Order;Information — ECLI:EU:C:2024:489
Date: 2024-05-29
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-720/21 – 1 
Case C-720/21 
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: 
26 November 2021 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
17 November 2021 
Appellant in the extraordinary appeal: 
Rzecznik Praw Obywatelskich 
Applicants at first instance: 
M.M. 
E.M. 
Defendant at first instance: 
X Bank Spółka Akcyjna 
  
Subject matter of the main proceedings 
Extraordinary appeal brought before the Izba Kontroli Nadzwyczajnej i Spraw 
Publicznych Sądu Najwyższego (Extraordinary Review and Public Affairs 
Chamber of the Supreme Court, Poland) by the Rzecznik Praw Obywatelskich 
(Ombudsman), seeking to have the final judgment given by a sąd okręgowy 
(regional court) at second instance set aside in its entirety and to have the case 
referred back to that court. 
The judgment under appeal dismissed the appeal against the judgment of a sąd 
rejonowy (district court) dismissing, at first instance, the claim for an order that a 
bank pay the applicants (borrowers) the amount of 249 Polish zlotys (PLN) each 
together with statutory interest for late payment from 18 February 2016. The 
amount claimed as paid but not due constitutes part of the applicants’ claim 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-720/21 
 
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against the bank and corresponds to part of the first instalment of interest collected 
by the bank on 28 February 2008 as repayment of a foreign currency loan, granted 
in Polish zlotys in an amount constituting the equivalent of 123 180.80 Swiss 
francs (CHF). 
Subject matter and legal basis of the request 
Pursuant to Article 267 TFEU, the referring court submits questions for a 
preliminary ruling concerning the admissibility of an extraordinary remedy, such 
as an extraordinary appeal, aimed at setting aside a final ruling of a court, as well 
as the possibility of setting aside or varying a final ruling of a court where the 
final ruling challenged infringes EU law. 
Questions referred for a preliminary ruling 
1. Must the second subparagraph of Article 19(1) of the Treaty on European 
Union, read in conjunction with Article 47 of the Charter of Fundamental Rights 
of the European Union, Article 4(3) of the Treaty on European Union, and 
Article 2 of the Treaty on European Union, be interpreted as making admissible a 
legal remedy, such as an extraordinary appeal, aimed at setting aside a final ruling 
of a court where there is a need to ‘ensure compliance with the principle of a 
democratic state ruled by law and implementing the principles of social justice’ if 
the use of that remedy is necessary to ensure the effectiveness of EU law? 
2. Must the second subparagraph of Article 19(1) of the Treaty on European 
Union, read in conjunction with Article 47 of the Charter of Fundamental Rights 
of the European Union, Article 4(3) of the Treaty on European Union, and 
Article 2 of the Treaty on European Union, be interpreted as meaning that, where 
provisions of national law make it possible for a final ruling of a court to be varied 
or set aside by means of a remedy such as an extraordinary appeal in the event of 
a breach of the principles enshrined in the Constitution of a Member State, those 
provisions may also be relied on as grounds for setting aside or varying a final 
ruling of a court in the event of a breach of EU law? 
3. Must the second subparagraph of Article 19(1) of the Treaty on European 
Union, read in conjunction with Article 47 of the Charter of Fundamental Rights 
of the European Union, Article 4(3) of the Treaty on European Union, and 
Article 2 of the Treaty on European Union, be interpreted as meaning that, where 
a national court has infringed EU law in a manner which has led to a case being 
decided in a way that is flawed from the point of view of that law, the final ruling 
of that court may be set aside or varied by means of a legal remedy, such as an 
extraordinary appeal, which makes such a decision conditional upon a ‘flagrant’ 
breach of the law? 
RZECZNIK PRAW OBYWATELSKICH 
 
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Provisions of European Union law relied on 
Treaty on European Union – Article 2, Article 4(3), second subparagraph of 
Article 19(1) 
Charter of Fundamental Rights of the European Union – Article 47 
Directive 93/13 – Article 7(1) 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) – 
Articles 2, 9, 45 and 91 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 
on the Supreme Court) – Article 1(1)(a), Article 26 § 1, Article 89 § 1 and 
Article 91 
Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 – Code of Civil Procedure) – Article 363, Article 3981 § 1, 
Article 3982 § 1, Article 399 § 1, Article 403 § 2, Article 412 §§ 1 and 2, 
Article 4241 and Article 4244 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 18 January 2008, the borrowers, who are the applicants in the main 
proceedings, entered into a housing loan agreement with a bank (the defendant) in 
order to purchase a property. Under that agreement, the bank agreed to grant them 
a foreign currency loan, granted in Polish zlotys in an amount constituting the 
equivalent of CHF 123 180.80. The loan was to be repaid by 28 December 2037 
in accordance with the repayment schedule delivered to the borrowers, in an 
amount equivalent to the amounts expressed in foreign currency, with the proviso 
that the instalments of the principal and interest under the loan being repaid would 
be converted at the selling rate of the currency in question in accordance with the 
bank’s table of exchange rates applicable on the date of repayment, at the time of 
the conversions. 
2 On 28 February 2008 the applicants paid the first instalment of interest under the 
loan, amounting to PLN 1 323.37. 
3 By letter of 9 February 2016, the applicants requested that the bank return all 
monies collected from them as repayment of the loan within 7 days of receipt of 
the request, claiming that the loan agreement was null and void. Thereafter, by 
letter of 18 March 2016, the applicants filed with the district court a motion for a 
summons to a conciliation hearing, which went unanswered. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-720/21 
 
