Judgment;Summary — ECLI:EU:C:2025:925
Date: 2025-11-27
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-746/24 – 1 
Case C-746/24 [Gryczara] i 
Request for a preliminary ruling 
Date lodged: 
25 October 2024 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
25 October 2024 
Party initiating the proceedings before the referring court: 
Bank Millennium S.A. 
Other party to the proceedings: 
PR 
  
ORDER 
[…] 
The Sąd Okręgowy w Warszawie […] 
after hearing […] in camera 
the case brought by Bank Millennium S.A. with its seat in Warsaw 
against PR 
for payment 
makes the following order: 
I. the following question is referred to the Court of Justice of the European 
Union [(‘the Court of Justice’)] for a preliminary ruling pursuant to Article 267 
TFEU: 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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Should Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts, as well as the principle of 
effectiveness, be interpreted as precluding national provisions whereby 
consumers can be ordered to pay the costs of proceedings in which a national 
court has allowed an action brought by a seller or supplier claiming that the 
consumer should be ordered to repay the sums disbursed on the basis of an 
agreement which is invalid as a result of the fact that it includes unfair 
contractual terms? 
II. […] 
[…] 
GROUNDS […] 
[…] 
1 Referring court. 
2 [Details of the court] […] 
3 Parties to the main proceedings and their representatives. 
4 […] 
5 […] 
6 Subject matter of the dispute in the main proceedings and the relevant facts 
of the case. 
7 On 27 June 2008, the parties concluded a loan agreement on the basis of which the 
bank (the claimant) issued the consumer (the defendant[, or ‘the borrower’]) with 
a loan of PLN 640 000, indexed to the Swiss franc (CHF). On 26 June 2020, the 
consumer filed a statement of claim against the bank in which he moved for a 
finding that the above agreement was invalid and that the payments wrongly made 
in performance of that agreement should be repaid. In a judgment dated 11 May 
2022, file ref. XXIV C 1160/20, the Sąd Okręgowy w Warszawie (Regional 
Court, Warsaw, Poland) [(‘the Regional Court’)] found that the agreement was 
invalid due to the fact that it included unfair contractual terms relating to the 
PLN/CHF conversions carried out by the bank, and also ordered the bank to pay 
the consumer PLN 65 907.32 and CHF 66 600.96 together with default interest at 
the statutory rate from 19 February 2022 until the date of payment, and obliged 
the bank to pay all of the costs of the proceedings on the consumer’s behalf. In a 
judgment dated 31 May 2023, file ref. I ACa 915/22, the Sąd Apelacyjny w 
Warszawie (Court of Appeal, Warsaw, Poland) [(‘the Court of Appeal’)] 
dismissed the bank’s appeal against the aforesaid judgment. 
GRYCZARA 
 
