Opinion of Advocate General Emiliou delivered on 14 September 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:674
• Date: 14 September 2023
• Celex Number: 62021CC0582
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 14 September 2023 (1)

Case C‑582/21

FY

v

Profi Credit Polska S.A. w Bielsku Białej

(Request for a preliminary ruling from the Sąd Okręgowy Warszawa-Praga w Warszawie (Regional Court, Warszawa-Praga, Warsaw, Poland))

(Reference for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Application to reopen proceedings closed by a default judgment – Res judicata – Grounds for reopening proceedings – Principles of equivalence and effectiveness – Interpretation of national law in conformity with EU law)

I. Introduction

1. The present case introduces a new angle to the procedural protection to be provided to consumers against unfair contractual terms. More specifically, it invites the Court of Justice to clarify whether that protection requires that the national effect of res judicata be set aside so as to allow for the reopening of proceedings, allegedly tainted by the national court’s failure to review, of its own motion, the possible unfairness of the contractual relationship in question.

2. The national factual and legal context in which that question has arisen can be summarised as follows. The appellant in the main proceedings – FY – was ordered to repay the outstanding amount of a loan that she had taken out with Profi Credit Polska, a consumer loan company. Her obligation to pay was recorded in a default judgment that was delivered on the basis of a blank promissory note, signed by the debtor, which was subsequently filled in by Profi Credit Polska and relied on by the latter.

3. The national court delivered the default judgment without having at its disposal the terms of the loan agreement. It therefore did not examine their possible unfairness. Although FY did not seek to challenge that judgment, she subsequently took the view that the conditions under which it was delivered were inconsistent with the judgments of the Court handed down several months later. Accordingly, she lodged an application to reopen the proceedings.

4. Under national law, an application of this kind may be successful where, inter alia, (i) the national provision relied upon in the judicial proceedings in question was subsequently declared incompatible with a higher-ranking law by the national constitutional court, or where (ii) the party concerned was ‘unlawfully deprived of the ability to act’.

5. In that context, the referring court enquires whether – in view of the first possibility – the principle of equivalence requires the reopening of the proceedings, at the national level, to be extended on the basis of a subsequent decision of the Court, handed down in the form of a preliminary ruling pursuant to Article 267 TFEU.

6. Moreover, it wonders whether the obligation to interpret national law in conformity with EU law requires – in the light of the second possibility – that a party has to be considered as being ‘unlawfully deprived of the ability to act’ when a national court fails to examine the possible unfairness of the terms of a consumer contract.

II. Legal framework

A. European Union law

7. Pursuant to Article 6(1) of Directive 93/13/EEC, (2) ‘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’.

8. Article 7(1) of Directive 93/13 provides that ‘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’.

B. Polish law

1. The Polish Constitution

9. In accordance with Article 190(4) of the Polish Constitution, ‘a judgment of the Constitutional Court on the non-conformity to the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued, shall be a basis for reopening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings.’

2. The Code of Civil Procedure

10. The order for reference provides the following information about the applicable domestic law. Article 339(1) of the Kodeks postępowania cywilnego (Code of Civil Procedure; ‘the KPC’) states that if the defendant does not appear for a scheduled hearing or appears for but does not participate in the proceedings, the court shall issue a default judgment.

11. Article 399(1) of the KPC provides for the possibility to request the reopening of proceedings that were concluded with a final judgment.

12. Article 401(2) of the KPC states that it shall be possible to request the reopening of proceedings on the ground of the invalidity thereof if a party did not have the capacity to be a party to, or act in, court proceedings, or was not duly represented, or was unlawfully deprived of the ability to act.

13. Pursuant to Article 407(1) of the KPC, an application to reopen proceedings shall be filed within three months; the time period shall begin on the day on which the party becomes aware of the grounds for reopening, and if those grounds are the party being deprived of the ability to act or the absence of due representation, on the day on which the party, its governing body or legal representative becomes aware of the judgment.

14. Article 401¹ of the KPC provides that an application to reopen proceedings shall also be possible if the Constitutional Court declares a piece of legislation, on the basis of which a ruling was issued, to be incompatible with the Constitution, a ratified international agreement or a statute.

15. Pursuant to Article 407(2) of the KPC, the application to reopen proceedings shall be filed within three months of the entry into force of the ruling of the Constitutional Court.

16. In accordance with Article 410(1) of the KPC, the court shall reject an application which is filed after the expiry of the time limit, is inadmissible or is not based on statutory grounds.

III. Facts, national proceedings and the questions referred

17. On 16 June 2015, FY entered into a loan agreement with the consumer loan company Profi Credit Polska. The repayment of the loan was secured by the issuance of a blank promissory note, signed by FY.

18. On 30 October 2017, Profi Credit Polska filed a claim against FY with the Sąd Rejonowy dla Warszawy Pragi-Południe (District Court, Warszawa Praga-Południe, Warsaw, Poland; ‘the District Court’) for the payment of the amount due with interest. The order for reference does not detail the circumstances which led to that action. However, what appears to be relevant is that only the promissory note (which that company completed, indicating the amount due) and the notice of the termination of the loan agreement were attached to the statement of claim.

19. Having found that there were no grounds for issuing an order for payment, the District Court proceeded to schedule a hearing.(3) Service upon FY was deemed effected. On 17 April 2018, that court delivered a default judgment ordering her to pay the amount claimed (rejecting the action only as regards a part of the claimed interest), basing itself solely on the contents of the promissory note and the statement of claim. It had not requested that Profi Credit Polska provide it with the loan agreement and, as such, did not examine whether that agreement contained unfair terms. That default judgment was declared immediately enforceable and FY did not challenge it.

20. Nevertheless, on 25 June 2019, FY lodged an application with the District Court to reopen the proceedings. She argued that that court incorrectly interpreted Directive 93/13 and failed to take into account, in particular, the judgment of the Court of Justice in Profi Credit Polska I (4) (handed down after the delivery of the default judgment). In her view, the District Court had failed to scrutinise the unfairness of the contractual terms in question, thereby depriving her of the ability to act within the meaning of Article 401(2) of the KPC.

21. By order of 27 August 2020, the District Court dismissed that application, finding that it had been filed out of time and was not based on any statutory grounds. It also noted that FY should have sought to defend her case (in the proceedings which led to the default judgment), which she had failed to do.

22. FY brought an appeal against that order before the Sąd Okręgowy Warszawa-Praga w Warszawie (Regional Court, Warszawa-Praga, Warsaw, Poland), which is the referring court in the main proceedings.

23. In the course of the proceedings before that court, the Rzecznik Finansowy (Financial Ombudsman) observed that a ground for reopening the proceedings which led to the default judgment could be based on a broad interpretation of Article 401¹ of the KPC, which concerns the reopening of the proceedings based on a (subsequent) decision of the national constitutional court. In his view, the default judgment was handed down in breach of the District Court’s obligation to examine of its own motion the contractual terms of the loan agreement at issue. (5) The Financial Ombudsman pointed to the resemblance between the role of the Constitutional Court and that of the Court of Justice to substantiate the argument that a decision of the latter may also serve as a valid basis for the reopening of proceedings, in accordance with the principle of equivalence.

24. As a subsidiary point, the Financial Ombudsman stated that it might also be possible to reopen the proceedings at issue on the basis of Article 401(2) of the KPC, since the failure by a court to carry out the ex...