Opinion of the Advocate General — ECLI:EU:C:2023:674
Date: 2023-09-14
Language of the case: Polish
Subject matter: Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-582/21 – 1 
Case C-582/21 
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: 
17 September 2021 
Referring court: 
Sąd Okręgowy Warszawa-Praga w Warszawie (Poland) 
Date of the decision to refer: 
31 August 2021 
Appellant: 
FY 
Respondent: 
Profi Credit Polska S.A. w Bielsku Białej 
  
Subject matter of the main proceedings 
Civil procedure law – Principle of equivalence – Principle of interpretation of 
national law in conformity with EU law – Application to reopen proceedings 
ended with a default judgment brought under Article 401(2) of the Kodeks 
postępowania cywilnego (Code of Civil Procedure).  
Subject matter and legal basis of the request 
Interpretation of EU law, in particular Articles 4(3) and 19(1) TEU; 
Article 19(3)(b) TEU and Articles 267(1)(b) and 267(3) TFEU. 
Questions referred for a preliminary ruling 
1. Must Articles 4(3) and 19(1) TEU, having regard to the principle of 
equivalence which arises from the case-law of the Court of Justice of the 
European Union, be interpreted as meaning that a judgment of the Court of Justice 
of the European Union concerning the interpretation of EU law given pursuant to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/21 
 
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Article 267(1) TFEU constitutes grounds for reopening civil proceedings which 
ended with a final judgment, if a provision of national law, such as Article 4011 of 
the Code of Civil Procedure, allows proceedings to be reopened in the event that a 
final judgment is given on the basis of a provision which has been held by a 
judgment of the Trybunał Konstytucyjny (Constitutional Court, Poland) to be 
incompatible with a higher-ranking law? 
2. Does the principle of interpretation of national law in conformity with EU 
law arising from Article 4(3) TEU and from the case-law of the Court of Justice of 
the European Union require a broad interpretation of a provision of national law, 
such as Article 2(2) of the Code of Civil Procedure, so as to include in the grounds 
for reopening proceedings set out therein a final default judgment in which the 
court, infringing the obligations arising from the judgment of the Court of Justice 
in Profi Credit (C-176/17), omitted to examine a contract between a consumer and 
a lender in terms of unfair contractual terms and limited itself to examining only 
the formal validity of the promissory note? 
Provisions of European Union law relied on 
Treaty on European Union: Article 4(3), second subparagraph; Article 19(1), 
second subparagraph. 
Council Directive 93/13/EEC of 13 April 1993 on unfair terms in consumer 
contracts (‘Directive 93/13/EEC’): recital 24; Article 3(1); Article 6(1); 
Article 7(1). 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Constitution of 
the Republic of Poland of 2 April 1997). 
Article 190(4): A judgment of the Constitutional Tribunal on the non-conformity 
to the Constitution, an international agreement or statute, of a normative act on the 
basis of which a legally effective judgment of a court, a final administrative 
decision or settlement of other matters was issued, shall be a basis for reopening 
proceedings, or for quashing the decision or other settlement in a manner and on 
principles specified in provisions applicable to the given proceedings.  
Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 – Code of Civil Procedure, ‘the CCP’). 
Article 399(1). In cases referred to in this section it shall be possible to request the 
reopening of proceedings which were ended with a final judgment. 
Article 401(2). It shall be possible to request the reopening of proceedings on the 
grounds of the invalidity thereof if a party did not have the capacity to be a party 
PROFI CREDIT POLSKA 
 
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to, or act in, court proceedings, or was not duly represented, or was unlawfully 
deprived of the ability to act; however, it shall not be possible to request the 
reopening of a case if the party regained its ability to act before a judgment 
became final or if the absence of representation was raised as a plea, or if the party 
confirmed the procedural steps taken. 
Article 4011. An application to reopen proceedings shall also be possible if the 
Constitutional Court declares a piece of legislation on the basis of which a ruling 
was issued incompatible with the Constitution, a ratified international agreement 
or a statute. 
Article 407(1). An application to reopen proceedings shall be filed within three 
months; the time limit shall begin on the day on which the party becomes aware of 
the grounds for reopening or, if those grounds are the party being deprived of the 
ability to act or the absence of due representation, on the day on which the party, 
its governing body or legal representative becomes aware of the judgment. 
Article 407(2). In the case referred to in Article 4011, the application to reopen 
proceedings shall be filed within three months of the entry into force of the ruling 
of the Constitutional Court. If on the day on which the ruling of the Constitutional 
Court is issued, the ruling referred to in Article 4011 is not yet final as a result of 
an appeal against that ruling which is subsequently rejected, the time limit shall 
begin on the day on which the decision to reject the appeal is served or, where 
such decision is issued in open court, on the day on which that decision is 
announced. 