3 
8 On the basis of the loan agreement dated 27 June 2008, the bank disbursed to the 
consumer an amount of PLN 640 000 on 16 July 2008, while the consumer paid 
the bank PLN 126 421.23 and CHF 66 600.96 in total over the period from 
27 June 2008 to 31 December 2020. 
9 The present proceedings were initiated by the bank, which filed a statement of 
claim against the borrower on 23 November 2022 in which it moved for the 
consumer to be ordered to pay it PLN 640 000 together with default interest at the 
statutory rate from the date on which the statement of claim was filed until the 
date of payment. The claimant also moved for the defendant to be ordered to pay 
the costs of the proceedings on its behalf, including in particular a claim fee (5% 
of PLN 640 000, or in other words PLN 32 000) and the costs of legal 
representation by a lawyer (flat-rate fee of PLN 10 800). The claimant stated that, 
because the loan agreement was invalid, the defendant should repay it an amount 
equivalent to the loan capital that had been disbursed (Article 405 of the Civil 
Code, read in conjunction with Article 410(1) thereof), default interest at the 
statutory rate (Article 455 of the Civil Code, read in conjunction with 
Article 481(1) and (2) thereof), and the costs of the present proceedings 
(Article 98(1) and (3) of the Code of Civil Procedure). 
10 […] In a statement of defence dated 31 August 2023, the defendant moved for the 
action to be dismissed in its entirety, and for the claimant to be ordered to pay the 
costs of the proceedings on behalf of the defendant. The defendant conceded that 
he had received PLN 640 000 from the claimant on the basis of the invalid loan 
agreement. In the defendant’s view, however, the claimant’s claim for repayment 
of the aforesaid amount was time-barred; given that the bank had disbursed the 
loan on 16 July 2008, its claim for repayment of that amount had become time-
barred after three years, or in other words in July 2011 at the latest. 
11 In a submission dated 6 May 2024, the defendant moved for the matter to be 
referred to the Court of Justice for a preliminary ruling on the permissibility, 
under Article 6(1) and Article 7(1) of Directive 93/13, of a situation where, in the 
event that an agreement is invalid as a result of the non-binding nature of the 
contractual terms, a consumer may be ordered to pay the costs of the proceedings 
initiated by a seller or supplier, in particular where those costs significantly 
exceed the costs which the consumer is obliged to pay in the event that he or she 
brings an action against the seller or supplier. The defendant drew attention to the 
fact that the claim fee he had paid was PLN 1 000, whereas the fee for the bank’s 
statement of claim was PLN 32 000 (5% of the amount in dispute, namely 
PLN 640 000), which was a significantly higher amount. In the defendant’s view, 
the fact that a consumer might have to reimburse a bank for such significant 
judicial costs will have a deterrent effect on that consumer, whereas the bank does 
not assume any of the risk for its acts, since the entire cost of the claim fee 
charged by the court will be repaid to that bank by the consumer. 
12 Relevant provisions of law. 
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13 Provisions of Polish law. 
14 Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) (consolidated text: Dziennik Ustaw (Journal of 
Laws) of 2024, Item 1061, as amended). 
15 A legal transaction which is contrary to the law or intended to circumvent the law 
shall be invalid, unless the relevant provision provides otherwise, in particular 
where it provides that the invalid terms of the legal transaction are to be 
substituted by relevant provisions of law (Article 58(1)). 
16 The terms of a contract concluded with a consumer which have not been 
individually negotiated shall not be binding on the consumer if his or her rights 
and obligations are set forth in a way that is contra bonos mores and grossly 
infringes his or her interests (unlawful contractual terms). This shall not apply to 
terms setting out the principal obligations of the parties, including price or 
remuneration, so long as they are worded clearly (Article 3851(1)). 
17 If a contractual term is not binding on the consumer pursuant to paragraph 1, the 
contract shall otherwise continue to be binding on the parties (Article 3851(2)). 
18 Any person who, without legal grounds, obtains an economic advantage at the 
expense of another person shall be required to restore that advantage in kind and, 
where that is not possible, to return the value thereof (Article 405). 
19 The provisions of the preceding articles shall apply in particular to an undue 
obligation (Article 410(1)). 
20 An obligation shall be undue where the person who performed it was in no way 
obliged or was not obliged to the person for which it was performed, or where the 
basis of the obligation ceased to exist or the intended objective of the obligation 
was not attained, or where the legal transaction requiring performance of the 
obligation was invalid and did not become valid after the obligation was 
performed (Article 410(2)). 
21 Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure) (consolidated 
text: Dziennik Ustaw of 2023, Item 1550, as amended). 
22 The unsuccessful party shall be obliged to reimburse the opposing party, upon 
request by the latter, for any costs necessary for the purposes of duly enforcing or 
defending the opposing party’s rights (costs of the proceedings) (Article 98(1)). 
23 Parties represented by a lawyer shall include that lawyer’s fees in the essential 
costs of the proceedings; those fees shall not however exceed the rates set out in 
separate provisions and the expenses of one lawyer, court costs and the cost of the 
appearance in person of a party, summoned by the court (Article 98(3)). 
GRYCZARA 
 
