Judgment;Summary — ECLI:EU:C:2024:918
Date: 2024-10-24
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 C-339/23 – 1 
Case C-339/23 
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: 
30 May 2023 
Referring court: 
Sąd Rejonowy w Siemianowicach Śląskich (Poland) 
Date of the decision to refer: 
28 April 2023 
Applicant: 
Horyzont Niestandaryzowany Sekurytyzacyjny Fundusz 
Inwestycyjny Zamknięty  
Defendant: 
LC 
  
Subject matter of the main proceedings 
Application for payment of an amount of PLN 41 177.24 (approximately 
EUR 8 761), together with default interest, in respect of non-repayment by the 
defendant, LC, of consumer credit. 
Subject matter and legal basis of the request 
Interpretation of Article 8 of Directive 2008/48/EC of 23 April 2008 on credit 
agreements for consumers and repealing Council Directive 87/102/EEC. 
Article 267 of the Treaty on the Functioning of the European Union. 
Question referred for a preliminary ruling 
Must Article 8 of Directive 2008/48/EC of 28 April 2008 on credit agreements for 
consumers and repealing Council Directive 87/102/EEC be interpreted as meaning 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-339/23 
 
2  
that the obligation on the creditor to assess the creditworthiness of the consumer 
(borrower), as set out therein, is equivalent to the other obligations laid down in 
that directive (in particular the obligations to provide information set out in 
Articles 10 et seq.), and therefore the penalties referred to in Article 23 of the 
directive cannot be different, that is to say, cannot provide for different legal 
consequences for infringement of each of those obligations separately? 
Provisions of European Union law relied on 
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: Article 8(1) and (2) and Article 23. 
Provisions of national law relied on 
Kodeks cywilny z dnia 23 kwietnia 1964 r. (Civil Code of 23 April 1964): 
Article 58(1), (2) and (3) and Article 481(1), (2), (21), (22), (23), and (24). 
Kodeks postępowania cywilnego z dnia 17 listopada 1964 r. (Code of Civil 
Procedure of 17 November 1964): Article 5054. 
Ustawa o kredycie konsumenckim z dnia 12 maja 2011 r. (Law on consumer 
credit of 12 May 2011): Articles 9(1) to (4), 30(1), 31(1) and (2), 32, 33, and 
45(1) to (5). 
Ustawa prawo bankowe z dnia 29 sierpnia 1997 r. (Law on banking of 29 August 
1997): Article 70(1) and (2) and Article 78a. 
Succinct presentation of the facts and procedure 
1 On 28 September 2017, the defendant, LC, (the consumer) concluded with Nest 
Bank S.A in Warsaw a debt consolidation credit agreement for an amount of 
PLN 49 148.06 (EUR 10 457). 
2 Under the credit agreement, the defendant undertook to repay the borrowed 
amount in 60 equal monthly instalments by 3 October 2022, to pay a 
‘disbursement commission’ of PLN 7 323.06 (approximately EUR 1 558), and to 
repay PLN 8 365 (EUR 1 779) in contractual interest for use of the principal in the 
amount of 9.9% (at a floating rate) per annum. 
3 Part of the credit made available to the defendant was used to repay another loan. 
The remaining amount was used for consumption purposes. 
4 The credit agreement specifies that: ‘The total amount of credit’ is PLN 33 460; 
‘The total cost of the loan’ is PLN 29 113.16; ‘The total amount to be paid’ is 
HORYZONT 
 