Article 410(1). The court shall reject an application which is filed after the expiry 
of the time limit, is inadmissible or is not based on statutory grounds. 
Article 339(1). If the defendant does not appear for a scheduled hearing or appears 
for but does not participate in a hearing, the court shall give a default judgment. 
Article 344(1) and (2). A defendant against whom a default judgment has been 
given may lodge a motion to set aside the default judgment within two weeks of 
being served the judgment. In the motion to set aside the default judgment, the 
defendant shall set out the pleas, which must be asserted prior to any submission 
on the substance of the case on pain of inadmissibility, and adduce facts and 
evidence. The court shall disregard late assertions and evidence, unless the party 
shows that it failed to set them out in the motion to set aside the default judgment 
through no fault of its own, or that taking the late assertions and evidence into 
consideration will not delay the examination of the case, or that there are other 
exceptional circumstances. 
Pursuant to Article 333(1)(3), in the event of a default judgment that allows the 
claim, the court shall, ex officio, declare the judgment to be immediately 
enforceable. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/21 
 
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Ustawa z dnia 28 lipca 2005 r. o kosztach sądowych w sprawach cywilnych (Law 
of 28 July 2005 on Court Costs in Civil Matters): Article 19(1). 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2015, FY, acting as a consumer, concluded a cash loan agreement with Profi 
Credit Polska Spółka Akcyjna, established in Bielsko-Biała; 1 upon the conclusion 
of the agreement, FY issued a blank promissory note with the ‘not to order’ 
clause, which she handed over to the Company. The Company subsequently 
completed the promissory note, indicating its amount (PLN 8 170.91) and the date 
of payment. 
2 On 30 October 2017, Profi Credit Polska S.A. filed a statement of claim with the 
Sąd Rejonowy dla Warszawy Pragi-Południe w Warszawie (District Court for 
Warsaw Praga-Południe in Warsaw, Poland) for the payment of PLN 8 170.11 
with contractual interest. Only the promissory note and the notice of termination 
of the loan agreement were enclosed with the statement of claim. The applicant 
did not submit the loan agreement, and the District Court which heard Case VII C 
2422/17 did not request the applicant to submit it. The court found that there were 
no grounds for issuing an order for payment and referred the case to trial. The 
notice to FY was deemed to have been served, but was not actually received by 
the defendant. On 17 April 2018, in Case VII C 2422/17, a default judgment was 
given which ordered FY to pay Profi Credit Polska S.A. the amount of 
PLN 8 170.11 with statutory interest for late payment. The judgment was declared 
immediately enforceable. The District Court based its ruling solely on the contents 
of the promissory note and the statement of claim, without requesting the 
applicant to submit the agreement that created the underlying relationship. 
Consequently, the court did not examine whether that agreement contained unfair 
terms. The defendant did not challenge the default judgment. 
3 On 25 June 2019, FY filed an application with the District Court for Warsaw 
Praga-Południe in Warsaw to reopen proceedings ended with a default judgment 
in Case VII C 2422/17. By its order of 27 August 2020, the District Court for 
Warsaw Praga-Południe in Warsaw rejected the application, holding, inter alia, 
that it was not based on statutory grounds. The court stressed that the defendant 
should have defended Case VII C 2422/17, which she failed to do. The appellant 
lodged a complaint against that order, requesting that ‘the contested order be 
amended by reopening the proceedings’. In addition to repeating her earlier 
argument, the appellant pleaded that the court of first instance had disregarded EU 
law and the case-law of the Court of Justice of the European Union, under which 
the court is obliged to examine of its own motion whether the contract contains 
unfair terms.  
 
1 ‘Profi Credit S.A.’ or ‘the applicant’. 
PROFI CREDIT POLSKA 
 
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The essential arguments of the parties in the main proceedings 
4 The appellant submits that she was deprived of her ability to act as a result of the 
incorrect interpretation of Directive 93/13/EEC by the District Court. The court 
allowed the claim solely on the basis of the promissory note without examining 
the underlying relationship. That omission was material because the loan 
agreement between the parties contained unfair terms concerning the non-interest 
costs of the credit. The appellant emphasised that she had based her application to 
reopen proceedings primarily on the content of the judgment of the Court of 
Justice of 13 September 2018 in Profi Credit (C-176/17). 
5 The applicant requested that the application be rejected on the ground that it was 
filed after the expiry of the prescribed time limit; it also pointed out that the 
defendant had been aware of the contents of the judgment in Case VII C 2422/17 
and had not appealed against it. 