5 
24 In the event that the claims are granted only in part, the costs shall be mutually 
waived or split accordingly. The court may however oblige one of the parties to 
reimburse all of the costs if the opposing party was awarded the vast majority of 
its claims, or if the amount owed to that party was determined on the basis of 
mutual settlement or the court’s assessment (Article 100). 
25 The defendant shall be reimbursed any costs incurred even if he or she loses 
provided that he or she did not cause the proceedings to be instituted and 
acknowledged the claim at a first hearing (Article 101). 
26 Where the particular circumstances of the case justify such a decision, the court 
may order the losing party to reimburse only some of the costs, or may exempt it 
altogether from the obligation to reimburse those costs (Article 102). 
27 Regardless of the outcome of the case, the court may oblige a party or intervener 
to reimburse any costs caused by that party or intervener’s negligent or manifestly 
wrongful conduct (Article 103). 
28 The court shall give a decision regarding the costs of the proceedings in every 
decision concluding court proceedings (first sentence of Article 108(1)). 
29 Having closed proceedings, the court shall issue a judgment on the basis of the 
actual state of affairs at the time the proceedings are closed; in particular, the fact 
that a claim becomes due while a case is pending shall not be an obstacle to the 
awarding of such claim (Article 316(1)). 
30 […] 
31 A final ruling shall be binding not only on the parties and the court which issued 
it, but also on other courts, other state bodies and public administrative bodies, 
and other persons in cases covered by the law (Article 365(1)). 
32 Ustawa z dnia 28 lipca 2005 r. o kosztach sądowych w sprawach cywilnych 
(Law of 28 July 2005 on Court Costs in Civil Matters) (consolidated text: 
Dziennik Ustaw of 2022, Item 1125, as amended) (‘the u.k.s.c.’). 
33 A fee shall apply to the following in particular: claims and counterclaims 
(Article 3(2)(1)). 
34 In cases concerning proprietary interests a proportionate fee shall be collected; it 
shall amount to 5% (but no more than PLN 200 000) of the amount in dispute or 
the subject of an appeal where the latter exceeds PLN 20 000 (Article 13(2)). 
35 In cases concerning claims arising in connection with banking activities that are 
filed by a party who is a consumer or who is a natural person running a family 
farm, a fixed fee of PLN 1 000 shall be charged where the amount in dispute or 
the subject of an appeal exceeds PLN 20 000 (Article 13a). 
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36 Rozporządzenie Ministra Sprawiedliwości z dnia 22 października 2015 r. w 
sprawie opłat za czynności adwokackie (Regulation of the Minister for 
Justice of 22 October 2015 on Lawyers’ Fees) (consolidated text: Dziennik 
Ustaw of 2023, Item 1964) (‘the Regulation on Lawyers’ Fees’). 
37 The minimum rate for an amount in dispute greater than PLN 200 000 and up to 
and including PLN 2 000 000 shall be PLN 10 800 (Paragraph 2(7)). 
38 Provisions of European Union law. 
39 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29) (‘Directive 93/13’). 
40 Member States shall lay down that unfair terms used in a contract concluded with 
a consumer by a seller or supplier shall, as provided for under their national law, 
not be binding on the consumer and that the contract shall continue to bind the 
parties upon those terms if it is capable of continuing in existence without the 
unfair terms (Article 6(1)). 
41 Member States shall ensure that, in the interests of consumers and of competitors, 
adequate and effective means exist to prevent the continued use of unfair terms in 
contracts concluded with consumers by sellers or suppliers (Article 7(1)). 
42 Reasons for the reference for a preliminary ruling – jurisdiction of the Court 
of Justice. 
43 The rules for establishing the costs of the proceedings are applicable to the costs 
of proceedings brought before the national courts and are therefore, in principle, 
governed by national law. 1 However, the subject matter of the dispute in the 
present case falls within an area governed by EU law, because it concerns the 
effects of the inclusion of unfair contractual terms in an agreement. 2 It is thus 
necessary to examine whether the rules for establishing the costs of proceedings in 
the present case are such as to deter consumers from exercising the right to 
effective protection derived from Article 7 of [Directive 93/13] with regard to 
unfair contractual terms in view of the costs they will incur in connection with the 
 
