Profi Credit Polska S.A. w Bielsku Białej v Bogumiła Włostowska and Others.

• Jurisdiction: European Union
• Celex Number: 62018CJ0419
• ECLI: ECLI:EU:C:2019:930
• Docket Number: C-419/18
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 07 November 2019

Provisional text

JUDGMENT OF THE COURT (First Chamber)

7 November 2019 (*)

(References for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Article 3(1) — Article 6(1) — Article 7(1) — Directive 2008/48/EC — Article 10(2) — Credit agreements for consumers — Lawfulness of securing the debt arising under the agreement by means of a blank promissory note — Demand for payment of the debt owed under the promissory note — Scope of the court’s powers and obligations)

In Joined Cases C‑419/18 and C‑483/18,

REQUESTS for a preliminary ruling under Article 267 TFEU from, respectively, the Sąd Rejonowy dla Warszawy Pragi-Południe w Warszawie (District Court for Warszawa Praga-Południe, in Warsaw, Poland) and the Sąd Okręgowy w Opolu, II Wydział Cywilny Odwoławczy (Regional Court, Opole, Second Civil Appeal Division, Poland), made by decisions of 13 February and 3 July 2018, received at the Court on 26 June and 24 July 2018, respectively, in the proceedings

Profi Credit Polska S.A.

v

Bogumiła Włostowska,

Mariusz Kurpiewski,

Kamil Wójcik,

Michał Konarzewski,

Elżbieta Kondracka-Kłębecka,

Monika Karwowska,

Stanisław Kowalski,

Anna Trusik,

Adam Lizoń,

Włodzimierz Lisowski (C‑419/18),

and

Profi Credit Polska S.A.

v

OH (C‑483/18),

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, R. Silva de Lapuerta, Vice-President of the Court, M. Safjan, L. Bay Larsen and C. Toader (Rapporteur), Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of

– the Polish Government, by B. Majczyna, acting as Agent,

– the Czech Government, by M. Smolek, J. Vláčil and S. Šindelková, acting as Agents,

– the European Commission, by G. Goddin, K. Herbout-Borczak and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Articles 3(1), 6(1) and 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 provisions 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 corrigenda at OJ 2009 L 207, p. 14, OJ 2010 L 199, p. 40, and OJ 2011 L 234, p. 46).

2 The requests have been made in proceedings between Profi Credit Polska S.A. and (i) Ms Bogumiła Włostowska, Mr Mariusz Kurpiewski, Mr Kamil Wójcik, Mr Michał Konarzewski, Ms Elżbieta Kondracka-Kłębecka, Ms Monika Karwowska, Mr Stanisław Kowalski, Ms Anna Trusik, Mr Adam Lizoń and Mr Włodzimierz Lisowski, and (ii) OH, concerning demands for the settlement of debts arising under blank promissory notes issued by the latter parties in respect of sums owed under loan agreements.

Legal context

EU law

Directive 93/13

3 The 20th and 24th recitals of Directive 93/13 read as follows:

‘… contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail;

…

… 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 1(1) of that directive states:

‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.’

5 Article 3(1) of that directive provides:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’

6Article 4(2) of Directive 93/13 states:

‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.’

7 In accordance with Article 5 of the directive:

‘In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. …’

8 Article 6(1) of that directive is worded as follows:

‘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.’

9Article 7(1) of Directive 93/13 is worded 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.’

Directive 2008/48

10 As stated in Article 1, the purpose of Directive 2008/48 is to harmonise certain aspects of the rules of the Member States concerning agreements covering credit for consumers.

11 Article 10(2) of that directive lists, inter alia, the information to be included in a clear and concise manner in credit agreements.

12 Article 14 of that directive establishes a right for the consumer to withdraw from a credit agreement without him having to give any reason.

13Article 17 of Directive 2008/48, headed ‘Assignment of rights’, provides, in paragraph 1:

‘In the event of assignment to a third party of the creditor’s rights under a credit agreement or the agreement itself, the consumer shall be entitled to plead against the assignee any defence which was available to him against the original creditor, including set-off where the latter is permitted in the Member State concerned.’

14 Article 19 of that directive specifies the method for calculating the annual percentage rate of charge for consumer credit.

15 Article 22 of that directive, headed ‘Harmonisation and mandatory nature of this Directive’, states:

‘1. In so far as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive.

2. 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.

3. Member States shall further ensure that the provisions they adopt in implementation of this Directive cannot be circumvented as a result of the way in which agreements are formulated, in particular by integrating drawdowns or credit agreements falling within the scope of this Directive into credit agreements the character or purpose of which would make it possible to avoid its application.

4. Member States shall take the necessary measures to ensure that consumers do not lose the protection granted by this Directive by virtue of the choice of the law of a third country as the law applicable to the credit agreement, if the credit agreement has a close link with the territory of one or more Member States.’

16 Article 23 of that directive, headed ‘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.’

Polish law

17 Article 10 of the ustawa prawo wekslowe (Law on Bills of Exchange and Promissory Notes) of 28 April 1936, as amended (Dz. U., 2016, item 160) (‘the Law on Bills of Exchange and Promissory Notes’), states that if a bill of exchange which was incomplete when issued has been completed otherwise than in accordance with the agreements entered into, the non-observance of such agreements may not be raised against the bearer unless he has acquired the bill of exchange in bad faith or, in acquiring it, has been guilty of gross negligence.

18 Under Article 103(2) of that law, Article 10 thereof is applicable to promissory notes.

19 According to Article 17 of that law, persons sued under a promissory note may not invoke against the bearer any pleas based on their personal relation with the drawer or with previous bearers, unless the bearer, in acquiring the promissory note, has knowingly acted to the detriment of the debtor.

20 Article 101 of the Law on Bills of Exchange and Promissory Notes states:

‘A promissory note shall contain:

(1) the term “promissory note” in the body of the document, in the language in which it was issued;

(2) an unconditional promise to pay a determinate sum of money;

(3) a statement of the time of payment;

(4) a statement of the place of payment;

(5) the name of the person to whom or to whose order payment is to be made;

(6) a statement of the date on which and of the place where the promissory note is issued;

(7) the signature of the person issuing the promissory note.’

21 Under Article 233(1) and (2) of the ustawa — Kodeks postępowania cywilnego (Law on the Code of Civil Procedure) of 17 November 1964, consolidated text, as amended (Dz. U., 2018, item 155) (‘the kpc’) the court is to assess, on the basis of a comprehensive consideration of the material collected, the reliability and strength of the evidence. The court is to assess on the same basis...