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4 On 26 August 2016, the applicants brought an action before the district court, in 
which they each sought PLN 249 from the bank (the defendant) together with 
statutory interest for late payment from 18 February 2016 until the date of 
payment, and requested that the bank be ordered to pay the costs. In the pleading 
of 30 December 2016, it was specified that the amount claimed as paid but not due 
was part of the applicants’ claim against the defendant and corresponded to part of 
the first instalment of interest collected by the bank on 28 February 2008, which 
amounted to PLN 1 327.37. 1 
5 That claim was dismissed by the district court, which stated that there were no 
grounds for a finding that the provisions of the loan agreement were abusive 
clauses, as the provisions in question did not satisfy the conditions to be 
considered abusive laid down in Article 3851 of the Kodeks Cywilny (Civil Code). 
The applicants appealed against the judgment of the district court to the regional 
court, which dismissed their appeal as it found that the clause challenged by the 
applicants, which governed the ‘spread walutowy’ (currency spread), did not set 
out the principal obligation to be performed by the parties and was not a flagrant 
breach of the consumers’ interests, and thus did not satisfy the conditions to be 
considered abusive. In the view of the regional court, Articles 4 and 6 of Council 
Directive 93/13/EEC on unfair terms in consumer contracts had not been infringed 
either. 
6 The Ombudsman lodged an extraordinary appeal with the Extraordinary Review 
and Public Affairs Chamber of the Supreme Court (Poland) against the judgment 
of the regional court, challenging it in its entirety. 
The essential arguments of the parties in the main proceedings 
7 In the statement of reasons for their claim, the applicants have argued that the loan 
agreement contains abusive provisions that set out the principal obligation to be 
performed by the parties and thus it is null and void. Under the agreement, the 
loan was granted in Polish zlotys in an amount equivalent to CHF 123 180.80, but 
no provision of the loan agreement stipulated the equivalent amount in Polish 
currency. The applicants have pointed out that the bank (the defendant), contrary 
to the requirements laid down in Article 3851 § 1 of the Civil Code, reserved its 
right to freely determine that amount. At the hearing, the applicants raised an 
alternative claim, requesting that the defendant be ordered to pay each of them 
CHF 55 together with statutory interest for late payment from the date of filing the 
claim until the date of payment, arguing that the provisions of the loan agreement 
regarding the disbursement of the loan in Polish zlotys are not binding on them, 
and thus the bank should pay them the agreed loan amount in Swiss francs. The 
applicants indicated that the amount claimed in the alternative claim, totalling 
CHF 110, is part of the amount of CHF 123 180.80 which they are entitled to 
receive from the bank and which had not been paid as at the date of their claim. 
 
1 Translator’s note: This appears to be a clerical error. The correct amount is PLN 1 323.37. 
RZECZNIK PRAW OBYWATELSKICH 
 
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8 In his extraordinary appeal, the Ombudsman indicated that in his opinion, the 
provisions of the agreement challenged by the applicants did not precisely set out 
the actual amounts to be paid by the bank or by the borrowers in a manner that 
could be determined without a decision on the part of the bank (the defendant), 
since the loan agreement concluded between the parties did not specify the criteria 
to be used by the bank in order to establish the currency exchange rate both at the 
time of disbursement of the loan and at the time of repayment of individual 
instalments. In the Ombudsman’s view, this meant that the provision of the 
agreement setting out the applicants’ principal obligation to repay the loan and to 
pay interest was not worded unambiguously. 
9 In the grounds for his extraordinary appeal, the Ombudsman pointed out that in 
giving the judgment under appeal, the regional court had failed to review the 
unfair nature of the clauses indicated in the statement of claim and, consequently, 
had failed to examine whether the loan agreement concluded between the parties 
can remain in force without those provisions, and thus whether the agreement is 
valid. In the Ombudsman’s view, the regional court had thus infringed Directive 
93/13, because it had failed to provide adequate protection to the applicants (who 
were consumers). According to the settled case-law of the Court of Justice, when 
hearing a case involving consumers, the national court is required in particular to 
examine of its own motion whether the contractual terms in question that fall 
within the scope of Directive 93/13 are unfair and, if that is the case, to redress of 
its own motion the imbalance between the consumer and the seller or supplier. 
10 According to the Ombudsman, the regional court had also infringed Article 47 of 
the Charter of Fundamental Rights, which guarantees everyone the right to an 
effective remedy before a tribunal. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 Pursuant to Article 89 § 1 of the Law of 8 December 2017 on the Supreme Court, 
‘if it is necessary to ensure compliance with the principle of a democratic state 
ruled by law and implementing the principles of social justice, an extraordinary 
appeal may be filed against the final ruling of an ordinary court or a military court 
concluding the proceedings in a case, provided that: (1) the ruling is in breach of 
the principles or human and civil liberties and rights enshrined in the Constitution; 
or (2) the ruling is flagrantly in breach of the law as a result of its 
misinterpretation or misapplication …, and the ruling cannot be set aside or varied 
using other extraordinary remedies’. 
12 In the Polish legal order, there are also other legal remedies which make it 
possible to correct a flaw in a final ruling or to protect a party’s rights, such as an 
appeal on a point of law, a motion to declare a final ruling unlawful, or a motion 
to reopen proceedings which were concluded with a final judgment. The first two 
of these remedies may be based on an alleged breach of European law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-720/21 
 
