Opinion of Advocate General Pikamäe delivered on 22 June 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:514
• Date: 22 June 2023
• Celex Number: 62022CC0321
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 22 June 2023 (1)

Case C‑321/22

ZL,

KU,

KM

v

Provident Polska S.A.

(Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court of Warsaw-Śródmieście, Warsaw, Poland))

(Reference for a preliminary ruling – Consumer protection – Unfair terms in consumer contracts – Consumer credit – Directive 93/13/EEC – Articles 6 and 7 – Action for a declaratory judgment – Legal interest in bringing proceedings – Consequences relating to the unfairness of a contractual term – Right to restitution – Principle of effectiveness)

1. The present case affords the Court of Justice an opportunity to supplement its case-law on the relationship between the requirement for the effective judicial protection of consumers under Directive 93/13/EEC (2) and the procedural autonomy of the Member States that allows them to define the detailed rules under which the unfairness of a contractual term is established and the actual legal effects of such a finding are produced.

2. The rule here at issue concerns the legal interest in bringing proceedings, which must be present in any action seeking a declaration that unfair contractual terms are unenforceable.

Legal framework

European Union law

3. In accordance with Article 6(1) of Directive 93/13:

‘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. Article 7(1) of that directive 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.’

Polish law

5. The ustawa – Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) of 17 November 1964 (Dz. U., 1964, no 4), as amended, (‘the Code of Civil Procedure’) provides, in Article 189 thereof, that:

‘Applicants may bring an action before the court for a declaration that a legal relationship or a right exists or does not exist, provided that they have a legal interest in bringing proceedings.’

6. In accordance with Article 316(1) of the Code of Civil Procedure:

‘After the hearing is closed, the court shall deliver its judgment on the basis of the situation as it stood at the close of the hearing; in particular, the fact that a debt has become due in the course of the proceedings shall not preclude a judgment ordering payment of that debt.’

The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

7. Provident Polska S.A. or IPF Polska Sp. z o.o., Provident Polska’s legal predecessor, concluded consumer credit agreements with ZL, KU and KM. The latter separately brought actions before the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court of Warsaw-Śródmieście, Warsaw, Poland), which is the referring court, relating to the agreements between them and Provident Polska, on 15 April, 17 May and 14 September 2021 respectively.

8. In the final pleadings which they lodged with the referring court, each of them requested, essentially, a declaration that the terms of the agreements concluded with Provident Polska that relate to non-interest credit costs are not enforceable against them on account of their unfairness, the fees and commissions in question being excessive and unreasonable. They allege that those fees and commissions are disproportionate to the amount of the loan granted and in fact constitute the lender’s principal source of revenue. (3)

9. In its defence, Provident Polska contends that the actions brought by the borrowers should be dismissed and makes a counterclaim against each of them, seeking an order requiring them to pay it sums corresponding to a part of the fees and commissions due under the loan agreements and as yet unpaid. The applicants in the main proceedings also contend that those counterclaims should be dismissed.

10. In the first place, the referring court questions whether Article 3(1) of Directive 93/13 must be interpreted as meaning that contractual terms setting the fees or commissions due to a seller or supplier may be declared unfair for the sole reason that those fees or commissions are clearly excessive in comparison with the service provided by the seller or supplier.

11. In the second place, the referring court questions whether Article 189 and Article 316(1) of the Code of Civil Procedure, as interpreted by the Sąd Najwyższy (Supreme Court, Poland), are compatible with Article 7(1) of Directive 93/13 and the principle of effectiveness.

12. Under Article 189 of the Code of Civil Procedure, an applicant may seek a declaration from a court that a legal relationship or a right exists or does not exist, provided that he or she has a legal interest in bringing proceedings. There being no definition in law of the concept of a legal interest in bringing proceedings, that concept has, according to the order for reference, been interpreted by the Sąd Najwyższy (Supreme Court) as being a substantive condition for an action for a declaratory judgment, the success of which will depend on the applicant’s ability to demonstrate a legal interest in bringing proceedings, which must, in accordance with Article 316(1) of the Code of Civil Procedure, exist at the time the hearing is brought to a close.

13. According to the referring court, the legal interest in bringing proceedings should be understood as an objective need to protect the legal position of applicants whose rights have been infringed or might be infringed or where there is uncertainty as to the existence or content of those rights. The assessment of whether such an interest exists requires the court hearing the action to evaluate the effect of a declaratory judgment on the applicant’s legal position, which is to say the possibility of putting a permanent end to an existing dispute or preventing a dispute from arising in the future. There will, on the other hand, be no legal interest in bringing proceedings when the applicant’s rights are neither infringed nor threatened or when they could be better protected by means of an action of broader scope, such as an action for performance.

14. The applicants in the main proceedings find themselves in this latter situation. The referring court emphasises that each of them has already paid part of the disputed commissions and fees and that the remainder is claimed by the lender in a counterclaim lodged in each set of proceedings. It states that, in such a situation, the applicants are in a position to seek a refund of the commissions and fees they have already paid by means of an action of broader scope than an action for a declaratory judgment, such as an action for the recovery of undue payments. That should result in the dismissal of their present actions for want of a legal interest in bringing proceedings, even if it is held that the contractual terms at issue are unfair.

15. The referring court also points out that the assessment of whether particular consumers have a legal interest in bringing proceedings has, in very similar cases, led to different results. That is liable to compromise the attainment of the objectives of Directive 93/13. In particular, even where it is obvious that a term of a contract concluded with a seller or supplier is unfair, a consumer might be reluctant to bring an action for a declaration that the term in question is null and void or unenforceable, for fear that the court will find that he or she has no legal interest in bringing proceedings and dismiss the action on that ground alone and at the same time order the consumer to pay the costs.

16. In the third and last place, the referring court questions whether there are ‘overriding reasons’, in particular the principle of proportionality or the principle of legal certainty, which preclude the annulment of the agreements which ZL and KU entered into on the ground that the term relating to payment methods contained in those agreements is unfair.

17. It is in that context that the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court of Warsaw-Śródmieście, Warsaw) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Must Article 3(1) of [Directive 93/13] be interpreted as permitting a contractual term which grants a seller or supplier a fee or commission that is disproportionately high in relation to the service offered to be regarded as an unfair contractual term?

2. Must Article 7(1) of [Directive 93/13] and the principle of effectiveness be interpreted as precluding provisions of national law or a judicial interpretation of those provisions under which the consumer must have a legal interest in bringing proceedings in order for an action brought by the consumer against a seller or supplier for a declaration that a contract or part thereof that contains unfair terms is void or ineffective to be upheld?

3. Must Article 6(1) of [Directive 93/13] as well as the principles of effectiveness, proportionality and legal certainty be interpreted as permitting the finding that a loan agreement whose sole term providing for the manner of loan repayment has been found to be unfair must not continue in force after that term has been excluded therefrom and is therefore void?’

The procedure before the Court

18. The Polish Government and the European Commission have lodged written observations. The Polish Government provided a written reply to the Court’s questions on 7 March 2023. The defendant in the main proceedings, the Polish Government and the Commission made oral submissions at...