3 
PLN 62 573.16. The monthly instalment to be paid by the defendant was 
PLN 1 042 (around EUR 221). 
5 At the time the agreement was concluded, the defendant was a pensioner, but she 
was also employed part-time. In the credit agreement, the defendant stated that her 
average monthly net income was PLN 1 755.62 (approximately EUR 373) and she 
was also still repaying another loan, the instalment of which was PLN 320 
(approximately EUR 68). 
6 The credit agreement did not lay down a specific method for guaranteeing 
repayment of the credit. 
7 As a result of the defendant being in arrears, the creditor brought an action for 
payment. The creditor was later replaced by the applicant, which acquired the 
claim under a claim assignment agreement. 
8 The court of first instance upheld the action in its entirety and issued an order for 
payment. 
9 The defendant lodged an objection to that order, in which she requested that 
enforcement be stayed or that the claim covered by the order for payment be paid 
in instalments. 
10 In the course of the proceedings, the defendant repaid part of the credit totalling 
PLN 25 928 (approximately EUR 5 516). 
The essential arguments of the parties in the main proceedings 
11 At the hearing on 16 June 2020, the defendant clarified the pleas, alleging that the 
creditor had failed to assess her creditworthiness at the time the agreement was 
concluded. In addition, she raised other pleas concerning the assessment of the 
terms of the agreement from the point of view of their unfairness. 
12 The applicant withdrew the action in part in so far as concerns the amounts repaid 
by the defendant during the proceedings. As to the remainder, the applicant 
maintains the claim for payment of the principal, plus default interest. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 In the light of Article 8(1) of Directive 2008/48 and recital 28 thereof, the creditor 
is required, before the conclusion of the credit agreement, to assess the 
consumer’s creditworthiness, in particular on the basis of sufficient information 
obtained from the consumer. That obligation, which is also expressed in Article 9 
of the Polish Law on consumer credit, helps to meet the general objectives of the 
directive as regards ensuring that all consumers in the European Union enjoy a 
high and equivalent level of protection of their interests and facilitating the 
emergence of a well-functioning internal market in consumer credit. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-339/23 
 
4  
14 Other burdens on creditors, in particular the obligations to provide information set 
out in Articles 5 and 10 of that directive, also help meet those objectives. 
15 In the light of the case-law of the Court of Justice, both the assessment of the 
borrower’s creditworthiness and obligations to provide information, before and at 
the time of concluding an agreement, are of fundamental importance for a 
consumer (see judgments of the Court of Justice of 21 April 2019, Radlinger, 
C-377/14, ECLI:EU:C:2016:283, paragraphs 61 and 64; of 10 June 2021, Ultimo 
Portofolio Investment (Luxembourg), C-303/20, ECLI:EU:C:2021:479, 
paragraph 29; and of 5 March 2020, OPR-Finance s. r. o., C-679/18, 
ECLI:EU:C:2020:167, paragraph 21). 
16 As is clear from the evidence gathered, the bank failed to fulfil its obligation to 
assess creditworthiness. However, in the view of the referring court the defendant 
did not meet the conditions for taking out a loan as she was not creditworthy. A 
comparison of the consumer’s total monthly income with the burden arising from 
the loan instalment leads to the conclusion that the repayment of the monthly 
instalment puts the consumer in a situation where her basic, existential needs are 
at risk. In that respect, the defendant’s unfavourable financial situation was not 
temporary in nature. 
17 Under Article 23 of Directive 2008/48, Member States are to lay down the rules 
on penalties applicable to infringements of the national provisions adopted 
pursuant to that directive and to take all measures necessary to ensure that they are 
implemented. The penalties provided for must be effective, proportionate and 
dissuasive. 
18 When implementing Directive 2008/48, the Polish legislature did not introduce 
appropriate penalties for infringement of the obligation to examine the 
creditworthiness of a consumer wishing to take out consumer credit. As is clear 
from the judgment of the Court of Justice in Case C-303/20, the penalties for 
infringement of the obligation to examine the creditworthiness of a consumer set 
out in [Article] 138c of the Kodeks Wykroczeń (Code relating to minor offences) 
are not adequate. Those shortcomings apply to both the Law on consumer credit 
and the Law on banking. 
19 The Polish civil law system provides for a number of solutions which make it 
possible for penalties to be applied for infringement of private law. One such 
solution is Article 45 of the Law on consumer credit which provides for a ‘free 
credit penalty’, inter alia, for an infringement by the creditor of its obligation to 
provide the consumer with information. However, that provision applies to the 
infringements strictly listed therein, which do not include an infringement of the 
obligation to examine the consumer’s creditworthiness. 
20 To date, the prevailing view in the case-law of Polish courts has been that an 
infringement of the obligation to examine creditworthiness under Article 9 of the 
Law on consumer credit does not provide grounds for drawing any legal 
HORYZONT 
 
