Opinion of Advocate General Spielmann delivered on 6 March 2025.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2025:157
• Date: 06 March 2025

Provisional text

OPINION OF ADVOCATE GENERAL SPIELMANN

delivered on 6 March 2025 (1)

Case C‑582/23 [Wiszkier] (i)

R.S.

other parties:

C. S.A.,

P.C., acting as trustee in bankruptcy of R.S. and M.S.,

M.K., acting as liquidator of G. S.A. in liquidation,

J.J.,

M.G.

(Request for a preliminary ruling from the Sąd Rejonowy dla Łodzi-Śródmieścia w Łodzi (District Court for Łódź-Śródmieście, Łódź, Poland))

( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 6(1) – Article 7(1) – Powers and obligations of the national court – Mortgage loan indexed to a foreign currency possibly containing unfair terms – Bankruptcy proceedings – Ex officio examination by the bankruptcy court of the existence of unfair terms and the possibility of ordering interim measures )

1. This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Directive 93/13/EEC. (2)

2. The request has been made in the context of a dispute arising in bankruptcy proceedings involving R.S., a consumer in personal bankruptcy, on the one hand, and his creditors, including a bank, G. spółka akcyjna, established in W. (‘Bank G.’), on the other, concerning the establishment of a creditor repayment plan.

3. The Court of Justice is asked to consider the issue of the power of a national court to examine, ex officio, whether terms in a mortgage loan agreement indexed to a foreign currency, concluded between the individual in bankruptcy and Bank G., are unfair and to order interim measures, if appropriate, in order to protect the rights which Directive 93/13 confers on consumers.

4. While this issue is not a new one for the Court of Justice, the case at hand presents certain particularities. The request for a preliminary ruling has been made in the context of bankruptcy proceedings concerning natural persons not engaged in business by a court (the bankruptcy court) which is called upon to establish, on the basis of a list of claims approved by a different judicial authority (the supervisory judge), a creditor repayment plan or to find that the assets already accumulated in the bankruptcy estate are sufficient to honour all the debts.

Legal framework

EU law

5. Article 6(1) of Directive 93/13 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.’

6. Article 7(1) of that directive provides:

‘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

The Law on Bankruptcy and Insolvency

7. Bankruptcy and insolvency proceedings are governed by the Ustawa z dnia 28 lutego 2003 r. – Prawo upadłościowe (Law of 28 February 2003 on Bankruptcy and Insolvency), Dziennik Ustaw (Journal of Laws; ‘Dz. U.’) of 2019, item 498, as amended (‘the Law on Bankruptcy and Insolvency’).

8. In accordance with Article 2(2) of the Law on Bankruptcy and Insolvency, proceedings governed by that law and conducted in respect of natural persons not engaged in business are to be conducted in such a way as to enable the discharge of such of the bankrupt’s debts as have not been discharged in the bankruptcy proceedings and, as far as possible, to satisfy the claims of creditors.

9. Article 61 of the Law on Bankruptcy and Insolvency provides that, from the date of the declaration of bankruptcy, the bankrupt’s assets become the bankruptcy estate, which is used to satisfy the bankrupt’s creditors. In addition, in accordance with Article 62 of that law, the bankruptcy estate comprises the assets belonging to the bankrupt on the date of the declaration of bankruptcy and those acquired by the bankrupt during the course of the bankruptcy proceedings, subject to the exceptions set out in Articles 63 to 67a thereof. Thus, it is apparent from, inter alia, point (2) of paragraph (1) of Article 63 of the Law on Bankruptcy and Insolvency that the portion of the bankrupt’s remuneration that cannot be seized does not form part of the bankruptcy estate.

10. In accordance with Article 152(1) to (3) of the Law on Bankruptcy and Insolvency, it falls to the supervisory judge to direct the bankruptcy proceedings, to supervise the actions of the trustee in bankruptcy, to determine what actions the trustee may take with the authorisation of the supervisory judge or the authorisation of the committee of creditors, and to take note of any errors or omissions on the part of the trustee. The supervisory judge is also to perform the other actions specified in that law. The supervisory judge and the trustee may communicate with each other regarding matters relating to the bankruptcy proceedings directly and by means of direct remote communication, in particular by telephone, fax or email.

