Opinion of the Advocate General — ECLI:EU:C:2019:1146
Date: 2019-12-19
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-779/18 — 1 
Case C-779/18 
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: 
12 December 2018 
Referring court: 
Sąd Rejonowy w Siemianowicach Śląskich (District Court, 
Siemianowice Śląskie, Poland) 
Date of the decision to refer: 
9 November 2018 
Applicants: 
Mikrokasa SA, Gdynia 
Revenue Niestandaryzowany Sekurytyzacyjny Fundusz 
Inwestycyjny Zamknięty, Warsaw 
Defendant: 
XO 
  
Subject matter of the proceedings before the national court 
Claims brought against XO on the basis of loans not repaid by the defendant. 
Subject matter and legal basis of the reference 
Request under Article 267 TFEU 
Interpretation of Directive 2008/48/EC of 23 April 2008 on credit agreements for 
consumers and of Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-779/18 
 
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Questions referred 
(1) Should the provisions of Directive 2008/48/EC of 23 April 2008 on 
credit agreements for consumers and repealing Council Directive 
87/102/EEC (OJ 2008 L 133, [p. 66]), as amended, in particular 
Articles 3(g), 10(1) and 22(1) thereof, be interpreted as precluding 
‘non-interest credit costs’, determined as a lump sum in accordance 
with the statutory calculation formula set out in Article 36a of the 
ustawa z dnia 12 maja 2011 r. o kredycie konsumenckim (Dziennik 
Ustaw z 2018 r., poz. 993, tekst jednolity) (Law of 12 May 2011 on 
Consumer Credit) (Journal of Laws of 2018, item 993, consolidated 
text) (the Law on Consumer Credit), from being distinguished from the 
‘total cost of the credit to the consumer’, as defined in that directive, in 
a manner that enables the actual non-interest credit costs borne by the 
loan provider to be concealed from the consumer? 
(2) Should the provisions of Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as amended, 
in particular Articles 1(2), 6(1) and 7(1) thereof, be interpreted as 
precluding a review of the terms of consumer credit agreements with 
respect to the conditions set out in Article 3 of that directive in so far 
as it includes ‘non-interest credit costs’, the criteria for determining 
which are described in Article 36a of the Law on Consumer Credit? 
Provisions of Community 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, Articles 3(g), 10(1) and 22(1). 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, Articles 1(2), 6(1) and 7(1). 
Provisions of national law relied on 
Ustawa z dnia 23 kwietnia 1964 r. — Kodeks cywilny (Dziennik Ustaw z 2014 r., 
poz. 121, tekst jednolity) (Law of 23 April 1964 — Civil Code) (Journal of Laws 
of 2014, item 121, consolidated text), as amended (‘the Civil Code’) 
Article 359 
§ 1. Interest on a sum of money shall be payable only if it results from a legal 
transaction or from a law, court decision or decision of another competent 
authority. 
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§ 2. If the interest rate is not otherwise specified, statutory interest shall be 
payable at a rate corresponding to the sum of the reference rate of the National 
Bank of Poland plus 3.5 percentage points. 
§ 21. The maximum interest rate resulting from a legal transaction may not exceed 
twice the statutory interest rate per annum (the maximum interest). 
§ 22. If the interest rate resulting from a legal transaction exceeds the maximum 
interest rate, the maximum interest shall be payable. 
§ 23. Contractual terms may not exclude or limit provisions relating to the 
maximum interest, including where foreign law has been selected. In such a case, 
the provisions of this Law shall apply. 
...  
Article 481 
§ 1. If the debtor is late in making a payment, the creditor may claim default 
interest even if he has not suffered any damage and even if the delay was due to 
circumstances beyond the debtor’s control. 
§ 2. If the default interest rate has not been specified, statutory default interest 
shall be payable at a rate corresponding to the sum of the reference rate of the 
National Bank of Poland plus 5.5 percentage points. However, where the claim 
bears interest at a higher rate, the creditor may claim default interest at that higher 
rate. 
