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Myszak (Consumer protection - Unfair terms in consumer contracts - Mortgage loan agreement indexed to a foreign currency - Opinion) [2024] EUECJ C-324/23_O (12 December 2024)
URL: https://www.bailii.org/eu/cases/EUECJ/2025/C32423_O.html Cite as:
EU:C:2024:1031,
ECLI:EU:C:2024:1031,
[2024] EUECJ C-324/23_O
M.K., Liquidator of Getin Noble Bank S.A., formerly Getin Noble Bank S.A.
(Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland))
( Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Article 6(1) and Article 7(1) - Mortgage loan agreement indexed to a foreign currency - Consumer's application for a declaration of invalidity of the contract - Application for interim measures seeking suspension of the performance of the contract - Interim measures - Directive 2014/59/EU - Bank Recovery and Resolution Directive (BRRD) - Bank under resolution - Article 34(1)(b) and (g) - General principles governing resolution - No creditor worse off principle - Article 47 of the Charter of Fundamental Rights of the European Union - Effective judicial protection )
1. This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (2) and Article 34(1)(b) and (g) and Article 70(1) and (4) of Directive 2014/59/EU, (3) which established a framework for the recovery and resolution of credit institutions and investment firms ('institutions').
2. The request has been made in proceedings between OF, EI and RI ('the applicants'), on the one hand, and M.K., the liquidator of Getin Noble Bank S.A., on the other. The applicants, who are consumers, concluded a mortgage loan agreement indexed to Swiss francs (CHF) with the defendant bank, and to date have not paid all the agreed instalments. They brought an action for annulment of that contract before the referring court, on the ground that it contained unfair terms. While those proceedings were ongoing, Getin Noble Bank was placed under resolution.
3. The applicants then applied for interim measures, seeking to suspend their obligations for the duration of the substantive proceedings. Those measures are classified by national law as protective measures, whereby the applicants are seeking the suspension of their obligation to pay the monthly loan instalments during those proceedings while the court deals with the main action. (4)
4. By its question, the referring court asks, in essence, whether it is possible to limit the protection that consumers derive from Directive 93/13 where the bank concerned is the subject of a resolution procedure governed by Directive 2014/59. Therefore, the present case requires the Court to seek a balance between the effects of those two directives.
'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.'
'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.'
2. Directive 2014/59
7. Recitals 3, 5, 10, 31, 48, 50, 51, 60 and 69 are relevant for the purposes of the present Opinion.
8. Article 34 of that directive, headed 'General principles governing resolution', sets out in paragraph 1, and points (b) and (g), as follows:
'Member States shall ensure that, when applying the resolution tools and exercising the resolution powers, resolution authorities take all appropriate measures to ensure that the resolution action is taken in accordance with the following principles:
…
(b) creditors of the institution under resolution bear losses after the shareholders in accordance with the order of priority of their claims under normal insolvency proceedings, save as expressly provided otherwise in this Directive;
…
(g) no creditor shall incur greater losses than would have been incurred if the institution or entity referred to in point (b), (c) or (d) of Article 1(1) had been wound up under normal insolvency proceedings in accordance with the safeguards in Articles 73 to 75'.
9. Article 37 of Directive 2014/59, entitled 'General principles of resolution tools', states in paragraphs (1) and (3)(b) that resolution authorities are to have the necessary powers to apply resolution tools, including the bridge institution tool. Article 37(6) of that directive mandates that institutions from which assets are transferred must be wound up under normal insolvency proceedings within a reasonable time frame, while considering the need for continuity of essential services.
10. Article 70 of Directive 2014/59, headed 'Power to restrict the enforcement of security interests', provides in paragraph 1:
'Member States shall ensure that resolution authorities have the power to restrict secured creditors of an institution under resolution from enforcing security interests in relation to any assets of that institution under resolution from the publication of a notice of the restriction in accordance with Article 83(4) until midnight in the Member State of the resolution authority of the institution under resolution at the end of the business day following that publication.'
11. Article 73 of Directive 2014/59 sets out rules on the treatment of shareholders and creditors in the case of partial transfers and application of the bail-in tool. For the purpose of assessing whether shareholders and creditors would have received better treatment if the institution under resolution had entered into normal insolvency proceedings, Article 74 of that directive requires Member States to ensure that a valuation is carried out by an independent person. Under Article 75 of Directive 2014/59, Member States are to ensure that if the valuation carried out under Article 74 of that directive determines that any shareholder or creditor has incurred greater losses than it would have incurred in a winding-up under normal insolvency proceedings, the shareholder or creditor is entitled to the payment of the difference from the resolution financing arrangements.
