Court of Justice of the European Communities (including Court of First Instance Decisions)

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 Trybunał Konstytucyjny [(Cour constitutionnelle; “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 officio review falls within the scope of that provision (and amounts to the deprivation of the party’s ability to act). (6) Furthermore, he concurred with FY regarding the unfairness of the terms at issue.

25.      In that context, the referring court harbours doubts as to the correct course of action to take.

26.      On the one hand, it emphasises the importance of the principle of res judicata and points to the fact that no provision of EU law or national law imposes on national courts an obligation to reopen proceedings that have resulted in a final judicial decision in order to take into account a judgment of the Court of Justice interpreting EU law.

27.      On the other hand, it wonders whether it is possible to arrive at the opposite conclusion based on the principle of equivalence or the obligation to interpret national law in conformity with EU law.

28.      Importantly, the referring court observes that, in the light of the Court’s judgments in Profi Credit Polska I, Profi Credit Polska II (7) and Kancelaria Medius, it is ‘highly likely’ that the default judgment was delivered in ‘blatant breach’ of the national rules transposing Articles 6 and 7 of Directive 93/13. (8) However, it explains that it is in no position to assess that matter because it is limited in its capacity to verify whether, first, the time limits have been respected and, second, whether the application to reopen the proceedings relies on one of the statutory grounds. It is in that procedural context that it must ascertain whether an interpretative preliminary ruling may constitute such a ground.

29.      It is in the light of those considerations that the Sąd Okręgowy Warszawa-Praga w Warszawie (Regional Court, Warszawa-Praga, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must Articles 4(3) and 19(1) TEU, having regard to the principle of equivalence which arises from the case-law of the [Court of Justice], be interpreted as meaning that a judgment of the [Court of Justice] concerning the interpretation of EU law given pursuant to Article 267(1) TFEU constitutes grounds for reopening civil proceedings which ended with a final judgment, if a provision of national law, such as Article 401¹ of the [KPC], allows proceedings to be reopened in the event that a final judgment is given on the basis of a provision which has been held by a judgment of the Trybunał Konstytucyjny (Constitutional Court, Poland) to be incompatible with a higher-ranking law?

(2)      Does the principle of interpretation of national law in conformity with EU law arising from Article 4(3) TEU and from the case-law of the [Court of Justice] require a broad interpretation of a provision of national law, such as Article 401(2) of the [KPC], so as to include in the grounds for reopening proceedings set out therein a final default judgment in which the court, infringing the obligations arising from the judgment of the Court of Justice in [Profi Credit Polska I], omitted to examine a contract between a consumer and a lender in terms of unfair contractual terms and limited itself to examining only the formal validity of the promissory note?’

30.      The Polish Government and the European Commission have submitted written observations. Both parties presented oral argument at the hearing, which took place on 24 January 2023.

IV.    Analysis

31.      I will address the merits of the questions referred in the present case by making, first, preliminary remarks about the position that EU law adopts vis-à-vis the national effect of res judicata in, especially, matters of consumer protection, and about legal certainty of which the res judicata effect constitutes a specific expression (1).

32.      Second, I will explain that the principle of equivalence does not require the reopening of civil proceedings to become available based on an interpretative preliminary ruling of this Court, when that is possible, under national law, on the basis of certain judgments of the national constitutional court (2).

33.      Third, suggesting a response to the second question referred (raising the obligation of conforming interpretation) will require clarification of several issues that that question implies. In that context, I will explain that the effectiveness of consumers’ protection against unfair terms does not automatically require the Member States to provide for an extraordinary remedy when the national court failed to review whether the contractual terms binding the consumer are effectively unfair or not. However, I will also explain that the specific circumstances under which the default judgment appears to have been delivered and became final make it necessary to provide the consumer concerned with a remedy. While the possibility to grant FY’s application to reopen the proceedings will, in my view, depend on the interpretative options available under Polish law (and on the applicable time limits), I will explain that the Court’s case-law provides her with other procedural avenues by which her right not to be bound by the (allegedly) unfair contractual terms can be restored (3).

A.      EU law, national effects of res judicata and the principle of legal certainty

34.      It should be pointed out, at the outset, that extraordinary remedies, such as the one at issue in the main proceedings, allow, in general, for judicial decisions having become final to be reversed. As such, those remedies therefore affect, by their very nature, the principle of res judicata that otherwise precludes final judicial decisions from being called into question.

35.      Although the principle of res judicata constitutes an expression of the principle of legal certainty, (9) its operation is not always absolute (as the existence of extraordinary remedies illustrates). In that respect, it follows from the Court’s case-law that the exceptions to that principle, defined by the national legislature, may trigger additional ones being required as a matter of EU law.

36.      The question as to whether that law may, in some situations, require national effects of res judicata to be disregarded is approached, in the absence of any specific rules on that matter, through the classical prism of the principles of equivalence and effectiveness, which frame the exercise of the procedural autonomy of the Member States in accordance with the duty of sincere cooperation enshrined in Article 4(3) TEU. Accordingly, the general position of EU law is that it does not require the national effects of res judicata to be set aside in order to rectify an incompatibility of a domestic situation with EU law, unless a contrary conclusion is required by one of the principles referred to above. (10)

37.      In that framework, the assessment is generally carried out with caution. The Court repeatedly recalls the importance of the principle of res judicata, which is presented as being justified by the interest in the stability of the law and legal relations, and by the sound administration of justice. (11) As has been pointed out, that principle also serves the interests of the litigants in having their matter finally settled and, for that reason, may be viewed as a guarantee deriving from the right to effective judicial protection, while simultaneously contributing to the broader purpose of the public interest in having a legal system whose stability the society can trust. (12)

38.      Accordingly, extraordinary remedies – as exceptions to the principle of res judicata – require careful handling. While the precise conditions of their applicability may differ depending on the legal order considered, they reflect a delicate balance struck by the national legislature between the general interest in legal certainty, on the one hand, and the interest in achieving a fair outcome in specific and limited circumstances, on the other hand. (13)

39.      Their cautious crafting reflects the fact already recalled that they affect the stability of legal relationships and impede the principle of legal certainty, implicit in Article 6 of the European Convention on Human Rights (ECHR), (14) which is considered to be ‘one of the fundamental aspects of the rule of law’. (15) For that reason, it has been considered that the final judgments should be left intact unless a contrary conclusion is called for by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice. (16)

40.      Those general observations are, naturally, also relevant for the assessment of the present case and mean that, to provide an answer to both questions raised by the referring court in the present case, the principles referred to above, which aim at enhancing the application of EU law, will need to be tested against a particularly complex and delicate background.

B.      The principle of equivalence and the decisions of the Constitutional Court

41.      In order to propose a reply to the first question referred, I will start by discussing in more detail the limits that EU law in general, and the principle of equivalence in particular, impose on the national effects of res judicata (a). With the applicable analytical framework outlined, I will identify the category of decisions of the Constitutional Court to be examined in the light thereof. That aspect sparked an extensive discussion in the course of the present proceedings (b). On that basis, I will set out the reasons which will lead me to consider that the differences between the features of the relevant national decisions, on the one hand, and of the interpretative preliminary rulings of the Court, on the other hand, preclude the principle of equivalence from being triggered so as to require those rulings to constitute a (new) statutory ground for the extraordinary remedy at issue (c).

1.      The principle of equivalence and national effects of res judicata

42.      As I have already stated, the principle of equivalence may, under certain conditions, affect the scope of the national effects of res judicata.

43.      More specifically, that principle prohibits Member States from laying down less favourable procedural rules for claims relating to a breach of EU law than those applicable to a similar procedure based on a breach of national law. (17) In the present context, this means that, where national law provides for exceptions to the national effects of res judicata so that it is possible to remedy breaches of rights derived from national law, those exceptions must also apply to similar actions based on a breach of EU law.

44.      In order to ascertain whether, generally, a domestic action may be considered as similar to an action brought to safeguard rights derived from EU law, regard should be had, in principle, to their respective purpose, cause and essential characteristics. (18)

45.      In the context of the present case, the question is, however, not whether two given procedures must be considered as similar (and must thus be governed by equivalent conditions), (19) but rather whether one procedure must become available based on an interpretative preliminary ruling when it can be triggered by a specific type of national judicial decision.

46.      In the past, a similar scenario has led to the judgments in Impresa Pizzarotti (20), XC and Hochtief. (21)

47.      The situation culminating in the judgment in Impresa Pizzarotti, involved a (last-instance) national court that possessed what appeared to be a rather wide power to supplement its own final judgments in order to remedy breaches of domestic law, through a mechanism referred to as ‘progressively formed res judicata’. (22) The Court concluded that, in such circumstances, that mechanism had to be made available so as to bring the situation back in line with the relevant EU legislation (in the field of public contracts).