1 Cf.: 
- judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, paragraph 26, 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 20. 
2 Cf.: 
- judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, paragraph 27, 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 21. 
GRYCZARA 
 
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initiation of court proceedings. 3 Therefore, although the implementation of the 
rules on the allocation of costs is a matter falling within the domestic legal order 
of each Member State, in accordance with the principle of the procedural 
autonomy of the Member States, the detailed rules for that implementation must 
nevertheless be in line with the principles of equivalence and effectiveness. 4 In 
those circumstances, the Court of Justice has jurisdiction to rule on the request for 
a preliminary ruling. 5 
44 Reasons for the reference for a preliminary ruling – merits of the case. 
45 The parties have concluded a loan agreement that includes unfair contractual 
terms (Article 3(1) of Directive 93/13), and the agreement is not capable of 
continuing in existence without these terms (Article 6(1) of Directive 93/13). 
Those circumstances were established by [the Regional Court] in a judgment 
dated 11 May 2022, file ref. XXIV C 1160/20; the appeal brought by the bank 
against that judgment was dismissed in a judgment handed down by [the Court of 
Appeal] on 31 May 2023, file ref. I ACa 915/22. There is thus no longer any legal 
remedy against the judgment establishing the invalidity of the agreement 
concluded by the parties, and that judgment is therefore final (Article 363(1) of 
the Code of Civil Procedure). In view of this, the judgment concerned is binding 
on the referring court (Article 365(1) of the Code of Civil Procedure). Thus, as the 
loan agreement is invalid, all the payments made pursuant thereto constitute undue 
obligations (Article 410(2) of the Civil Code) and the parties may claim mutual 
repayment of those payments (Article 405 of the Civil Code, read in conjunction 
with Article 410(1) thereof). Each of the parties is entitled to a separate claim vis-
à-vis the other party for repayment of the undue obligations. 6 The consumer is 
therefore entitled to a claim against the bank for repayment of an amount 
equivalent to all of the loan instalments he paid, totalling PLN 126 421.23 and 
 
3 Cf. judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, paragraph 27. 
4 Cf.: 
- judgment of the Court of Justice of 16 July 2020, Caixabank, C-224/19 and C-259/19, paragraph 95, 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 23, 
- judgment of the Court of Justice of 13 July 2023, CAJASUR Banco SA, C-35/22, paragraph 24, 
- judgment of the Court of Justice of 21 March 2024, Profi Credit Bulgaria, C-714/22, paragraph 83. 
5 Cf.: 
- judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, paragraph 28, 
- judgment of the Court of Justice of 22 April 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 24. 
6 Cf. Resolution No III CZP 25122 of the Civil Chamber (full composition) of the Sąd Najwyższy 
(Supreme Court, Poland) [(‘the Supreme Court’)] of 25 April 2024. 
REQUEST FOR A PRELIMINARY RULING OF 25. 10. 2024 – CASE C-746/24 
 
