1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and of the principle of effectiveness.
2 The request has been made in proceedings between Bank Millennium SA, a banking institution, and PR, a consumer, concerning an action for repayment of the amount of the loan paid under a contract which was annulled on account of unfair terms contained therein.
3 The twenty-fourth recital of Directive 93/13 states that ‘the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’.
4 Article 6(1) of that directive provides: ‘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.’
5 Article 7(1) of the 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.’
6 Article 58(1) of the ustawa - Kodeks cywilny (Law establishing the Civil Code) of 23 April 1964 (Dz. U. No 16, item 93), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), provides: ‘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.’
7 Under Article 3851(1) and (2) of the Civil Code: ‘1. 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. 2. 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.’
8 Article 405 of that code provides: ‘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.’
9 Article 410 of the Civil Code provides: ‘1. The provisions of the preceding articles shall apply in particular to an undue obligation. 2. 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.’
10 Under Article 498 of that code: ‘1. If two persons are simultaneously and mutually debtors and creditors with respect to each other, each of them may set off their claim against the claim of the other party, if the object of both claims is money or generic goods of the same quality, and both claims are due and can be enforced before a court or other State body. 2. As a result of set-off, the two claims are offset against each other to the extent of the lower claim.’
11 Article 98 of the ustawa - Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) of 17 November 1964 (Dz. U. of 1964, No 43, item 296), in the version applicable to the dispute in the main proceedings (‘the Code of Civil Procedure’), provides, in paragraphs 1 and 3: ‘(1) 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). … (3) 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.’
12 Under Article 100 of the Code of Civil Procedure: ‘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.’
13 Article 101 of that code provides: ‘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 the first procedural step.’
14 Article 102 of the code reads as follows: ‘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.’
15 Article 103(1) of that code provides: ‘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 improper conduct.’
16 Article 13(2) of the ustawa o kosztach sądowych w sprawach cywilnych (Law on court costs in civil matters) of 28 July 2005 (Dz. U. No 167, item 1398), in its consolidated version (Dz. U. of 2022, item 1125; ‘the Law on Court Costs’), provides: ‘In cases concerning proprietary interests a proportionate fee shall be collected; it shall amount to 5% (but no more than [200000 zlotys (PLN) (approximately EUR 47136)]) of the amount in dispute or the subject of an appeal where the latter exceeds PLN 20000 [(approximately EUR 4713)].’
17 Under Article 13a of the Law on Court Costs: ‘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 1000 [(approximately EUR 236)] shall be charged where the amount in dispute or the subject of an appeal exceeds PLN 20000 [(approximately EUR 4713)].’
18 On 27 June 2008, PR and Bank Millennium concluded a loan agreement for PLN 640000 (approximately EUR 150000), denominated in Swiss francs (CHF).
19 PR paid instalments of that loan for a total of PLN 126 421.23 (approximately EUR 29800) and CHF 66 600.96 (approximately EUR 71480).
20 On 26 June 2020, PR brought an action against Bank Millennium seeking a declaration of invalidity of that agreement and an order for repayment of the payments wrongly made in performance of that agreement.
21 By judgment of 11 May 2022, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), the referring court, found that the loan agreement was invalid due to the fact that it included unfair terms. Consequently, that court ordered Bank Millennium to pay PLN 65 907.32 (approximately EUR 15530) and CHF 66 600.96 (approximately EUR 71480) to PR, together with default interest at the statutory rate from 19 February 2022 until the date of payment, and to reimburse the costs incurred by PR. That judgment was upheld on appeal by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland).
22 On 23 November 2022, Bank Millennium brought an action before the referring court against PR seeking an order that PR repay the loan capital, namely PLN 640000 (approximately EUR 150000), plus default interest at the statutory rate from the date on which the action was brought until the date of payment. It also requests that PR be ordered to pay the costs, including, first, the court costs representing 5% of the amount in dispute, namely PLN 32000 (approximately EUR 7544) and, second, the costs of representation by a lawyer, fixed at a flat rate of PLN 10800 (approximately EUR 2546).
23 The referring court has doubts as to whether the rules on the award of costs laid down in Polish law are compatible with Directive 93/13.
