Provisional text
OPINION OF ADVOCATE GENERAL SPIELMANN
delivered on 6 March 2025 (1)
Case C‑582/23 [Wiszkier] (i)
R.S.
other parties:
C. S.A.,
P.C., acting as trustee in bankruptcy of R.S. and M.S.,
M.K., acting as liquidator of G. S.A. in liquidation,
J.J.,
M.G.
(Request for a preliminary ruling from the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland))
( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 6(1) – Article 7(1) – Powers and obligations of the national court – Mortgage loan indexed to a foreign currency possibly containing unfair terms – Bankruptcy proceedings – Ex officio examination by the bankruptcy court of the existence of unfair terms and the possibility of ordering interim measures )
1.        This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Directive 93/13/EEC. (2)
2.        The request has been made in the context of a dispute arising in bankruptcy proceedings involving R.S., a consumer in personal bankruptcy, on the one hand, and his creditors, including a bank, G. spółka akcyjna, established in W. (‘Bank G.’), on the other, concerning the establishment of a creditor repayment plan.
3.        The Court of Justice is asked to consider the issue of the power of a national court to examine, ex officio, whether terms in a mortgage loan agreement indexed to a foreign currency, concluded between the individual in bankruptcy and Bank G., are unfair and to order interim measures, if appropriate, in order to protect the rights which Directive 93/13 confers on consumers.
4.        While this issue is not a new one for the Court of Justice, the case at hand presents certain particularities. The request for a preliminary ruling has been made in the context of bankruptcy proceedings concerning natural persons not engaged in business by a court (the bankruptcy court) which is called upon to establish, on the basis of a list of claims approved by a different judicial authority (the supervisory judge), a creditor repayment plan or to find that the assets already accumulated in the bankruptcy estate are sufficient to honour all the debts.
Legal framework
EU law
5.        Article 6(1) of Directive 93/13 is worded as follows:
‘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.’
6.        Article 7(1) of that directive provides:
‘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.’
Polish law
The Law on Bankruptcy and Insolvency
7.        Bankruptcy and insolvency proceedings are governed by the Ustawa z dnia 28 lutego 2003 r. – Prawo upadłościowe (Law of 28 February 2003 on Bankruptcy and Insolvency), Dziennik Ustaw (Journal of Laws; ‘Dz. U.’) of 2019, item 498, as amended (‘the Law on Bankruptcy and Insolvency’).
8.        In accordance with Article 2(2) of the Law on Bankruptcy and Insolvency, proceedings governed by that law and conducted in respect of natural persons not engaged in business are to be conducted in such a way as to enable the discharge of such of the bankrupt’s debts as have not been discharged in the bankruptcy proceedings and, as far as possible, to satisfy the claims of creditors.
9.        Article 61 of the Law on Bankruptcy and Insolvency provides that, from the date of the declaration of bankruptcy, the bankrupt’s assets become the bankruptcy estate, which is used to satisfy the bankrupt’s creditors. In addition, in accordance with Article 62 of that law, the bankruptcy estate comprises the assets belonging to the bankrupt on the date of the declaration of bankruptcy and those acquired by the bankrupt during the course of the bankruptcy proceedings, subject to the exceptions set out in Articles 63 to 67a thereof. Thus, it is apparent from, inter alia, point (2) of paragraph (1) of Article 63 of the Law on Bankruptcy and Insolvency that the portion of the bankrupt’s remuneration that cannot be seized does not form part of the bankruptcy estate.
10.      In accordance with Article 152(1) to (3) of the Law on Bankruptcy and Insolvency, it falls to the supervisory judge to direct the bankruptcy proceedings, to supervise the actions of the trustee in bankruptcy, to determine what actions the trustee may take with the authorisation of the supervisory judge or the authorisation of the committee of creditors, and to take note of any errors or omissions on the part of the trustee. The supervisory judge is also to perform the other actions specified in that law. The supervisory judge and the trustee may communicate with each other regarding matters relating to the bankruptcy proceedings directly and by means of direct remote communication, in particular by telephone, fax or email.
11.      Article 154 of that law provides that the supervisory judge has, in connection with his or her actions, the rights and duties of the district court and of the President of the district court.
12.      Article 236 of the Law on Bankruptcy and Insolvency states:
‘1.      A creditor having a claim against the personal assets of the bankrupt who wishes to participate in the bankruptcy proceedings must, where it is necessary for his claim to be established, give notice of the claim to the supervisory judge within the period fixed in the order declaring bankruptcy.
2.      A creditor shall also have the right to give notice of a claim where it is secured by a mortgage, a pledge, with or without possession, a Public Treasury privilege, a maritime mortgage or any other entry in the Land Register or Ship Register. In the event that a creditor fails to give notice of such a claim, it will be included in the list of claims ex officio.
3.      Paragraph 2 shall apply, mutatis mutandis, to claims secured by a mortgage, a pledge, with or without possession, a Public Treasury privilege or a maritime mortgage on assets forming part of the bankruptcy estate where the bankrupt is not a personal debtor and the creditor wishes to enforce his claims against the asset so secured in the bankruptcy proceedings.
4.      The provisions of this Article relating to claims shall apply to other claims or debts that must be satisfied from the bankruptcy estate.’
13.      In accordance with Article 241 of the Law on Bankruptcy and Insolvency, provided that the notice of claim fulfils certain identification and information requirements, which are specified in other provisions of that law, the supervisory judge is to give a copy of the notice of claim to the trustee in bankruptcy, immediately or at least within a period of fifteen days.
14.      Article 243 of that law provides that the trustee is to verify whether the claim declared is supported by the bankrupt’s accounts or other documents, or by entries in the Land Register or in other registers, and is to call upon the bankrupt to produce, within a prescribed period, a declaration as to whether or not he or she acknowledges the claim. Article 244 thereof provides that, after the expiry of the period allowed for declaring claims and following the verification of declared claims, the trustee is immediately to establish a list of claims and must do so no later than two months after the expiry of the period allowed for the declaration of claims.
15.      In accordance with Article 245(2) and (4) of the Law on Bankruptcy and Insolvency, in the event that the trustee rejects, in whole or in part, a creditor’s declaration of claim, he is to state the reasons therefor in a special section. Those reasons must include an indication of the facts giving rise to the claim and of the documents relating to the claim. The trustee is also to attach to the list of claims, as appropriate, the declaration made by the bankrupt and the reasons given by him, or a reference to the fact that the bankrupt has not made a declaration or given reasons.
16.      In accordance with Article 255(2) of the Law on Bankruptcy and Insolvency, the date of submission of the list of claims is to be published. Pursuant to Article 256 of that law, in the two weeks following the publication of the list of claims, the bankrupt has the right to lodge an objection with the supervisory judge if the draft list of claims is not in accordance with his requests or declarations. It is also clear from that article that, if the bankrupt has not lodged a declaration despite having been called upon to do so, he may lodge an objection only if he can show that that omission was for reasons beyond his control.
17.      In accordance with Article 260(2) of that law, if no such objection has been lodged, the supervisory judge is to approve the list of claims after the expiry of the period allowed for lodging an objection.
18.      It is clear from Article 261 of that law that the supervisory judge may amend the list of claims ex officio if he finds that claims that are wholly or partly inexistent have been included in the list or that claims that should appear in the list are missing. That article also provides that the order amending the list is to be published and that that order may be appealed.