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CHF 66 600.96 […], while the bank is entitled to a claim against the consumer for 
repayment of the loan capital disbursed, namely PLN 640 000. 
46 It follows from the foregoing that the bank’s claim for the payment of 
PLN 640 000 together with default interest at the statutory rate is well founded. 
What is more, it follows from domestic case-law that if a loan agreement is no 
longer binding owing to the unlawful nature of its terms, in principle the limitation 
period for the bank’s claim for the repayment of amounts disbursed in connection 
with the loan starts to run on the day following the day on which the borrower 
questioned the bank regarding the binding nature of the terms of the agreement. 7 
Given the factual circumstances of the present case, this means that the limitation 
period for the bank’s claim started to run as from 26 June 2020, because the 
consumer filed a statement of claim in that year (Article 120(1) of the Civil Code), 
and thus the three-year limitation period for the bank’s claim for payment would 
have expired on 31 December 2023 (Article 118 of the Civil Code), but was 
interrupted as a result of the bank filing a statement of claim in the present case on 
23 November 2022 (Article 123(1)(1) of the Civil Code). With this in mind, the 
plea of time-barring entered by the defendant is not well founded, and the 
referring court should therefore order the defendant to pay to the claimant the 
entirety of the sum sought by the latter, namely PLN 640 000 together with 
default interest at the statutory rate. The bank’s action is therefore well founded on 
the merits. 
47 If the bank’s action is granted on the merits, this means that the referring court 
must also give a decision on the costs of the proceedings (Article 108(1)). The 
fundamental principle governing the costs of civil proceedings is that of 
responsibility for the outcome of the case. According to that principle, the 
unsuccessful party should reimburse the successful party for the costs of the 
proceedings (Article 98(1) of the Code of Civil Procedure); in the event that the 
claims are granted in part, the costs should be mutually waived or split 
accordingly (Article 100 of the Code of Civil Procedure). As the bank’s action for 
payment is well founded, the aforesaid principle should apply in the present case. 
It is however impossible to order the claimant to repay the costs pursuant to 
Article 101 of the Code of Civil Procedure, because the defendant did not 
acknowledge the claim at a first hearing. There is therefore no basis for ordering 
the claimant to repay the costs of the proceedings based on the principle of fault 
(Article 103(1) of the Code of Civil Procedure), as, in the referring court’s view, 
there are no grounds for finding the claimant’s conduct negligent or manifestly 
wrongful. The referring court also believes that there are no grounds for ordering 
the defendant to repay the costs of the proceedings based on the principle of 
equity (Article 102 of the Code of Civil Procedure), as it would be hard to claim 
that the defendant’s situation features ‘particular circumstances [that] justify such 
a decision’. It should be noted that a copy of the statement of claim initiating the 
 
7 Cf. Resolution No III CZP 25/22 of the Civil Chamber (full composition) of the Supreme Court 
of 25 April 2024. 
GRYCZARA 
 
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present proceedings was served on the defendant on 20 July 2023, or in other 
words around two months after [the Court of Appeal], in a judgment dated 
31 May 2023, dismissed the appeal against the judgment of [the Regional Court] 
dated 11 May 2022, which established the invalidity of the loan agreement. Given 
that the final judgment establishing the invalidity of the loan agreement had 
therefore already been legally existent for almost two months, the defendant 
should have foreseen that he would be obliged to repay the bank an amount 
equivalent to the loan capital. 
48 In this context, consideration should be given to the Court of Justice’s position 
that the allocation of the costs of judicial proceedings before the national courts 
falls within the procedural autonomy of the Member States, subject to compliance 
with the principles of equivalence and effectiveness. 8 Although the principle of 
effectiveness does not preclude, in general, a consumer from incurring certain 
legal costs when he or she brings proceedings for a declaration that a contractual 
term is unfair, 9 it should also be observed that Directive 93/13 confers on 
consumers the right to apply to a court to have a contractual term declared unfair 
and disapplied; a right the effectiveness of which must be preserved. 10 As a result, 
the rules on allocating the costs for such proceedings must not deter a consumer 
from exercising that right. 11 
49 In view of the aforesaid case-law of the Court of Justice, the referring court is 
uncertain whether application of the principle of responsibility for the costs of the 
proceedings (Article 98(1) of the Code of Civil Procedure) is contrary to the 
 
