1 This request for a preliminary ruling concerns the interpretation of Article 22(2) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66), and 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).
2 The request has been made in proceedings between Zwrotybankowe.pl sp. z o.o., a limited liability company governed by Polish law, and Powszechna Kasa Oszczędności Bank Polski S.A. (‘PKO Bank Polski’), a bank, concerning the claim of a consumer against that bank of which the applicant in the main proceedings is the assignee.
3 Article 6(1) of Directive 93/13 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.’
4 The wording of Article 7(1) of that directive is as follows: ‘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.’
5 Article 22 of Directive 2008/48, entitled ‘Harmonisation and imperative nature of this Directive’, provides, in paragraph 2 thereof: ‘Member States shall ensure that consumers may not waive the rights conferred on them by the provisions of national law implementing or corresponding to this Directive.’
6 Under Article 23 of that directive, entitled ‘Penalties’: ‘Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.’
7 The ustawa o kredycie konsumenckim (Law on Consumer Credit), of 12 May 2011 (Dz. U. No 126, item 715), in the version applicable to the dispute in the main proceedings (‘the Law on Consumer Credit’), transposed Directive 2008/48 into Polish law.
8 Article 45(1) of the Law on Consumer Credit provides: ‘In the event of failure by the creditor to comply with Article 29(1), Article 30(1), [points] (1) to (8), (10), (11) and (14) to (17), Articles 31 to 33, Article 33a and Articles 36a to 36c [of the present Law], the consumer shall, after submitting a written declaration to the creditor, repay the credit, without interest and any other credit charges due to the creditor, within the time limit and in the manner laid down in the agreement.’
9 Article 509(1) of the ustawa Kodeks cywilny (Law on the Civil Code), of 23 April 1964 (Dz. U. of 1964, No 16, item 93), in the version applicable to the dispute in the main proceedings, provides: ‘A creditor may, without the consent of the debtor, assign (transfer) a claim to a third party, save where this would be contrary to the law, a contractual stipulation or a characteristic of the obligation’.
10 By its action, Zwrotybankowe.pl requests that the Sąd Rejonowy dla Warszawy - Śródmieścia w Warszawie (District Court, Warsaw - Śródmieście, Warsaw, Poland), which is the referring court, order PKO Bank Polski to pay it the amount of 4 537.45 Polish zlotys (PLN) (approximately EUR 1 050), together with statutory default interest and legal costs.
11 Zwrotybankowe.pl brought that action on the basis of an assignment agreement concluded with a consumer (‘the assignment agreement’), by which that consumer had assigned to Zwrotybankowe.pl the right to all pecuniary claims he could make against PKO Bank Polski. Zwrotybankowe.pl argues that the claim in question in the main proceedings results from the application of a penalty provided for by Article 45(1) of the Law on Consumer Credit, which implements Article 23 of Directive 2008/48, in respect of the infringement, by that bank, of its obligations under that law to provide information. The assignment agreement states that, in consideration for the assignment in question, that consumer must receive 50% of the amount of the main claim recovered from that bank.
12 PKO Bank Polski contends that that action should be dismissed by claiming that Zwrotybankowe.pl has no standing to bring an action against it since the claim it seeks to recover is not of a type that may be assigned to a third party. On the substance, PKO Bank Polski claims that it has not, in any event, infringed its information obligations under the credit agreement with that consumer.
13 In that context, the referring court harbours doubts, in the first place, as to the interpretation to be given to the prohibition introduced in Article 22(2) of Directive 2008/48, according to which consumers may not waive the rights conferred on them by the corresponding provisions of national law. That court is uncertain whether that prohibition also applies to the possibility, provided for by the national legislation, for the consumer to assign his or her rights to a third party which will assert them in its own name and subsequently collect a remuneration of 50% of the amounts obtained and return the remaining 50% to the consumer.
14 In that regard, the referring court is of the opinion that it is necessary to adopt a broad interpretation of the concept of waiver as referred to in Article 22(2) of Directive 2008/48, in such a manner as to also cover the above scenario. In its view, the main objective of that directive is to protect the consumer concerned against unfair terms in credit agreements, and not to create a source of enrichment for third parties which are not parties to the credit agreement concluded.
15 In the second place, in the event that that broad interpretation cannot be adopted, the referring court harbours doubts as to whether Article 6(1) and Article 7(1) of Directive 93/12 must be interpreted as meaning that, in the light of the national court’s obligation to examine of its own motion the unfairness of a contractual term, the national court is also required to examine of its own motion the terms of an assignment agreement concluded between the assigning consumer and his or her assignee where that agreement forms the legal basis of an action by which that assignee asserts that consumer’s claims against the creditor.