24 It observes, first of all, that, under the Code of Civil Procedure, the fundamental principle governing the award of costs in civil proceedings is that of responsibility for the outcome of the case. According to that principle, the unsuccessful party is required to reimburse the successful party for the costs of the proceedings, in accordance with 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, under Article 100 of the Code of Civil Procedure. That principle is tempered by a number of exceptions provided for in Article 101, Article 102 and Article 103(1) of the Code of Civil Procedure, namely, respectively, the possibility that the applicant may bear the costs where the defendant has acknowledged the claim at the first procedural step, reliance on the principle of equity and the application of the fault principle. However, according to that court, none of those exceptions applies here.
25 Next, referring to the case-law of the Court (judgments of 22 September 2022, Servicios prescriptor y medios de pagos EFC, C‑215/21, EU:C:2022:723, paragraph 41, and of 21 March 2024, Profi Credit Bulgaria (Services ancillary to a credit agreement), C‑714/22, EU:C:2024:263, paragraph 83), the referring court states that the rules on the award of costs applicable to proceedings for a declaration that a contractual term is unfair must not have the effect of deterring the consumer from exercising the rights conferred on him or her by Directive 93/13.
26 In that regard, that court observes that, in the main proceedings, PR could be ordered to pay Bank Millennium, in addition to the loan capital of PLN 640000 (approximately EUR 150000), together with default interest at the statutory rate, a total amount of PLN 42800 (approximately EUR 10090) in costs. Such a financial burden, equivalent to approximately six months’ average salary in Poland, is liable to undermine the objectives of Directive 93/13 and the principle of effectiveness of EU law.
27 In addition, as regards the structure of the costs in the two sets of legal proceedings concerned, that court states that, although the amount of the lawyers’ fees, namely PLN 10800 (approximately EUR 2546), is identical, irrespective of whether the proceedings are initiated by the seller or supplier or the consumer, the same is not true of legal costs. In the proceedings seeking a declaration of invalidity of the loan agreement, PR had to pay PLN 1000 (approximately EUR 236), pursuant to Article 13a of the Law on Court Costs, when he brought his action against the bank, whereas the latter claims PLN 32000 (approximately EUR 7544) in respect of the court costs in the main proceedings which it must pay in accordance with Article 13(2) of that law.
28 That said, the referring court notes that, first, PR had been duly informed, both by his counsel and by the referring court in the context of the initial proceedings brought by PR, of the consequences of the invalidity of the loan agreement, in particular of the obligation to repay the loan capital, any default interest at the statutory rate, and costs. It cannot, therefore, be validly argued that the order for costs is unforeseeable for the consumer.
29 Second, that court notes that PR could have acknowledged the bank’s claim as soon as the application was received. Such a step would have led to the application of Article 101 of the Code of Civil Procedure and Bank Millennium would then have been required to pay all the costs. Furthermore, PR could have relied on the set-off of claims, in accordance with Article 498(1) of the Civil Code. If he had made a declaration requesting the set-off of claims after he had received the application, the reciprocal claims of the parties would have been set off to the extent of the lower amount of the claim, pursuant to Article 498(2). The bank’s claim would thus have been significantly reduced. PR opted for a different procedural strategy consisting of challenging the bank’s claim by entering a plea of time-barring, which that court considers to be unfounded.
30 Lastly, the referring court is uncertain whether Article 6(1) and Article 7(1) of Directive 93/13 require it 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 terms, the main proceedings would not have arisen. It must therefore be determined, in such a scenario, whether the seller or supplier should bear all the costs of the present proceedings, regardless of their outcome, and even if the claim of the seller or supplier is successful in its entirety.
31 In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Should Article 6(1) and Article 7(1) of [Directive 93/13], 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?’
32 Bank Millennium submits that the question referred for a preliminary ruling is inadmissible on the ground that it does not concern the interpretation of EU law, since the provisions of Directive 93/13 are not applicable to the effects of the removal of unfair terms. That question, relating to the reimbursement of costs in the context of an action for repayment brought by the bank, concerns the interpretation of national law alone.
33 In that connection, it should be borne in mind that the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. However, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to determine whether those national rules are compatible with EU law (see judgments of 16 March 1978, Oehlschläger, 104/77, EU:C:1978:69, paragraph 4, and of 17 March 2021, Consulmarketing, C‑652/19, EU:C:2021:208, paragraph 32 and the case-law cited).