8 Cf.: 
- judgment of the Court of Justice of 16 July 2020, Caixabank, C-224/19 and C-259/19, paragraph 95. 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 34, 
- judgment of the Court of Justice of 21 March 2024, Profi Credit Bulgaria, C-714/22, paragraph 82. 
9 Cf.: 
- judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, paragraph 51, 
- judgment of the Court of Justice of 21 March 2024, Profi Credit Bulgaria, C-714/22, paragraph 83. 
10 Cf.: 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 37, 
- judgment of the Court of Justice of 21 March 2023, Profi Credit Bulgaria, C-714/22, paragraph 83. 
11 Cf.: 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, paragraph 41, 
- judgment of the Court of Justice of 21 March 2024, Profi Credit Bulgaria, C-714/22, paragraph 83. 
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objectives of Directive 93/13. In this regard, particular consideration should be 
given to the fact that the obligation to repay the costs of the proceedings covers 
primarily the lawyer’s fees and the court costs (Article 98(3) of the Code of Civil 
Procedure). The court costs incurred by the claimant include the claim fee of 
PLN 32 000 (or in other words 5% of the amount in dispute with regard to the 
claim of PLN 640 000 asserted by the claimant, pursuant to Article 13(2) of the 
u.k.s.c.), while the lawyer’s fees amount to PLN 10 800 in a case where the 
amount in dispute is greater than PLN 200 000 and does not exceed 
PLN 2 000 000 (Paragraph 2(7) of the Regulation on Lawyers’ Fees). If the 
defendant were to be ordered to repay the above costs of the proceedings, this 
would therefore mean that he would be obliged to pay not only PLN 640 000 
together with default interest at the statutory rate, but also a total of PLN 42 800 to 
the claimant for the costs of the proceedings. It cannot be ignored that the 
obligation to pay such high costs of proceedings may place a significant financial 
burden on the average consumer. The referring court wishes to point out that the 
average monthly salary in the corporate sector in Poland is currently 
PLN 8 140.98, 12 and so a sum of PLN 42 800 for the costs of proceedings would 
correspond to almost half of the average annual salary in Poland. Ordering the 
defendant to pay such significant costs of proceedings may thus undermine the 
objectives of Directive 93/13, including the principle of effectiveness. 
50 At this point, consideration should be given to the defendant’s argument that the 
lawyer’s fee (PLN 10 800) is the same in the present case as it was in the case 
initiated by the consumer, but the claim fee in the two cases is vastly different. In 
the case in which he acted as claimant, the consumer incurred a claim fee of 
PLN 1 000 (pursuant to Article 13a of the u.k.s.c.), while in the present case the 
bank incurred a claim fee of PLN 32 000 (pursuant to Article 13(2) of the u.k.s.c.), 
which meant that the bank’s fee was tens of times larger. 
51 In the light of the foregoing, the referring court is uncertain whether ordering the 
consumer to reimburse such significant costs of proceedings may have a deterrent 
effect on him, and as a result discourage him from asserting his rights based on the 
provisions of Directive 93/13. On the other hand, however, in the present case the 
consumer had already been represented since 2020 by a lawyer who informed him 
about the effects of the loan agreement’s invalidity, including the obligation to 
repay to the bank the loan capital and any default interest at the statutory rate, as 
well as the costs of the proceedings. Exactly the same information was provided to 
the consumer by the court in the case conducted under file ref. XXIV C 1160/20 
and I ACa 915/22. In view of this, the obligation to reimburse the costs of the 
proceedings in the present case cannot have come as a surprise to the consumer, 
and given that he was aware that he could be ordered to reimburse the costs of the 
proceedings in the present case and in spite of this decided to bring an action for a 
finding that the loan agreement was invalid, it is impossible to claim that the 
 
12 Cf. the announcement published by the President of the Główny Urząd Statystyczny (Central 
Statistical Office, Poland) of 21 October 2024 concerning the average monthly salary in the 
corporate sector for Autumn 2024. 
GRYCZARA 
 
