1 This request for a preliminary ruling concerns the interpretation of Articles 8, 10 and 23 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).
2 The request has been made in proceedings between Horyzont Niestandaryzowany Sekurytyzacyjny Fundusz Inwestycyjny Zamknięty (‘Horyzont’), the assignee of Nest Bank S.A., and LC, a natural person, concerning the payment of a debt arising from a consumer credit agreement (‘the consumer credit agreement’).
3 Recitals 26 and 47 of Directive 2008/48 state: ‘(26) … In the expanding credit market, in particular, it is important that creditors should not engage in irresponsible lending or give out credit without prior assessment of creditworthiness, and the Member States should carry out the necessary supervision to avoid such behaviour and should determine the necessary means to sanction creditors in the event of their doing so. …[C]reditors should bear the responsibility of checking individually the creditworthiness of the consumer. To that end, they should be allowed to use information provided by the consumer not only during the preparation of the credit agreement in question, but also during a long-standing commercial relationship. The Member States’ authorities could also give appropriate instructions and guidelines to creditors. Consumers should also act with prudence and respect their contractual obligations. … (47) Member States should lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and ensure that they are implemented. While the choice of penalties remains within the discretion of the Member States, the penalties provided for should be effective, proportionate and dissuasive.’
4 Article 8 of that directive, entitled ‘Obligation to assess the creditworthiness of the consumer’, provides in paragraph 1 thereof: ‘Member States shall ensure that, before the conclusion of the credit agreement, the creditor assesses the consumer’s creditworthiness on the basis of sufficient information, where appropriate obtained from the consumer and, where necessary, on the basis of a consultation of the relevant database. Member States whose legislation requires creditors to assess the creditworthiness of consumers on the basis of a consultation of the relevant database may retain this requirement.’
5 Article 10 of that directive, entitled ‘Information to be included in credit agreements’, lists the information to be included in credit agreements.
6 Article 23 of that directive, entitled ‘Penalties’, provides: ‘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 9 of the Law on Consumer Credit provides: ‘1. Before concluding a consumer credit agreement, the creditor shall assess the consumer’s creditworthiness. … 2. The assessment of creditworthiness shall be carried out on the basis of information obtained from the consumer or on the basis of information obtained from the relevant databases or the creditor’s data sets. 3. The consumer shall, at the creditor’s request, provide the creditor with the documents and information necessary to carry out the assessment of his or her creditworthiness. 4. If the creditor is a bank or another institution statutorily authorised to grant loans, the creditworthiness assessment shall be carried out in accordance with Article 70 of the ustawa - Prawo bankowe (Law on Banking), of 29 August 1997 (Dz. U. No 140, item 939), and other legislation applicable to those entities, taking paragraphs 1 to 3 into account.’
9 Article 45(1) of the Law on Consumer Credit provides that, in the event of infringement of provisions laying down various obligations on the creditor, including the obligation to provide information, the consumer, after submitting a written statement to the creditor, is to reimburse the loan without interest and other loan-related costs payable to the creditor within the time limits and according to the detailed arrangements fixed in the contract.
10 Under Article 58 of the ustawa - Kodeks cywilny (Law on the Civil Code), of 23 April 1964 (Dz. U. No 16, item 93), in the version applicable to the dispute in the main proceedings: ‘1. A legal transaction which is contrary to the law or intended to circumvent the law shall be null and void, unless a relevant provision provides otherwise, in particular that the invalid terms of the legal transaction are to be substituted by relevant provisions of the law. 2. A legal transaction contrary to the rules of social conduct shall be null and void. 3. Where only part of the legal transaction is invalid, the other parts of the transaction shall remain in force, unless circumstances show that, without the invalid terms, the transaction would not have been carried out.’
11 Article 5054(1) of the ustawa - Kodeks postępowania cywilnego (Law on the Code of Civil Procedure), of 17 November 1964 (Dz. U. No 43, item 296), in the version applicable to the dispute in the main proceedings, provides: ‘Any modification of the claim is not permitted. Articles 75 to 85, Articles 194 to 196 and Article 198 are not applicable.’
12 Article 70 of the Law on Banking, in the version applicable to the dispute in the main proceedings, provides: ‘1. The bank shall make the grant of a loan subject to the creditworthiness of the borrower. Creditworthiness is to be understood as the capacity the repay the loan agreed upon, plus interest, at the dates specified in the contract. The borrower shall, at the bank’s request, provide the documents and information necessary to carry out an assessment of that capacity. 2. The bank may grant a loan to a natural person … who is not creditworthy, provided that: (1) a specific procedure for guaranteeing repayment of the loan is provided for; … 3. The borrower is required to allow the bank to carry out any actions to assess his or her financial and economic situation and to monitor the use and repayment of the loan.’
13 Under Article 78a of that law, in the version applicable to the dispute in the main proceedings: ‘The provisions of the Law shall apply to credit agreements and pecuniary loans concluded by a bank in accordance with the provisions of the Law [on] Consumer Credit, to the extent to which those agreements and loans are not covered by that law.’