§ 21. The maximum default interest rate may not exceed twice the statutory default 
interest rate per annum (the maximum default interest). 
§ 22. If the default interest rate exceeds the maximum default interest, the 
maximum default interest shall be payable. 
§ 23. Contractual terms may not exclude or limit provisions relating to the 
maximum default interest, including where foreign law has been selected. In such 
a case, the provisions of this Law shall apply. 
...  
Article 3851 
§ 1. Terms 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 contractual terms). This shall not apply to terms setting out 
the principal obligations of the parties, including price or remuneration, if they 
have been worded unambiguously. 
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§ 2. If a contractual term is not binding on the consumer pursuant to § 1, the 
parties shall be bound by the remainder of the contract. 
§ 3. Contractual terms which have not been agreed individually are those over the 
content of which the consumer had no actual influence. This refers in particular to 
contractual terms taken from a standard contract proposed to a consumer by a 
contracting party. 
§ 4. The burden of proof that a term has been agreed individually rests with the 
person relying thereon. 
Ustawa z dnia 12 maja 2011 r. o kredycie konsumenckim (Dziennik Ustaw z 2016 
r., poz. 1528, tekst jednolity) (Law of 12 May 2011 on Consumer Credit) (Journal 
of Laws of 2016, item 1528, consolidated text), as amended (‘the LCC’). 
Article 5(6), (6a), (7) and (8) 
(6) the total cost of the credit — all the costs which the consumer is required to 
pay in connection with the credit agreement, in particular: (a) interest, charges, 
fees, taxes and margins, if known to the creditor; and (b) costs of ancillary 
services, in particular insurance, if these must be paid in order to obtain the credit 
or obtain it on the terms and conditions marketed, except for the costs of notarial 
fees paid by the consumer; 
(6a) the non-interest credit costs — all the costs borne by the consumer in 
connection with the consumer credit agreement, excluding interest; 
(7) the total amount of the credit — the maximum amount of money, not 
including credit costs, that the creditor makes available to the consumer under the 
credit agreement or, in the case of agreements in respect of which no provision 
has been made regarding that maximum amount, the total amount of money, not 
including credit costs, that the creditor makes available to the consumer under the 
credit agreement; 
(8) the total amount payable by the consumer — the sum of the total cost of the 
credit and the total amount of the credit; 
Article 13 
1. Before entering into a consumer credit agreement, the creditor or credit 
intermediary shall be required to provide the consumer with the following 
information, on a durable medium, in sufficient time to allow the consumer to 
familiarise himself with that information: ...  
(5) the total amount of the credit; (6) dates and methods of drawdown of credit; 
(7) the total amount payable by the consumer; ...  
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(10) where applicable, information on the other costs which the consumer is 
required to pay in connection with the consumer credit agreement, in particular 
regarding interest, fees, margins, charges, including charges for maintaining one 
or several accounts recording both payment transactions and drawdowns, together 
with the charges for using payment instruments for both payment transactions and 
drawdowns, and the costs of ancillary services, in particular insurance, if known 
to the creditor, and the conditions under which those costs may change; 
(11) information on the need to pay notarial fees, if any; ...  
Article 30 
1. Subject to Articles 31 to 33, a consumer credit agreement should set out: 
...  
(2) the type of credit; ...; 
(4) the total amount of the credit; 
(5) the dates and methods of drawdown of credit; 
(6) the credit interest rate, ...; 
(7) the annual percentage rate of charge and the total amount payable by the 
consumer as determined at the date on which the consumer credit agreement is 
concluded together with all the assumptions used in order to calculate it; 
(8) the rules and deadlines with regard to repayment of the credit, ...; 
(9) a statement including the deadlines and rules with regard to the payment of 
interest and any other credit costs where the creditor or credit intermediary allows 
a grace period in repaying the credit; 
(10) 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, fees, 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 36a 
1. The maximum amount of the non-interest credit costs shall be calculated 
according to the formula: 
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MPKK ≥ (K × 25%) + (K × N/R × 30%) 
where the meaning of each of the symbols is as follows: 
MPKK — the maximum amount of the non-interest credit costs; 
K — the total amount of the credit; 
N — the repayment period, expressed in days; 
R — the number of days in a year. 
