 19 June 2006 and 
an order requiring the defendant to pay to it specific sums plus statutory late 
payment interest, or, alternatively, seeking the conversion of the loan agreement 
into a non-index-linked loan denominated in Polish złoty (PLN) with interest 
charged in accordance with paragraph 6 of the loan agreement at the LIBOR 3M 
reference rate for CHF and the bank’s fixed margin and the reimbursement of all 
capital and interest overpaid by the applicant on that basis, or, in the further 
alternative, seeking a declaration invalidating the agreement under 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/23 
 
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Article 12(1)(4) of the Law of 23 August 2007 on combatting unfair commercial 
practices and an order, on that basis, for payment by the defendant of 
PLN 14 665.40 and CHF 43 849.69 plus statutory late payment interest. On 
21 October 2021, the applicant applied for immediate enforcement of the 
judgment on grounds of the financial situation of the defendant. The applicant also 
cited the bank’s deteriorating financial situation in two applications for 
precautionary measures submitted in the course of the proceedings, one of which 
was rejected and the other not examined by the court. 
2 In response to the poor financial situation of Getin Noble Bank S.A., on 
29 September 2022 the Bank Guarantee Fund (‘the BGF’) issued a decision to 
initiate the forced restructuring of that bank (‘the BGF decision’), to redeem its 
capital instruments, to apply a compulsory restructuring instrument in the form of 
a bridge institution and to appoint an administrator. The decision was issued on 
the basis of the Law of 10 June 2016 on the Bank Guarantee Fund, the Deposit 
Guarantee Scheme and compulsory restructuring. The compulsory restructuring of 
Getin Noble Bank S.A. was initiated on 30 September 2022. 
Essential arguments of the parties in the main proceedings 
3 The bank has consistently taken the view that the loan agreement between the 
parties remains valid and binding and contains no unfair terms. Moreover, the 
defendant responded to the applicant’s allegations regarding the bank’s poor 
financial condition by claiming that it was stable and that the bank was not at risk 
of restructuring or insolvency. 
4 According to the applicant, the BGF decision adversely affects the rights of the 
‘Swiss franc’ borrowers in three respects, namely the safeguarding of claims, the 
ability of the BGF to suspend court proceedings and the enforcement of claims. In 
practice, borrowers are deprived of the right to access a court or tribunal. 
Furthermore, in the light of the BGF’s powers under Article 176(2) of the Polish 
Code of Civil Procedure, according to which ‘the court shall, at the request of the 
BGF, suspend proceedings to which the entity undergoing restructuring is party’, 
it is, in the case of the defendant bank, to be feared that the BGF may in future 
exercise those powers (if the conditions for the application of that provision are 
met) to request that ongoing proceedings against the defendant be stayed. 
Brief statement of the reasons for the request for a preliminary ruling 
5 As a result of the BGF decision, applicants have encountered problems in 
availing themselves of the statutory consumer protection rights conferred on them 
by Directive 93/13. The decision of the BGF has had the effect of denying 
consumers effective protection – and de facto any kind of protection whatsoever – 
against the use of unfair terms in credit agreements on the part of credit providers. 
WITON 
 