19.      Article 264 of the Law on Bankruptcy and Insolvency states, in paragraphs (1) to (3) thereof, that, upon the conclusion or discontinuance of the bankruptcy proceedings, an extract of the list of claims approved by the supervisory judge, containing a reference to a claim and the amount received by the creditor, constitutes an enforceable instrument which may be enforced against the bankrupt. The bankrupt may request that a claim appearing on the list of claims be declared inexistent or of a lesser sum, provided that he has not acknowledged the claim declared in the bankruptcy proceedings and that no final judicial decision has yet been given with regard to it. Once a certificate of enforceability has been appended to the extract of the list of claims, the bankrupt may object that a claim appearing on the list of claims is inexistent or of a lesser sum by means of an action opposing the enforcement of that enforceable instrument.
20.      Article 49114(1) to (3) of the Law on Bankruptcy and Insolvency provides that, once a final distribution plan has been established, and where, because the bankrupt’s assets are insufficient, no distribution plan has been drawn up, the court, once the list of claims is approved and once the bankrupt, the trustee and the creditors have been heard, is to establish a creditor repayment plan. If the personal situation of the bankrupt clearly shows that he will not be able to make any payment whatsoever under a creditor repayment plan, the court is to discharge the bankrupt’s debts without drawing up a creditor repayment plan. The bankruptcy court’s order establishing a creditor repayment plan or discharging the bankrupt’s debts without drawing up a creditor repayment plan is to be served on the creditors and is amenable to appeal. Once that decision becomes final the bankruptcy proceedings are closed.
21.      Article 49115 of the Law on Bankruptcy and Insolvency provides, in paragraphs (1) and (4) thereof, that the court is to specify in the order establishing the creditor repayment plan the extent to which and the period (not exceeding 36 months) within which the bankrupt must repay the debts acknowledged in the list of claims that have not been repaid in the course of the bankruptcy proceedings on the basis of the distribution plans, and what portion of the bankrupt’s debts arising prior to the date of the declaration of bankruptcy is to be discharged after the creditor repayment plan has been given effect. The court is not bound by the bankrupt’s position on the content of the creditor repayment plan. When establishing the creditor repayment plan, the court is to consider the bankrupt’s earning capacity, the maintenance needs of the bankrupt and his dependents (including their housing needs), the scale of unsatisfied claims, and the possibility of those claims being satisfied at a later date.
The Labour Code
22.      Article 87 of the Ustawa z dnia 26 czerwca 1974 r. – Kodeks pracy (Law of 26 June 1974 establishing the Labour Code), Dz. U. of 2022, item 1510, as amended, provides, inter alia, that, in the case of the enforcement of other debts or the deduction of cash advances made by an employer to cover professional expenses, deductions may be made of up to half of a person’s salary.
The facts, the main proceedings, the questions referred for a preliminary ruling and the proceedings before the Court of Justice
23.      On 30 March 2007, R.S., together with his wife and two other individuals, entered into a mortgage loan agreement, indexed to the Swiss franc (CHF), with Bank G., amounting to 489 821.63 Polish złote (PLN) (approximately EUR 126 673) and with a term of 360 months. Following the indexation of the loan, the borrowers undertook to repay Bank G. the sum of CHF 211 952.23 (approximately EUR 130 456). (3)
24.      By order of 15 October 2019, the Sąd Rejonowy dla Łodzi–Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland), XIVth commercial chamber for bankruptcy, insolvency and restructuring matters, declared R.S. personally bankrupt. A trustee in bankruptcy, P.C., and a supervisory judge were appointed.
25.      Subsequently, the trustee drew up a list of claims that was approved by order of the supervisory judge of 26 April 2021. Bank G.’s claim, under the loan agreement in question, was included in that list. R.S. acknowledged all of the claims and lodged no objection to the list. Similarly, the supervisory judge made no ex officio amendment to the list.
26.      On 20 July 2023, Bank G. was declared insolvent and the proceedings continued with the participation of the bank’s liquidator.
27.      As the bankruptcy proceedings currently stand, it falls to the Sąd Rejonowy dla Łodzi–Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź), the referring court, to establish, on the basis of the list of claims drawn up, a plan for the repayment of R.S.’s creditors in accordance with his earning capacity and the amount of unsatisfied debts or, alternatively, to find that the assets already accumulated in the bankruptcy estate are sufficient to satisfy all his debts, such that there is no need for a repayment plan.
28.      However, the referring court is of the view that the loan agreement which gave rise to Bank G.’s claims contains unfair terms that could render that agreement invalid, and it points out that this aspect has not been investigated by the trustee in bankruptcy or the supervisory judge. The bank’s claims might, therefore, already have been satisfied. (4)
29.      According to the referring court, although the bankrupt did acknowledge all of the claims, it is not apparent from the bankruptcy case file that he had been informed of the potential unfairness of the terms of the loan agreement in question; nor is it apparent that he declared in full knowledge of the facts that he did not wish to avail himself of the protection afforded him by Directive 93/13. On the contrary, after the hearing before the referring court closed, the bankrupt’s legal representative, who has acted for him since 3 November 2022, lodged a document in which he stated that the contract was possibly invalid on account of the inclusion of unfair terms and that the sums to be repaid were therefore liable to be reduced.
30.      The referring court states that, in bankruptcy proceedings, it is difficult to determine which authority is responsible for examining, in appropriate cases, whether the contractual terms from which a claim declared in bankruptcy proceedings arises are unfair. Indeed, the trustee in bankruptcy sends the list of claims to the supervisory judge, who will not in principle make any substantive assessment of them. Admittedly, the supervisory judge can amend the list of claims ex officio. Nevertheless, if no objection is lodged by the bankrupt or by the creditors and if the supervisory judge does not act ex officio, once that list is approved, the bankruptcy court is bound by it.
31.      Consequently, the applicable provisions of national law offer no opportunity to the bankruptcy court, when drawing up a creditor repayment plan, to check for itself whether any contractual terms are unfair. The bankruptcy court can merely stay its ruling and refer the matter to the supervisory judge, who has power under national law to amend the list of claims ex officio.
32.      For the entire duration of the bankruptcy proceedings and until the bankruptcy court’s order establishing a creditor repayment plan becomes final, the bankruptcy estate will continue to receive the sums automatically withheld from the bankrupt’s salary. In the present case, since he was declared bankrupt, 50% of the bankrupt’s salary has been automatically withheld and paid into the bankruptcy estate, with the result that he is left with PLN 3 500 (approximately EUR 754) (5) after the withholding, and any excess he might have paid will be reimbursed only after the bankruptcy proceedings are closed.
33.      Moreover, national law does not allow the bankruptcy court or the supervisory judge to adjust in any way the amount of such withholdings. Only the bankruptcy court, if it establishes a creditor repayment plan, can consider the personal situation of the bankrupt, his financial needs and those of close family members and decide, where appropriate, that the amount to be set aside each month for the repayment of debts after the bankruptcy proceedings have been concluded should be less than the withholdings from his salary.
34.      However, according to the referring court, first of all, referring the question of the potentially unfair nature of contractual terms to the supervisory judge will cause a delay in dealing with the case, in the sense that, at the hearing to establish the creditor repayment plan, in most instances the bankruptcy court already has available to it all the information needed to assess that question. In addition, any decision to amend the list of claims will be at the discretion of the supervisory judge and any order he makes to that effect may be appealed before the bankruptcy court.
35.      Secondly, the bankrupt has argued that the portion of his salary that he retains after withholding is not sufficient to meet his own needs and those of his family.