14 On 28 September 2017, LC and Nest Bank, established in Warsaw (Poland), concluded the consumer credit agreement. The amount of consumer credit thus taken out by LC was 49 148.06 Polish zlotys (PLN) (approximately EUR 10457) and the total amount to be repaid was PLN 62 573.16 (approximately EUR 13 313.44). That sum was composed of the capital borrowed, interest in respect of the entire period of validity of that agreement and a ‘disbursement commission’ of PLN 7 323.06 (approximately EUR 1558). That consumer credit was to be repaid in 60 monthly instalments of PLN 1042 each (approximately EUR 221) by 3 October 2022 at the latest.
15 In the consumer credit agreement, LC stated that her net average monthly income was PLN 1 755.62 (approximately EUR 373). That agreement also referred to another debt contracted by LC, consisting in a loan in respect of which the monthly repayment instalments were PLN 320 (approximately EUR 68) each.
16 The claim resulting from the consumer credit agreement was assigned by Nest Bank to Horyzont, the seat of which is also in Warsaw.
17 Since LC did not repay the sum borrowed within the prescribed period, Horyzont brought an action for payment before the Sąd Rejonowy Lublin Zachód w Lublinie (District Court, West Lublin, Lublin, Poland). That court upheld that application and issued an order for payment against LC. LC lodged an objection to the payment order before the Sąd Rejonowy w Siemianowicach Śląskich (District Court, Siemianowice Śląskie, Poland), which is the referring court. In that objection, LC submits that Nest Bank did not assess her creditworthiness at the time when the consumer credit agreement was concluded.
18 During the main proceedings, the referring court found that the consumer credit concerned had been granted by Nest Bank in breach of the provisions transposing, into Polish law, the obligation on the creditor to assess the borrower’s creditworthiness, in accordance with Article 8(1) of Directive 2008/48. That court thus raises the issue of the consequences of that infringement.
19 In that connection, the referring court observes that, while multiple penalties are provided for in national law, when the Polish legislature transposed Directive 2008/48, it did not however provide for any specific penalty in the event of failure to comply with the obligation to assess the creditworthiness of the consumer wishing to obtain consumer credit.
20 The referring court states that Article 45 of the Law on Consumer Credit provides for a ‘free credit’ penalty. That penalty is one of the penalties which apply only to offences provided for, which do not include a failure to comply with the obligation to assess the creditworthiness of the consumer as referred to in Article 8(1) of Directive 2008/48. That court also observes that it is possible to apply Article 58 of the Law on the Civil Code, which allows the potential imposition of a penalty consisting in the invalidity of the legal act in question. That court adds that it is not seeking an indication from the Court of Justice as to what provision of national law must be applied to the dispute in the main proceedings, but wishes to ascertain how to interpret the relevant provisions of EU law inasmuch as the multiple penalties provided for by national law also establish a difference in terms of proportionality of the penalty for failure to comply with the obligations stemming from Directive 2008/48.
21 The referring court points out that, in the judgment of 10 June 2021, Ultimo Portfolio Investment (Luxembourg) (C‑303/20, EU:C:2021:479), the Court referred to the discretion of the national court in the implementation and, in particular in the choice of a measure proportionate to the gravity of the infringement found. It raises the issue of whether that means that the measure concerned must be equivalent to the penalties provided for in the event of failure to comply with the other obligations stemming from the provisions transposing Directive 2008/48.
22 In that regard, the referring court states that it is apparent from the Court’s case-law that both the obligation provided for in Article 8(1) of Directive 2008/48 and the obligations to provide information following from that directive are of fundamental significance for consumers. Consequently, it raises the issue of whether differentiation of the penalties provided for in Article 23 of Directive 2008/48 is permissible in national law, where the obligations imposed on the seller of supplier in Articles 8 and 10 of Directive 2008/48 must be regarded as equivalent, that is to say, of equal rank, and pursuing the same objectives.
23 In those circumstances, the Sąd Rejonowy w Siemianowicach Śląskich (District Court, Siemianowice Śląskie) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 8 of Directive [2008/48] be interpreted as meaning that the obligation on the creditor to assess the creditworthiness of the consumer (borrower), as set out therein, is equivalent to the other obligations laid down in that directive (in particular the obligations to provide information set out in Articles 10 et seq.), and therefore the penalties referred to in Article 23 of the directive cannot be different, that is to say, cannot provide for different legal consequences for infringement of each of those obligations separately?’
24 By its question, the referring court asks, in essence, whether Article 23 of Directive 2008/48 must be interpreted as not precluding a penalty implemented in the event of a failure to comply with the obligation to assess the consumer’s creditworthiness, provided for in Article 8(1) of that directive, from differing from the penalty provided for in the event of a failure to comply with other, potentially equivalent, obligations provided for in that directive, in particular the obligation referred to in Article 10(2) thereof concerning the information to be included in consumer credit agreements.