16 In that regard, the referring court observes that, in the present case, the finding that the terms of the assignment agreement are unfair could lead to the annulment of that agreement, with the result that Zwrotybankowe.pl would lack standing and, consequently, the action in the main proceedings would be dismissed.
17 That court highlights the negative consequences which would ensue for the consumer concerned which, in those circumstances, would not even obtain the part of the claim sought from the creditor which is specified in the assignment agreement. In addition, the review of the unfairness of a term of the assignment agreement would take place in the absence of that consumer and without the consumer being guaranteed, for reasons linked to the national rules of procedure, the opportunity to participate in the proceedings and express his or her point of view on the issue.
18 In those circumstances, the Sąd Rejonowy dla Warszawy - Śródmieścia w Warszawie (District Court, Warsaw - Śródmieście, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
19 By the first question, the referring court asks whether Article 22(2) of Directive 2008/48 precludes national legislation that allows a consumer to assign a claim arising from the infringement of a right conferred on him or her by the national legislation implementing the directive to a third party which is not a consumer.
20 As a preliminary point, it should be borne in mind that the fact that the dispute in the main proceedings is only between sellers or suppliers does not preclude the application of Directive 2008/48 or Directive 93/13 since the scope of those directives is not dependent on the identity of the parties to that dispute, but on the capacity of the parties to the credit agreement at issue in the main proceedings (see, to that effect, judgments of 11 September 2019, Lexitor, C‑383/18, EU:C:2019:702, paragraph 20, and of 18 November 2020, DelayFix, C‑519/19, EU:C:2020:933, paragraphs 53 and 54).
21 In the present case, the claim in question in the main proceedings results from a credit agreement concluded between a consumer and PKO Bank Polski and has been acquired by Zwrotybankowe.pl pursuant to an assignment agreement, with the result that both of those directives apply to the dispute in the main proceedings.
22 Furthermore, it should be borne in mind that Directive 2008/48 was adopted in order both to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit (judgments of 5 September 2019, Pohotovosť, C‑331/18, EU:C:2019:665, paragraph 41, and of 26 March 2020, Mikrokasa and Revenue Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty, C‑779/18, EU:C:2020:236, paragraph 44 and the case-law cited). In particular, Article 22(2) of that directive ensures a high level of protection for consumers by prohibiting all waiver by those consumers of the rights conferred on them by that directive.
23 The referring court is of the opinion that the concept of waiver referred to in that provision must be interpreted in a broad sense, in such a manner as to cover the assignment of rights which the consumer concerned derives from Directive 2008/48 and could accordingly preclude such an assignment, even if it were permitted under national law.
24 It is appropriate to note, first of all, that the wording of Article 22(2) of Directive 2008/48 does not specify what ought to be understood by waiver of rights conferred on consumers pursuant to national law implementing that directive. Accordingly, that provision should be analysed in the light of its context and the objectives of the legislation of which it forms part, as set out in paragraph 22 above (see, to that effect, judgment of 26 April 2022, Landespolizeidirektion Steiermark (Maximum duration of internal border control), C‑368/20 and C‑369/20, EU:C:2022:298, paragraph 56 and the case-law cited).
25 In that regard, the Court has already had occasion to rule on the interpretation of a provision of EU law the objective of which is to ensure a high level of protection for a weak party to a contract, in the event of the assignment to a company of that party’s rights. In the case giving rise to the judgment of 29 February 2024, Eventmedia Soluciones (C‑11/23, EU:C:2024:194), the Court, in essence, determined whether Article 15 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), permitted the inclusion in a contract of a clause that prohibited the transfer of rights enjoyed by a passenger against the operating air carrier, in particular the right to compensation. Article 15 of that regulation, entitled ‘Exclusion of waiver’, provides, in paragraph 1 thereof, that obligations of air carriers vis-à-vis passengers pursuant to that regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.
26 The Court held that, having regard to the objective of ensuring a high level of protection for air passengers and in order to ensure the effectiveness of the right of those passengers to compensation, not only derogations or limitations that relate directly to that right as such, but also those that restrict the means for exercising that right when compared with the applicable statutory provisions, to the detriment of those passengers, must be considered to be inadmissible for the purposes of Article 15 of Regulation No 261/2004 (see, to that effect, judgment of 29 February 2024, Eventmedia Soluciones, C‑11/23, EU:C:2024:194, paragraph 43).