36.      That being so, the referring court is of the view that the bankrupt might be deterred from availing himself of the protection afforded by Directive 93/13. If he does not, the bankruptcy court would sooner be able to draw up a repayment plan for him that takes account of his needs and those of his close family members, which would most likely result in the repayment of smaller sums than those hitherto withheld from his salary. That, however, would require R.S. to accept that the list of claims includes the debt claimed by Bank G. in its entirety.
37.      In those circumstances, the Sąd Rejonowy dla Łodzi–Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must Article 6(1) and Article 7(1) of [Directive 93/13] be interpreted as precluding rules of national law which provide that the bankruptcy court is bound by the list of claims approved by the supervisory judge in bankruptcy proceedings, thereby preventing the bankruptcy court which gives the final ruling in the proceedings from assessing whether contractual terms are unfair?
(2)      Must Article 6(1) and Article 7(1) of [Directive 93/13] be interpreted as precluding rules of national law which do not allow for the ordering of interim measures in bankruptcy proceedings and which are therefore liable to deter consumers from availing themselves of the protection afforded them by that directive?’
38.      The Polish Government, the bank’s liquidator, the trustee in bankruptcy and the European Commission have submitted written observations. The Polish Government, the bank’s liquidator and the Commission also made oral submissions at the public hearing held on 14 November 2024.
Analysis
39.      The crux of the matter raised by the referring court in this case lies in the fact that, first of all, in bankruptcy proceedings concerning natural persons not engaged in business, once the list of claims is approved by order of the supervisory judge, who is himself a judicial authority, and the proceedings continue before the bankruptcy court, that court is bound by that list.
40.      However, although the trustee in bankruptcy, in principle, carries out a substantive review of the claims, and although the supervisory judge has the power to re-examine those claims and to amend the list of claims ex officio, there is no obligation on the supervisory judge to do so. Thus, the referring court has stated that, generally, a supervisory judge will examine only the formal aspects of notices of claims. (6) In any event, in the present case, it is common ground that the trustee in bankruptcy and the supervisory judge did not examine the mortgage loan agreement concluded between the bankrupt and Bank G. with reference to the protection against unfair terms afforded by Directive 93/13.
41.      At the stage where it draws up a creditor repayment plan, a bankruptcy court that has doubts (of its own or prompted by a consumer) regarding the fairness of terms of a contract which has given rise to a claim that has been declared in the bankruptcy proceedings has no power to assess whether those terms are unfair and cannot amend the list of claims accordingly, even if no such examination has yet been carried out.
42.      The bankruptcy court can, on the other hand, stay the proceedings and refer the question of the potentially unfair nature of such contractual terms to the supervisory judge, who does have power to amend the list of claims ex officio. Any order the supervisory judge makes following such a referral may be appealed before the bankruptcy court. Any amendment of the list of claims is nevertheless at the discretion of the supervisory judge, who is not bound by the position taken in that regard by the bankruptcy court.
43.      Secondly, for the entire duration of the bankruptcy proceedings, no interim measures may be adopted, even though it might be appropriate to adjust the amount withheld from the bankrupt’s salary.
44.      It is in that context that the national court has raised the two questions referred for a preliminary ruling, which I shall address in turn, while giving an overview of the general principles derived from the case-law of the Court of Justice, which has had many an occasion to consider the question of the ex officio examination of the unfairness of contractual terms and, to a lesser extent, the adoption of interim measures in the context of consumer protection.
The first question referred, concerning the ex officio examination of the unfairness of contractual terms
45.      Having regard to the reasoning of the referring court, as set out in its request for a preliminary ruling, and also to the crux of the matter, as set out in points 39 to 42 of this Opinion, in order for the national court to be provided with an answer that will be of use to it, I propose to reformulate the first question referred (7) so that the Court assesses whether Article 6(1) and Article 7(1) of Directive 93/13 are to be interpreted as precluding rules of national law which, in bankruptcy proceedings, provide that, once a list of claims has been approved by a judicial authority and the proceedings continue before the bankruptcy court, the latter is bound by that list of claims, such that it has no power either to assess whether contractual terms are unfair or to amend the list of claims accordingly, but must, in appropriate cases, stay the proceedings and refer the question of the potentially unfair nature of those contractual terms to the judicial authority in question.
46.      I would recall at the outset that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. (8)
47.      Having regard to that weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not binding on consumers. (9) In addition, Article 7(1) of that directive, read in conjunction with recital 24 thereof, obliges the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers.
48.      The Court has also emphasised that the imbalance which exists between the consumer and the seller or supplier may be corrected by the court hearing such disputes only by positive action unconnected with the actual parties to the contract. (10) Thus, it has held, including with reference to bankruptcy and insolvency proceedings, that, in the exercise of the functions incumbent upon it, the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that purpose. (11)
49.      As the Court has had occasion to clarify with regard to national enforcement proceedings such as mortgage enforcement proceedings, (12) national bankruptcy and insolvency proceedings are subject to the requirements arising from its case-law which seeks to ensure the effective protection of consumers.
50.      Moreover, it is for the national court, under Article 6(1) of Directive 93/13, to establish all the consequences, arising under national law, of a finding that a term is unfair in order to ensure that the consumer concerned is not bound by that term, which implies excluding the application of the term regarded as being unfair so that it does not produce binding effects with regard to the consumer and the consumer is restored to the legal and factual situation which he would have been in if that term had not existed. (13)
51.      It is also clear from the case-law that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. On that basis, those detailed procedural rules must be no less favourable than those governing similar domestic-law actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (14)
52.      In the present case, it is not apparent from the information provided by the referring court that the relevant Polish legislation applies any differently according to whether a dispute concerns rights derived from national law or rights derived from EU law, and so the following analysis will solely address the consistency of the national legislation at issue with the principle of effectiveness.
53.      As regards the principle of effectiveness, it is clear from the case-law of the Court that every case in which the question arises of whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, how it comes into play and its special features, viewed as a whole and, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. (15)
54.      It is in the light of those considerations that I shall first of all examine, with reference to Article 6(1) and Article 7(1) of Directive 93/13, the matter of the referral of the assessment of the unfairness of contractual terms to the supervisory judge. I shall then endeavour to answer certain arguments put forward, essentially, by the bank’s liquidator and by the bankrupt’s trustee in bankruptcy to the effect that, in the course of the bankruptcy proceedings, the bankrupt had the opportunity to rely on the unfairness of the terms of the loan agreement in question, such that he should be deemed to have been entirely passive or even to have waived, in full awareness of the facts, his right to the protection afforded by Directive 93/13. Lastly, I shall suggest to the Court an answer to the first question referred for a preliminary ruling, in view of the considerations I shall set out and the circumstances of the case in the main proceedings.
The referral of the assessment of the unfairness of contractual terms to the supervisory judge, in light of the principle of effectiveness
55.      The Court has already held that requiring positive action on the part of the consumer and the pursuit of separate adversarial proceedings (16) and the fact that a particular procedure comprises certain procedural requirements that the consumer must respect in order to assert his rights (17) do not mean that he does not enjoy effective judicial protection.
56.      The question therefore arises of the extent to which further intervention on the part of the supervisory judge is capable of ensuring that the consumer enjoys effective judicial protection and of satisfying the requirements set out in Article 6(1) and Article 7(1) of Directive 93/13.