11. Article 154 of that law provides that the supervisory judge has, in connection with his or her actions, the rights and duties of the district court and of the President of the district court.

12. Article 236 of the Law on Bankruptcy and Insolvency states:

‘1. A creditor having a claim against the personal assets of the bankrupt who wishes to participate in the bankruptcy proceedings must, where it is necessary for his claim to be established, give notice of the claim to the supervisory judge within the period fixed in the order declaring bankruptcy.

2. A creditor shall also have the right to give notice of a claim where it is secured by a mortgage, a pledge, with or without possession, a Public Treasury privilege, a maritime mortgage or any other entry in the Land Register or Ship Register. In the event that a creditor fails to give notice of such a claim, it will be included in the list of claims ex officio.

3. Paragraph 2 shall apply, mutatis mutandis, to claims secured by a mortgage, a pledge, with or without possession, a Public Treasury privilege or a maritime mortgage on assets forming part of the bankruptcy estate where the bankrupt is not a personal debtor and the creditor wishes to enforce his claims against the asset so secured in the bankruptcy proceedings.

4. The provisions of this Article relating to claims shall apply to other claims or debts that must be satisfied from the bankruptcy estate.’

13. In accordance with Article 241 of the Law on Bankruptcy and Insolvency, provided that the notice of claim fulfils certain identification and information requirements, which are specified in other provisions of that law, the supervisory judge is to give a copy of the notice of claim to the trustee in bankruptcy, immediately or at least within a period of fifteen days.

14. Article 243 of that law provides that the trustee is to verify whether the claim declared is supported by the bankrupt’s accounts or other documents, or by entries in the Land Register or in other registers, and is to call upon the bankrupt to produce, within a prescribed period, a declaration as to whether or not he or she acknowledges the claim. Article 244 thereof provides that, after the expiry of the period allowed for declaring claims and following the verification of declared claims, the trustee is immediately to establish a list of claims and must do so no later than two months after the expiry of the period allowed for the declaration of claims.

15. In accordance with Article 245(2) and (4) of the Law on Bankruptcy and Insolvency, in the event that the trustee rejects, in whole or in part, a creditor’s declaration of claim, he is to state the reasons therefor in a special section. Those reasons must include an indication of the facts giving rise to the claim and of the documents relating to the claim. The trustee is also to attach to the list of claims, as appropriate, the declaration made by the bankrupt and the reasons given by him, or a reference to the fact that the bankrupt has not made a declaration or given reasons.

16. In accordance with Article 255(2) of the Law on Bankruptcy and Insolvency, the date of submission of the list of claims is to be published. Pursuant to Article 256 of that law, in the two weeks following the publication of the list of claims, the bankrupt has the right to lodge an objection with the supervisory judge if the draft list of claims is not in accordance with his requests or declarations. It is also clear from that article that, if the bankrupt has not lodged a declaration despite having been called upon to do so, he may lodge an objection only if he can show that that omission was for reasons beyond his control.

17. In accordance with Article 260(2) of that law, if no such objection has been lodged, the supervisory judge is to approve the list of claims after the expiry of the period allowed for lodging an objection.

18. It is clear from Article 261 of that law that the supervisory judge may amend the list of claims ex officio if he finds that claims that are wholly or partly inexistent have been included in the list or that claims that should appear in the list are missing. That article also provides that the order amending the list is to be published and that that order may be appealed.

19. Article 264 of the Law on Bankruptcy and Insolvency states, in paragraphs (1) to (3) thereof, that, upon the conclusion or discontinuance of the bankruptcy proceedings, an extract of the list of claims approved by the supervisory judge, containing a reference to a claim and the amount received by the creditor, constitutes an enforceable instrument which may be enforced against the bankrupt. The bankrupt may request that a claim appearing on the list of claims be declared inexistent or of a...