6 The Rzecznik Finansowy (Financial Ombudsman) presented an opinion according 
to which, in the circumstances of the main proceedings, grounds for reopening 
could be provided by the interpretation of EU law adopted by the Court of Justice 
in its judgments in Profi Credit (C-176/17) and PKO Bank Polski (C-643/17) and, 
in connection with that case-law, the court’s failure to fulfil its obligation to 
examine of its own motion unfair terms in consumer cases. In the Financial 
Ombudsman’s opinion, the default judgment of 17 April 2018 was given in gross 
violation of the law and the basis for reopening the proceedings should be 
Article 4011 of the CCP. The Financial Ombudsman pointed to the similarity of 
the role of the Court of Justice and national constitutional courts, which in his 
view supports the broad interpretation of Article 4011 of the CCP in accordance 
with the principle of equivalence. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 The Polish legal system expressly provides for certain grounds for reopening civil 
proceedings, inter alia, in connection with a judgment of the Constitutional Court 
and a party being deprived of the ability to act. Since a judgment of the Court of 
Justice is not listed among such grounds in the CCP, doubts arise as to whether 
grounds for reopening proceedings should be derived from the principles of 
equivalence and of interpretation of national law in conformity with EU law 
developed in the case-law of the Court of Justice. The appellant based her 
application to reopen proceedings directly on the judgment of the Court of Justice 
of 13 September 2018, Profi Credit, C-176/17, but, taking into account her 
arguments, the following judgments could also provide grounds for reopening: of 
7 November 2018, Profi Credit II, C-419/18 and C-483/18, and of 4 September 
2020, Kancelaria Medius, C-495/19.  
8 On the other hand, the principle that final judgments cannot be reopened is one of 
the key elements of the right to a fair trial, which implies that a final court ruling 
should not (apart from in exceptional circumstances) be challenged (judgments of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/21 
 
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the European Court of Human Rights of 28 October 1999, Brumarescu v. 
Romania, Application No 28342/95, of 18 November 2004, Pravednaya v. Russia, 
Application No 69529/01). The importance of the principle of res judicata was 
emphasised by the Court of Justice in its judgment of 30 September 2003, Köbler, 
C-224/01, where the Court stated that ‘in order to ensure both stability of the law 
and legal relations and the sound administration of justice, it is important that 
judicial decisions which have become definitive after all rights of appeal have 
been exhausted or after expiry of the time limits provided for in that connection 
can no longer be called in question’. The recognition of the principle of legal 
certainty and the consequent stability of judicial decisions as a fundamental 
principle of the legal order precludes a broad interpretation of provisions which 
lay down the grounds for extraordinary remedies. In this context, the Court of 
Justice has consistently held that EU law does not require a national court to 
disapply national procedural rules which make the judgment in question final 
(judgments of the Court of Justice of 1 June 1999, Eco Swiss, C-126/97, and of 
13 January 2004, Kühne & Heitz, C-453/00). At the same time, it has been 
emphasised that when laying down procedural rules for proceedings designed to 
ensure protection of the rights which individuals acquire through the direct effect 
of Community law, Member States must ensure that such rules are not less 
favourable than those governing similar domestic actions (principle of 
equivalence) and are not framed in such a way as to render impossible in practice 
the exercise of rights conferred by Community law (principle of effectiveness) 
(judgment of the Court of Justice of 16 May 2000, Preston, C-79/98 and, inter 
alia, the earlier judgments cited there: of 16 December 1976, Rewe-Zentralfinanz 
eG, 33/76, and Comet, 45/76, and also of 6 December 1996, Johnson, C-410/92). 
In recent case-law, it has been accepted that there is no general obligation to set 
aside final judgments which infringe EU law, although such an obligation arises – 
in accordance with the principle of equivalence – if national law provides for a 
corresponding legal remedy in a similar situation (see the judgments of the Court 
of Justice of 10 July 2014, Impresa Pizzarotti, C-213/13; of 6 October 2015, 
Târşia, C-69/14; of 24 October 2018, XC and Others, C-234/17; and of 29 July 
2019, Hochtief Solutions AG Magyarországi Fióktelepe, C-620/17).  
9 The derogation from the principle of stability of final decisions follows from the 
observations of the Court of Justice in its judgment of 13 January 2004, Kühne & 
Heitz, C-453/00, which is also of relevance to the reopening of civil proceedings, 
since that judgment concerns a case in which an administrative decision became 
final as a result of a judgment of a national court ruling at final instance. That 
judgment of the national court was based on an interpretation of Community law 
which was found to be incorrect in a subsequent judgment of the Court of Justice. 