57.      In the present case, I would observe that it is apparent from the request for a preliminary ruling that the supervisory judge, to whom the question of the potentially unfair nature of contractual terms may be referred, so that, where appropriate, he may amend the list of claims accordingly, is not bound by the bankruptcy court’s opinion regarding the unfairness of the terms in question and is free to decide that there is no reason to amend the list of claims. Moreover, the applicable provisions of national law do not provide that the supervisory judge is under an obligation to assess the unfairness of contractual terms; nor do they provide that the bankruptcy court can require him to do so. A degree of uncertainty therefore surrounds the assessment of whether contractual terms are unfair when the supervisory judge further intervenes.
58.      It is also apparent from the information in the case file that any order made by the supervisory judge may be appealed before the bankruptcy court, which will then have jurisdiction to re-examine the potentially unfair nature of the contractual terms. (18) If an appeal is brought against the order of the supervisory judge, it will then inevitably fall to the bankruptcy court, at the end of this ‘judicial ping-pong’, (19) to settle the question of whether the terms in question are unfair and whether or not the list of claims should be amended.
59.      To the uncertainty I have already mentioned may be added, as the referring court points out, the unwarranted delay in dealing with the case, in the sense that that court already has available to it all the legal and factual elements enabling it to assess the potentially unfair nature of the terms of the loan agreement in question.
60.      I would also observe that, according to the referring court, any decision to stay the proceedings and to refer the question of the potentially unfair nature of the contractual terms to the supervisory judge will have the consequence that, while the supervisory judge is examining that question, half of the bankrupt’s salary will continue to be withheld and paid into the bankruptcy estate. In the present case, the bankrupt has argued that the amount remaining after the withholding is not sufficient to meet his own needs and those of his family. The provisions which apply to the bankruptcy proceedings, as set out by the referring court, do not permit either the bankruptcy court or the supervisory judge to adjust the amount withheld. (20) Indeed, as I have already pointed out, (21) it is only when it comes to drawing up a creditor repayment plan that the bankruptcy court can consider the personal situation of the bankrupt and decide, in its order concerning the drafting of a repayment plan, which brings the bankruptcy proceedings to a conclusion, on repayments of a lesser monthly sum.
61.      In that regard, it is clear from the case-law of the Court that the protection which Directive 93/13 confers on consumers extends to cases in which a consumer who has concluded with a seller or supplier a contract containing an unfair term fails to raise the unfair nature of the term in question, inter alia, because he is deterred from relying on it on account of the costs which legal proceedings would involve, (22) and to cases in which there is a significant risk that the consumer will not lodge the necessary objection because of the costs which that would entail in relation to the amount of the disputed debt, which can be such as to dissuade the consumer from bringing court proceedings for the purpose of assessing the potentially unfair nature of contractual terms. (23)
62.      In the context of bankruptcy proceedings such as those in the present case, there is, I believe, a significant risk that the bankrupt, who is already in a precarious financial position, will be deterred from enforcing the rights which Directive 93/13 confers on him. Indeed, that will be the case where the bankruptcy court, entertaining doubts as to the fairness of certain contractual terms, can do no more than stay the proceedings and refer the matter to the supervisory judge, which will prolong the proceedings and keep the bankrupt longer in the situation where his salary continues to be subject to automatic withholdings that cannot be adjusted, and all the more so where the examination of the unfairness of the terms in question by the supervisory judge is not guaranteed.
63.      If the question of the potentially unfair nature of certain terms has already been referred to the supervisory judge by the bankruptcy court, either of its own motion or at the bankrupt’s request, the bankrupt may similarly be deterred from appealing against the supervisory judge’s order, so as not to postpone even further the moment when the bankruptcy court can consider his financial difficulties, when drawing up a creditor repayment plan, even if that means that the claim in question will be maintained in its entirety.
64.      Given those circumstances, I consider that the bankruptcy proceedings at issue in the main proceedings jeopardise the attainment of the objective pursued by Directive 93/13 and are contrary to the case-law of the Court according to which the specific characteristics of court proceedings governed by national law and involving sellers or suppliers and consumers must not constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13. (24)
65.      If the examination of the unfairness of contractual terms by a judicial body is merely hypothetical, then it must be regarded as insufficient to ensure the full effectiveness of the consumer protection intended by Directive 93/13. Such a review must be carried out, ex officio if necessary, either by the first court involved in the proceedings or by a second judicial authority, and there must be no significant risk that the consumer will waive the right to the protection against unfair terms afforded by Directive 93/13, as that protection must be real and effective, and not theoretical or illusory.
66.      Therefore, given the circumstances of the present case and having regard to the case-law of the Court, there are strong indications that Article 6(1) and Article 7(1) of Directive 93/13 preclude the application of the national procedural rules at issue, which, in my view, do not constitute adequate and effective means to prevent the continued use of unfair terms, such that the protection of the consumer is incomplete and insufficient.
67.      That conclusion is not, it seems to me, called into question by the fact that, if no appeal is brought against the order by which the supervisory judge initially approves the list of claims, that list acquires the authority of res judicata, as the bank’s liquidator argued at the hearing.
68.      The principle of res judicata admittedly has a certain importance both for the EU legal order and for the national legal systems, and the Court has observed on a number of occasions that, in order to ensure stability of the law and legal relations, as well as 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 the time limits laid down for the exercise of those rights have expired, can no longer be called into question. (25)
69.      Thus, the Court has acknowledged that consumer protection is not absolute. More specifically, it has held that EU law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13, subject, however, to compliance with the principles of equivalence and effectiveness, (26) and provided that there is no significant risk that the consumer will not lodge an objection within the period provided for that purpose. (27)
70.      The Court has also held that, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, national legislation under which an examination of the court’s own motion of the unfairness of contractual terms is deemed to have taken place and to have the force of res judicata, even where there is no statement of reasons to that effect in a decision, is liable to render meaningless the national court’s obligation to examine of its own motion the potential unfairness of contractual terms. (28)
71.      According to the Court, in the absence of a statement attesting to the existence of a review of the unfairness of the contractual terms in question, the consumer is not informed of the existence of that review or, at least summarily, of the grounds on which a court has found that the terms at issue were not unfair. Clearly, an effective review of the possible unfairness of contractual terms, as required by Directive 93/13, could not be guaranteed if the force of res judicata extended also to judicial decisions which do not indicate such a review. (29)
72.      In such cases, the requirement of effective judicial protection necessitates that the judicial authority before which the matter is subsequently brought is able to assess, including for the first time, whether the contractual terms which served as the basis for a decision issued previously by a judicial authority at the request of a creditor, and against which the debtor has not lodged an objection, are unfair. (30)
73.      In view of that case-law, I consider that, in the circumstances of the case in the main proceedings, in the event that the supervisory judge has issued an order that has acquired the force of res judicata,  even though there has been no examination of the unfairness of the contractual terms from which a claim in the bankruptcy has arisen, Directive 93/13 requires the bankruptcy court to assess, of its own motion or at the request of a party and once it has available to it the necessary legal and factual elements, whether those terms are in fact unfair and to draw the necessary consequences from its finding.
74.      In accordance with the case-law of the Court, the position could be different only if the supervisory judge had expressly stated that he had carried out an examination of the unfairness of the contractual terms at issue and that that examination, with at least summary reasons, had not revealed the existence of any unfair terms, if necessary with the additional clarification that the supervisory judge’s conclusion on completing that examination could no longer be called into question unless an objection was lodged for that purpose within the prescribed period. It is common ground, however, that that is not the case in this instance.
The bankrupt’s inaction with regard to the other opportunities for availing himself of the rights conferred by Directive 93/13
75.      Admittedly, it is clear from the case-law that the need to comply with the principle of effectiveness cannot be stretched so far as to make up fully for complete inaction on the part of the consumer concerned. (31) In that regard, it is important to point out that it was in the judgment in Asturcom (32) that the Court for the first time expressly referred to this limit on the ex officio intervention of a national court in connection with the protection that consumers derive from Directive 93/13. Asturcom is also the only case in which the Court directly drew the consequences from that observation. (33) In that case, the question of the potentially unfair nature of an arbitration clause was raised before the court responsible for enforcing a final arbitration award. The Court held that the need to comply with the principle of effectiveness could not be stretched so far as to mean that, in circumstances such as those of that case, a national court was required not only to compensate for a procedural omission on the part of a consumer who was unaware of his rights, but also to make up fully for total inertia on the part of the consumer concerned, who had not participated in the arbitration proceedings, not appeared before the arbitrator and not brought an action, within the two-month period prescribed by the national legislation, for the annulment of the arbitration award, which had consequently become final.
76.      That said, I consider the circumstances of the present case to be different from those which led the Court to that conclusion in the judgment in Asturcom. In the present case, the bankrupt participated in the bankruptcy proceedings and appeared, through his legal representative, before the bankruptcy court. Moreover, after the hearing before the bankruptcy court, his legal representative lodged a document challenging the unfairness of certain of the contractual terms of the loan agreement at issue, which alerted the bankruptcy court to the matter.
77.      It is true that the bankrupt did not lodge any objection to the list of claims and did not bring proceedings for a declaration that the claim at issue did not exist.
78.      Nevertheless, he still cannot be accused of complete inertia.
79.      Indeed, on numerous occasions the Court has qualified the position taken in the judgment in Asturcom. While referring to the case-law addressing complete inaction on the part of the consumer, it has frequently added that it is necessary to analyse whether there is, having regard to the specific characteristics of the national procedure concerned, a non-negligible risk that, in proceedings brought by suppliers or sellers and to which consumers are defendants, the latter will be deterred from asserting rights conferred on them by Directive 93/13, in particular, because of the particularly short period of time allowed for bringing an action, 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. (34)
80.      In the present case, it is apparent from the information in the case file that, in bankruptcy proceedings under Polish law, the bankrupt can, in principle, lodge an objection to the list of claims or bring proceedings for a declaration that a claim does not exist only if he has first made a declaration to the trustee in bankruptcy that he refuses to acknowledge the claim in question. The referring court has stated, however, that if the bankrupt had informed the trustee of his concerns regarding the fairness of the contractual terms, that would have made it necessary to bring proceedings before an ordinary court, (35) which would have further prolonged the bankruptcy proceedings, during which time the bankrupt’s salary would continue to be subject to automatic withholdings, and would have resulted in additional legal costs.
81.      In addition, on declaring that he acknowledges a particular claim, the bankrupt loses the right subsequently to argue that the agreement from which the claim arises is invalid. At the hearing, it was confirmed that such an acknowledgment implies that the bankrupt acknowledges both the amount of the claim and its legal basis. As regards the period within which the bankrupt is invited to produce a declaration as to whether or not he acknowledges the claim, there is nothing in the case file to help determine this and the Law on Bankruptcy and Insolvency merely provides that it is a ‘prescribed period’ indicated by the trustee in bankruptcy. (36)
82.      The referring court has also stated that any objection against the list of claims must be lodged within two weeks of publication of that list and is subject to the payment of proportional court fees, amounting to 5% of the value of the subject matter of the dispute, but not less than PLN 30 (approximately EUR 6) and not more than PLN 100 000 (approximately EUR 22 000). (37) Moreover, these fees would have to be paid from the bankrupt’s own funds, drawn from the remainder of his salary after withholdings.
83.      However, the Court has already had occasion to hold that a period of two weeks is particularly short and creates a significant risk that the consumer will not lodge the objection required, (38) and that a debtor who is required to pay a security which is calculated on the basis of the value of the subject matter of the claim is liable to be dissuaded from lodging an objection. (39)
84.      Lastly, it is important to remember that recognition of the weaker position of the consumer vis-à-vis the seller or supplier as regards both bargaining power and level of knowledge is at the heart of the system of protection afforded by Directive 93/13. It has been continually repeated in the case-law that consumers may be unaware of the unfairness of a term in a mortgage loan agreement or not appreciate the extent of their rights under Directive 93/13, (40) either at the time or after the contract has been performed in full. (41)
85.      Accordingly, the mere fact that the potential unfairness of certain terms of the loan agreement at issue in this case was raised only at a late stage in the bankruptcy proceedings does not, in my view, permit the inference of complete inertia on the part of the bankrupt.
86.      It follows from the foregoing that the arrangements for exercising the right to rely on the protection afforded by Directive 93/13 in the context of bankruptcy proceedings under Polish law, as set out by the referring court, bring to light matters that give rise to serious doubts regarding the effectiveness of the available means of judicial review. Thus, in my view, there is a significant risk that a consumer will refrain from seeking from the trustee in bankruptcy the protection to which he is entitled under Directive 93/13, because he is unaware of or does not appreciate the extent of his rights, and that he will refrain from lodging an objection to the list of claims, because he may be deterred from defending his interests by the costs which an objection would entail in relation to the value of the disputed debt; an objection which, moreover, would have to be lodged within a particularly short period of time. In such circumstances, it cannot be considered that the bankrupt has demonstrated complete inaction within the meaning of the case-law referred to in point 75 of this Opinion.
Waiver of the exercise of the rights conferred by Directive 93/13
87.      The Court has clarified that the system of protection established by Directive 93/13 is not compulsory. The right to effective consumer protection includes the option to waive the exercise of one’s rights, with the consequence that, where appropriate, the national court must take account of the intention expressed by the consumer where, although aware of the non-binding nature of an unfair term, that consumer nevertheless states that he is opposed to that term being disregarded, thus giving his free and informed consent to the term in question. (42)
88.      In the present case, there is nothing to suggest that, as soon as the trustee in bankruptcy had drawn up the list of claims, the bankrupt was aware of the non-binding nature of certain terms of the loan agreement at issue and of the consequences thereof, such that, in full awareness of the facts, he waived the right to rely on their unfair nature and his right to the protection conferred by Directive 93/13. He was declared bankrupt on 15 October 2019 and the supervisory judge approved the list of claims by order of 26 April 2021. The bankrupt did not, however, have legal representation until 3 November 2022. Moreover, as soon as the hearing before the bankruptcy court concluded, his legal representative lodged a written document asserting the unfairness of the terms included in the loan agreement at issue.
89.      I therefore consider that, in the absence of advice from legal counsel, it cannot be inferred that, by acknowledging the claims declared to the trustee in bankruptcy and by not lodging an objection with the supervisory court, the bankrupt definitively and in a free and informed manner waived his right to avail himself of the system of protection against the use of unfair terms by sellers and suppliers introduced by Directive 93/13 for the benefit of consumers.
Conclusion regarding the first question referred
90.      Having regard to all the foregoing considerations, I consider that the provisions of Polish procedural law governing bankruptcy proceedings, or at least the way in which they are applied in Polish legal practice, are such as to make it excessively difficult for bankrupt individuals to obtain the protection which Directive 93/13 is intended to confer on them and do not, therefore, meet the standards of effective judicial protection of consumers.
91.      Accordingly, I propose that the Court’s answer to the first question referred for a preliminary ruling should be that Article 6(1) and Article 7(1) of Directive 93/13 are to be interpreted as precluding rules of national law, such as those at issue in the main proceedings, which, in bankruptcy proceedings, provide that, once a list of claims has been approved by decision of a judicial authority, and it is not expressly apparent from that decision that an examination of the unfairness of contractual terms has been carried out, and the proceedings continue before the bankruptcy court, the latter is bound by that list of claims, such that it has no power either to assess, of its own initiative or at the request of a consumer, whether the contractual terms are unfair or to amend the list of claims accordingly, but must, in appropriate cases, stay the proceedings and refer the question of the potentially unfair nature of those terms to the judicial authority in question.
The second question referred, concerning the adoption of interim measures
92.      By its second question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 are to be interpreted as precluding rules of national law which do not allow for the ordering of interim measures in bankruptcy proceedings such as those in the present case.
93.      With respect to the issue of the grant of interim measures, (43) I would recall that EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair. Those procedures fall within the domestic legal systems of the Member States, in accordance with the principle of the procedural autonomy of the Member States, on condition, however, that they comply with the principles of equivalence and effectiveness. (44) As I have mentioned earlier, the following analysis will focus on the principle of effectiveness, which alone is the subject of the referring court’s question.
94.      As regards, in particular, interim measures sought in order to assert the rights arising from Directive 93/13, the Court has held that Article 6(1) and Article 7(1) of Directive 93/13 preclude national legislation which does not allow the court adjudicating on the substance, which has jurisdiction to assess the unfairness of a contractual term, to grant interim relief, such as staying mortgage enforcement proceedings, where the grant of such measures is necessary to guarantee the full effectiveness of its final decision on the fairness or unfairness of the terms, such legislation being liable to undermine the effectiveness of the protection intended by that directive. (45)
95.      However, that case-law addresses a specific context: without the possibility of adopting interim measures, the final decision of the court adjudicating on the substance, declaring the contractual term at issue unfair, would have enabled the consumer to obtain only subsequent protection of a purely compensatory nature, which would have been incomplete and insufficient and would have constituted neither an adequate nor an effective means of preventing the continued use of unfair terms, contrary to Article 7(1) of Directive 93/13. (46)
96.      Similarly, where the Court held that it was necessary to be able to stay an individual action brought by a consumer seeking a declaration that a contractual term was unfair pending the final judgment in an ongoing parallel collective action the outcome of which was likely also to be applied in the individual action, there was a risk that the consumer would pay, in the course of legal proceedings for a declaration that a mortgage loan agreement was invalid, the duration of which could be considerable, monthly instalments of a higher amount than would actually be due if the term in question were to be disregarded. (47)
97.      Moreover, where the national legislation at issue did allow for the adoption of interim measures, the Court clarified that the full effectiveness of the consumer protection intended by Directive 93/13 required that such measures be adopted according to rules which are not liable to discourage the consumer from bringing and pursuing an action. (48)
98.      In another case in which the national legislation again allowed for the grant of interim measures, albeit they were typically refused, the Court’s finding was that, if the national court considers, first, that there is sufficient evidence that the contractual terms concerned are unfair and that reimbursement of the sums paid by the consumer concerned under the loan agreement at issue in the main proceedings is therefore likely and, secondly, that, if interim measures to suspend payment of the monthly instalments due under that agreement are not granted, the full effectiveness of the final decision on the substance of the case cannot be guaranteed, which it is for the national court to assess, taking into account all the circumstances of the case, that court must grant interim measures consisting in the suspension of the consumer’s obligation to make payments on the basis of that contract. (49)
99.      In the present case, on the one hand, the Polish legislation in question does not allow for the adoption of interim measures to ease the situation in which a bankrupt consumer finds himself in the course of bankruptcy proceedings. (50)
100. On the other hand, there is no risk of undue payments being made to the creditor that is a party to the contract containing the unfair term. As long as the bankruptcy proceedings are ongoing, the bankrupt does not repay creditors and will do so only when the creditor repayment plan drawn up by the bankruptcy court takes effect. In addition, the bankrupt will, once the bankruptcy proceedings are concluded, recover any surplus paid into the bankruptcy estate.
101. Nevertheless, the referring court has stated that, considering the amount that has been paid into the bankruptcy estate thus far and the scale of the bankrupt’s debts, it could transpire that the amount paid in is sufficient to satisfy the claims, with the exception of the claim at issue. Also, it is important to bear in mind that, in bankruptcy proceedings, the bankrupt consumer is already in a precarious position. While he may be able to recover any surplus paid into the bankruptcy estate, the fact remains that, for the entire duration of the bankruptcy proceedings, he will be deprived of part of his salary, which is automatically withheld, even if the funds in the bankruptcy estate will be sufficient to satisfy his creditors, with the exception of the creditor relying on a contract certain terms of which are potentially unfair. It cannot be ruled out that, in such a situation, the bankrupt’s financial difficulties will thus be exacerbated, which could also have an effect on his close family members.
102. In addition, the referring court considers that, in the absence of interim measures to reduce the sums withheld from the bankrupt’s salary, and given the lengthening of the proceedings concerned in the event of examination of the unfairness of the contractual terms and the risk that the bankrupt’s financial situation will deteriorate, there could be a significant risk that the bankrupt will refrain from taking the action necessary in order to benefit from the protection afforded him by Directive 93/13 and instead settle for a repayment plan under which he will have to pay less than the sums currently withheld from his salary, as I mentioned in point 60 of this Opinion.
103. The protection which Directive 93/13 confers on consumers and the attendant requirement for effective judicial protection therefore seem to me to be clearly incomplete where, notwithstanding an examination by a national court, of its own motion or at the bankrupt’s request, of the unfairness of contractual terms, there is no way to adjust the sums withheld from the bankrupt’s salary, even if the funds in the bankruptcy estate are liable to be sufficient to cover, and may even exceed, the amount of the liabilities, with the exception of the claim at issue.
104. It is, however, for the national court to determine whether the adoption of interim measures, reducing the amount withheld from the bankrupt’s salary, is necessary in order to ensure that the bankrupt enjoys the protection which Directive 93/13 affords him, the full effectiveness of the decision that will be handed down regarding the unfairness of the terms in question and the restoration of the bankrupt’s legal and factual situation, having regard to the specific circumstances of the case. To that end, the national court may take into account, in particular, whether there is sufficient evidence that the contractual terms concerned are unfair, whether there is a real possibility that the bankruptcy estate already contains sufficient assets to satisfy the creditors, with the exception, as appropriate, of the disputed claim, the bankrupt’s financial situation and the risk that the bankrupt will have to endure a lengthening of the proceedings which could result in an unjustified deterioration in his financial situation pending the conclusion of the bankruptcy proceedings.
105. Therefore, I suggest that the Court’s answer to the second question referred for a preliminary ruling should be that Article 6(1) and Article 7(1) of Directive 93/13 are to be interpreted as precluding rules of national law which, in bankruptcy proceedings, do not allow for the adoption of appropriate interim measures, if the grant of such measures is necessary in order to ensure the full effectiveness of the decision that will be handed down regarding the unfairness of contractual terms, which it is for the national court to assess.
Conclusion
106. In light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Sąd Rejonowy dla Łodzi–Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland) as follows:
(1)      Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
are to be interpreted as precluding rules of national law, such as those at issue in the main proceedings, which, in bankruptcy proceedings, provide that, once a list of claims has been approved by decision of a judicial authority, and it is not expressly apparent from that decision that an examination of the unfairness of contractual terms has been carried out, and the proceedings continue before the bankruptcy court, the latter is bound by that list of claims, such that it has no power either to assess, of its own initiative or at the request of a consumer, whether the contractual terms are unfair or to amend the list of claims accordingly, but must, in appropriate cases, stay the proceedings and refer the question of the potentially unfair nature of those contractual terms to the judicial authority in question.
(2)      Article 6(1) and Article 7(1) of Directive 93/13
are to be interpreted as precluding rules of national law which, in bankruptcy proceedings, do not allow for the adoption of appropriate interim measures, if the grant of such measures is necessary in order to ensure the full effectiveness of the decision that will be handed down regarding the unfairness of contractual terms, which it is for the national court to assess.
1      Original language: French.
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.
2      Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
3      At the rate of exchange applicable on 30 March 2007.
4      The referring court has pointed out that, if the loan agreement in question were to be annulled, the debt owed to Bank G. would stand at no more than PLN 489 821.63 (approximately EUR 126 673). It has added that bankruptcy proceedings are also pending against two other individuals with whom R.S. entered into that loan agreement and that Bank G. has obtained that sum from the sale of the undivided half of the property in question.
5      At the rate of exchange applicable on 20 September 2023.
6      The Polish Government confirmed at the hearing that, although the supervisory judge can ask to see the trustee in bankruptcy’s file so as to obtain evidence, he does not do so systematically or automatically.
7      According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it (see judgment of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria
(C‑224/19 and C‑259/19, EU:C:2020:578, paragraph 46)).
8      See, inter alia, judgments of 15 June 2023, Bank M. (Consequences of the annulment of the contract) (C‑520/21, EU:C:2023:478, paragraph 54 and the case-law cited), and of 11 April 2024, Air Europa Líneas Aéreas (C‑173/23, EU:C:2024:295, paragraph 27 and the case-law cited).
9      Article 6(1) is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. See, in that regard, inter alia, judgments of 11 April 2024, Air Europa Líneas Aéreas (C‑173/23, EU:C:2024:295, paragraph 28 and the case-law cited), and of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 23 and the case-law cited).
10      See judgments of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 53 and the case-law cited), and of 14 December 2023, Getin Noble Bank (Limitation period for actions for restitution) (C‑28/22, EU:C:2023:992, paragraph 78 and the case-law cited).
11      See, inter alia, judgments of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 35); of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 46); of 30 April 2014, Barclays Bank (C‑280/13, EU:C:2014:279, paragraph 34); of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 24); and of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 59), in which the Court notably concluded that Article 7(1) of Directive 93/13 precluded national legislation, such as that at issue in the main proceedings in those cases, which, in insolvency proceedings does not permit the court hearing the action to examine of its own motion the potentially unfair nature of contractual terms on which the claims declared in those proceedings are based, even when it has available to it the matters of law and fact necessary to that end.
12      See judgment of 29 October 2015, BBVA (C‑8/14, EU:C:2015:731, paragraph 20 and the case-law cited).
13      See, to that effect, judgments of 30 June 2022, Profi Credit Bulgaria (Offsetting ex officio in the event of an unfair term) (C‑170/21, EU:C:2022:518, paragraphs 41 and 42) (‘the judgment in Profi Credit Bulgaria’); of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491, paragraph 39), and of 5 September 2024, Novo Banco and Others (C‑498/22 to C‑500/22, EU:C:2024:686, paragraphs 138 and 139 and the case-law cited).
14      See, to that effect, judgment of 12 February 2015, Baczó and Vizsnyiczai (C‑567/13, EU:C:2015:88, paragraphs 41 and 42 and the case-law cited).
15      See, inter alia, judgments of 27 February 2014, Pohotovosť (C‑470/12, EU:C:2014:101, paragraph 51 and the case-law cited), and of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraph 53).
16      See, to that effect, the judgment in Profi Credit Bulgaria (paragraphs 45 to 49), in which the Court held that national legislation providing that the court does not have the power, in the context of order for payment proceedings, to determine whether a claim exists, such that the consumer concerned is consequently obliged, in order to exercise his right to full restitution, to conduct separate proceedings, was not contrary to the principle of effectiveness.
17      See judgment of 31 May 2018, Sziber (C‑483/16, EU:C:2018:367, paragraphs 50 and 54), in which the Court held, in particular, that the effectiveness of the protection intended by Directive 93/13 did not preclude the existence of another effective procedural path open to the consumer to request reimbursement of sums unduly paid.
18      I base this observation on the remarks of the bank’s liquidator regarding the possibility of challenging an order made by the supervisory judge after he has considered any objection made against the list of claims originally drawn up by the liquidator.
19      This expression was used by Advocate General Bobek in his Opinion in Torubarov (C‑556/17, EU:C:2019:339, point 2) to refer to the undesirable situation in which a case is repeatedly shuttled back and forth between courts within a judicial structure, or, in the context of administrative justice, between the courts and administrative authorities.
20      I would point out that the parties’ submissions to the contrary, including in their answers to the questions put at the hearing, have not enabled me to determine whether, and if so under what circumstances, the national law in question permits the bankrupt to seek and obtain the exclusion of certain of his assets from the bankruptcy estate, and to what extent any such exclusion could apply to the withholdings from his salary. As the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgment of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale, C‑698/18 and C‑699/18, EU:C:2020:537, paragraph 46) (‘the judgment in Raiffeisen Bank and BRD Groupe Société Générale’), for the purposes of the present analysis, I adopt the premiss that the national law applicable to the bankruptcy proceedings in question does not permit either the bankruptcy court or the supervisory judge to adjust the amount withheld from the bankrupt’s salary, as the request for a preliminary ruling appears to suggest.
21      See point 33 of this Opinion.
22      See, for example, to that effect, order of 16 November 2010, Pohotovosť (C‑76/10, EU:C:2010:685, paragraphs 43 and 44); judgments of 12 November 2002, Cofidis (C‑473/00, EU:C:2002:705, paragraph 34); of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 54); and of 4 June 2020, Kancelaria Medius (C‑495/19, EU:C:2020:431, paragraph 31 and the case-law cited).
23      See judgment of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396, paragraphs 50, 58 and 59 and the case-law cited) (‘the judgment in Impuls Leasing România’), in which the Court stated that it was likely that a debtor in default would not have the financial resources necessary to provide the guarantee required in order to lodge an objection, all the more so where the value of the subject matter of the action brought greatly exceeded the total value of the contract. On this point, see also judgments of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraphs 67 and 68); of 26 June 2019, Addiko Bank (C‑407/18, EU:C:2019:537, paragraph 60); and of 4 May 2023, BRD Groupe Societé Générale and Next Capital Solutions (C‑200/21, EU:C:2023:380, paragraphs 38 and 39).
24      See, inter alia, judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraph 55); of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraph 62); of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 46); and the judgment in Impuls Leasing România (paragraph 45 and the case-law cited).
25      See, inter alia, judgments of 16 March 2006, Kapferer (C‑234/04, EU:C:2006:178, paragraph 20 and the case-law cited); of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615, paragraphs 35 and 36), (‘the judgment in Asturcom’); of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 46); and of 17 May 2022, SPV Project 1503 and Others (C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 57 and the case-law cited) (‘the judgment in SPV Project 1503’).