2. Throughout the entire lending period, the non-interest credit costs 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 so far as they exceed the maximum non-interest credit costs calculated 
in the manner described in paragraph 1 above or the total amount of the credit. 
Article 47 
Contractual terms may not exclude or limit the consumer’s rights as provided for 
by law. In such cases, the provisions of this Law shall apply. 
Succinct presentation of the facts and procedure, together with the principal 
arguments of the parties to the proceedings before the national court 
1 In the case brought by Mikrokasa SA, Gdynia, on 21 December 2016 the 
applicant (the loan provider) concluded with the defendant XO (the consumer) a 
cash loan agreement under which it undertook to lend PLN 4 000 (approximately 
EUR 939) to the defendant, and the borrower undertook to repay the amount 
borrowed in 30 equal monthly instalments payable from the date of conclusion of 
the agreement. Under that agreement, the defendant was also obliged to pay an 
arrangement fee of PLN 600 (approximately EUR 139), an administrative fee of 
PLN 3 400 (approximately EUR 790) and contractual interest at a rate of 7% per 
annum, amounting to PLN 371.87 (approximately EUR 86). In total, the 
defendant was obliged to repay PLN 8 371.87 to the applicant. 
2 The loan agreement (entitled ‘Information Form Concerning the Cash Loan 
Granted by Mikrokasa SA’) explained that ‘the total amount of the credit’ was 
‘the sum of all the money that will be made available to you’ and amounted to 
PLN 4 000, while ‘the total amount payable by the consumer’ was ‘the sum of all 
the money that the creditor will make available to you and all the costs which you 
will be obliged to pay in connection with the credit agreement’ and amounted to 
PLN 8 371.87 (approximately EUR 1 946). Under the credit costs item, the lender 
described the interest rate as interest costs and also indicated ‘the other costs 
which the consumer is required to pay in connection with the agreement’: the 
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amounts of PLN 4 000 and PLN 3 400 referred to above, together with contractual 
interest in the amount of PLN 371.87. 
3 The non-interest credit costs (‘the PKKs’) were not negotiated by the parties. The 
defendant did not pay any amount due to the applicant. The agreement was 
terminated by the applicant. Mikrokasa SA, Warsaw, brought a claim before the 
referring court against the defendant XO, demanding payment of PLN 8 184.53 
for the loan which the defendant had failed to repay. 
4 The applicant claimed that the defendant had concluded a loan agreement with it 
in which the amount of the loan and the cost of the credit were set out, and the 
defendant was able to freely familiarise herself with those terms. The applicant 
also emphasised, quoting the explanatory memorandum to the draft amendment 
concerning Article 36a of the LCC, that the legislature had itself indicated that the 
maximum amount of the PKKs was set at the lower limits of the costs borne by 
loan providers, and therefore those charges were often necessarily lower than 
those actually borne by lenders. It also cited the case-law of the common courts, 
according to which no review of whether the PKKs are excessive is admissible so 
long as their amounts are within the maximum PKK limits. Furthermore, the 
applicant emphasised that 50% of the amount of the loan is, as calculated by the 
legislature, actually borne by the loan provider. 
5 The defendant has argued that the claim should be dismissed in its entirety, 
maintaining that the claim is premature in view of the improper termination of the 
agreement. 