48.      In the judgment in Hochtief, a public procurement case, the Court also made a rather broad statement to the effect that, where procedural rules make it possible to reverse a final judgment to render the situation compatible with an earlier judicial decision, where both the court and the parties were aware of the latter, that possibility should prevail also to render the situation compatible with an earlier judgment of the Court. (23)

49.      That being said, a careful examination of the Court’s reasoning reveals that those conditions, which allowed for a final judgment to be reversed, were presented as a hypothetical scenario to be verified by the referring court. That scenario was modelled to reflect the situation that arose in that case involving a preliminary ruling that was allegedly disregarded at the subsequent stage of the proceedings in which it had been requested. It remained, in my view, unspecified whether the national rules allowing for the effect of res judicata to be reversed actually fitted that hypothetical scenario. (24)

50.      Finally, in its judgment in XC, the Court ruled out the possibility of the principle of equivalence being triggered so as to extend a retrial of criminal proceedings, on account of an infringement of the ECHR, to alleged infringements of fundamental rights guaranteed by EU law. The Court based its reasoning on ‘the close functional relationship’ between the national remedy at issue and the proceedings before the ECtHR. (25) That remedy was indeed put in place to, in essence, implement judgments of the ECtHR issued in, as I understand it, individually related cases. (26) As a matter of principle, those judgments can only be applied for, and delivered, after all national remedies have been exhausted. The Court contrasted that situation with the logic governing the judicial enforcement of EU-law-based rights, which is resorted to before a final domestic judicial decision is adopted, not least through the mechanism of the preliminary rulings procedure.

51.      While that case-law of course provides a useful frame of reference, none of the judgments briefly referred to above fits the situation at hand exactly. Indeed, the examination of the implications of the principle of equivalence is necessarily case-specific because it involves a comparison of the particular features of the remedies at issue.

52.      To be able to engage in such an analysis in the present case, I will now clarify the types of decisions of the Constitutional Court that are to be considered as relevant for that purpose.

2.      Relevant decisions of the Constitutional Court

53.      Although not specified in the wording of the first question referred, it follows that the decisions of the Constitutional Court that may be relied on for the purposes of the reopening of proceedings pursuant to Article 401¹ of the KPC post-date the final judicial decision whose reopening is being sought. Indeed, as far as I understand it, the rationale underpinning Article 401¹ of the KPC, to which that question refers, encompasses the notion that it is through a subsequent judgment of the Constitutional Court that it becomes evident that a prior judicial decision relies on an unlawful basis.

54.      In the same way, the three interpretative preliminary rulings referred to above, (27) viewed by the referring court as possible grounds for the reopening of the proceedings at issue, were delivered subsequent to the default judgment. Therefore, the first question referred must be understood as enquiring whether equivalence can be established between the respective judgments of the Constitutional Court, on the one hand, and the interpretative preliminary rulings of the Court, on the other hand, delivered, in both cases, subsequent to the final judicial decision whose reversal is being sought.

55.      With that being clarified, the referring court explained that there are two categories of decisions of the Constitutional Court that can serve as the basis for reopening proceedings pursuant to Article 401¹ of the KPC. They have been referred to as ‘simple judgments’, on the one hand, and ‘negative interpretative judgments’, on the other hand. (28)

56.      In reply to a question put to it by this Court, the referring court explained that, by its first question, it seeks clarification as to the consequences to be drawn from the principle of equivalence in respect of both those categories.

57.      I observe the following in that connection.

58.      As explained in the order for reference, where the Constitutional Court finds, by way of a ‘simple judgment’, that the national provision under review is incompatible with a higher-ranking law, it deprives the national provision under review of its force of law.

59.      Both the Polish Government and the Commission appear to agree with that position and with the fact that a ‘simple judgment’ of the Constitutional Court constitutes a ground for the reopening of civil proceedings on the basis of Article 401¹ of the KPC.

60.      However, there seems to be a disagreement as regards the category of ‘negative interpretative judgments’.

61.      It would appear that, in an interpretative judgment, the Constitutional Court takes a position on whether or not a certain interpretation of a provision of national law is compatible with the given benchmark for review. Notably, when such a judgment reaches a negative outcome, excluding a certain interpretation as unlawful (‘a negative interpretative judgment’), the validity of the interpreted act is left intact.

62.      The referring court acknowledges that, while it is possible to rely on a ‘negative interpretative judgment’ to reopen administrative proceedings, the question whether the same is possible in respect of civil proceedings (at issue in the main proceedings) is not clear in Polish law. That court admits that the prevailing view tends to lean towards a negative answer. However, it is itself of the view that an answer in the affirmative is possible.

63.      In that context, the Commission observed during the hearing that it is the Polish Government that is in a better position to assess that question. However, it drew attention to the fact that, under national law, the decisions of the Constitutional Court are considered to have erga omnes binding effect without any distinction between the different types of judgments that that court may adopt.

64.      The Polish Government submitted that ‘a negative interpretative judgment’ does not affect the validity of the interpreted provision and, therefore, cannot serve as a ground for reopening civil proceedings. At the hearing, it emphasised that its position is based on a resolution of the Sąd Najwyższy (Supreme Court, Poland; ‘the Supreme Court’) which, in its view, governs that matter. (29)

65.      I observe that whether a ‘negative interpretative judgment’ of the Constitutional Court constitutes a ground for reopening civil proceedings pursuant to Article 401¹ of the KPC is, of course, not an issue for this Court to rule on. The proceedings under Article 267 TFEU are based on a clear separation of functions in the context of which the national courts have exclusive jurisdiction to interpret national law. For that reason, the observations of the referring court as to the content of such law cannot be brought into question within the present proceedings. (30)

66.      I shall therefore proceed with the premiss embraced by the referring court, according to which ‘a negative interpretative judgment’ may constitute a ground for the reopening of civil proceedings pursuant to Article 401¹ of the KPC and include that category of decisions in the present analysis.

3.      Consequences to be drawn from the principle of equivalence

67.      I will start my assessment of the consequences to be drawn from the principle of equivalence in the present case by discussing the purpose of the extraordinary remedy at issue. In that context, I will explain that that remedy is arguably linked to what appears to be a direct position taken by the Constitutional Court on incompatibility of a (lower-ranking) national law provision with a higher-ranking law or on unlawfulness of a certain interpretation of such a lower-ranking law (i).

68.      I will then turn to the specific features of the interpretative preliminary rulings that consist in providing an authoritative interpretation of EU law within a broader judicial dialogue where the precise consequences are to be drawn, for the given national law (as a lower-ranking law), by the national court and where the exact form of those consequences depends on several variables. That specific dimension, in my view, makes it extremely difficult for those rulings to fit the particular logic of the extraordinary remedy at issue, without affecting the imperative of legal certainty (ii).

69.      If that fundamental difference is not to be perceived as an obstacle to the application of the principle of equivalence, I will discuss, on a subsidiary basis, how the category of possible ‘triggering’ preliminary rulings should be defined so as to ensure that the boundaries of the principle of equivalence and the imperative of legal certainty continue to be respected (iii). I will expand on that subsidiary consideration by addressing the issue of the applicable time limits. That aspect of the case reveals, per se, the challenges in integrating the logic of preliminary rulings into the mechanism of the extraordinary remedy at issue (iv).

(a)    The domestic actions at issue: their purpose and functional link

70.      Turning to the three-pronged test of purpose, cause and essential characteristics referred to in point 44 above, it follows from the case file that the purpose pursued by the respective procedures which may result in a judgment of the Constitutional Court that can be relied upon on the basis of Article 401¹ of the KPC is, in general, to obtain either a declaration as to the (in)compatibility – and the ensuing (in)validity – of a given national provision with a higher-ranking law, or a declaration that finds a certain interpretation of that law to be incompatible with a higher-ranking law.

71.      Accordingly, the purpose of the extraordinary remedy provided for in Article 401¹ of the KPC appears to be to allow for the reversal of a final judgment after the legal basis on which that judgment relies was deprived of its force of law or after it was made clear that that judgment relied on an impermissible interpretation of national law.

72.      Put simply, and echoing the language used by the Court in its judgment in XC, there seems to be a functional link between the remedy established in Article 401¹ of the KPC and the declaration of incompatibility of the national law provision (or of unlawfulness of its interpretation) that had been relied on in the proceedings whose reopening is sought.

73.      In contrast to the judgment in XC, however, the functional link is somewhat feebler in the present case because, in order for reopening to be possible under Article 401¹ of the KPC, the ‘triggering’ judgment of the Constitutional Court need not be delivered in a case that is individually connected to the proceedings for which reopening is being sought.

74.      Indeed, that remedy appears to be available to any party whose case was decided on a national-law basis that was subsequently declared unlawful, provided that the application for reopening is made within the applicable time limit.

75.      For that reason, and in contrast to the situation culminating in the judgment in XC, it does not appear to be relevant that an interpretative preliminary ruling constitutes, in general, an ex ante means of ensuring compliance before a final national judicial decision is even handed down. That of course holds true for individual cases in which such a ruling is requested. However, in my view, that specific consideration ceases to be decisive when the functional link between the extraordinary remedy and the ‘triggering’ national judgment of the Constitutional Court is broadened to encompass any subsequent judgment of that court that invalidated the legal basis at issue or that excluded as unlawful the adopted interpretation of national law.

76.      That, however, does not exhaust all the specific features characterising interpretative preliminary rulings that need to be considered.

77.      What appears decisive in the context of the present case are the differences in the logic governing the consequences to be drawn from the respective categories of judicial decisions at issue.

78.      As I understand it, when the Constitutional Court declares a provision of national law incompatible with a higher-ranking law, that does not leave much room for discussion as to the legal consequences arising from that statement for the lower-ranking law concerned. As noted above, that law is declared incompatible and disappears from the legal order. The extraordinary remedy at issue subsequently allows for those consequences to be given a concrete expression at the level of the judicial decisions that were delivered on that (invalidated) legal basis.

79.      The same observation can be made, mutatis mutandis, about the ‘negative interpretative judgments’.

80.      Although such judgments leave the validity of the interpreted national law intact, the impossibility to adopt a certain interpretation of the lower-ranking law at issue occurs, similarly to what happens as a result of the ‘simple judgments’, as a direct, unmediated consequence of the holding of the Constitutional Court. Such a holding is then ‘translated’, at the level of the final judicial decisions embracing such an impermissible interpretation of the given lower-ranking law, by the possibility of their reversal via the extraordinary remedy at issue.

81.      In contrast to that, the primary purpose of interpretative preliminary rulings is to provide an interpretation of EU law (as the higher-ranking law at issue). Although, in that way, they constitute an authoritative basis from which the appropriate consequences must be derived for the given, possibly incompatible, rule of national law, those specific consequences must be drawn by the respective national court, once the preliminary ruling is delivered and the main proceedings are resumed. Importantly, the exact form of those consequences will depend, typically, on several variables.

82.      That aspect has, in my view, a fundamental bearing on the possibility to easily identify whether a given preliminary ruling will, in fine, trigger legal consequences that can be considered as similar to those produced by the respective judgments of the Constitutional Court. That, in turn, has important implications for the foreseeability of the situations in which the extraordinary remedy at issue, extended in the way envisaged in the present case, could apply. I will address that issue in more detail below.

(b)    The specific features of interpretative preliminary rulings relevant for the present case

83.      As already briefly noted, the overarching purpose of the (interpretative) preliminary ruling procedure is to equip national courts with the points of interpretation of EU law that they need in order to decide the disputes before them (its micro purpose) and, by the same token, to ensure uniform interpretation and application of EU law throughout the European Union (its macro purpose). (31)

84.      Importantly, the delivery of a preliminary ruling occurs within a broader context of judicial dialogue that preliminary ruling proceedings constitute and in which the role of the Court is complemented by the subsequent intervention of the respective referring court: while the role of the Court is to provide a binding interpretation of EU law, the consequences arising from that interpretation for the specific case are the responsibility of the national courts, acting in accordance with the overarching principle of primacy of EU law. (32)

85.      Moreover, where a conflict between EU law and national law is identified, its solution will depend on several variables.

86.      On the EU-law side, whether, in particular, the identified incompatibility of national law with EU law will result in national law being set aside depends on the specific nature of the EU law provision concerned (such as its applicability in horizontal relations or its direct effect when it comes to vertical ones, it being noted that direct effect is the condition for the possibility for EU law to require national law to be set aside). (33)

87.      On the national-law side, whether the identified incompatibility will lead to the effective inapplicability of national law will depend on the interpretative options under the given legal order. Indeed, even when, in fine, it follows from a preliminary ruling that a certain provision of national law is incompatible with EU law, that may not necessarily mean the end of its ‘legal life’ because the national court may find a way to interpret it in conformity with EU law. In principle, that possibility is to be considered first, and it is only when it does not allow for the incompatibility to be resolved that the incompatible law at issue should be set aside (where such action is required as a matter of EU law). (34)

88.      That logic contrasts, in my view, rather starkly with the logic that governs both the relevant categories of the Constitutional Court’s judgments. As I have already explained, where such judgments identify an incompatibility, they also directly state the specific consequences to be drawn for the given lower-ranking law (that is, its invalidity or the impossibility to adopt a certain interpretation).

89.      I would like to add that that difference is not affected by the fact that both categories of judicial decisions being compared appear to produce erga omnes effects. (35)

90.      Such prima facie commonality led to some discussion during the hearing. (36)

91.      However, the developments above reveal, in my view, that the terms of erga omnes effects have – in both cases being compared – a fundamentally different meaning and consequences. Importantly, the fact that the resulting judicial pronouncements are, in both cases, generally binding does not appear to shed any light on the manner in which they interact with the incompatible lower-ranking law.

92.      The difference that I have identified above in that respect has, in my view, an important bearing on the possibility to anticipate (based on the consideration of the judicial decision alone), the specific situations in which the extraordinary remedy at issue would apply if interpretative preliminary rulings were to trigger it: it might be so in some cases, but not necessarily in others.

93.      In other words, applying the principle of equivalence under those circumstances would come at the non-negligible cost of reduced legal certainty. Indeed, identifying the ‘triggering’ situations would require a separate intermediate analysis (with the possible need of the parties being heard), as to whether a given preliminary ruling produces in fine consequences that can be considered as comparable to those triggered by either of the relevant judgments of the Constitutional Court.

94.      That being said, if the need to engage in such a discussion is not deemed an obstacle to the principle of equivalence being ‘activated’, I will discuss below, on a subsidiary basis, how the category of possible ‘triggering’ preliminary rulings should be defined so as to ensure that the boundaries of the principle of equivalence and the imperative of legal certainty continue to be respected.

(c)    Subsidiary clarification of the relevant category of the ‘triggering’ interpretative preliminary rulings

95.      First, it would have to be decided whether the relevant category of interpretive preliminary rulings would be those that lead to the conclusion that a given provision of national law has to be set aside or those leading (merely) to a certain interpretation of national law being excluded as incompatible with EU law.

96.      The reply to that question perhaps depends on whether the relevant national comparator is the ‘simple judgment’ or the ‘negative interpretative judgment’ of the Constitutional Court. I recall that, it follows from the case file that, while the first category invalidates the incompatible lower-ranking law, the second merely excludes one way of interpreting it.

97.      A straightforward reply to that question appears to be that the possible consequences of a preliminary ruling will never fit the first category exactly (because the Court can never invalidate national law), (37) while they might correspond, as the Commission in essence argues, to the second one. (38)

98.      That delimitation may, however, not be entirely convincing. I note that an interpretative preliminary ruling may lead to the effective inapplicability of national law. One may thus argue that, in the end, there is not much difference between declaring a national provision ‘dead’, on the one hand, and keeping it ‘alive’, while stripping it of its actual possibility to regulate social relations, on the other hand.

99.      Moreover, once it has been determined (contrary to my main suggestion in the previous section) that the absence of legal consequences (for the domestic law) that would constitute an unmediated result of a preliminary ruling does not preclude the principle of equivalence from being triggered, the same should perhaps be said about the difference between (direct) invalidation of national law and setting that law aside (which, moreover, may lead to its effective repeal by the national legislature at a later point in time).

100. Finally, it should also be recalled that the comparison of the respective remedies or judgments for the purpose of applying the principle of equivalence consists in verifying whether those remedies or judgments are similar. For the principle of equivalence to be triggered, they do not have to be the same.

101. That being said, while that approach appears unproblematic in the context of ordinary remedies, I consider that it should be handled with more restraint when it comes to extraordinary remedies due to the fact that such remedies affect principles as fundamental as res judicata and legal certainty.

102. Thus, the difference in the precise legal consequences for the lower-ranking law at issue should, in my view, matter, which means, in this particular context, that the relevant national comparator should be limited to the ‘negative interpretative judgment’ as opposed to the ‘simple’ one.

103. Moreover, and for the same reasons, the comparable preliminary rulings would have to be further limited to those that lead to the exclusion of a certain interpretation of national law but which do not go as far as to mandate its disapplication. Indeed, that would be a different, more invasive category of legal consequence which a ‘negative interpretative judgment’ does not appear to produce.

104. Second, the relevant category of preliminary rulings could, in my view, only include those that concern the exact and same legislation as the one relied on by the final judgment whose reversal is being sought. Any broader definition of the relevant comparator would spill over the specific focus of the relevant category of the judgments of the Constitutional Court (and affect, in this respect as well, the imperative of legal certainty).

105. Indeed, those judgments appear to concern a specific act or a provision of national law. As I understand it, it is not possible to make a successful application for the extraordinary remedy at issue by analogy, that is, by relying on an alleged invalidity, or an allegedly incompatible interpretation of a national provision that is different from (although similar to) the one that was effectively examined by the Constitutional Court.

106. Third, given that the very purpose of ‘interpretative judgments’ is to take a position on whether a given interpretation of domestic law is compatible with a higher-ranking law, I understand that a reply to that question is reflected in their operative part, as the Polish Government essentially explained during the hearing.

107. While the observance of the principle of equivalence (and, again, the imperative of legal certainty) would require the relevant category of interpretative preliminary rulings to be delimited in the same way, such delimitation may lead to arbitrary results in the light of the logic that governs those rulings.

108. Indeed, while the Court may, in some cases, make the relevant observation in the operative part of its decision, such an observation may, in other cases, result from the reasoning thereof. This reflects the fact that the primary purpose of those rulings is to provide an interpretation of EU law, and that their precise focus depends on the way in which the questions are worded, as well as on the specific elements of national legal and factual context.

109. Moreover, it should be stressed that the conditions for obtaining a reversal of a final judicial decision include the crucial aspect of time limits. In that respect, the principle of legal certainty necessitates a clear determination of the moment from which they start to run. In the present case, that moment seems to be the publication of the relevant decision of the Constitutional Court. Yet, the referring court appears to consider that it can rely on any of three different preliminary rulings to possibly grant the application for reopening of the proceedings pending before it. That approach alone reveals, in my view, the challenges in integrating the logic of preliminary rulings into the mechanism of the extraordinary remedy at issue.

(d)    Which element of the relevant case-law of the Court is decisive for the consideration of the applicable time limits?

110. The referring court has identified three interpretive preliminary rulings (Profi Credit Polska I, Profi Credit Polska II and Kancelaria Medius) which, in its view, make it apparent that the default judgment was delivered in breach of the national rules transposing Articles 6 and 7 of Directive 93/13. I recall that that alleged breach consists in the fact that the District Court delivered that judgment without reviewing the possible unfairness of the contractual terms at issue and, without them at its disposal, did not request that they be produced.

111. While I certainly agree with the referring court that that case-law is relevant for the assessment of the conditions under which the default judgment was handed down, and may lead to the conclusion that the referring court suggests, (39) I am of the view that only one of them (Kancelaria Medius) actually fits the parameters that I suggested, on a subsidiary basis, in the previous section. However, that preliminary ruling is not the first one which arguably allows for similar consequences to be drawn.

112. To explain, in its judgment in Kancelaria Medius, the Court provided interpretation of specific provisions of Directive 93/13 as excluding a certain interpretation of national law (40) which, as the Commission points out, appears to be the same as the one at issue in the main proceedings. (41) Moreover, that statement features in the operative part of the ruling (and even if the incompatible legislation is not nominally identified there, it is in other parts of the Court’s judgment).

113. More specifically, it follows from that judgment that, where the national court has doubts as to the unfair nature of the contractual terms while not having at its disposal a document recording them, it has to be in a position to request that such a document be produced (to carry out a review of those terms). (42)

114. Although that finding seems to fit rather well with the situation in the main proceedings, that judgment in fact builds upon previous case-law, including (but not limited to) the two other judgments identified by the referring court.

115. First, in its judgment in Profi Credit Polska I,  the Court concluded that Directive 93/13 precludes national rules which make it impossible for the national court to review, of its own motion, the possible unfairness of the contractual terms in a consumer contract, if the detailed rules for exercising the right to lodge an objection against an order for payment are, in short, too restrictive. In casu, the particularly restrictive nature of the applicable rules led the Court to conclude that that was indeed the case. (43)

116. In that respect, the referring court notes that, although the main proceedings do not concern an order for payment (and thus the same national legislation), the conditions under which the default judgment at issue can be challenged are similarly restrictive.

117. Second, the Court specifically addressed the consequences to be taken from the impossibility for the national court to proceed to the ex officio review in the judgment in Profi Credit Polska II making it clear that the national court having doubts as to the unfair nature of the contractual terms may request the production of the relevant documents. (44)

118. Third, the mandatory nature of such a proactive approach was, in my view, stated in the judgment in Lintner (delivered prior to the judgment in Kancelaria Medius). (45)

119. Having considered those elements of case-law, which judgment of the Court should be taken into account for the purposes of ascertaining whether the time limit for lodging an application to reopen proceedings has been adhered to?

120. At this juncture, I consider it useful to recall that the Commission has argued in the present case in favour of finding equivalence between a ‘negative interpretative judgment’ and an interpretative preliminary ruling. However, it also added that that should be the case only in so far as the conclusion regarding the incompatibility of national law is clear.

121. Such a standard of clarity is perhaps best associated with the judgment in Kancelaria Medius. However, as I have just explained, that judgment (delivered, for what it is worth, without an Opinion of the Advocate General), (46) is certainly not the first to have addressed the general issue arising in the main proceedings.

122. I observe that, according to the information in the case file, an application for the reopening of proceedings must be made within three months of the publication of the respective judgment of the Constitutional Court. (47)

123. I infer from the information provided by the referring court that FY filed her application approximately nine months after the delivery of the judgment in Profi Credit Polska I, which, subject to verification by the referring court, may have made her application six months late. It is perhaps for that reason that the referring court considers the possibility of identifying the alleged flaw of the default judgment also on the basis of the subsequent judgments in Profi Credit Polska II or in Kancelaria Medius (delivered respectively and approximately 4 and 12 months after FY’s application was made).

124. I must say that those considerations leave me somewhat perplexed because it is, in my view, difficult to admit that the principle of equivalence might lead to a result in which the time period at issue could start to run with each new preliminary ruling of the Court that would shed additional light on the consequences to be drawn from EU law for the interpretation of a given provision of domestic law.

125. I recall that the reopening of the proceedings at issue in the present case constitutes an extraordinary remedy which, by its nature, is an exception to the principle of res judicata. In order to uphold the principle of legal certainty, the conditions under which such a remedy may apply must thus be clearly defined to ensure predictability, which includes a specified time frame within which such a remedy can be requested.

126. That requirement thus makes it necessary to determine the first preliminary ruling in time that allows for a conclusion that a final judgment relied on an interpretation of national law that is incompatible with EU law. However, and for the reasons I have identified above, that may prove somewhat difficult if what is sought is the same level of nominal clarity as to which law is incompatible with EU law and what the precise consequences are of such a finding.

127. In the light of those considerations, my suggested response to the first question referred is that the principle of equivalence, as one of the manifestations of the duty of sincere cooperation enshrined in Article 4(3) TEU, does not require an extraordinary remedy which allows civil proceedings to be reopened on the basis of a judgment of the national constitutional court (i) declaring a national-law provision, relied upon in those proceedings, incompatible with a higher-ranking law and therefore invalid, or (ii) declaring a given interpretation of a national-law provision, relied upon in those proceedings, as incompatible with a higher-ranking law, to be available also on the basis of a judgment of the Court handed down in proceedings pursuant to Article 267 TFEU and interpreting a provision of EU law.

C.      The interpretation in conformity with EU law (and broader considerations of effectiveness and equivalence)

128. By its second question, the referring court wonders whether the obligation to interpret national law in conformity with EU law means that the ground for the reopening of the civil proceedings provided for in Article 401(2) of the KPC must be interpreted broadly to include, under the statutory concept of a ‘party’s unlawful deprivation of the ability to act’, the breach by the national court of its obligation to review, of its own motion, whether the terms included in a consumer contract are unfair.

129. In order to provide a useful reply to the second question referred, I will begin by explaining the reasons that likely prompted that question in the first place. Such an exercise necessitates taking a closer look at the information provided by the referring court on the understanding of the statutory concept of the ‘party’s unlawful deprivation of the ability to act’ (a).

130. Taking into account the wording of the second question, I will then explain that the precise outcome which may be achieved by an interpretation in conformity with EU law is a matter that falls within the competence of the national court (b).

131. Importantly, in order for that method of interpretation to become at all relevant, it must first be ascertained what the exact rule of EU law is, with which conformity is to be ensured. In that respect, the referring court’s question appears to rely on the premiss that EU law requires the Member States to provide for an extraordinary remedy that would allow for the challenging of a final judicial decision adopted in the absence of an examination of the contractual terms of a consumer contract. In the absence of a specific rule of EU law to that effect, I will test the referring court’s premiss by examining whether it is possible to derive its existence from the principle of equivalence (c) or the consideration of effectiveness (d).

1.      The concept of a party’s unlawful deprivation of the ability to act

132. It follows from the case file that a situation in which a party has been unlawfully deprived of the ability to act constitutes, in Polish law, a separate ground for the civil proceedings to be reopened. It is referred to in Article 401(2) of the KPC, together with the grounds concerning a person who ‘did not have the capacity to be a party to, or act in, court proceedings, or was not duly represented’.

133. Those grounds relate, in accordance with the wording of the first sentence  of Article 401(2) of the KPC, to invalidity of proceedings and thus, as I understand it, to certain procedural flaws that have tainted the proceedings closed by a final judgment. (48) In that context, the list of procedural flaws that may lead to proceedings being reopened, as provided for in Article 401(2) of the KPC, appears relatively short, which, arguably, is due to the exceptional nature of the extraordinary remedies in general. (49)

134. The referring court explains that the specific scenario of unlawful deprivation of the ability to act covers a situation where a party was unable to participate in the given proceedings, or a substantial part thereof, due to an infringement of procedural rules committed by either the court or the opposing party.

135. In the same vein, the Polish Government explained at the hearing that an unlawful deprivation of the possibility to act typically occurs when the respondent has not been duly notified of the proceedings being instituted against him or her.

136. However, the referring court also explains that that concept was applied by the Supreme Court where the reopening of proceedings was requested based on a (subsequent and factually connected) decision of the ECtHR concluding that there was an infringement of the right to a fair trial, guaranteed in Article 6(1) ECHR. (50)

137. In the absence of further information in the order for reference, and subject to verification by the referring court, I understand that that conclusion was reached due to the failure on the part of a national court to state reasons when rejecting a request for legal assistance made by a party in relation to bringing an appeal in cassation (for which purpose legal representation was mandatory). I also understand that the situation at issue was considered as impeding the complainant’s possibility to use that procedural remedy.

138. That element of national case-law appears to lead the referring court to enquire whether the ground for reopening at issue should be interpreted (likewise) broadly so as to cover a failure, by a national court, to examine of its own motion the legality of the terms included in a consumer contract, in breach of the requirements stated in the Court’s case-law. It is in that context that the referring court enquires whether such an interpretation could be mandated by the principle under which national law must be interpreted in conformity with EU law. I will turn to that question now.

2.      The obligation to interpret national law in conformity with EU law and the limits of the Court’s jurisdiction

139. Pursuant to established case-law, national courts must interpret, ‘as far as it is possible, the provisions of national law in such a way that they can be applied in a manner which contributes to the implementation of EU law’. (51) While, to that end, national courts must, in short, use all the possible means provided in the given legal order for that purpose, that method cannot serve as the basis for an interpretation of national law that is contra legem. (52)

140. It follows from that description that, while the method of conforming interpretation aims at ensuring the full effectiveness of EU law, (53) its use, and identification of its limits, are necessarily left in the hands of the national courts, based on the guidance that the Court may provide, where feasible, on the basis of the information in the case file. (54)

141. Indeed, in line with the separation of the functions between the Court, on the one hand, and the national courts, on the other hand, within the procedure under Article 267 TFEU, the interpretation of national law falls within the exclusive jurisdiction of the latter. (55) It follows that the Court cannot make a formal finding on whether a specific interpretative outcome at the national level is mandated by the principle of conforming interpretation, because whether conformity with EU law may be achieved in that way depends on the scope of the domestic provision at issue and on its ‘interpretative elasticity’.

142. Nevertheless, in order to provide assistance to the referring court, it is necessary, not least for the relevance of the principle of conforming interpretation to be confirmed, to determine, at the level of EU law, what is the precise ‘measure of legality’ with which conformity is to be ensured.

143. In that respect, the second question referred appears to rely on the premiss that EU law, specifically Article 6(1) and Article 7(1) of Directive 93/13, require the possibility of reopening civil proceedings closed by a final judgment in order to remedy the alleged failure on the part of the national court to review the legality of the terms in a consumer contract. As there seems to be no express statutory basis for reopening the civil proceedings in the applicable national law that would fit such a scenario, the referring court is contemplating a broad interpretation of Article 401(2) of the KPC to cover it.

144. In accordance with the positions expressed, in essence, by the Polish Government and the Commission, I observe that the reopening of civil proceedings to remedy a national court’s failure to proceed to an ex officio review of the terms in a consumer contract would undoubtedly enhance the effectiveness of consumer protection. However, the Court has consistently emphasised that it is the responsibility of the Member States, in accordance with the principle of procedural autonomy, to establish domestic procedures for examining whether a contractual term is unfair, all the while adhering to the principles of equivalence and effectiveness. (56)

145. Thus, in the absence of an express provision to that effect in EU law, it cannot be presumed, without further examination, that the failure of the national court to comply with one of the requirements of Article 6(1) and Article 7(1) of Directive 93/13, in proceedings closed by a final judgment, leads to the automatic conclusion that the Member States must provide for an extraordinary remedy so as to allow for such a final judgment to be reversed.

146. Such an obligation could, in my view, be established only as a result of the principle of equivalence or based on considerations relating to the effectiveness of rights derived under EU law. I will examine those aspects in turn in the two sections below.

3.      Consideration of the principle of equivalence

147. As already recalled in point 43 of this Opinion, the principle of equivalence prohibits Member States from laying down less favourable procedural rules for claims relating to a breach of EU law than those applicable to similar claims on the basis of a breach of national law.

148. In that context, and as the Commission recalls, the Court has repeatedly explained that Article 6(1) of Directive 93/13 (which essentially requires that unfair terms do not bind consumers) constitutes ‘a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy’. (57) The Court also observed (in consumers matters and more generally) that ‘the conditions imposed by domestic law under which the courts and tribunals may apply a rule of [EU] law of their own motion must not be less favourable than those governing the application by those bodies of their own motion of rules of domestic law of the same ranking’. (58)

149. Hence, should it be established that the ground for the reopening of civil proceedings based on the party’s deprivation of the ability to act is applied, in domestic law, so as to cover failures of the national courts to raise, of their own motion, matters of public policy, then the principle of equivalence would be triggered so as to make that ground applicable also to the situation in the main proceedings. (59)

150. That being said, I wish to emphasise that the information available in the case file does not indicate that the interpretation of Article 401(2) of the KPC, as highlighted just now, has actually been embraced. Therefore, the possible need to trigger the principle of equivalence under those circumstances remains a hypothetical situation that the referring court must verify.

4.      Effectiveness of the protection of consumers’ right not to be bound by unfair contractual terms

151. Building upon the premiss that is implied in the referring court’s enquiry, as explained in point 143 above, the question arises as to whether the effectiveness of the rights that consumers derive from EU law, and specifically from Directive 93/13, necessitates that an extraordinary remedy become available when it is alleged that those rights have not been adequately protected. That includes situations – for what is relevant here – where it is alleged that the national court failed to conduct an ex officio examination of the possible unfairness of the contractual terms in a consumer contract.

152. In my view, it is quite understandable that such a question is raised in the light of the rather extensive protection that has so far been provided by the Court’s case-law to consumers’ rights under EU law, and in particular Directive 93/13.

153. In what is now settled case-law, the Court interprets the latter as implying an obligation on the part of national courts to review, of their own motion, whether terms in consumer contracts are unfair. Without there being a need to enter into the details of that case-law, (60) the Court first confirmed that that obligation is contingent upon the national court possessing ‘the legal and factual elements necessary for that task’. (61) It also confirmed in later judgments that when the national court does not have at its disposal those relevant elements (but entertains doubts as to the fairness of the terms at issue), it must be in a position to request that they be produced. (62)

154. The respective aspects of the obligation on national courts to adopt such a proactive approach have been progressively derived from Article 6(1) and Article 7(1) of Directive 93/13 requiring, in essence, that the Member States ensure that unfair terms do not bind consumers and that they provide ‘adequate and effective means’ to prevent the continued use of such terms.

155. There is no doubt that the resulting duties imposed on the national courts have required, in some legal orders, an important adjustment to the perceived role of the judge who, in civil litigation, would otherwise generally be expected to defer to the factual allegations of the parties. There is also no doubt about the fact that the level of protection currently required may differ from the requirements in other fields of EU law where private parties may also find themselves in situations of vulnerability. (63)

156. Those specific, and in some cases newly imposed, requirements for national courts in the field of consumer protection now appear to be rather well known and integrated.

157. That being said, while the Court’s case-law makes it clear, in my view, that the ex officio review of the terms included in a consumer contract must, in principle, take place at some stage of the proceedings, I consider that the consequences of the absence of such a review for the resulting judicial decision (that became final) are nuanced. In particular, and although such an absence may, in certain cases, prevent the res judicata effect, it does not mean, in my view, that that effect may need to be disregarded in all situations where the clauses in a consumer contract have not been reviewed (i). However, I am also of the view that the restrictive conditions under which the default judgment, at issue in the main proceedings, could have been challenged mean that the affected consumer must have a remedy available so as to rectify the resulting situation. That remedy may take the form of the reopening of the proceedings, if such a result can be achieved by conforming interpretation, but does not necessarily have to take that form (ii).

(a)    Considerations of effectiveness and the national effects of res judicata

158. In line with what I have already stated above, the position of EU law vis-à-vis the national effects of res judicata is that there is no general obligation that would demand final judicial decisions infringing EU law to be called into question, in particular by establishing a specific legal remedy. (64)

159. It is nevertheless true that in several cases, the Court has reached a contrary conclusion based on considerations of effectiveness to be ensured vis-à-vis some rules of EU law.

160. This occurred, first, in a situation where a final national judgment infringing EU law prevented the recovery of illegally granted State aid and, as a result, affected the division of competences between the European Union and the Member States in that field. (65)

161. Second, that also occurred where the national effects of res judicata were defined so broadly that it became structurally impossible to achieve EU-law-compliant results in other similar cases. The Court reached that conclusion in cases involving VAT and, again, State aid. (66)

162. Neither of the two categories of situations (whether seen in terms of the field covered or, more importantly, structural difficulties encountered), appears relevant in the case in the main proceedings.

163. Third, the Court has adopted a rather strict approach towards the national effects of res judicata in the field of consumer protection. More specifically, it has made it clear that ensuring the effective protection of the right of consumers not to be bound by contractual terms that are considered unfair under Directive 93/13 requires national effects of res judicata to be disregarded either at the appeal stage of ordinary proceedings or during enforcement proceedings.

164. As regards the first aspect, in its judgment in Unicaja Banco, (67) the Court mandated the disregarding of the final nature of a judgment given at first instance, where that judgment prevented, in essence, a recovery by the consumer of a part of the sum paid to the professional based on a ‘floor clause’ considered to be unfair. Indeed, while that first-instance decision ordered the reimbursement of the amounts paid under that clause, it imposed a time limitation on such a restitutory obligation, in accordance with the (then) case-law of the national supreme court. (68)

165. Subsequently, the Court held that such a temporal limitation was contrary to Directive 93/13. (69) However, that determination was made after the time limits for bringing an appeal in that case had lapsed, with only the bank involved having submitted one (contesting the decision of the first-instance court to impose upon it the entirety of the costs). That appeal was successful. In response to a question referred by the Tribunal Supremo (Supreme Court, Spain) the Court clarified that the appeal court was in fact required to reverse the part of the first-instance judgment that had become res judicata and raise, of its own motion, the unfairness of the temporal limitation, although, first, that part of the first-instance judgment was not contested and, second, the resulting situation worsened the legal position of the bank that initiated the appeal to challenge a different aspect of the first-instance decision.

166. As regards the second aspect referred to in point 164 above, the Court required the reversal of the res judicata effect of judicial decisions delivered in order for payment proceedings or in mortgage enforcement proceedings.

167. More specifically, in its judgment in Finanmadrid EFC, the Court required the reversal of the res judicata effect at the enforcement stage of an order for payment procedure, providing the national court with the power to assess, of its own motion, whether a term in the underlying contract was unfair, when that court did not have that power under domestic law and when the contractual terms had not been reviewed at the previous stages of the proceedings. (70)

168. Moreover, in its judgment in Banco Primus,  the Court applied that approach to situations where, in mortgage enforcement proceedings, an examination had taken place but was limited only to certain terms of the underlying contract. The Court concluded, in essence, that the protection to be provided to consumers under Directive 93/13 would be ‘incomplete and insufficient’ if the mortgage enforcement court were prevented from examining, of its own motion, the unfairness of the other clauses left untested. (71)

169. The judgment in Ibercaja Banco (72) similarly, and in principle, required the disregarding, in mortgage enforcement proceedings, of the national effects of res judicata where the national court had examined the contractual clauses at issue without, however, any express statement to that effect in the final decision. The Court emphasised that, under such circumstances, the consumer was not informed about the existence of that review and, at least summarily, of the grounds on which the court found that the terms at issue were not unfair, which prevented him or her from making an informed decision on whether to challenge that decision. (73)

170. Prima facie, it may follow from that case-law that the res judicata effect of a judicial decision withstands scrutiny in terms of the effectiveness of the protection to be granted to consumers, in any case considered, only when that decision was delivered after an examination of the relevant contractual terms (and only when an express statement regarding the outcome of that examination is made). (74)

171. However, in my view, such a general conclusion is not, in its entirety, correct.

172. First, I note that such a conclusion would make both questions raised in the present case immediately moot because its logical consequence would be that the legal effects of res judicata simply do not apply: despite being formally final, a judicial decision delivered without an examination of the underlying contractual relationship cannot prevent some form of re-litigation. Consequently, there would be no need to consider the issue of extraordinary remedies because those are, as I have already explained, exceptional tools allowing for a final judicial decision to be reversed.

173. Second, and more importantly, it is difficult, in my view, to anticipate the broader consequences of such a reading of the Court’s case-law, especially when placed in the context of its case-law on time limits of an action in unjust enrichment initiated by a consumer. (75)

174. Third, and also importantly, the case-law discussed above must be read in the light of the Court’s earlier line of case-law concerning ‘total inertia on the part of the consumer’, (76) whose continued relevance the Court recently confirmed.

175. To explain, the Court observed in its earlier judgment in Asturcom Telecomunicaciones that the principle of effectiveness does not go as far as to impose upon the national court hearing an action for enforcement of an arbitration award (made in the absence of the consumer) the obligation to assess of its own motion whether an arbitration clause in a consumer contract is unfair, where the consumer did not seek the annulment of that award, and where the applicable time limit of two months, set for that purpose, could not be seen as problematic. (77)

176. The Court referred to that earlier case-law in its recent judgment in Unicaja Banco, discussed above, to confirm that the facts which led to the latter did not involve complete inaction on the part of the consumer: although he did not challenge a first-instance judgment handed down in the main proceedings, that was because the Court’s judgment in Gutierrez Naranjo, holding the national case-law, on which that first-instance judgment was based, to be inconsistent with Directive 93/13, was delivered only after the time limits for bringing the appeal had lapsed. (78)

177. In that light, I consider that the possible absence of examination of the unfairness of clauses in a consumer contract may still lead to a genuine res judicata effect where, especially, the consumer did not participate in any stage of the proceedings.

178. It must, therefore, be considered whether such a situation took place in the circumstances in the main proceedings.

179. It follows from the order for reference that FY did not participate in the proceedings which led to the default judgment and that she did not seek to challenge that judgment (although she was duly notified of that judgment). Those elements are prima facie indicative of her passivity within the meaning of the above-referred Court’s case-law.

180. However, her specific situation must be assessed against the general background of the applicable national procedural rules at issue.

181. Subject to verification by the referring court, it appears that the procedural rules applicable to the default judgment prevented the respective first-instance court from reviewing the contractual terms at issue, as that court had to defer to the factual allegations of the applicant. (79)

182. It follows, in my view, from the judgment in Profi Credit Polska I that such a procedural solution is not incompatible with the requirements of Directive 93/13 per se, provided that that review may occur at second instance and provided that the conditions of appeal are defined in a manner that does not make it excessively difficult or impossible for the consumer to effectively bring one.

183. In that respect, it follows from the order for reference that the default judgment became immediately enforceable and that it could have been challenged with a period of two weeks while FY would have to adduce the pleas in law and evidence on which she wished to rely.

184. As both the referring court and the Commission observe, those conditions appear rather similar to those that the Court deemed overly restrictive in its judgment in Profi Credit Polska I. (80) I am of the view that, in conjunction with the absence of the examination of the possible unfairness of the terms at first instance, they may indeed lead to a similar conclusion, namely that they do not enable observance of the rights which the consumer derives from Directive 93/13 to be ensured. That being said, the questions referred in the present proceedings do not concern that particular aspect and it remains for the referring court to verify whether that description of the applicable procedural rules is correct.

185. If their overly restrictive nature were to be confirmed, it would follow, in my view, that FY cannot be considered as having displayed a complete inaction.

186. In such a case, I am of the view that the effectiveness of the consumers’ right not to be bound by unfair contractual terms requires that she be provided with a remedy.

187. However, I do not believe that that remedy must necessarily be in the form of the reopening of the proceedings. I will address that issue in the following section.

(b)    Possible remedies to restore the consumer’s right not to be bound by an allegedly unfair contractual term

188. First, I have already recalled that the obligation of the national court to review the legality of the contractual terms affecting consumers may extend to enforcement proceedings. (81) In that respect, the available information in the case file does not indicate whether enforcement proceedings have been initiated or concluded, or whether, perhaps, FY has already complied with the default judgment voluntarily. However, should the prospect of enforcement still be open, and should such enforcement proceedings be initiated, it follows in my view from the case-law referred to above that FY should have an opportunity to invoke, in that context, the possible unfairness of the underlying contract. (82)

189. Second, it also follows, in my view, that the particular procedural circumstances under which the default judgment was delivered and became final lead to the conclusion that its res judicata effect cannot prevent her from relying on the possibly unfair nature of the terms at issue to bring a claim for the repayment of the respective amounts.

190. To my mind, that interpretation is supported by the judgment in Ibercaja Banco, in which the Court affirmed the right of the consumer to seek compensation (from the given professional in question, as I understand it) where the national court failed to properly comply with its obligation to review the possible unfairness of the underlying loan agreement, but where mortgage enforcement proceedings have already ended, resulting in the ownership over the given real estate property being transferred to a third party. (83) I consider that that reasoning must, a fortiori, apply when, simply, pecuniary consideration was paid by the consumer to the professional (on the basis of a contractual term that must be deemed unfair and consequently void and where conditions for opposing a default judgment were incompatible with the level of protection to be ensured in respect of consumers under Directive 93/13, as I have already noted above).

191. Finally, the respective national remedy could also take the form of the extraordinary remedy at issue provided that national law makes it possible to interpret the concept of unlawful deprivation of the ability to act in a way that covers the situation at issue.

192. In that respect, the information in the case file leads me to suggest that the referring court could assess whether the applicable procedural framework, as described in points 183 and 184 above, could be considered as impeding FY’s access to a specific remedy, similarly to what appears to have been held (subject to verification by the referring court) by the Supreme Court in a situation in which the national court did not state reasons as to why a claimant was denied legal assistance for the purpose of bringing an appeal in cassation. (84)

193. That being said, even if such a conforming interpretation proves possible, the application at issue would still have to comply with the applicable time limit. (85) The relevant time period, as I understand the wording of Article 407(1) of the KPC, starts to run as of the moment when the given party becomes aware of the ‘judgment’. (86) The order for reference does not contain further information about how that rule is to be understood. On the face of it, I understand its wording as referring to the final judgment delivered in proceedings in which the defendant was allegedly deprived of the ability to act. That understanding is, of course, for the referring court to verify.