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6 In accordance with the settled case-law of the Court of Justice of the European 
Union (the CJEU), it is in the public interest to guarantee consumers effective 
protection against the use of unfair terms by sellers or suppliers in contracts 
offered to them. In this respect, Article 7(1), in conjunction with the twenty-fourth 
recital, of Directive 93/13 requires that Member States provide adequate and 
effective means of preventing the application of unfair terms in consumer 
contracts by sellers or suppliers. As underlined by the CJEU, the achievement of 
the long-term objective set out in Article 7 of Directive 93/13, which is to ensure 
that sellers or suppliers do not apply unfair terms in consumer contracts, requires 
that the imposition of the penalty for binding a consumer by an unfair term, 
provided for in Article 6 of Directive 93/13, should have an adequate deterrent 
effect on sellers or suppliers, in order to discourage them from including unfair 
terms in such contracts (see, for example, judgments of 14 June 2012, C-618/10, 
Banco Español de Credito, EU:C:2012:349, paragraphs 68 and 69; of 30 May 
2013, C-488/11, Asbeek Brusse and de Man Garabito, EU:C:2013:341, 
paragraph 58; and of 30 April 2014, C-26/13, Kásler and Káslerné Rábai, 
EU:C:2014:282, paragraph 79). 
7 The claims of borrowers, the recovery and enforcement of which were prevented 
by the BGF decision, arise from their CHF-linked loan agreements with Getin 
Noble Bank. In the light of the legislation in force, and in that of the case-law of 
the ordinary courts, of the Sąd Najwyższy (Polish Supreme Court) and of the 
Court of Justice, those agreements are often declared void and borrowers may 
require that they be declared invalid and that all capital and interest payments paid 
to Getin Noble Bank under such agreements from the time when the respective 
loans were issued, as payments which were not due, be reimbursed. 
8 The formulation of the restructuring provisions applied to Getin Noble Bank S.A., 
as shown, is liable to give rise to a flagrant breach of the provisions of Directive 
93/13, including in particular Articles 6 and 7 thereof, and of the principle of 
effectiveness expressed therein. The fact that a consumer might resort to 
proceedings with no prospect that they will have the anticipated effect, either 
because they will be suspended almost immediately after the filing of the lawsuit 
(at the request of the BGF) or because a claim that was previously awarded cannot 
be enforced, cannot be regarded as an effective legal remedy to protect consumers 
against unfair contractual terms. In their current form, the restructuring provisions 
render the protection afforded to the consumer by Directive 93/13 illusory and are 
also contrary to the right of access to a court or tribunal that is guaranteed to 
citizens. 
9 In the period running up to the adoption of the BGF decision, the Komisja 
Nadzoru Finansowego (Financial Supervision Commission; ‘the FSC’), in 
collaboration with the defendant, undertook a series of measures to improve the 
bank’s financial situation. To this end, periodically updated recovery plans were 
implemented. However, in its decision of 27 December 2021, the FSC refused to 
adopt the new restructuring plan for Getin Noble Bank S.A. and appointed the 
same BGF as administrator. For entities subject to monitoring by financial 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/23 
 
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supervision authorities and carrying out banking activities, the net loss that the 
bank recorded in 2021 was not yet indicative of insolvency. At that time, Getin 
Noble Bank S.A. was implementing its Group recovery plan for the period 2020-
2024, approved by the FSC in January 2020. The cause of the net loss for 2021, 
which constituted the basis on which the State authorities started taking an interest 
in the company, was linked to the capital reserves set aside for claims related to 
ongoing legal proceedings connected with CHF-denominated loans, which had led 
to a loss of PLN 1.07 billion in 2021. At the time, the bank also divulged 
information to the effect that some capital indicators had dipped below the 
minimum levels set by the regulator, and that this had jeopardised its continuation 
as a going concern. The report published by the bank, containing the delayed 
information regarding the state of its capital ratios as at 1 January 2022, and the 
associated insolvency risk, were the formal result of those ratios falling below the 
levels indicated in Regulation (EU) No 575/2013 of the European Parliament and 
of the Council of 26 June 2013. In April 2022, the bank’s Board of Directors 
submitted a new recovery plan for the period 2022-2027 to the Financial 
Supervision Commission containing a package of measures designed to rebuild 
the bank’s capital ratios. According to the FSC, the Board of Directors had 
substantial practical experience, which suggested that it would be able to remedy 
the bank’s situation. In April 2022, Getin Noble Bank S.A. issued its first 
quarterly report of 2022, which showed a significantly improving situation, 
particularly in the light of the market environment and rising interest rates. At that 
time, the profitability of Getin Noble Bank S.A. was positive and there were many 
indications that the negative impact of falling government bond prices on the 
bank’s capital would subside in the long term. As it continued its measures to 
improve the capital situation, on 24 June 2022 Getin Noble Bank S.A. announced 
a synthetic securitisation transaction for its portfolio of loan agreements granted to 
homeowner associations to a total value of PLN 503 million. This was the first of 
the planned securitisation transactions, the primary aim of which was to improve 
the bank’s capital ratios in line with the objectives of the new recovery plan 
submitted in April 2022. On 29 September 2022, the decision on forced 
restructuring was taken. In the view of applicants, this was premature and in 
breach of the law, particularly in the context of the legal and factual situation in 
which those applicants and other creditors of Getin Noble Bank S.A. found 
themselves due to [the] conclusion of ‘Swiss franc agreements’ with the 
defendant. 
10 The effect of the decision is that, after court proceedings are completed and once a 
judgment has been delivered in favour of the aggrieved consumer, enforcement 
proceedings can no longer be instituted against an entity undergoing compulsory 
restructuring, and any proceedings already brought are discontinued (as per 
Article 135 of the BGF Law). The BGF decision also prevents borrowers from 
obtaining, in court proceedings against Getin Noble Bank S.A., security for their 
claims consisting, for example, in withholding their obligation to make loan 
repayments to the defendant as specified in the loan agreement and prohibiting the 
defendant from filing a notice terminating the loan agreement. 
WITON 
 