6 In the case brought by Revenue Niestandaryzowany Sekurytyzacyjny Fundusz 
Inwestycyjny Zamknięty (Non-Standard Closed-End Securitisation Investment 
Fund), Warsaw, on 21 November 2016 XO (the consumer) entered into a loan 
agreement with IPF Polska sp. z o.o., Warsaw (the loan provider/lender), under 
which the lender made available to the defendant cash amounting to PLN 3 000 
(approximately EUR 698). Under that agreement, the defendant undertook to 
repay the borrowed sum in 18 equal monthly instalments by 28 May 2018. At the 
same time, the defendant undertook to pay a loan origination fee amounting to 
PLN 2 084 (approximately EUR 484) and contractual interest at a rate of 10% per 
annum, amounting to PLN 248.41 (approximately EUR 57) in total. In the loan 
agreement, the following concepts were explained: the ‘total amount of the loan’ 
as the sum of all the money which the lender makes available to the customer 
under the agreement; the ‘total cost of the loan’ as all the costs which the 
customer is required to pay in connection with the agreement, in particular: 
interest, charges and fees and the costs of ancillary services ...; the ‘total amount 
payable by the customer’ as the sum of the total cost of the loan and the total 
amount of the loan, being the total amount payable by the consumer within the 
meaning of the LCC. The PKKs were not negotiated by the parties. The applicant, 
Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty, 
Warsaw (the loan provider), acquired the claim against the defendant from the 
lender under a claim assignment agreement. The defendant settled a small amount 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-779/18 
 
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due to the applicant under the loan agreement, not exceeding PLN 300. The 
applicant brought a claim against XO, demanding payment of PLN 5 196.68 
(approximately EUR 1 208). 
7 In its pleadings, the applicant stated that the defendant deliberately incurred the 
liability, and in the applicant’s opinion that liability does not infringe Article 3851 
of the Civil Code, read in conjunction with Article 3 of Directive 93/13 and 
Article 36a of the LCC. 
8 On 29 November 2017 the Sąd Rejonowy Lublin Zachód w Lublinie (District 
Court, Lublin West, Lublin, Poland) issued an order for payment in the amount 
claimed. That order was effectively challenged by the defendant XO. 
9 In her pleadings, the defendant stated that the purpose of Article 36a of the LCC 
was to prevent the charging of excessively high fees and credit costs, since the 
restriction resulting from Article 359, § 21 of the Civil Code had proved 
insufficient. She stressed the illusory nature of Article 36a in circumstances where 
it is not possible to review the terms of an agreement in so far as they relate to the 
PKKs in view of the fact that the fee imposed on the defendant amounts to 69% of 
the amount of the loan, which is merely the result of inputting the data from the 
agreement into the formula imposed by Article 36a, and does not reflect the actual 
credit costs. In the defendant’s opinion, this constitutes an attempt to circumvent 
the provisions prohibiting the charging of excessive interest laid down in 
Article 359, § 21 of the Civil Code and is an unfair term for the purposes of 
Article 3851 of the Civil Code and Article 3 of Directive 93/13. 
10 The defendant also emphasises that she was not in a position to influence the 
amount of the PKKs in any way. Moreover, she emphasises that the amount of the 
PKKs charged in the form of a fee imposed by the agreement not only represents 
unjustified profit for the loan provider, but also is unjustified from the point of 
view of any reasonable calculation, since it is merely the result of applying the 
statutory formula for the calculation of the maximum cost that may be borne by 
the consumer. 
Summary of the reasons for the reference 
11 The concept of non-interest credit costs (PKKs) is a statutory one and was 
introduced into the LCC on 11 March 2016. In Article 36a, the legislature 
imposed PKK limits calculated according to a mathematical formula and taking 
into account the total amount of the credit. The total cost of the credit, excluding 
interest, may not exceed 55% of the total amount of the credit within 1 year, 85% 
within 2 years, and 100% regardless of the length of the lending period. If the 
PKKs exceed the maximum PKKs or the total amount of the credit, those amounts 
may not be charged to the consumer. 
12 The legal rationale for the introduction of the rule referred to above is the fact that 
limiting the possibility for the loan provider to charge excessive interest under 
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Article 359, § 21 of the Civil Code is insufficient to protect the consumer’s 
interests in circumstances where loan providers, while complying with the rules 
concerning the maximum interest rate, at the same time reserve the right to charge 
high fees and additional non-interest charges. As a consequence of such practices, 
the total costs of servicing debt often exceed the amount of the loan or credit 
granted. The aim is to prevent unjustified charges and the circumvention of the 
provisions concerning the maximum interest through excessive charges and fees. 