The Court of Justice held that ‘the administrative body concerned is, in 
accordance with the principle of cooperation arising from Article 10 EC (now 
Article 4(3) TEU), under an obligation to review that decision in order to take 
account of the interpretation of the relevant provision of Community law given in 
the meantime by the Court’. A derogation from the res judicata principle that is 
justified by the principle of effectiveness of EU law was also indicated by the 
Court of Justice in its judgments of 18 July 2007, Lucchini, C-119/05 and of 
PROFI CREDIT POLSKA 
 
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3 September 2009, Fallimento Olimpiclub Srl, C-2/08. Subsequently, the Court of 
Justice indicated in its judgment of 16 October 2006, Kapferer, C-234/04: ‘even 
assuming that the principles laid down in [Kühne & Heitz] could be transposed 
into a context which … relates to a final judicial decision, it should be recalled 
that that judgment makes the obligation of the body concerned to review a final 
decision, which would appear to have been adopted in breach of Community law 
subject, in accordance with Article 10 EC, to the condition, inter alia, that that 
body should be empowered under national law to reopen that decision 
(paragraph 23). 2 
European Union law does not therefore introduce, in order to take account of the 
interpretation of the relevant provision of that law adopted by the Court of Justice, 
a general obligation for a judicial authority to amend its decision which has 
acquired the force of res judicata (judgments: of 10 July 2014, Impresa Pizzarotti, 
C-213/13; of 6 October 2015, Târşia, C-69/14; and of 29 July 2019, Hochtief 
Solutions AG, C-620/17). The latter judgment, however, referred to the principle 
of equivalence and emphasised that if, in similar circumstances, a ruling by the 
Hungarian Constitutional Court could justify the overturning of a final judgment, 
the same effect should be given to a Court of Justice judgment. 3 
10 In the present case, the Sąd Okręgowy (Regional Court) is only examining 
whether the application is based on statutory grounds and whether it was filed 
within the prescribed time limit, without examining the substantive correctness of 
the judgment in Case VII C 2422/17. 
Given the view that an application to reopen proceedings is not based on statutory 
grounds likewise where one of the grounds provided for in Article 401, 4011 or 
403 of the CCP is cited in the application, but it is not actually present in the case 
at issue, the Regional Court is obliged to examine whether the factual 
circumstances cited by the appellant constitute the ground stipulated in 
Article 401(2) of the CCP or another ground for reopening proceedings. In the 
light of the judgments of the Court of Justice in Profi Credit (C-176/17), Profi 
Credit II (C-419/18 and C-483/18), and Kancelaria Medius (C-495/19), it is 
 
2 The author of the commentary to that judgment pointed out that the Court of Justice did not 
exclude a priori the application of the Kühne & Heitz judgment to final judicial decisions and 
left the issue open, referring in the reasoning to one of the conditions stated in the Kühne & 
Heitz judgment (see M. Taborowski, ‘Wznowienie postępowania cywilnego ze względu na 
sprzeczność prawomocnego wyroku sądu krajowego z prawem wspólnotowym. Glosa do 
wyroku ETS w sprawie C-234/04 Kapferer’, EPS 2007, No 3). 
3 According to that judgment: ‘it is consequently a matter for the referring court to determine 
whether Hungarian procedural rules include the possibility of reversing a judgment which has 
acquired the force of res judicata, for the purpose of rendering the situation arising from that 
judgment [of the Hungarian Constitutional Court] compatible with an earlier judicial decision 
which has become final where both the court which delivered that judgment and the parties to 
the case leading to that judgment were already aware of that earlier decision. If that were the 
case, in accordance with the case-law of the Court …, that possibility should, in accordance 
with the principles of equivalence and effectiveness, in the same circumstances, prevail in order 
to render the situation compatible with an earlier judgment of the Court’ (paragraph 60). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/21 
 
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highly probable that the default judgment in Case VII C 2422/17 was given in 
gross violation of the law which implements Articles 6 and 7 of Directive 
93/13/EEC in the Polish legal order. In the case-law of the Sąd Najwyższy 
(Supreme Court, Poland), the view has become established, referring directly to 
the judgments of the Court of Justice in the Profi Credit I and Profi Credit II 
cases, that giving a default judgment or an order for payment against a consumer 
on the basis of a promissory note without examining the potentially unfair 
provisions of the agreement creating the underlying relationship is a gross 
violation of the law, constituting grounds for the reversal of a final judgment by 
way of an extraordinary appeal. Due to the fact that the right to lodge an 
extraordinary appeal is limited to, inter alia, the Rzecznik Praw Obywatelskich 
(Ombudsman) and the Prokurator Generalny (Prosecutor General), it cannot be 
claimed that the possibility of an extraordinary appeal being lodged by those 
bodies is sufficient to provide effective judicial protection for the appellant. 