27 In order to ensure a high level of protection for air passengers and to enable them effectively to exercise their rights, it is necessary to guarantee a passenger affected by a flight cancellation the freedom to choose the most effective way in which to defend his or her right, including by allowing that passenger to decide: (i) to approach the operating air carrier directly; (ii) to bring proceedings before the courts having jurisdiction; or (iii), where provided for by the relevant national law, to transfer his or her claim to a third party in order to spare him- or herself difficulties and costs that might deter him or her from taking steps personally in relation to that carrier with the prospect of a limited financial return (judgment of 29 February 2024, Eventmedia Soluciones, C‑11/23, EU:C:2024:194, paragraph 44).
28 Accordingly, the Court concluded that the objective of ensuring a high level of protection for air passengers precludes the inclusion, in a contract of carriage, of a clause that prohibits the transfer of rights which those passengers derive from Regulation No 261/2004 (see, to that effect, judgment of 29 February 2024, Eventmedia Soluciones, C‑11/23, EU:C:2024:194, paragraph 46).
29 It follows, by analogy, that the objective of ensuring a high level of protection for consumers precludes a broad interpretation of the concept of waiver referred to in Article 22(2) of Directive 2008/48, as envisaged by the referring court, which would also result in the prohibition of the assignment of rights which those consumers derive from that directive. Such assignment is one of the legal options, which may be provided for by the national legal system, to allow consumers to defend their rights by sparing themselves difficulties and costs that might deter them from taking steps personally in relation to the seller of supplier concerned.
30 In the light of all of the foregoing considerations, the answer to the first question is that Article 22(2) of Directive 2008/48 must be interpreted as not precluding national legislation that allows a consumer to assign a claim arising from the infringement of a right conferred on him or her by the national legislation implementing the directive to a third party which is not a consumer.
31 By the second question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that a national court may, and even must, examine of its own motion the unfairness of a term in a claim assignment agreement concluded by a consumer where the dispute before that national court, between the assignee company and a seller or supplier, does not concern that assignment agreement, but the consumer’s claim against that seller or supplier.
32 It is apparent from the order for reference that the dispute in the main proceedings concerns the claim arising from the credit agreement concluded between PKO Bank Polski and a consumer of whom Zwrotybankowe.pl is the assignee. Accordingly, the assignment contract is not the subject matter of that dispute and that consumer is not party to the proceedings initiated by his assignee.
33 That being so, having acquainted itself with the assignment contract from which Zwrotybankowe.pl derives its standing, the referring court refers, in order to justify the second question referred for a preliminary ruling, to case-law of the Court obliging the national court to examine of its own motion whether a contractual term may be unfair, where it has available to it the legal and factual elements necessary for that task.
34 In that regard, it should be borne in mind that, according to settled case-law, the national court must assess of its own motion whether a contractual term coming within the scope of Directive 93/13 is unfair, and in doing so, compensate for that imbalance between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task (see, to that effect, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 26).
35 That being so, the Court also stated, first of all, that the examination that the national court hearing the case must necessarily carry out of its own motion pursuant to Directive 93/13 is limited to contractual terms the unfair nature of which can be established on the basis of the elements of law and fact available in the file before that national court (see, to that effect, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 27).
36 Next, it specified that that national court is required to take, of its own motion, investigative measures provided that the elements of law and fact already contained in that file raise serious doubts as to the unfair nature of certain terms which, despite not having been challenged by the consumer, are connected to the subject matter of the dispute, and that, as a result, the implementation of the examination, of its own motion, incumbent on that court requires such investigative measures to be taken (judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 38). Without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed (judgment of 7 November 2019, Profi Credit Polska, C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 66 and the case-law cited).
37 Lastly, the Court nevertheless held that it is only within the limits of the subject matter of the dispute before it that the national court is called upon to examine of its own motion a contractual term, by virtue of the protection which must be granted to a consumer under Directive 93/13, in order to prevent the consumer’s claims from being rejected by a potentially final decision when they could have been upheld had the consumer not, for lack of knowledge, omitted to invoke the unfair nature of that term (see, to that effect, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 32).
38 It follows from the considerations set out in paragraphs 34 to 37 above that the obligation of the national court to examine a contractual term of its own motion concerns terms which, despite not having been challenged by the consumer concerned, are included in the contract which is the subject matter of the dispute and that that review is justified by the requirement that the consumer be granted protection under Directive 93/13.