13 In the opinion of the referring court, there are justified concerns that Article 36a of 
the LCC does not meet these objectives. A simple comparison of the effects of 
Article 36a of the LCC with the restrictions on statutory interest laid down in 
Article 359, § 21 of the Civil Code is sufficient to demonstrate clearly that the 
result is the opposite. While the provisions of Article 359, §§ 21 and 22 and also 
Article 481, §§ 2, 21 and 22 of the Civil Code restrict the statutory interest rates 
(which are currently capped at 10% and 14% per annum, respectively), 
Article 36a of the LCC allows the PKKs to reach a level of 55% during the same 
lending period (12 months), which in practice results in the total cost of the credit 
per annum amounting to approximately 65% of the total amount of the credit. 
14 Although Article 36a of the LCC is not limited to indicating the upper limit for 
PKKs, but primarily indicates the criteria according to which the maximum 
amount of the PKKs should be set, it turns out that the upper limit criterion is the 
most meaningful in practice, since it is currently cited in most pleadings by loan 
providers as the statutory method — and in fact the only method — for calculating 
the PKKs. Loan providers (lenders) impose this method for determining fees, 
administrative charges, handling charges, and so on, usually adopting the highest 
possible amount or, at best, one close to it. In so doing, the loan provider does not 
provide the consumer with any economic justification, nor does it indicate any 
criteria for setting the amount of the charge. The amount of the PKKs thus 
determined is established as a lump sum, since the criteria of the formula in 
Article 36a are constant and independent of the specific circumstances of a given 
case (for example, the actual credit costs). 
15 The examples provided by the cases at hand illustrate this very well, since the 
total amount of the first loan (Mikrokasa SA) was set at PLN 4 000 and the non-
interest costs of borrowing amounted to PLN 4 000, which together with the 
contractual interest (7%) resulted in a total amount of PLN 4 371.87, that is, 109% 
of the total amount of the credit, to be repaid in 30 monthly instalments, while the 
amount of the second loan (Revenue Niestandaryzowany Sekurytyzacyjny 
Fundusz Inwestycyjny Zamknięty) was set at PLN 3 000 and the non-interest 
costs of borrowing amounted to PLN 2 084.40, which together with the maximum 
contractual interest (10%) resulted in a total amount of PLN 2 332.81, that is, 
nearly 78% of the total amount of the credit, to be repaid in 18 monthly 
instalments. For the first loan, the PKKs are equal to the maximum amount, while 
for the second loan they are only slightly below the maximum PKKs. Such 
practices are common. In such cases, the amount of the PKKs is never negotiated 
by the parties, nor does the loan provider clarify in the agreement the manner in 
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which the PKKs are to be determined or even which of the loan provider’s 
activities should be covered by those costs. 
16 In court disputes, loan providers increasingly make reference to the legislature’s 
explanatory memorandum to the draft amendment concerning Article 36a of the 
LCC, which stresses the economic justification for the maximum PKKs; 
according to the explanatory memorandum, they fall within the lower limits of the 
actual costs borne by lenders. 
17 The time criterion provided for in Article 36a(2) of the LCC has a limited impact 
on the reasonable and equitable determination of the maximum PKKs, since even 
for a relatively short lending period (for example, 12 months) those costs 
necessarily reach 55% of the total amount of the credit and in practice the lending 
period is adjusted to the need to set the maximum PKKs at a level equal to the 
total amount of the credit. 
18 The only penalty explicitly provided for by statute for exceeding the maximum 
PKK limits is the fact that any amounts exceeding those limits are automatically 
regarded as not payable to the loan provider. 
19 Therefore, in the opinion of the referring court, there is a concern that the loan 
provider is at an excessive and at the same time unjustified advantage at the 
expense of the consumer, leading to a significant imbalance so far as the consumer 
is concerned, which results both from a comparison of the economic values of the 
total amount of the credit with the total credit costs and from an assessment of the 
legal situation in which the consumer finds himself as a result of the loan provider 
introducing into the agreement lump-sum PKKs, determined on the basis of legal 
provisions. 