11 As regards the first question referred for a preliminary ruling on the 
reopening of civil proceedings following a judgment of the Court of Justice, it is 
essential to assess the grounds for reopening in the light of the principle of 
equivalence, which requires that all the national rules on legal remedies apply 
equally to legal remedies based on an infringement of national law and to similar 
remedies based on an infringement of European Union law. Infringements of EU 
law should not be treated less favourably than infringements of national law 
(judgment of the Court of Justice of 15 September 1998, Edilizia Industriale 
Siderurgica Sri (Edis), C-231/96). 
12 In the Polish legal system, an application to reopen proceedings is one of the 
extraordinary remedies, that is to say, one of the means of challenging final 
judgments. In Articles 401-403 of the CCP, three types of grounds for reopening 
proceedings are listed: grounds for invalidity of the proceedings (Article 401 of 
the CCP), so-called proper grounds for reopening, which consist in the discovery 
of new facts (Article 403 of CCP), and a judgment of the Constitutional Court on 
the incompatibility with the Constitution of the Republic of Poland of the piece of 
legislation on which the contested judgment is based (Article 4011 of the CCP). 
13 The reason for reopening civil proceedings provided for in Article 4011 of the 
CCP is the only one under which civil proceedings may be reopened due to the 
contested judgment violating substantive law. As indicated in the literature, the 
essence of Article 4011 of the CCP ‘consists in opening the way for the case to be 
retried as a result of the subsequent invalidation of the legal norm applied by the 
court in a final judgment as a result of a Constitutional Court judgment declaring 
that norm to be incompatible with the constitutional standard. Therefore, 
proceedings may be reopened where the legal grounds for the judgment are 
undermined ex post, that is to say, after the judgment has been given, due to their 
incompatibility with a higher-ranking norm’. Proceedings may be reopened in 
each case in which the legal grounds for the judgment were a provision deemed by 
the Constitutional Court to be incompatible with the Constitution.  
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14 In the context of the principle of equivalence, it is also important that the 
judgments issued by the Constitutional Court include so-called interpretative 
judgments. Under the current legal framework, the view that an interpretative 
judgment of the Constitutional Court provides grounds for reopening civil 
proceedings under Article 4011 of the CCP is well-founded. 
15 Identifying similarities between the effects of judgments of the Constitutional 
Court and of the Court of Justice should begin with the observation that the 
interpretation of EU law provided as a result of the preliminary ruling procedure 
clarifies the purpose and meaning of the norms in question, and thus the manner in 
which they should be interpreted, from the date of their entry into force, which 
means that this interpretation should be taken into account by the courts also with 
respect to those legal relationships that arose prior to the date of the judgment of 
the Court of Justice. Only in exceptional circumstances, owing to the principle of 
legal certainty, may the Court of Justice stipulate that its ruling will only have 
effect in the future (judgments of the Court of Justice of 27 March 1980, Denkavit 
Italiana, 61/79; of 10 February 2000, Deutsche Telekom, C-50/96; and of 
17 February 2005, Linneweber and Akritidis, Joined Cases C-435/02 and 
C-462/02). 
16 An analysis of the case-law of the Court of Justice on the principle of equivalence 
in the context of the judgments of national constitutional courts allows one to 
conclude that the Court, for the purposes of that principle, considers its role to be 
comparable to that of national constitutional courts, and considers the relationship 
between EU law and national law to be comparable to the relationship between 
the national constitution and lower-ranking national law (judgment in Hochtief 
Solutions AG, C-620/17, paragraphs 62 and 63). The Court of Justice held, inter 
alia, that the principle of equivalence precludes national rules which lay down less 
favourable procedural rules for claims for repayment of a charge which has been 
levied though not due from the aspect of Community law than those applicable to 
similar actions based on certain provisions of domestic law (judgment in Weber’s 
Wine World, C-147/01), and it also precludes requirements for an action for 
damages arising from a breach of EU law, which has been established by a 
judgment of the Court of Justice given pursuant to Article 258 TFEU, from being 
stricter than for an action for damages arising from the adoption of legislation that 
has been declared incompatible with the national legal order by the constitutional 
court (judgment of 26 January 2010, Transportes Urbanos, C-118/08). In the 
above judgments, the different legal effects of the judgments of the constitutional 
courts and of the Court of Justice did not exclude the application of the principle 
of equivalence; however, the cases in question did not concern challenges to final 
judgments. The Court of Justice has consistently emphasised the importance of the 
stability of final judicial decisions and has recognised that, at least sometimes, it 
takes precedence over the principle of effectiveness of EU law. Moreover, it has 
also held that EU law, in particular the principles of equivalence and 
effectiveness, must be interpreted as meaning that a national court is not required 
to extend a remedy under national law to infringements of EU law, in particular to 
infringements of the fundamental right guaranteed by Article 50 of the Charter of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/21 
 
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Fundamental Rights of the European Union (judgment in XC and Others, 
C-234/17). This conclusion of the Court of Justice was reached in the context of 
the close functional link found between the remedy provided by the Austrian Code 
of Criminal Procedure and the judgment of the European Court of Human Rights, 
as the purpose of that remedy is to enforce the judgments of the ECtHR by which 
a violation of the Convention was found. 