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13 An extraordinary appeal may not, under any circumstances, be understood as an 
instrument of further appellate review and it should not be used in order to force 
another review of a ruling whose correctness has already been verified. The 
purpose of an extraordinary appeal is to set aside only those rulings which 
undermine the social contract that is the foundation of a democratic state ruled by 
law. 
14 In that context, doubts arise as to the mutual relationship between the principle of 
stability of final judicial rulings and the principle of effectiveness of Community 
law. The latter requires the full application of EU law in all Member States, with 
Member States being obliged to ensure that legal remedies for the protection of 
subjective rights derived directly from Community law be no less favourable than 
similar remedies under national law. 
15 By its first question, the referring court asks whether the correct interpretation of 
the Treaties entails recognising that use may be made of a legal remedy such as an 
extraordinary appeal in order to ensure the effectiveness of EU law also where the 
provision on which that extraordinary remedy is based expressly and categorically 
makes the possibility of lodging an extraordinary appeal conditional upon the 
need to ‘ensure compliance with the principle of a democratic state ruled by law 
and implementing the principles of social justice’, thus making that condition 
obligatory and essential not just for the extraordinary appeal to be upheld, but also 
for it to be brought at all. The condition in question directly refers to Article 2 of 
the Constitution of the Republic of Poland, pursuant to which the Republic of 
Poland is a democratic state ruled by law and implementing the principles of 
social justice. 
16 A norm of similar import in the system of European law is Article 2 TEU, which 
states that the Union is founded on the values of respect for human dignity, 
freedom, democracy, equality, the rule of law and respect for human rights. In 
view of the foregoing, the need to ‘ensure compliance with the principle of a 
democratic state ruled by law and implementing the principles of social justice’ 
can be justified not only by the application of the principle of the rule of law in the 
domestic legal order but also by its universal character, which is common to all 
the Member States of the European Union and underpins all Community law. It is 
not clear, however, whether the universal application of the principle of the rule of 
law justifies, in order to ensure the effectiveness of Community law, the 
admissibility of a remedy such as an extraordinary appeal which, if upheld, allows 
a final ruling of a court to be set aside. 
17 The second question concerns the interpretation, in the context of Community 
law, of the provision according to which an extraordinary appeal may be upheld if 
the ruling it is challenging is in breach of the principles or human and civil 
liberties and rights enshrined in the Constitution of the Republic of Poland. 
Against that background, the question arises as to whether a breach of EU law 
may be considered equivalent to a breach of the principles enshrined in the 
RZECZNIK PRAW OBYWATELSKICH 
 
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Constitution of a Member State as a condition for setting aside or varying a final 
ruling of a court if use is made of a remedy such as an extraordinary appeal. 
18 The third question relates to the referring court’s doubts as to whether, where a 
national court has infringed EU law in a manner which has led to a case being 
decided in a way that is flawed from the point of view of that law, the final ruling 
of that court may be set aside or varied by means of a legal remedy, such as an 
extraordinary appeal, which makes such a decision conditional upon a finding of a 
‘flagrant’ breach of the law. 
19 Pursuant to national case-law, a flagrant breach of the law is not just one of an 
indisputable nature, but above all one which is so clear-cut that no complex 
intellectual processes are required to establish it. A ‘flagrant’ breach of the law is 
different from a ‘manifest’ breach of the law, that is to say, one that is apparent to 
the average lawyer prima facie without the need for careful analysis. A flagrant 
breach of the law may be considered to have occurred when a provision of 
fundamental importance for the proper determination of the case has been 
infringed, which may have a significant impact on the substance of the ruling 
being challenged. In the context of an extraordinary appeal, a ‘flagrant’ breach of 
the law means one that is relevant from the point of view of the need to implement 
the principle of a democratic state ruled by law. 
20 Against that background, it is necessary to answer the question whether the 
correct interpretation of the Treaties requires that a remedy such as an 
extraordinary appeal must also be regarded as admissible where the breach in 
question concerns provisions of Community law. There is also doubt as to how the 
expression ‘flagrant breach of the law’ should be interpreted under EU law. 
Making such an assessment at Member State level without the relevant guidance 
resulting from the case-law of the Court of Justice is not always possible given the 
nature of Community law and the need for its uniform interpretation in the 
Member States.