Legal considerations concerning the second question 
20 The Court has already stated on several occasions that the national court is 
required to assess of its own motion whether a contractual term falling within the 
scope of Directive 93/13 is unfair, compensating in this way for the imbalance 
which exists between the consumer and the seller or supplier, where it has 
available to it the legal and factual elements necessary for that task. 1 
21 The Court has also clearly stated on a number of occasions that in order to 
guarantee the protection intended by Directive 93/13, the imbalance which exists 
between the consumer and the seller or supplier may be corrected only by active 
intervention on the part of the national court. 2 This is, of course, a consequence of 
 
1 Judgments: of 14 March 2013, Aziz, C-415/11, EU:C:2013:164, paragraph 46; of 14 June 2012, 
Banco Español de Crédito, C-618/10, EU:C:2012:349, paragraph 42. 
2 Judgments: of 13 September 2018, Profi Credit Polska, C-176/17, EU:C:2018:711, 
paragraph 42; of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C-240/98 to 
C-244/98, EU:C:2000:346, paragraph 27; of 26 October 2006, Mostaza Claro, C-168/05, 
EU:C:2006:675, paragraph 26; of 6 October 2009, Asturcom Telecomunicaciones, C-40/08, 
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the accepted designation of the consumer as being in a weak position vis-à-vis the 
seller or supplier, as regards both his bargaining power and his level of 
knowledge. This leads to the consumer agreeing to contractual terms drawn up in 
advance by the seller or supplier without being able to influence the content of 
those terms. 3 
22 Article 6(1) of Directive 93/13 provides that unfair terms are not to be binding on 
the consumer. As is apparent from the case-law, this is a mandatory provision 
which aims to replace the formal balance which the contract establishes between 
the rights and obligations of the parties with an effective balance which re-
establishes equality between them. 4 
23 On the basis of the foregoing considerations, the referring court began a legal 
assessment of the present case but significant doubts emerged during that 
assessment as to whether such an assessment is contrary to Article 1(2) of 
Directive 93/13. This is because the referring court recognises, on the one hand, 
that the contractual term is defective in so far as it relates to the PKKs (since their 
amount is excessive), but it is also aware that their amount is within the maximum 
PKK limits set out in the statutory provisions currently in force and a specific 
penalty for exceeding those limits has been provided for by the legislature. 
24 Under Article 1(2) of Directive 93/13, contractual terms which reflect mandatory 
statutory or regulatory provisions are not to be subject to the provisions of that 
directive. According to the case-law of the Court, the exclusion of the application 
of Directive 93/13 is justified by the fact that the national legislature has 
attempted to strike a balance between all the rights and obligations of the parties 
to consumer contracts. 5 It is apparent from the explanatory memorandum to the 
draft amendment concerning Article 36a of the LCC that the legislature was 
guided by such considerations. 
25 The question therefore arises as to whether in the present case the provisions of 
Directive 93/13 are excluded on the ground that the content of the term 
concerning the PKKs was determined on the basis of a specific statutory criterion 
(a mathematical formula), and accordingly whether that contractual term reflects a 
statutory provision (Article 36a of the LCC). It is not clear to the referring court 
whether the term ‘reflect’ as referred to in Article 1(2) of Directive 93/13 also 
covers a situation in which the seller or supplier uses a statutory criterion, namely 
      
EU:C:2009:615, paragraph 31; and also of 9 November 2010, VB Pénzügyi Lízing, C-137/08, 
EU:C:2010:659, paragraph 48. 
3 Judgments: Océano Grupo Editorial and Salvat Editores, paragraph 25; Mostaza Claro, 
paragraph 25; Asturcom Telecomunicaciones, paragraph 29. 
4 Judgments: Mostaza Claro, paragraph 36; Asturcom Telecomunicaciones, paragraph 30; VB 
Pénzügyi Lízing, paragraph 47; and also the judgment of 15 March 2012, Pereničová and 
Perenič, C-453/10, EU:C:2012:144, paragraph 28. 