26      See, to that effect, judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 49); the judgment in SPV Project 1503 (paragraph 58 and the case-law cited); judgments of 17 May 2022, Ibercaja Banco (C‑600/19, EU:C:2022:394, paragraphs 41 and 42 and the case-law cited); and of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, EU:C:2024:58, paragraph 57 and the case-law cited). See also the Opinion of Advocate General Tanchev in SPV Project 1503 and Others (C‑693/19 and C‑831/19, EU:C:2021:615, points 71 and 72), and order of 28 November 2018, PKO Bank Polski (C‑632/17, EU:C:2018:963, paragraph 45 and the case-law cited).
27      See judgment of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraphs 45 to 55).
28      See the judgment in SPV Project 1503 (paragraph 65).
29      See, to that effect, judgment of 17 May 2022, Ibercaja Banco (C‑600/19, EU:C:2022:394, paragraphs 49 and 50), and the Opinion of Advocate General Medina in Všeobecná úverová banka (C‑598/21, EU:C:2023:22, point 99). On the other hand, in paragraph 51 of the judgment in Ibercaja Banco, cited above, the Court held that that protection would be ensured if the national court had expressly stated, in its decision authorising the mortgage enforcement, that it had carried out an examination of its own motion as to whether the terms of the instrument giving rise to the mortgage enforcement proceedings were unfair, that that examination, with at least summary reasons, had not revealed the existence of any unfair terms and that, in the absence of an objection within the period laid down by national law, the consumer would be time barred from asserting the possible unfairness of those terms.
30      See, to that effect, the judgment in SPV Project 1503 (paragraphs 65 and 66), and judgment of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, EU:C:2024:58, paragraph 58 and the case-law cited).
31      See, inter alia, judgments of 17 May 2022, Unicaja Banco (C‑869/19, EU:C:2022:397, paragraph 28); of 22 September 2022, Vicente (Action for the recovery of lawyers’ fees) (C‑335/21, EU:C:2022:720, paragraph 56) (‘the judgment in Vicente’); of 13 July 2023, CAJASUR Banco (C‑35/22, EU:C:2023:569, paragraph 28); and of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms)
(C‑531/22, EU:C:2024:58, paragraph 45).
32      Paragraphs 47 and 48 of the judgment in Asturcom.
33      The Court has on occasion also recalled the concept of ‘inaction’ in connection with the fact that requiring the consumer to bring court proceedings cannot be regarded, in itself, as contrary to the principle of effectiveness (see judgments of 10 September 2014, Kušionová
(C‑34/13, EU:C:2014:2189, paragraphs 55 to 57), and of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraphs 62 and 63, as well as the judgment in Profi Credit Bulgaria
(paragraph 48).
34      See, to that effect, in particular, judgment of 13 July 2023, CAJASUR Banco (C‑35/22, EU:C:2023:569, paragraph 28), which refers to the judgment in Vicente
(paragraph 56 and the case-law cited), which in turn refers to paragraphs 54 and 56 of the judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349). See, also, judgment of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, EU:C:2024:58, paragraphs 53 and 60).
Other circumstances have also led the Court to find that the consumer had not been completely inactive, within the meaning of the Asturcom case-law; see judgment of 17 May 2022, Unicaja Banco
(C‑869/19, EU:C:2022:397, paragraph 38), and the Opinion of Advocate General Medina in GR REAL
(C‑351/23, EU:C:2024:950, point 105).
35      Although the bank’s liquidator disputed this assertion at the hearing, I would point out that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (see the judgment in Raiffeisen Bank and BRD Groupe Société Générale, paragraph 46).
36      Article 243 of the Law on Bankruptcy and Insolvency.
37      At the rate of exchange applicable on 20 September 2023.
38      See judgments of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraphs 65 and 66), and of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, EU:C:2024:58, paragraphs 53 to 55 and the case-law cited).
39      See the Opinion of Advocate General Tanchev in Impuls Leasing România (C‑725/19, EU:C:2021:616, point 58), and the judgment in Impuls Leasing România (paragraph 60).
40      See, inter alia, judgments of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750, paragraph 88); of 10 June 2021, BNP Paribas Personal Finance (C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 45); and of 25 April 2024, Banco Santander (Point from which the limitation period starts to run) (C‑561/21, EU:C:2024:362, paragraph 33).
41      See the judgment in Raiffeisen Bank and BRD Groupe Société Générale (paragraph 65 and the case-law cited).
42      See, inter alia, judgments of 14 April 2016, Sales Sinués and Drame Ba (C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 25 and the case-law cited), and of 9 July 2020, Ibercaja Banco (C‑452/18, EU:C:2020:536, paragraphs 25 to 28 and the case-law cited).
43      I would observe, by way of illustration, that the referring court has indicated that the interim measures it is contemplating would consist in reducing the sum withheld each month from the bankrupt’s salary.
44      See the Opinion of Advocate General Medina in M.K. (C‑324/23, EU:C:2024:1031, point 40), and, inter alia, judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 57 and the case-law cited); the judgment in Vicente
(paragraph 53 and the case-law cited); and judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491, paragraph 40).
45      See, to that effect, judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraphs 59, 60 and 64), and of 17 July 2014, Sánchez Morcillo and Abril García (C‑169/14, EU:C:2014:2099, paragraph 28); see, also, order of 14 November 2013, Banco Popular Español and Banco de Valencia (C‑537/12 and C‑116/13, EU:C:2013:759, paragraph 60).
46      This will be the situation where enforcement in respect of mortgaged immovable property takes place before the judgment of the court in the declaratory proceedings declaring unfair the contractual term on which the mortgage is based and annulling the enforcement proceedings, resulting in the definitive and irreversible loss of the dwelling, and all the more so where the dwelling is the consumer’s family home, as was the case in Aziz, Banco Popular Español and Banco de Valencia and Sánchez Morcillo and Abril García (see point 94 of this Opinion). The Court adopted similar reasoning in the case which led to the order of 6 November 2019, BNP Paribas Personal Finance SA Paris Sucursala Bucureşti and Secapital (C‑75/19, EU:C:2019:950), holding that the separate proceedings in which it was possible to argue the unfairness of a term in a contract might have no bearing on the enforcement proceedings, as the enforcement proceedings could be binding on the consumer before the outcome of the action for a finding of unfair terms.
47      See order of 26 October 2016, Fernández Oliva and Others (C‑568/14 to C‑570/14, EU:C:2016:828, paragraphs 34 to 36), cited in paragraph 42 of the judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491).
48      See, to that effect, the judgment in Impuls Leasing România (paragraph 60), which concerned the staying of enforcement proceedings, and the judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282, paragraph 82).
49      See, to that effect, the judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491, paragraph 59), cited in point 85 of the Opinion of Advocate General Medina in M.K. (C‑324/23, EU:C:2024:1031), which states that it is clear from that judgment that the assessment of the need to grant interim measures must be carried out in concreto, in the light of the objective of ensuring the full effectiveness of the decision to be taken.
50      It is common ground that the national legislation governing bankruptcy proceedings makes no provision for the grant of interim measures. As the referring court has stated, Article 229 of the Law on Bankruptcy and Insolvency provides that the provisions of Book I of Part One of the Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 17 November 1964 – Code of Civil Procedure), Dz. U. of 2021, item 1805, as amended, apply mutatis mutandis to bankruptcy and insolvency proceedings, without exception. Proceedings relating to protective measures, however, appear in Part Two of that law, as was confirmed at the hearing.