17 In the case-law of Polish courts and in the legal doctrine on the admissibility of 
reopening proceedings as a result of a judgment of the Court of Justice, the 
prevailing view is that the incompatibility of a final judgment with Community 
law, including an incompatibility arising from an interpretation provided in a 
judgment of the Court of Justice, cannot constitute grounds for reopening 
proceedings. According to the Supreme Court, a preliminary ruling of the Court of 
Justice is closer to a resolution of the Supreme Court, which has the force of a 
legal principle, than to a judgment of the Constitutional Court. According to the 
view prevailing in the doctrine, in the circumstances at issue, Article 4011 of the 
CCP should constitute the ground for reopening proceedings in accordance with 
the principle of equivalence. That is also the position of the Ombudsman.  
18 In the context of the principle of equivalence, the referring court also cites the 
resolution of the Naczelny Sąd Administracyjny (Supreme Administrative Court, 
Poland), according to which a preliminary ruling of the Court of Justice may 
provide grounds for reopening proceedings even if that ruling has not been served 
on the party which filed the application to reopen proceedings. Explaining that 
position in the context of the principle of equivalence, the Supreme 
Administrative Court correctly noted that ‘in practice, preliminary rulings have an 
effect beyond the scope of the proceedings in question. On the one hand, they are 
formally and substantively binding on the court which referred the question for a 
preliminary ruling. On the other hand, under the doctrine of acte éclairé, national 
courts will be relieved of the obligation to make a further reference for a 
preliminary ruling in similar factual and legal circumstances, as they will be 
bound by the interpretation of EU law given by the [Court of Justice]. However, 
the universal validity of such rulings is supported not only by the doctrine of acte 
éclairé, but also by the obligation on the courts and other bodies of the Member 
States to take account of [Court of Justice] judgments in all cases involving 
similar factual and legal circumstances. Thus, in terms of binding force, there is 
no fundamental difference between the judgments of the Constitutional Court and 
the judgments [of the Court of Justice]’. 
19 In proceedings before administrative courts, there is also a special ground for 
reopening proceedings when such a need arises from the decision of an 
international body: Article 272(3) of the Prawo o postępowaniu przed sądami 
administracyjnymi (Law on Proceedings before Administrative Courts). In civil 
proceedings, there is no such special ground. In addition, in civil proceedings (as 
opposed to proceedings before administrative courts) the parties are private 
persons or bodies, and the amendment or annulment of a final judgment always 
constitutes an interference with the rights of the party which prevailed in the trial 
PROFI CREDIT POLSKA 
 
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that was concluded in a final manner. Therefore, the grounds for challenging a 
final judgment may have to be more stringent than in proceedings before 
administrative courts. 
20 The Regional Court is of the view that the acte éclairé rule does not apply in this 
case, as it is a peculiar feature of the Polish legal system that the grounds for so-
called constitutional reopening, that is to say, challenging the contested decision 
as a result of a judgment by the national constitutional court, are very broad, 
which allows for a different view of the admissibility of such reopening in the 
light of the principle of equivalence than in the judgments of the Court of Justice 
of 27 October 2018, XC and Others, C-234/17 and of 29 July 2019, Hochtief 
Solutions, C-620/17. 
21 The referring court is of the view that a preliminary ruling of the Court of Justice 
cannot be treated as the functional equivalent of a judgment of the Constitutional 
Court, which invalidates a legal norm as being incompatible with the Constitution 
of the Republic of Poland. 
22 As regards the second question referred for a preliminary ruling, the Regional 
Court seeks to determine whether the principle of interpretation in conformity 
with EU law requires such an interpretation of Article 401(2) of the CCP which 
would also cover cases where a national court giving a default judgment failed to 
examine of its own motion unfair terms in breach of the obligations arising from 
Court of Justice judgments in Profi Credit (C-176/17) and, indirectly, Kancelaria 
Medius (C-495/19). Therefore, the court’s doubts exclusively concern the effect of 
those judgments in domestic procedural law. 