5 
consequences affecting the contractual relationship between the parties. However, 
in the light of the case-law of the Court of Justice to date, such an assumption 
cannot be permitted. 
21 Since Article 45 of the Law on consumer credit does not directly address the issue 
of infringement of the obligation to examine the consumer’s creditworthiness, it is 
necessary, first of all, to look for other provisions which permit a solution in 
accordance with the objectives pursued by Directive 2008/48. Such a rule could 
be Article 58 of the Civil Code, which provides for the most severe penalty, 
namely the penalty of declaring a legal act invalid. The referring court takes the 
view that that provision could also be applied in the context of infringement of the 
obligation to assess the consumer’s creditworthiness. 
22 Although the choice of the system of penalties remains within the discretion of the 
Member States, the system chosen should ensure that the general objectives of 
Directive 2008/48, as referred to in paragraph 13 above, are achieved. 
23 The referring court is therefore uncertain whether, if the obligations imposed on 
the trader and designed to achieve those objectives, as laid down in Articles 8 and 
10 of Directive 2008/48, were to be equivalent, that means that the penalties 
applied by the Member State concerned, to which Article 23 of Directive 2008/48 
refers, may be different for different infringements. 
24 Since, in paragraph 35 of its judgment in Case C-303/20, the Court of Justice 
indicated the scope of the court’s discretion in the application and, in particular, in 
the choice of a measure appropriate to the seriousness of the infringement of an 
obligation found to have occurred, must it therefore be concluded that that 
measure must be equivalent to the penalties laid down for infringements of other 
obligations arising from legislation adopted in the implementation of Directive 
2008/48? 
25 If there has been an infringement of the obligation under Article 8 of Directive 
2008/48 (Article 9 of the Law on consumer credit or Article 70 of the Law on 
banking), may the penalty applied be more or less severe than that laid down for 
infringements of, for example, the obligations to provide information set out in 
Article 10 of that directive? Is the discretion to assess the equivalence of the 
penalty provided for by national law left exclusively to national law, or is it a 
consequence of the assessment of the equivalence of the obligations laid down in 
the directive? 
26 The above doubts arise in the present case. If the penalty laid down in Article 58 
of the Civil Code is applied, the agreement becomes invalid and therefore all the 
terms thereof cease to be binding on the parties. On the other hand, the penalty 
laid down in Article 45 of the Law on consumer credit does not give rise to 
invalidity, but does allow the consumer not to be charged interest and other costs 
of the loan. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-339/23 
 
6  
27 As is generally accepted in practice, however, the penalty of free credit does not 
include penalties concerning contractual interest for a delay in performance. This 
means that where Article 45 of the Law on consumer credit applies, the interest 
for a delay in performance will be determined on the basis of the agreement (and 
will amount in the present case to 24.5% per annum), whilst in the case of the 
penalty under Article 58 of the Law on consumer credit, the level of the interest 
for delay will be as provided for by law (the interest will then amount to 12.25% 
per annum). 
28 The referring court notes in that regard that the case-law of the Court of Justice to 
date has not called into question the effectiveness, proportionality or dissuasive 
effect of any of those penalties according to the criteria laid down in Article 23 of 
Directive 2008/48. 
29 It must, however, be emphasised that the cases examined by the Court of Justice 
relating to the application of those penalties concern the national legal systems of 
the various Member States, and the Member States exercise their autonomy in that 
regard. However, is such a differentiation in penalties in the light of Article 23 of 
Directive 2008/48 to be regarded as permissible in the national law of a single 
State, where the obligations under that directive must be assessed as equivalent, 
that is to say of similar rank and pursuing the same objectives? 
30 In order to ensure that penalties are consistent with the criteria set out in 
Article 23 of Directive 2008/48, the referring court must take into account the fact 
that the law as it now stands is neither sufficiently precise nor clear and that the 
ability of the average consumer, who does not have the relevant legal knowledge, 
to assess it is, at the very least, inadequate. 
31 The coexistence of multiple penalties in national law not only renders unclear and 
imprecise the legal bases for asserting rights under EU law, leading to a reduction 
in their effectiveness (effet utile), but also, crucially, introduces a distinction in 
terms of the proportionality of penalties for failure to comply with obligations 
under a single EU act, namely Directive 2008/48. 
32 By obtaining an answer from the Court of Justice, the referring court will learn 
whether the variety of penalties (in the sense described above) is permissible 
where obligations under Directive 2008/48 are infringed. However, that court 
wishes to emphasise that it is not seeking an indication as to which provision of 
national law should be applied, but – if the Court of Justice considers it 
appropriate – an interpretation of the provisions of EU law to the extent set out 
above. 
33 The Court of Justice has not yet ruled on the issues raised in the question referred 
for a preliminary ruling. The answer to that question will be of direct relevance to 
the outcome of the present case, that is to say, to the assessment of the appropriate 
(taking into account the criteria in Article 23 of Directive 2008/48) consequences 
of a bank’s failure to comply with its obligation to assess a consumer’s 
HORYZONT 
 
7 
creditworthiness, in particular with regard to the assessment of the effectiveness 
and proportionality of the penalties and their dissuasive effect.