39 However, it is apparent from the order for reference that Zwrotybankowe.pl is requesting that PKO Bank Polski be ordered to pay a claim resulting from a credit agreement concluded by a consumer with that bank, as a consequence of the alleged infringement of the information obligations laid down by Directive 2008/48 when that contract was concluded. In its defence, PKO Bank Polski submits, inter alia, that, according to Article 22(2) of Directive 2008/48, such a claim, from which the applicant in the main proceedings derives its standing, could not be subject to an assignment agreement.
40 It follows that the contractual term which the referring court’s question concerns does not come within the limits of the subject matter of the dispute before it, with the result that that court cannot be called upon to examine it of its own motion, by virtue of the protection which must be granted to that consumer under Directive 93/13, in accordance with the case-law cited in paragraph 37 above.
41 Furthermore, in respect of an action brought by a company which is the assignee of a consumer’s claim against the seller or supplier who is the other party to the contract with the consumer, it must be stated that, as the Advocate General states in point 32 of her Opinion, an action between two sellers or suppliers is not characterised by the same imbalance that is present in an action between the consumer and its seller or supplier, which is the other party to the contract (see, to that effect, judgment of 11 April 2024, Air Europa Líneas Aéreas, C‑173/23, EU:C:2024:295, paragraph 38).
42 Indeed, as is noted in paragraph 34 above, the Court has already stated that it is due to the unequal situation between the consumer and the seller or supplier that the national court is required to assess of its own motion the unfairness of a contractual term coming within the scope of Directive 93/13 and, in so doing, compensate for that imbalance.
43 It follows that, unlike the situation referred to in the case-law cited in paragraph 34 of the present judgment, it is not necessary, in order to ensure the effectiveness of the system of consumer protection intended by Directive 93/13, for the national court, hearing a dispute between two sellers or suppliers, such as a company which is the assignee of the rights of a consumer and the seller or supplier which is the other party to the contract with that consumer, to examine of its own motion whether a clause in the contract concluded by that consumer is unfair (see, to that effect, judgment of 11 April 2024, Air Europa Líneas Aéreas, C‑173/23, EU:C:2024:295, paragraph 39).
44 In addition, as the referring court observed, in the present case, the finding that one or more of the terms included in the assignment agreement is unfair could, in the event that the agreement could not continue to exist without those terms, lead to the assignee concerned, namely Zwrotybankowe.pl, lacking standing and, accordingly, the assigning consumer receiving no compensation in the ongoing proceedings before that court. Such a situation could undermine the effective protection of the consumer since the latter would be deprived, at least in the immediate future, of the part of the claim which he hoped to obtain by means of the assignment contract, without even having had the opportunity to be heard in that regard since he is not party to the dispute in the main proceedings.
45 It follows that Article 6(1) and Article 7(1) of Directive 93/13 do not require the national court to examine of its own motion the potential unfairness of a contractual term included in a claim assignment agreement concluded between a consumer and the assignee of his or her rights where the dispute before it does not concern that assignment agreement, but the consumer’s claim against the bank which had concluded a credit agreement with him or her.
46 In those circumstances, it is for the national court alone to establish whether and to what extent national law permits it, or even obliges it, to ascertain whether Zwrotybankowe.pl has standing, in particular by examining the content of the contract which may grant that party standing, despite that contract not being subject to the dispute before it. However, in order to comply with the principle of effectiveness of EU law, the application of a national procedural provision cannot make it impossible or excessively difficult to exercise the rights conferred, inter alia, by Directive 93/13 (see, to that effect, judgment of 17 May 2022, SPV Project 1503 and Others, C‑693/19 and C‑831/19, EU:C:2022:395, paragraph 60). Accordingly, that national court must ensure that that provision does not lead to any harmful consequences in respect of the consumer concerned, where the latter has not had the opportunity to put forward his or her arguments in the context of setting out his or her view on the matter with the opportunity to challenge the views of the other party (see, to that effect, judgment of 11 April 2024, Air Europa Líneas Aéreas, C‑173/23, EU:C:2024:295, paragraph 44).
47 In the light of all of the foregoing considerations, the answer to the second question is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that a national court is not required to examine of its own motion the unfairness of a term in a claim assignment agreement concluded by a consumer where the dispute before that national court, between the assignee company and a seller or supplier, does not concern that assignment agreement, but the consumer’s claim against that seller or supplier.
48 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. 1. Article 22(2) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC 2. Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts