Commentary to CJEU judgment C-287/22
In its judgment C-287/22, the CJEU has answered the question of whether a national court adjudicating a case brought by a consumer challenging the validity of a loan agreement, may dismiss a consumer’s application for an interim measure, having regard to consumer protection regulated by Articles 6(1) and 7(1) of Directive 93/13.
The Court stated that, in the light of Directive 93/13, the national court should be able to grant consumers interim measures (i.e. the securing of an action) by suspending, for the duration of the proceedings, the obligation to pay monthly instalments including the principal and the interest due under the loan agreement.
However, the judgment emphasised that the need to grant security must be assessed from the perspective of ensuring the full effectiveness of a future judgment on a potentially unfair contractual term, having regard to all the circumstances of the case. In addition, the CJEU stressed the need for the national court to examine whether there is sufficient evidence that the contractual terms concerned are unfair and that repayment of the sums paid by the consumer concerned under the loan agreement at issue in the main proceedings is therefore likely.
The conditions of the national legislation for the applicability of an interim measure (securing of an action) must not impair the effectiveness of consumer protection as guaranteed by Directive 93/13 and must not be less favourable than EU rules, nor may they make it excessively difficult to exercise the rights conferred by EU law.
As the CJEU pointed out following the position presented by the referring court and the Polish government, the condition of “legitimate interest”, being one of the conditions for the securing of claims under Article 730 (1) of the Code of Civil Procedure, may be interpreted in accordance with EU law, thus not hindering the exercise the rights conferred by EU law. Having regard to CJEU’s considerations as a whole, it should be borne in mind that the situation of the other party to the proceedings, who would be subject to an interim measure for the duration of the proceedings, may not be disregarded when assessing the existence of “legitimate interest” in granting security.
Indeed, the objective pursued by Directive 93/13 in the context of the applicability or non-applicability of a measure to secure consumer claims in cases concerning the assessment of the unfairness of loan agreement terms must not prejudice the rights guaranteed to the other party to the proceedings by national legislation, i.e. the provisions of the Code of Civil Procedure on proceedings to secure claims.
This is because one should not lose sight of the fact that securing a claim, while interpreting its grounds in accordance with EU law, may not in any way lead to satisfaction of the claim, which is very often the case in the realities of CHF loan cases heard by Polish common courts.
It is still too early to assess whether the CJEU judgment will contribute to a significant increase in the number of decisions granting security and what form these decisions will take. Indeed, the CJEU has not stated that security should be unconditionally granted to the borrower in every case, and the decision in this regard has been left to the national court, which should take into account all the circumstances of the case, including in particular the effectiveness of the enforcement of a future judgment and the likelihood of the agreement being annulled.
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