5 Judgment of 21 March 2013, RWE Vertrieb AG, C-92/11, EU:C:2013:180, paragraph 28. 
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a mathematical formula for determining a certain value, when determining the 
content of a contractual term. 
26 The EU legislature also does not facilitate legal assessment in this respect, since 
recital 13 of Directive 93/13 refers to ‘provisions ... which directly or indirectly 
determine the terms of consumer contracts’. It is not clear to the referring court 
what is meant by a provision which indirectly determines the terms of contracts. Is 
the indicated statutory criterion for calculating the amount of the PKKs an 
instrument that indirectly serves to determine the PKKs, thus determining the 
content of the legal relationship, which would lead to the assumption that this is 
tantamount to ‘reflecting’ a statutory provision? 
27 In that regard, the referring court points out that, although Article 36a of the LCC 
is regarded as an optional provision in so far as the parties are able to set the costs 
at a lower level, it is nevertheless apparent from the explanatory memorandum 
presented by the national legislature that that provision protects only the lower 
limits of the costs borne by the loan provider granting the consumer credit, which 
in turn suggests that it is economically rational to maintain the maximum amount 
of the PKKs and that PKKs lower than the maximum would be unprofitable. The 
optional nature of that provision is thus illusory. In those circumstances, the 
question arises as to whether, where the contract contains terms relating to the 
maximum amount of the PKKs, it is possible to take the approach adopted by the 
Court that, in such a situation, there is no contractual term altering the effect or 
ambit of legal provisions, 6 which would, of course, result in excluding the 
application of Directive 93/13. In such a case, it would remain outside the 
jurisdiction of the referring court to assess whether lower PKKs would be 
justified, leading to a finding that the contractual terms concerning the maximum 
PKKs are unfair, since the latter would reflect statutory provisions and PKKs at a 
lower level would necessarily mean a certain loss for the loan provider. 
28 It should also be borne in mind that when facts were assessed in cases prior to the 
entry into force of Article 36a of the LCC, the courts dealt with various excessive 
fees, charges and so on without any major problems, often considering such terms 
to be automatically null and void or unfair even where such fees or charges 
amounted to 40%. After the entry into force of Article 36a of the LCC, such high 
charges are formally introduced in accordance with the letter of the law, which 
gives rise to major problems of interpretation, while current court practice is 
ambiguous as to whether the charges set pursuant to Article 36a of the LCC are 
subject to review pursuant to Article 3851 of the Civil Code, that is, a provision 
enacted pursuant to Article 3 of Directive 93/13. 
29 Those doubts have given rise to the question referred for a preliminary ruling. The 
answer to that question, possibly also indicating, if the Court considers it 
appropriate, the relevant criteria for assessing how the term ‘reflect’ should be 
understood for the purposes of Article 1(2) of Directive 93/13, will make it 
 
6 See judgment of the Court of 30 April 2014, Barclays Bank, C-280/13, EU:C:2014:279. 
MIKROKASA AND REVENUE NIESTANDARYZOWANY SEKURYTYZACYJNY FUNDUSZ INWESTYCYJNY ZAMKNIĘTY 
 
13 
possible to consider the issues which have given rise to the referring court’s 
doubts in the present case, in particular with regard to whether the contractual 
term subject to assessment in the present case can be reviewed through the prism 
of the conditions set out in Article 3 of Directive 93/13, which, as is well known, 
is a matter for the national court. 
Considerations concerning the first question 
30 When conducting the legal assessment of the present case, the referring court also 
had doubts as to whether Article 36a of the LCC is compatible with Directive 
2008/48 on credit agreements for consumers, in particular Articles 3(g) and (h), 
5(g), 10(g) and 22(1) thereof. 
31 The referring court’s doubts are primarily based on the premiss that Directive 
2008/48 provides for full harmonisation. According to recital 9 of that directive, 
Member States should not be allowed to maintain or introduce national provisions 
other than those laid down in that directive. 7 On the other hand, recital 10 of 
Directive 2008/48 clarifies that the scope of harmonisation is determined by the 
definitions contained therein. 