34 Further, in accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 25, and of 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts), C‑208/21, EU:C:2023:64, paragraph 42 and the case-law cited).
35 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgments of 7 September 1999, Beck and Bergdorf, C‑355/97, EU:C:1999:391, paragraph 22, and of 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts), C‑208/21, EU:C:2023:64, paragraph 43 and the case-law cited).
36 That is, however, not the position in the present case.
37 It is apparent from the order for reference that the dispute in the main proceedings concerns an action for repayment of the loan capital, brought by Bank Millennium against PR, following a first set of proceedings which led to the annulment of a loan agreement on the ground that it contained unfair terms. By its question, the referring court expressly seeks guidance from the Court on the interpretation of EU law and, more specifically, the interpretation to be given to Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness. That court seeks to ascertain whether those provisions must be interpreted as precluding national legislation which leads, in such an action for repayment, to an unsuccessful consumer being ordered to bear legal costs, included in the costs, which significantly exceed those which the consumer would have had to bear if he or she had been unsuccessful in an action brought by the consumer seeking a declaration that those terms are unfair and, as the case may be, a declaration of the invalidity of those terms and of the loan agreement.
38 In those circumstances, it is not obvious that the interpretation of Directive 93/13 that is sought bears no relation to the actual facts of the main action or its purpose or that the problem raised is hypothetical. Therefore, in the present case, the plea based on the inapplicability of that act to the main proceedings does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions (see, to that effect, judgment of 24 February 2022, TGSS (Domestic worker unemployment), C‑389/20, EU:C:2022:120, paragraph 31 and the case-law cited).
39 The question referred is therefore admissible.
40 It should be noted as a preliminary point that, according to settled case-law, in the context of the cooperation between national courts and the Court of Justice laid down in Article 267 TFEU, 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. It is for the Court, in that connection, to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 26; of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18, and of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C‑224/19 and C‑259/19, EU:C:2020:578, paragraph 47).
41 In the present case, as is apparent from the request for a preliminary ruling, the referring court is uncertain as to the compatibility with Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, of national legislation which provides that a consumer who has been unsuccessful in an action for repayment of the loan capital brought by a seller or supplier following the annulment of a loan agreement on the ground that it contained unfair terms must be ordered to pay the costs. That court notes that the legal costs, included in the costs, imposed on that consumer may significantly exceed those which that consumer would have had to bear if he or she had been unsuccessful in an action brought by him or her seeking a declaration that those terms are unfair and, as the case may be, a declaration of the invalidity of those terms and of the loan agreement. That situation results from the distinction made by the Polish legislation, concerning court costs, as regards the method of calculating those costs according to whether the action is brought by a seller or supplier or by a consumer.
42 In those circumstances, it must be understood that, by its question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which allows a consumer, as the defendant who has been unsuccessful in an action brought by a seller or supplier for repayment of the loan capital following the annulment of a loan agreement on account of the unfairness of terms contained therein, to be ordered to pay the costs including court costs which, as a result of the distinction made by that legislation in the calculation of the amount of those costs according to whether the applicant is a consumer, significantly exceed those which that consumer would have had to bear if he or she had been unsuccessful in an action brought by him or her seeking a declaration that those terms are unfair and, as the case may be, a declaration of the invalidity of those terms and of the loan agreement.
43 In the first place, it should be borne in mind that, under Article 6(1) of Directive 93/13, Member States are to lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier are, as provided for under their national law, not to be binding on the consumer.
44 Given the nature and significance of the public interest constituted by the protection of consumers, who are in a position of weakness vis-à-vis sellers or suppliers, Directive 93/13, as is apparent from Article 7(1) thereof, read in conjunction with its twenty-fourth recital, obliges the Member States to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’ (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 56 and the case-law cited).
45 The Court has held that the consequences that should follow from the finding that a term in a contract concluded between a seller or supplier and a consumer is unfair must allow two objectives to be achieved. First, the court must ensure that the equality between the parties, which would have been undermined if a term of the contract that was unfair as regards the consumer was applied, is restored. Second, it is necessary to ensure that the seller or supplier is deterred from including such terms in contracts with consumers (judgment of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 38). Accordingly, the obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 62).