23 In the view of both the appellant and of the Financial Ombudsman, the failure of 
the District Court for Warsaw Praga-Południe in Case VII C 2422/17 to perform 
its duty to examine of its own motion the potentially unfair nature of a contractual 
term constitutes a ground for reopening proceedings, as that failure deprived the 
appellant of her ability to act. Two important aspects need to be clarified here. 
Firstly, the question referred for a preliminary ruling relates to a case in which the 
default judgment challenged in the application for reopening the proceedings 
became final before the judgment of the Court of Justice in Profi Credit 
(C-176/17). Secondly, the question relates to a judgment issued against the 
consumer on the basis of a promissory note alone, without any examination (or 
even knowledge by the court that adjudicated Case VII C 2422/17) of the 
underlying relationship. Subject to those reservations, the grounds set forth in 
Article 401(2) of the CCP also refer to the effects of the judgment of the Court of 
Justice in Profi Credit (C-176/17). 
24 The principle of interpretation in conformity with EU law has its basis in 
Article 4(3) TEU and has been developed in the established case-law of the Court 
of Justice. As the Court clarified in its judgment of 16 June 2005, Pupino, 
C-105/03: ‘the third paragraph of Article 249 [now Article 288 TFEU] and 
Article 10 EC [now Article 4(3) TEU] and each individual directive oblige the 
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12  
Member States, that is, all their authorities, including the courts and tribunals, to 
achieve the result envisaged in that directive by taking all appropriate measures, 
whether general or particular, to fulfil that obligation. It follows that, when 
applying national law, whether adopted before or after the directive, the national 
court which has to interpret that law must do so, as far as possible, in the light of 
the wording and purpose of the directive so as to achieve the result it has in view 
and thereby comply with it’ (paragraph 23 and judgments of the Court of Justice 
of 13 November 1990, Marleasing, C-106/89; of 16 December 1993, Wagner 
Miret, C-334/92; of 14 July 1994, Faccini Dori, C-91/92, paragraph 26; of 
22 May 2003, Connect Austria, C-462/99; of 4 July 2006, Adeneler, C-212/04; 
and of 17 April 2018, Egenberger, C-414/16). Thus understood, the interpretation 
of national law in conformity with EU law requires that account be taken of all the 
methods of interpretation recognised by the national legal order, including the 
functional and systemic interpretations. However, it must be stressed that the 
obligation to interpret national law in conformity with EU law ‘cannot serve as the 
basis for an interpretation of national law contra legem’ (see, to that effect, the 
judgment of the Court of Justice of 15 April 2008, Impact, C-268/06, 
paragraph 100). By contrast, the requirement to interpret national law in 
conformity with EU law includes the obligation for national courts to change their 
established case-law, where necessary, if it is based on an interpretation of 
national law that is incompatible with the objectives of a directive (judgments of 
the Court of Justice of 17 April 2018, Egenberger, C-414/16, paragraph 72, and of 
4 June 2020, Kancelaria Medius, C-495/19, paragraph 50). 
25 As regards the ground for reopening proceedings that consists in ‘depriving a 
party of the ability to act’, it is established case-law and doctrine that such a 
ground is present when a party was prevented from participating in court 
proceedings or a substantial part thereof as a result of an infringement of 
procedural rules by the court or an opponent in the dispute, and that only an 
infringement of procedural law may result in a party being deprived of its ability 
to act in proceedings. In view of the fact that a copy of the default judgment was 
served on the party in the main proceedings, the appellant was not deprived of her 
ability to act in that sense. It should be noted, however, that the case-law allows a 
broader interpretation of Article 401(2) of the CCP than the one presented above, 
namely, in a case in which the ECtHR found a violation of Article 6 of the 
Convention for the Protection of Human Rights and Fundamental Freedoms. In its 
order dated 17 April 2007 (I PZ 5/07), the Supreme Court stated that the national 
court ‘was obliged … to interpret the provisions [of the CCP] on reopening 
proceedings in a manner that would make it possible to remove the effects of the 
violation of the applicant’s right to a fair trial (Article 9 of the Constitution, and 
Articles 46 and 41 of the Convention)’. From the reasoning for this order, it 
follows that the Supreme Court, guided by the need to ensure the effectiveness of 
the ECtHR ruling, broadly interpreted Article 401(2) of the CCP. Thus, the 
question arises whether Article 401(2) of the CCP may be interpreted in such a 
manner as to encompass a court’s failure to examine of its own motion the 
presence of unfair terms. That question should be limited to the proceedings 
which ended in a default judgment and to that end, reference must be made to the 
PROFI CREDIT POLSKA 
 
13 
judgment of the Court of Justice in Profi Credit, C-176/17, which states that 
Article 7(1) of Directive 93/13 must be interpreted as precluding national 
legislation which permits issue of an order for payment founded on a valid 
promissory note that secures a claim arising from a consumer credit agreement, 
where the court dealing with an application for an order for payment does not 
have the power to examine whether the terms of that agreement are unfair, if the 
detailed rules for exercising the right to lodge an objection against such an order 
do not enable observance of the rights which the consumer derives from that 
directive to be ensured. In the grounds of that judgment, it was indicated that the 
adequate and effective means that are to guarantee consumers a right to an 
effective remedy must include the possibility of bringing an action or lodging an 
objection under reasonable procedural conditions, so that the exercise of their 
rights is not subject to conditions, in particular time limits or costs, which reduce 
exercise of the rights guaranteed by Directive 93/13 (paragraph 63, similarly the 
judgment of 21 April 2016, Radlinger and Radlingerová, C-377/14, cited therein). 