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consumer has been discouraged from asserting his rights on the basis of Directive 
93/13. 
52 Another potential argument against a finding that ordering the defendant to repay 
the costs of the present proceedings undermines the objectives of Directive 93/13 
is that the defendant was in a position to accede to the claim immediately after 
receiving a copy of the statement of claim. As has already been noted above, the 
defendant received a copy of the statement of claim on 20 July 2023 and thus at a 
point in time when the final judgment establishing the invalidity of the loan 
agreement concluded by the parties had already been legally existent for almost 
two months. If the defendant had acknowledged the claim at a first hearing at this 
point, the provisions of Article 101 of the Code of Civil Procedure would have 
applied to the case, and the defendant rather than the claimant would have been 
owed the entire costs of the proceedings. The average consumer cannot of course 
realistically be expected to have at his or her disposal a sum of PLN 640 000 (the 
sum claimed by the claimant), but the defendant would have been able to benefit 
from the possibility of offsetting (Article 498(1) of the Civil Code). If the 
defendant, after receiving a copy of the statement of claim, had submitted to the 
bank a declaration requesting that the sum he owed be offset (Article 499 of the 
Civil Code), both of those claims would therefore have cancelled each other up to 
the amount of the lesser claim (Article 498(2) of the Civil Code), and the sum 
owing to the bank would have been in large part settled. In the present case, 
however, the consumer decided to follow a different procedural strategy, which 
involved rejecting the option of settling the bank’s claim and instead entering a 
plea of time-barring, which proved to be unfounded. 
53 The last issue to be analysed is whether the provisions of Article 6(1) and 
Article 7(1) require a national court to order a seller or supplier to bear all of the 
negative consequences of the inclusion of unlawful contractual terms in an 
agreement. If the loan agreement had not included the unfair contractual terms, the 
present proceedings would not have happened in the first place. This raises the 
question of whether, in a situation of this kind, the seller or supplier should also 
repay all the costs of the relevant proceedings, regardless of their outcome and 
even if the claim of the seller or supplier is granted in its entirety. 
54 Irrespective of the above, the referring court wishes to draw attention to the 
defendant’s pleading that in the previous proceedings the bank put forward the 
unfounded argument that the agreement concluded by the parties was valid and 
did not include any unfair contractual terms. The referring court leaves it to the 
Court of Justice to assess that argument, which appears irrelevant in a situation 
where the proceedings initiated by the consumer were completed with final effect 
before the statement of claim initiating the present proceedings was served on the 
consumer. Such an argument might be material in a situation where both sets of 
proceedings were conducted in parallel; this was not the situation in the present 
case however, given the factual circumstances of that case. 
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55 Having regard to the arguments set out above, the referring court seeks guidance 
from the Court of Justice as to how national provisions governing the rules for 
allocating the costs of proceedings between the parties should be applied in such a 
way as to avoid undermining the objectives of Directive 93/13. In the referring 
court’s view, this matter has not yet been adjudicated on in the case-law of the 
Court of Justice. It is true that the Court of Justice has expressed its views several 
times to date on the relationship between national provisions concerning the costs 
of proceedings and the provisions of Directive 93/13, 13 but each such case related 
to a situation in which the claimant was a consumer. The present case however 
differs from those cases in that the defendant is the consumer, and furthermore in 
that the present proceedings are being conducted after the completion with final 
effect of the proceedings initiated by the consumer for a finding of invalidity of 
the agreement including the unfair contractual terms. With this in mind, the 
referring court is uncertain as to the application of the criteria set out in the case-
law of the Court of Justice as cited above, such as a substantial obstacle that is 
likely to discourage consumers from exercising the right to an effective judicial 
review of the potential unfairness of contractual terms as conferred by Directive 
93/13 14 and, if they should be applied, how this should be done in a procedural 
situation where the consumer is the defendant, and where previous proceedings 
moving for a finding of invalidity of the agreement including the unfair 
contractual terms have been completed with final effect. 
56 Question referred for a preliminary ruling. 
57 [repetition of the question] […] 
58 Staying of the main proceedings by the referring court. 
[…] 
 
13 Cf.: 
- judgment of the Court of Justice of 16 July 2020, Caixabank, C-224/19 and C-259/19, 
- judgment of the Court of Justice of 7 April 2022, Caixabank, C-385/20, 
- judgment of the Court of Justice of 22 September 2022, Servicios prescriptor y medios de pagos EFC 
SAU, C-215/21, 
- judgment of the Court of Justice of 13 July 2023, CAJASUR Banco SA, C-35/22, 
- judgment of the Court of Justice of 21 March 2024, Profi Credit Bulgaria C-714/22. 
14 Cf.: 
- judgment of the Court of Justice of 16 July 2020, Caixabank, C-224/19 and C-259/19, paragraph 99, 
- judgment of the Court of Justice of 21 March 2024, Profi Credit Bulgaria, C-714/22, paragraph 84.