B. Polish law
1. The Civil Code
12. Under Article 3851(1) of the Ustawa – Kodeks cywilny (Law establishing the Civil Code) of 23 April 1964, (5) consolidated version (6) ('the Civil Code'), terms in a contract entered into with a consumer that have not been individually negotiated are not to bind the consumer if they define the consumer's rights and obligations in a manner that is contrary to good practice and grossly prejudices the consumer's interests (unlawful terms).
2. The Code of Civil Procedure
13. Under Article 7301 of the Ustawa – Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) of 17 November 1964 (7), consolidated version (8) ('the Code of Civil Procedure'):
'1. Any party to the proceedings may request preventive measures, provided that it demonstrates the prima facie existence of its claim and of an interest in seeking those measures.
2. The interest in seeking the grant of preventive measures exists where the failure to grant those measures would prevent or seriously impede the enforcement of the forthcoming judgment in the case concerned or would otherwise prevent or seriously impede the achievement of the purpose of the proceedings in that case.
…
3. When ruling on a request for preventive measures, the court must take into account the interests of the parties to the proceedings so as to guarantee the beneficiary adequate legal protection and not oblige the debtor more than necessary.'
14. According to the referring court, Articles 731, 755 and 7552(1) of the Code of Civil Procedure are also relevant for the main proceedings.
3. The Law on the Bank Guarantee Fund
15. Article 135(1) and (4) of the Ustawa z 10 czerwca 2016 r. o Bankowym Funduszu Gwarancyjnym, systemie gwarantowania depozytów oraz przymusowej restrukturyzacji (9) (Law of 10 June 2016 on the Bank Guarantee Fund, the deposit guarantee scheme resolution), ('the Law on the Bank Guarantee Fund') provides:
'1. There shall be no need to adjudicate in enforcement proceedings or proceedings for the grant of protective measures in respect of the assets of an institution under resolution which were brought before the initiation of special resolution.
…
4. During the period of special resolution, it is not permissible to initiate enforcement proceedings and proceedings to secure claims against the entity undergoing restructuring.'
16. Under Article 142(1) of that law, the Bankowy Fundusz Gwarancyjny (Bank Guarantee Fund, Poland) may suspend the right to enforce collateral in respect of the assets of an institution under resolution for a period not exceeding the end of the working day following publication of the notice it issued concerning the suspension of that right.
4. The Law on insolvency
17. Article 146(1) of the Ustawa z dnia 28 lutego 2003 r. Prawo upadłościowe (Law of 28 February 2003 on insolvency) (10) ('the Law on insolvency'), provides that enforcement proceedings against insolvency estate assets are automatically suspended upon a declaration of insolvency and are terminated once the insolvency judgment has become binding. Under paragraph 2 of that article, undistributed sums from suspended proceedings are to go to the insolvency estate. Pursuant to paragraph 3, post-declaration enforcement is prohibited, except for specific maintenance or pension claims.
II. The facts of the dispute in the main proceedings and the question referred for a preliminary ruling
18. In 2007, OF, together with her parents RI and EI, concluded a mortgage loan agreement with Getin Noble Bank with a repayment period of 360 months for an amount of 185 375.71 zlotys (PLN) (approximately EUR 40 000) ('the loan agreement at issue in the main proceedings'). That loan agreement contained a clause converting that amount into Swiss francs (CHF) at the purchase rate set by that bank in a table. The monthly instalments, calculated in CHF, were repayable in PLN at the CHF sale rate, also fixed unilaterally by that bank, as set out in the bank's table on the due date.
19. The loan was intended to cover part of the purchase price of immovable property and the costs related to taking out the loan. The applicants in the main proceedings were provided with information on the impact of variations in the interest and exchange rates on that loan agreement in the form of a comparative table.
20. On 29 September 2022, the Bank Guarantee Fund, acting pursuant to the Law on the Bank Guarantee Fund, adopted a decision to initiate special resolution in relation to Getin Noble Bank using a bridge bank set up. Pursuant to the decision, a new entity named VELO Bank S.A. was established, to which almost all the rights and obligations of the defendant Getin Noble Bank were transferred, with the exception, however, of in-rem rights arising from de facto, de jure or unlawful acts relating to credit and loan agreements denominated in CHF or indexed to the CHF exchange rate, and claims arising from those in-rem rights, including those covered by civil and administrative proceedings, irrespective of the date on which they were brought. According to the referring court, this means that Getin Noble Bank's assets consist mainly of claims arising from loan agreements which, like that of the applicants, contain allegedly unfair contractual terms that may be challenged retrospectively.