194. If, however, the referring court concludes that the extraordinary remedy at issue cannot be triggered, due to the limits of conforming interpretation or on account of the applicable time limits, I do not believe that the requirement of the effectiveness of the consumers’ right at issue goes as far as to mandate making the extraordinary remedy at issue available, notwithstanding the conditions under which it may apply, as defined by the national law.

195. The Court has explained that the adequate and effective nature of the procedural protection that is afforded to consumers must be assessed in the light of the remedies already available. (87)

196. In that respect, it follows from the order for reference that the failure on the part of the national court discussed in the present case constitutes the basis for another extraordinary remedy, namely an extraordinary appeal. The referring court observes that the availability of this remedy is limited to the Ombudsman and the Attorney General which results in a restricted number of cases being reviewed in that manner. However, the fact remains that that remedy is still part of the overall domestic procedural context.

197. Moreover, and more importantly perhaps, I am of the view that the existing case-law of the Court captures, rather comprehensively, the different aspects of the domestic procedure that may otherwise hinder consumers (who have not displayed complete inertia) from opposing the enforcement of a title whose possible unfairness was not reviewed or from obtaining compensation for what they have paid (or lost) on such an unlawful basis.

198. In those circumstances, I see no need to introduce an additional layer of protection that would require, as a matter of EU law, the reopening of proceedings, especially if one considers the exceptional nature of such a remedy.

199. As I explained above, the applicability of extraordinary remedies is, in general, based on an overall balance struck by the national legislature between the competing values at stake. Requiring the (substantive or personal) scope of those remedies to become broader to compensate, specifically, for the failure of the national court to examine the legality of a consumer contract may disturb that overall balance if, for example, comparable procedural protection does not exist in other fields of law, although such fields may also bring about situations of unlawful denial of protection to be otherwise guaranteed to persons in a situation of vulnerability. (88)

200. In the light of those considerations, I am of the view that the obligation to ensure effective protection of consumers’ rights under Article 6(1) and Article 7(1) of Directive 93/13 does not require an extraordinary remedy to be made available so as to allow for the reopening of proceedings concluded with a final judicial decision delivered without examination of the possible unfairness of the terms included in a consumer contract. However, that obligation makes it necessary to provide for a remedy, to be identified in the national legal order concerned, when such a final judicial decision was delivered, and became final, based on procedural rules that do not enable observance of the rights which the consumer derives from Directive 93/13 to be ensured.

V.      Conclusion

201. I propose that the Court reply to the questions referred by the Sąd Okręgowy Warszawa-Praga w Warszawie (Regional Court, Warszawa-Praga, Warsaw, Poland) as follows:

(1)      The principle of equivalence, as one of the manifestations of the duty of sincere cooperation enshrined in Article 4(3) TEU,

is to be interpreted as not requiring an extraordinary remedy which allows civil proceedings to be reopened on the basis of:

–        a judgment of the national constitutional court declaring a national-law provision, relied upon in those proceedings, incompatible with a higher-ranking law and therefore invalid, or

–        declaring a given interpretation of a national-law provision, relied upon in those proceedings, as incompatible with a higher-ranking law,

to be available on the basis of a judgment of the Court handed down in proceedings pursuant to Article 267 TFEU and interpreting a provision of EU law.

(2)      Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as not requiring an extraordinary remedy to be made available so as to allow for the reopening of proceedings concluded with a final judicial decision delivered without examination of the possible unfairness of the terms included in a consumer contract. However, those provisions shall be interpreted as requiring a remedy to be made available, and to be identified in the national legal order concerned, when such a final judicial decision was delivered, and became final, based on procedural rules that do not enable observance of the rights which the consumer derives from Directive 93/13 to be ensured.

1      Original language: English.

2      Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

3      The order for reference does not provide further details as to the reasons which led the referring court to consider that it could not issue an order for payment.

4      Judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711; ‘the judgment in Profi Credit Polska I’).

5      The Financial Ombudsman referred to the judgment in Profi Credit Polska I and to the order of 28 November 2018, PKO Bank Polski (C‑632/17, EU:C:2018:963).

6      Referring to judgment of 4 June 2020, Kancelaria Medius (C‑495/19, EU:C:2020:431; ‘the judgment in Kancelaria Medius’).

7      Judgment of 7 November 2019, Profi Credit Polska (C‑419/18 and C‑483/18, EU:C:2019:930; ‘the judgment in Profi Credit Polska II’).

8      For the tenor of those provisions, see points 7 and 8 of this Opinion.

9      Judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 46).

10      See, for example, judgment of 11 September 2019, Călin (C‑676/17, EU:C:2019:700, ‘the judgment in Călin’, paragraphs 28 to 30 and the case-law cited).

11      See, for example, judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, ‘the judgment in XC’, paragraph 52 and the case-law cited).

12      See, to that effect and for broader consideration, Turmo, A., Res Judicata in European Union Law – A multi-faceted principle in a multilevel judicial system, EU Law Live Press, 2022, p. 46.

13      See also Wiśniewski, T., ‘Extraordinary remedies in Polish civil procedure’, Studia Prawnicze – The Legal Studies, No. 4 (220), 2019, p. 107.

14      ECtHR, 19 May 2020, REDQUEST LIMITED v. Slovakia, ECLI:CE:ECHR:2020:0519JUD000274917, § 29 (‘ECtHR in REDQUEST’).

15      ECtHR, 25 June 2009, OOO LINK OIL SPB v. Russia, ECLI:CE:ECHR:2009:0625DEC004260005 (‘ECtHR in Link Oil’; the text is not organised in paragraphs).

16      ECtHR in REDQUEST, § 29; in Link Oil; and in ECtHR, 9 June 2015, PSMA, SPOL. S R.O. v. Slovakia, ECLI:CE:ECHR:2015:0609JUD004253311, §§ 68 to 70.

17      See, among many examples, judgment of 17 May 2022, Unicaja Banco (C‑869/19, EU:C:2022:397, ‘the judgment in Unicaja Banco’, paragraph 22 and the case-law cited).

18      Ibid., paragraph 23; judgments in Călin, paragraph 35; and in XC, paragraph 27. Sometimes the Court referred only to the ‘purpose’ and ‘essential characteristics’, such as in the judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, ‘judgment in Transportes Urbanos’, paragraphs 35). The difference between the two approaches is, in any event, minor given that the category of ‘essential characteristics’ is broad enough to cover any relevant aspect of the judicial proceedings.

19      See, for an example thereof, the judgment in Transportes Urbanos.

20      Judgment of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067; ‘the judgment in Impresa Pizzarotti’).

21      Judgment of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:630; ‘the judgment in Hochtief’).

22      Judgment in Impresa Pizzarotti, paragraph 55.

23      Judgment in Hochtief, paragraph 63.

24      Indeed, in paragraph 63 of that judgment the Court concluded that ‘it is … a matter for the referring court to determine whether Hungarian procedural rules include the possibility of reversing a judgment which has acquired the force of res judicata for the purpose of rendering the situation arising from that judgment compatible with an earlier judicial decision which has become final where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision. If that were the case …’. Emphasis added.

25      Judgment in XC, paragraphs 31 and 34.

26      See, to that effect, Opinion of Advocate General Bobek in Călin (C‑676/17, EU:C:2019:94; points 72 to 74).

27      See point 28 of the present Opinion.

28      See also Granat, M. and Granat, K., The Constitution of Poland: A Contextual Analysis, Hart Publishing, 2019, pp. 147 to 148. It follows from the order for reference and from the explanation provided by the Polish Government at the hearing that, while there are three types of procedure in which the Constitutional Court may deliver a judgment that can serve as the basis for reopening proceedings pursuant to Article 401¹ of the KPC (when that court is seised (i) by a public body authorised to that effect, (ii) by a national court within a pending procedure, or (iii) by an individual complainant), the question as to which of those procedures has effectively been used does not have an impact on whether the ground for reopening at issue may be triggered.

29      Resolution of the Sąd Najwyższy (Supreme Court) of 17 December 2009, III PZP 2/09.

30      See, for instance, judgment of 4 March 2020, Telecom Italia (C‑34/19, EU:C:2020:148, ‘the judgment in Telecom Italia’, paragraph 56 and the case-law cited).

31      See, notably, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraphs 27 to 30 and the case-law cited). See, for the language on ‘micro’ and ‘macro’ purpose, Opinion of Advocate General Bobek in Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:291, point 55).

32      See, on that principle, judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, ‘the judgment in Popławski’, paragraph 53 and the case-law cited).

33      As clarified in the judgment in Popławski, paragraph 64.

34      See, for a subject-related example, the judgment in Kancelaria Medius, paragraphs 47 to 51, in which the Court invited the referring court to first test the possibilities of the conforming interpretation of the national rule at issue before recalling the (subsidiary) obligation to disapply it.

35      I recall that an interpretative preliminary ruling is binding not only for the purpose of its application in the dispute pending before the given referring court (inter partes effects), but that it must also be respected in other proceedings in which the same interpreted norm of EU law becomes relevant (erga omnes legal effects), which corresponds to the micro and macro purposes of the preliminary rulings proceedings described in point 83 above.

36      The same discussion also concerned ex tunc legal effects. Pursuant to established case-law, the meaning of the given rule of EU law, as clarified by the Court, must be regarded as having existed from the moment when it entered into force. Judgment of 6 July 2023, Minister for Justice and Equality (Request for consent –Effects of the original European arrest warrant) (C‑142/22, EU:C:2023:544, paragraph 32 and the case-law cited). In that connection, the Commission pointed out that the legal effects of the judgments of the Constitutional Court extend (at least) as far back in time so as to enable the reopening of the proceedings. For its part, the Polish Government stated that the judgments of the Constitutional Court have pro futuro effects.

37      See, to that effect, Lenaerts, K., Maselis, I. and Gutman, K., EU Procedural Law, Oxford European Union Law Library, 2015, p. 238.

38      I recall that the Polish Government contends that the category of negative interpretative judgments does not constitute a ground for the reopening of civil proceedings that is otherwise provided in Article 401¹ of the KPC. See point 64 above.

39      That issue is, however, not object of the present proceedings and thus has not been discussed. See point 28 of the present Opinion.

40      See the operative part of the judgment in Kancelaria Medius, paragraph 53.

41      That being said, I note that the specific rules referred to in the judgment in Kancelaria Medius result from paragraph 2 of Article 339 of the KPC, reproduced in paragraph 8 of that judgment, while the order for reference in the present case refers only to paragraph 1 of Article 339 of the KPC on the possibility to issue a default judgment in general. See above, point 10 of this Opinion.

42      Judgment in Kancelaria Medius, paragraphs 37 to 40.

43      Judgment in Profi Credit Polska I, paragraphs 64 to 71. Those rules involved: (i) a two-week time limit for lodging the objection, and (ii) the obligation (a) to indicate whether the order is disputed in whole or in part, (b) to set out the complaints and adduce facts and evidence, and (c) to pay costs three times greater than the opposing party.

44      Judgment in Profi Credit Polska II, paragraph 77.

45      Judgment of 11 March 2020, Lintner (C‑511/17, EU:C:2020:188, paragraph 37). For a comment as to the mandatory nature of the review, see Opinion of Advocate General Medina in Tuk Tuk Travel (C‑83/22, EU:C:2023:245, footnote 32).

46      I recall that it follows from the last subparagraph of Article 20 of the Statute of the Court of Justice of the European Union that a case may be decided without such an Opinion where it does not raise any new point of law.

47      Pursuant to Article 407(2) of the KPC. See above point 15 of the present Opinion.

48      It is perhaps useful to observe that both grounds invoked in the present case seem to pertain to different types of breaches: substantive (Article 401¹ of the KPC, invoked in the context of the first question referred) or procedural (Article 401(2) of the KPC, invoked in the context of the second question referred). Yet, both grounds are put forward in relation to the same alleged failure on the part of the national court to conduct an ex officio review. I would assume that such a failure can be classified as either substantive or procedural, but not both. That being said, the case file does not contain further information as to the delimitation between substance-related and procedure-related breaches of national law which can trigger the extraordinary remedy at issue. This Opinion therefore proceeds on the basis of what appears to be the referring court’s premiss that a dual classification is possible in that context.

49      Subject to verification by the referring court, the seemingly limited scope of that provision appears to be borne out by Article 379 of the KPC (referred to in part in the order for reference), which appears to refer to a broader list of six categories of procedural flaws that lead to proceedings being null and void (without, however, necessarily and per se, also allowing for proceedings to be reopened).

50      Decision of the Polish Supreme Court I PZ 5/07 of 17 April 2007 and, as I understand it, subject to verification by the referring court, ECtHR, 27 June 2006, Tabor v. Poland (ECLI:CE:ECHR:2006:0627JUD001282502).

51      See, for instance, judgment of 11 November 2015, Klausner Holz Niedersachsen (C‑505/14, EU:C:2015:742, ‘the judgment in Klausner’, paragraph 31 and the case-law cited).

52      Ibid., paragraph 32 and the case-law cited.

53      Judgment in Popławski, paragraph 55 and the case-law cited.

54      See, for example, judgments of 29 June 2017, Popławski (C‑579/15, EU:C:2017:503, paragraphs 39 and 40 and the case-law cited), and in Klausner, paragraphs 32 to 37.

55      See, to that effect, judgment in Telecom Italia, paragraph 56.

56      See, for example, judgment of 17 May 2022, Ibercaja Banco (C‑600/19, EU:C:2022:394, ‘the judgment in Ibercaja Banco’, paragraph 39 and the case-law cited).

57      Judgment of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615, ‘the judgment in Asturcom Telecomunicaciones’, paragraph 52), or, to that effect, judgment in Ibercaja Banco, paragraph 43.

58      In consumer matters, see, for example, judgment in Asturcom Telecomunicaciones, paragraph 49. See also judgment of 14 December 1995, van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 13 and the case-law cited) or judgment of 17 March 2016, Bensada Benallal (C‑161/15, EU:C:2016:175, paragraphs 30, 31 and 35).

59      Subject of course, to the applicable time limits. See Article 407(1) of the KPC, reproduced in point 13 of this Opinion.

60      For an overview, see Werbrouck, J. and Dauw, E., ‘The national courts’ obligation to gather and establish the necessary information for the application of consumer law: The endgame?’, European Law Review, Vol. 46, No 3, 2021, pp. 225 to 244.

61      As recalled, for example, in the judgment in Profi Credit Polska I, paragraph 42 and the case-law cited. See also judgment of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 32).

62      See points 117 and 118 of the present Opinion.

63      See, for comparison, judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498; ‘the judgment in K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings)’), holding that the applicable provisions of EU law do not, in principle, preclude national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities to inform suspects or accused persons promptly of their right to remain silent.

64      Opinion of Advocate General Saugmandsgaard Øe in XC and Others (C‑234/17, EU:C:2018:391, ‘Opinion in XC’, point 41). See also judgment of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, ‘the judgment in Banco Primus’, paragraph 47 and the case-law cited) or judgment in XC, paragraph 51.

65      Judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraph 63). Later, the Court stressed the exceptional nature of that conclusion; see the judgment in Impresa Pizzarotti, paragraph 61.

66      See, in the field of VAT, judgment of 3 September 2009, Fallimento Olimpiclub (C‑2/08, EU:C:2009:506, paragraphs 29 to 31), or judgment of 16 July 2020, UR (VAT liability of lawyers) (C‑424/19, EU:C:2020:581, paragraphs 32 and 33). In the field of State aid, see the judgment in Klausner, paragraphs 43 to 45. See also Opinion in XC, point 61.

67      Referred to above in footnote 17.

68      The restitutory effects of the declaration that a ‘floor clause’ was void were limited to the amounts paid by the consumer after the delivery of the decision in which the finding of the unfairness of the clause at issue was made.

69      Judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 72 to 75).

70      Judgment of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98, paragraphs 45 to 54).

71      Judgment in Banco Primus, paragraph 52.

72      See footnote 56 of the present Opinion.

73      Judgment in Ibercaja Banco, paragraph 49. See also judgment of 17 May 2022, SPV Project 1503 and Others (C‑693/19 and C‑831/19, EU:C:2022:395, ‘the judgment in SPV Project 1503’, paragraphs 65 and 66).

74      Judgment in Ibercaja Banco, paragraph 50.

75      See, for instance, judgment of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraphs 63 to 66).

76      Judgment in Asturcom Telecomunicaciones, paragraph 47.

77      The judgment in Asturcom Telecomunicaciones, paragraphs 33 to 48. It is apparent from that judgment that such an obligation could result only from the principle of equivalence in so far as the national court could carry out such an assessment in similar actions of a domestic nature. See paragraph 53 and the operative part of that judgment. See also judgment of 1 October 2015, ERSTE Bank Hungary (C‑32/14, EU:C:2015:637, ‘judgment in ERSTE Bank Hungary’, paragraph 62 and the case-law cited).

78      The judgment in Unicaja Banco, paragraphs 28 and 38. See also the operative part of that judgment.

79      The referring court provided, in the present proceedings, only the text of Article 339(1) of the KPC concerned with the general possibility to adopt a default judgment. As I have already observed, the national rules at issue in the judgment in Kancelaria Medius also involved Article 339(2) of the KPC establishing the obligation of the national court to defer to the factual allegations of the applicant. The relevance and the precise content of such a rule for the present case are of course for the referring court to verify.

80      For a description of the applicable rules in that case, see footnote 43 above. The only difference, I note, concerns the costs. In contrast to the situation in the judgment in Profi Credit Polska I, the order for reference merely states that the ‘taxes’ to be paid in that context are to be reduced by half.

81      See above, points 167 to 169, 175 and 176 of the present Opinion.

82      The case file does not contain any information about the applicable enforcement rules.

83      See the judgment in Ibercaja Banco, paragraphs 57 to 59.

84      As discussed above in points 136 and 137.

85      Similarly to what I have noted in the context of the principle of equivalence. See point 149 and footnote 59 above.

86      See point 13 above.

87      Judgment in ERSTE Bank Hungary, paragraph 52.

88      See, for comparison, the situation described in the judgment in K.B. and F.S. Raising ex officio of an infringement in criminal proceedings), summarised in footnote 63.

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