46 In the second place, the Court observes that the award 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 (judgment of 22 September 2022, Servicios prescriptor y medios de pagos EFC, C‑215/21, EU:C:2022:723, paragraph 34 and the case-law cited).
47 As regards the principle of effectiveness, which alone is the subject of the referring court’s questions, it should be borne in mind that every case in which the question arises as to 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, its progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, 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 (judgment of 22 September 2022, Servicios prescriptor y medios de pagos EFC, C‑215/21, EU:C:2022:723, paragraph 35 and the case-law cited).
48 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 (judgment of 7 April 2022, Caixabank, C‑385/20, EU:C:2022:278, paragraph 51), 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. Therefore, the rules on the award of costs in such proceedings must not deter consumers from exercising that right (see, to that effect, judgment of 22 September 2022, Servicios prescriptor y medios de pagos EFC, C‑215/21, EU:C:2022:723, paragraph 37 and the case-law cited).
49 The Court has also held that making the decision on the award of costs in such proceedings exclusively dependent on how much has been unduly paid and must be refunded is likely to deter consumers from exercising that right, given the costs which legal action would entail. Accordingly, Article 6(1) and Article 7(1) of Directive 93/13 and the principle of effectiveness preclude a system whereby the consumer may be made to bear part of the costs of proceedings depending on the level of the unduly paid sums which are refunded to him or her following a finding that a contractual term is void for being unfair, given that such a system creates 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 such as that conferred by Directive 93/13 (judgment of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C‑224/19 and C‑259/19, EU:C:2020:578, paragraphs 98 and 99).
50 In that regard, it should be noted that proceedings initiated pursuant to Article 6(1) and Article 7(1) of Directive 93/13 are, in principle, brought by a consumer, acting as applicant, against a seller or supplier, the defendant. In order to preserve the effectiveness of that directive and to ensure effective protection of the consumer against the particularly unfavourable consequences that could result from the annulment of the loan agreement in question, it must be held that the assessment made by the Court as to the award of costs in proceedings seeking a declaration that a contractual term is unfair, referred to in paragraphs 48 and 49 of the present judgment, also applies, and by analogy, in a situation such as that in the main proceedings, in which the consumer is a defendant in an action brought by a seller or supplier for repayment of the loan capital following the annulment of a loan agreement on the ground that it contained unfair terms.
51 It is important to note, in that respect, that the Court has held that procedural arrangements which give rise to overly high costs for the consumer could have the effect of deterring that consumer from properly defending his or her rights before the court before which proceedings have been brought by the seller or supplier (see, to that effect, judgment of 7 April 2022, Caixabank, C‑385/20, EU:C:2022:278, paragraph 54 and the case-law cited).
52 In the present case, it is apparent from the order for reference that, under Polish law, the determination by a court that a loan agreement is invalid on account of the presence of an unfair term in that agreement has the consequence that payments made in performance of that agreement, whether by the borrowers or by the banking institution, constitute undue payments within the meaning of Article 410(2) of the Civil Code, which must be repaid pursuant to Article 410(1) in conjunction with Article 405 of the Civil Code.
53 It also follows that Article 98(1) of the Code of Civil Procedure provides that the unsuccessful party is required to reimburse the costs to the successful party. Moreover, Polish law draws a distinction, in relation to court costs, according to whether the action is brought by a seller or supplier or by a consumer. In accordance with Article 13(2) of the Law on Court Costs, actions relating to proprietary interests give rise to the application of a proportional fee, equivalent to 5% of the value of the dispute, up to a statutory ceiling. By contrast, in cases concerning claims relating to bank transactions, Article 13 of that law establishes, for actions brought by a consumer, fixed costs of PLN 1000 (approximately EUR 236) where the amount in dispute or the subject of an appeal exceeds PLN 20000 (approximately EUR 4713).
54 According to the information provided by the referring court, that difference in the method of calculating the court costs is liable to lead to situations in which, where the consumer is a defendant in an action brought by a seller or supplier for repayment of the loan capital following the annulment of a loan agreement containing unfair terms and where he or she is unsuccessful, the consumer is ordered to pay the costs, including court costs significantly higher than those which that consumer would have had to bear if he or she had been unsuccessful in an action brought by him or her seeking a declaration that those terms are unfair and, as the case may be, a declaration of the invalidity of those terms and of the loan agreement.