Subsequently, analysing the provisions on the Polish order for payment procedure, 
the Court found that the combined effect of the two-week time limit for lodging an 
objection against an order for payment, the obligation to indicate in that objection 
all pleas in law and motions as to evidence on pain of inadmissibility, and the 
obligation to pay a court fee amounting to three-quarters of the fee for bringing an 
action, results in the conclusion that ‘there is a significant risk that the consumers 
concerned will not lodge the objection required, be it because of the particularly 
short period prescribed for that purpose, or because they might be dissuaded from 
defending themselves in view of the costs which legal proceedings would entail in 
relation to the amount of the disputed debt, or because they are unaware of or do 
not appreciate the extent of their rights, or indeed because of the limited content of 
the application for the order for payment lodged by the seller or supplier, and thus 
the incomplete nature of the information available to them’ (paragraphs 64-68, 
69). Therefore, the order for payment procedure provided for in the Polish Code 
of Civil Procedure does not guarantee an effective remedy for the defendant 
consumer to plead the unfairness of contractual terms. 
26 The provisions on default proceedings in the CCP under which the default 
judgment was given in Case VII C 2422/17 show certain similarities to the order 
for payment procedure to which the judgment in Profi Credit referred. 
Nevertheless, the order for payment is issued before a copy of the statement of 
claim is served on the defendant, and a default judgment is given only if the 
defendant who has been served a copy of the statement of claim does not defend 
the case. In the context of the circumstances considered in paragraphs 64 to 68 of 
the judgment in Profi Credit, three aspects appear to be of key importance. Firstly, 
the defendant has the right to lodge a motion to set aside the default judgment 
within a time limit of two weeks from the date of service of the default judgment. 
Pursuant to Article 344(2) of the CCP (in force on the date on which the order for 
payment was served on the defendant), the defendant should, as a rule, adduce all 
evidence and raise all pleas against the claim on pain of inadmissibility. Secondly, 
the motion to set aside the default judgment is subject to a court fee amounting to 
half the fee for bringing an action. Thirdly, the default judgment is declared 
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14  
immediately enforceable ex officio, and the filing of a motion to set it aside does 
not suspend its enforceability. Those characteristics of default proceedings make it 
possible to assume that the observations of the Court of Justice made in 
paragraphs 64 to 69 of the Profi Credit judgment apply to such proceedings 
mutatis mutandis. This is reinforced by the case-law of the Court of Justice, which 
points out that ‘in a case also involving default proceedings, … the imbalance 
which exists between the consumer and the seller or supplier may be corrected 
only by positive action unconnected with the actual parties to the contract’ (the 
judgment in Kancelaria Medius, C-495/19, and also the judgment in Karel de 
Grote, C-147/16), which implies the court’s obligation to examine of its own 
motion the unfairness of contractual terms, also where a default judgment is given. 
27 Finally, it should also not be overlooked that Directive 93/13 is a fundamental 
piece of legislation and its provisions should be treated on an equal footing with 
the fundamental principles of national legal order (public policy), which also 
applies to the court’s obligation to examine of its own motion the unfair nature of 
terms in consumer contracts (see judgment of the Court of Justice of 6 October 
2009, Asturcom Telecomunicaciones, C-40/08, and also, to that effect, the 
judgments of the Supreme Court in proceedings resulting from extraordinary 
appeals). 
28 To conclude, the referring court would like to point out that the Court’s ruling will 
be of considerable importance for judicial practice, as there are potentially a 
significant number of proceedings that ended in final judgments which could be 
reopened as a result of the judgments of the Court of Justice of 13 September 
2018, Profi Credit, C-176/17, and of 3 October 2019, Dziubak, C-260/18.