25 It must be recalled that, under Article 23 of Directive 2008/48, Member States are to lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to that directive and take all measures necessary to ensure that they are implemented. Those penalties must be effective, proportionate and dissuasive.
26 It thus follows from the wording of Article 23 of that directive that the system of penalties applicable in the event of infringement of the obligations stemming from that directive must be established in such a way as to ensure that the penalties are effective, proportionate and dissuasive and that the Member States are to take all measures necessary to ensure that they are implemented. Within those limits, as stated in recital 47 of that directive, the choice of penalties remains within the discretion of the Member States (judgment of 27 March 2014, LCL Le Crédit Lyonnais, C‑565/12, EU:C:2014:190, paragraph 43).
27 It must be observed in that regard that it is apparent from the case-law that, in order to achieve the objective pursued in Article 23 of Directive 2008/48, namely to guarantee that penalties are effective, proportionate and dissuasive, it is not only the national legislature, but also the national courts which must enjoy, within the limits established by the subject matter of the case before them, a discretion enabling them, depending on the circumstances of the case, to choose the measure proportionate to the seriousness of the failure to comply with the obligation found. Those courts must, therefore, consider the whole body of rules of national law and interpret them, so far as possible, in the light of the wording and purpose of that directive in order to achieve an outcome consistent with the objectives pursued by the directive (see, to that effect, judgment of 10 June 2021, Ultimo Portfolio Investment (Luxembourg), C‑303/20, EU:C:2021:479, paragraph 36 and the case-law cited).
28 Thus, in so far as the system of penalties for failure to comply with the obligations stemming from Directive 2008/48, provided for by a Member State, complies with the requirements of the case-law referred to in paragraphs 26 and 27 above, Article 23 of that Directive does not preclude the failure to comply with different obligations from carrying different penalties.
29 In that regard, it must be stated that Directive 2008/48 provides for various obligations which pursue distinct objectives.
30 The purpose of the obligation to assess the creditworthiness of the consumer before the conclusion of a credit agreement, within the meaning of Article 8(1) of Directive 2008/48, is intended, as recital 26 of that directive expressly indicates, to hold creditors accountable and to protect consumers by ensuring that creditors are not led to grant loans irresponsibly without a prior assessment of the consumer’s creditworthiness (see, to that effect, judgment of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraphs 34 and 46 and the case-law cited).
31 Such an obligation, inasmuch as it is intended to protect consumers against the risks of over-indebtedness and bankruptcy, is of fundamental significance for them (see, to that effect, judgment of 10 June 2021, Ultimo Portfolio Investment (Luxembourg), C‑303/20, EU:C:2021:479, paragraph 29 and the case-law cited).
32 Information, for its part, before and at the time of concluding a credit agreement on the terms of the agreement and the consequences of concluding it, in particular the information provided for in Article 10(2) of Directive 2008/48, enables the consumer to decide whether he or she wishes to be bound by the conditions drafted in advance by the seller or supplier. That information is thus also of fundamental significance for the consumer (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 64 and the case-law cited).
33 Although it is apparent from the case-law that the obligation to assess the creditworthiness of the consumer before the conclusion of a credit agreement, within the meaning of Article 8(1) of Directive 2008/48, and the obligation to provide information, provided for in particular in Article 10(2) of that directive, are of fundamental significance, the fact remains, that those obligations pursue different objectives, and a failure to comply with them does not carry similar consequences, from the point of view of the legal interest protected by the provision at issue and from the point of view of the parties to the credit agreement.
34 Thus, the result of a failure to comply with the obligation to check the creditworthiness of the consumer might be that the latter concludes a credit agreement which puts him or her at risk of overindebtedness or bankruptcy. On the other hand, the consequences of a failure to comply with the obligations to provide information may vary considerably according to the specific obligation at issue, the seriousness of the breach depending, moreover, in practice on the number and significance of the missing items of information in that credit agreement. For example, such infringements may make it difficult for the consumer to compare credit offers or exercise rights under that credit agreement.
35 It follows that failures to comply with two obligations of fundamental significance may entail distinct consequences for the consumer and the penalties applied, without necessarily being the same, must, in both cases, be proportionate, in particular in the light of the seriousness of specific infringement in question and the various consequences following from it for the consumer.
36 Having regard to all the foregoing considerations, the answer to the question referred is that Article 23 of Directive 2008/48 must be interpreted as not precluding a penalty implemented in the event of a failure to comply with the obligation to assess the consumer’s creditworthiness, provided for in Article 8(1) of that directive, from differing from the penalty provided for in the event of a failure to comply with other, potentially equivalent, obligations provided for in that directive, in particular the obligation referred to in Article 10(2) thereof concerning the information to be included in consumer credit agreements, provided that the conditions laid down in Article 23 of that directive are met.
37 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.