55 It should be noted that legislation such as that at issue in the main proceedings, which provides for reduced fixed court costs where the consumer brings an action relating to claims connected with banking transactions, is, in principle, favourable to the consumer.
56 However, in view of the significantly higher level of court costs applicable to actions brought by a seller or supplier concerning proprietary interests and the fact that the amount of those costs which the consumer may be required to reimburse depends directly on that of the claim pursued by the seller or supplier, the automatic application of the principle that the unsuccessful party is required to pay all the costs, including those costs, is likely to cause the consumer, where he or she is unsuccessful in such an action, to have to bear a disproportionate financial burden. It is apparent from the documents before the Court that, first, PR had to pay PLN 1000 (approximately EUR 236) in respect of court costs in the context of the action brought against Bank Millennium which led to that bank being ordered to pay him an amount of approximately EUR 101280. Second, PR would be required, as the defendant in the proceedings subsequently brought by Bank Millennium relating to the repayment of the loan capital, that is to say, a claim of PLN 640000 (approximately EUR 150000), and at the end of which he is unsuccessful, to reimburse to the bank legal costs amounting to 5% of the value of the dispute, in the present case PLN 32000 (approximately EUR 7544).
57 Such costs which may be charged to the consumer, by virtue of the combined application of the national rules on the calculation of court costs and the automatic nature of the principle that the unsuccessful party is required to bear all the costs, including those costs, are such as to prevent or deter the consumer from effectively exercising the rights conferred on him or her by Directive 93/13 before the court hearing the case brought by the seller or supplier, contrary to the case-law cited in paragraphs 48 and 51 of the present judgment.
58 Indeed, such procedural rules are liable to deter a consumer, when he or she is the defendant in an action brought by the seller or supplier for repayment of the loan capital following the annulment of the loan agreement containing unfair terms, from maintaining his or her claims, irrespective of the merits thereof, in so far as such a continuation is likely to result in an order for costs, including disproportionately high court costs, in the event of an unfavourable outcome of the proceedings.
59 Those procedural rules also appear to be capable of undermining the deterrent effect resulting from the annulment of an agreement on account of the unfair terms contained therein, since, notwithstanding that annulment, the consumer is required to bear particularly high court costs in the context of the action for repayment brought by the seller or supplier, unless, inter alia, that consumer acknowledges the claim of the seller or supplier. Consequently, those rules ultimately amount to a breach of the principle of effectiveness.
60 That said, it should be borne in mind that the principle that national law should be interpreted in conformity with EU law requires national courts and tribunals, in observance, inter alia, of the prohibition on interpretation of national law contra legem, to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see, to that effect, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 118 and 119, and of 15 October 2024, KUBERA, C‑144/23, EU:C:2024:881, paragraph 51 and the case-law cited).
61 In the present case, in their written observations before the Court, the Polish Government and the European Commission submit that Article 98(1) of the Code of Civil Procedure may be interpreted in a manner consistent with Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness. They submit that it is for the national court to take account, where appropriate, of the exceptions provided for, inter alia, in Articles 102 and 103 of that code, which allow costs to be varied according to the principle of equity or any wrongful conduct attributable to one of the parties.
62 It is ultimately for the referring court to examine whether the national legislation at issue in the main proceedings may be interpreted in conformity with Directive 93/13 and, if so, to draw the appropriate legal conclusions.
63 In the light of the foregoing, the answer to the question referred is that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation which allows a consumer, as the defendant who has been unsuccessful in an action brought by a seller or supplier for repayment of the loan capital following the annulment of a loan agreement on account of the unfairness of terms contained therein, to be ordered to pay the costs including court costs which, as a result of the distinction made by that legislation in the calculation of the amount of those costs according to whether the applicant is a consumer, significantly exceed those which that consumer would have had to bear if he or she had been unsuccessful in an action brought by him or her seeking a declaration that those terms are unfair and, as the case may be, a declaration of the invalidity of those terms and of the loan agreement.
64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.