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11 In view of the fact that the BGF decision effectively deprives consumers of the 
opportunity to pursue claims, including claims arising under Article 6 of Directive 
93/13 and the consumer-protection provisions of the Civil Code preventing the 
use of unfair terms by suppliers or sellers, the BGF has failed to ensure that the 
practice of State authorities is compliant with the requirements of Directive 93/13. 
Under the EU-law principle of effet utile (effectiveness), according to which 
national courts are obliged to ensure the effectiveness of EU law, provisions 
should be interpreted in such a way as to guarantee for each provision of EU law 
the minimum necessary effectiveness (pro-EU interpretation). If a method of 
interpretation is to be chosen, preference should be given to that interpretation 
which guarantees the effectiveness of EU law (judgment of 10 April 1984 in Case 
14/83, von Colson; judgment of 22 September 1988 in Case 187/87, Land 
Saarland). 
12 Against the background of the application of the provisions of Directive 93/13, the 
requirements arising from Articles 2 and 45 of the Polish Constitution of 2 April 
1997 should not be disregarded. Indeed, these provisions guarantee the protection 
of the individual’s interests from the perspective of the right of access to a court or 
tribunal which is regarded as an individual’s subjective right on the one hand and, 
on the other, as a principle of constitutional law. This concept of the right of 
access to a court or tribunal is also supported by the case-law of the Trybunał 
Konstytucyjny (Polish Constitutional Court) and, in particular, by the judgment of 
13 January 2015, Case SK 34/129, in which the Constitutional Court emphasised 
in the grounds of the judgment that, ‘in accordance with Article 45(1) of the 
Constitution, every person has the right to a fair and public hearing, without 
unreasonable delay, by a competent, independent, impartial and independent 
court. This right is a fundamental subjective right of the individual and one of the 
fundamental guarantees of the rule of law in a democratic State.’ The very essence 
of that right is to provide individuals, and hence also consumers, with procedural 
guarantees at least at the level provided for by EU law, as also set out in 
Article 6(1) of the Convention for the Protection of Human Rights and 
Fundamental Freedoms of 4 November 1950, which forms part of the national 
legal order and is thus directly applicable. Conversely, the consumer will have the 
right to plead infringement of the right to a fair trial guaranteed by Article 45(1) of 
the Polish Constitution, read in conjunction with Article 6(1) of the Convention, in 
the event that he or she is unable to enjoy effectively the protection provided 
under EU legislation, which is also guaranteed by Article 2 of the Polish 
Constitution. 
13 The protection provided on the basis of the Polish Civil Code is intended to ensure 
total and effective implementation of all the objectives of Directive 93/13. The 
level of protection afforded to consumers under Directive 93/13 is a basic level 
which must be achieved in each Member State, so that each Member State, 
including the Republic of Poland, can only raise the level of that protection and 
cannot, conversely, limit or reduce it. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-449/23 
 
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14 The effective implementation of EU law is an obligation devolving on all State 
authorities, at every stage of the adoption and transposition of the law, which 
means that the national courts are under an obligation to apply national law 
through the prism of EU law, rather than interpret it in a manner which runs 
counter to EU law, as implied by the principle of effectiveness within the meaning 
of Article 197[(1)] of the Treaty on the Functioning of the European Union, which 
states: ‘Effective implementation of Union law by the Member States, which is 
essential for the proper functioning of the Union, shall be regarded as a matter of 
common interest.’ 
15 The referring court also finds, with regard to infringement of Article 108(3) 
TFEU, read in conjunction with Article 107 thereof, which requires Member 
States to notify the European Commission of any plan to grant new aid (planned 
aid) or to alter existing aid, that a new aid measure should either be approved as 
compatible with the internal market or, in case of doubt, an administrative 
procedure should be initiated (examination procedure), which may result in the aid 
being ruled inadmissible. The granting of non-notified aid is unlawful and the 
recipient of such aid may be required to repay it. The duty of notification normally 
devolves on the public aid authorities of the Member State concerned. If the 
European Commission considers that State aid has been granted or altered without 
notification, it may, after giving the State concerned the opportunity to provide 
explanations, issue a provisional order requiring the State to suspend 
implementation of the aid scheme and to produce all documents demonstrating the 
compatibility of the aid with [EU] law.