32 However, the peculiar character of the present case stems from the fact that, as is 
assumed in legal literature, the matter of undue benefits or even usury is not 
regulated by Directive 2008/48, whereas Article 36a of the LCC refers to this very 
matter. In the opinion of the referring court, however, this in no way means that 
Article 36a of the LCC is necessarily beyond any assessment of its compatibility 
with the provisions of Directive 2008/48. This is because that directive uses the 
definition of the total cost of the credit to the consumer, while the concept of 
PKKs falls within the concept of the total cost of the credit for the purposes of 
both Directive 2008/48 and the LCC. Therefore, the question arises as to whether 
Directive 2008/48 allows the concept of PKKs as introduced into the LCC to be 
distinguished from the concept of the total cost of the credit. It is not a matter of 
simply comparing the literal wording of the two legal acts but of comparing the 
consequences resulting therefrom. 
33 By distinguishing the concept of PKKs, the national legislature endowed it with 
an autonomous meaning not only within the system of the LCC itself, but also 
within the framework of the definitions used in the directive, since that concept 
does not exist in the directive. While it may be accepted that the operation of that 
provision does not fall within the scope of the provisions of Directive 2008/48, it 
is still unclear whether, in spite of this, the introduction of a separate legal 
category of (statutory) PKKs undermines the objectives of Directive 2008/48.  
34 According to recital 8, it is important that the consumer credit market should offer 
a sufficient degree of consumer protection and, according to recital 19, consumers 
 
7 See also judgment of the Court of Justice of 27 March 2014, LCL Le Crédit Lyonnais, 
C-565/12, EU:C:2014:190, paragraph 42. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-779/18 
 
14  
should receive adequate information, prior to the conclusion of the credit 
agreement, on the conditions and cost of the credit and on their obligations. In the 
opinion of the referring court, the fact that Directive 2008/48 is based, as stated 
above, on full harmonisation prevents the national legislature from introducing 
provisions that, on the one hand, limit the consumer’s ability to exercise his 
information rights under that directive and, on the other hand, limit a court’s 
ability to examine the manner in which a loan provider performs those obligations 
vis-à-vis the consumer. 
35 Here, the referring court refers in particular to the fact that the legislature has laid 
down the criteria for setting the maximum PKKs. Those criteria (a calculation 
formula) are fixed, objective and independent of the circumstances of each 
individual case. The costs thus determined do not reflect the actual credit costs 
borne by the loan provider, since they are the result of the application of a peculiar 
statutory lump sum. In other words, Article 36a of the LCC makes it possible to 
conceal the actual PKKs, which may be lower than those laid down by the 
legislature. Only the compliance of the loan provider with the PKK limits is 
subject to review. In such a case, the consumer is unable to learn the actual PKKs. 
Therefore, the question arises as to whether such a rule prevents the consumer 
from determining his legal situation. The referring court has serious doubts as to 
whether, in such a case, the consumer has full access to the facts related to the 
credit costs prior to the conclusion of the agreement as envisaged by the EU 
legislature. 
36 The fact that the amount of the PKKs is reflected in the content of the agreement 
in the form of, for instance, a fee, may not be sufficient to comply fully with the 
information obligation laid down in Articles 5 and 10 of Directive 2008/48, since 
the consumer does not have the knowledge referred to above, but only knows the 
nominal amount of the charge. 
37 Importantly, a loan provider which makes use of PKKs determined using the 
statutory lump sum is at the same time supported by the authority of the 
legislature, which undoubtedly strengthens its negotiating position. Additionally, 
if we take into account the already well-established practice under which 
Article 36a, which provides for the maximum amount of the PKKs, has become 
the sole determinant of those costs as set by loan providers, then the only 
conclusion to be drawn is that the consumer’s position with respect to knowing 
the total cost of the credit is the worst possible. 
38 In the light of the foregoing, the referring court has the doubts set out above and 
considers it appropriate to ask the Court of Justice of the European Union for an 
answer to the question referred and also for the necessary guidance to enable a 
proper understanding of the norms of the directives referred to above.