21. It appeared from media statements made by the Bank Guarantee Fund that an application for the insolvency of Getin Noble Bank and its winding up would be submitted within a year.
22. The applicants have brought an action before the referring court, seeking a declaration that the loan agreement at issue in the main proceedings is invalid and the award of PLN 48 352.97 and CHF 27 171.82 (which corresponds to approximately 95% of the capital drawn down), plus statutory default interest and legal costs. The applicants stated that the loan agreement contained unlawful contractual terms concerning the indexation of the loan amount to a foreign currency. The amount claimed represents the sum of the payments made by the applicants. In the alternative, the applicants requested the possibility of continuing the agreement, once the unfair terms had been removed from it.
23. Getin Noble Bank has sought dismissal of the action and denied that the terms of the contract were unlawful.
24. Following the adoption of the resolution decision, the applicants lodged an application for the grant of interim measures, requesting that the claim for a declaration of invalidity be secured by fixing the rights and obligations of the parties to the proceedings for the duration of the proceedings on the substance. In particular, they requested the suspension of the obligation to pay the monthly loan instalments for the period from the lodging of the action until the end of the proceedings. Moreover, the applicants asked for the defendant to be prohibited from issuing a notice of termination and from publishing information with the Biuro Informacji Gospodarczej (Economic Information Office, Poland) about the failure by the applicants to make payments on the loan in the period from the grant of the protective measure until the conclusion of the proceedings.
25. The referring court states that in proceedings for interim measures the court decides on protective measures on the basis of a prima facie demonstration of the parties' claims, while taking into account all the evidence gathered in the case on the merits. According to the referring court: (i) the applicants are consumers, (ii) the terms of the loan agreement at issue are unfair as they impose an exchange rate risk on consumers and allow the bank arbitrarily to determine the exchange difference, (11) and (iii) amendments to the contract concluded by the parties did not have the effect of rendering those terms valid.
26. The referring court states that, in the light of the Court's case-law, it must be possible to grant interim measures allowing the suspension of the applicants' obligation to pay the monthly loan repayment instalments in the case on the merits. However, in accordance with Article 135(1) and (4) of the Law on the Bank Guarantee Fund, as interpreted by the national courts, where a bank is under resolution, those courts are to adopt a decision that there is no need to adjudicate on an application for interim measures. According to the referring court, such an interpretation disregards the provisions of Directive 93/13 and deprives the consumer of his or her rights under that directive.
27. Furthermore, the referring court states that, since securing a claim such as that in the main proceedings would be permissible in normal insolvency proceedings, an interpretation of Article 135(1) and (4) of the Law on the Bank Guarantee Fund, which does not permit the security of such a claim to be granted, would disadvantage consumers who are creditors by comparison with such consumers at banks that are wound up under insolvency proceedings. Thus, adopting such an interpretation would be contrary to Article 34(1)(g) of Directive 2014/59.
28. In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
'Must Articles 6(1) and 7(1) of [Directive 93/13], in the light of the principles of effectiveness and proportionality, and also Articles 34(1)(b) and (g) and 70(1) and (4) of [Directive 2014/59] be interpreted as precluding national legislation under which, in relation to a bank against which special resolution has been initiated, it is not permissible to grant a consumer's application for an interim measure (securing of the action) suspending, during the course of the court proceedings, the obligation to pay the capital and interest instalments under the loan agreement, which is likely to be declared invalid by a court as a result of the removal of unfair contractual terms from it, on the sole ground that that bank has been put under special resolution?'
III. The procedure before the Court
29. The applicants in the main proceedings, the Polish Government and the European Commission have lodged written observations. Those parties all submitted oral observations at the hearing, which took place on 17 October 2024, as did the defendant in the main proceedings.
IV. Assessment
A. Reformulation of the question
30. The referring court states that Article 135(1) and (4) of the Law on the Bank Guarantee Fund constitutes an incorrect transposition of Article 70(1) of Directive 2014/59.
31. In that respect, as stated by the Polish Government and the Commission, it appears that Article 70(1) of Directive 2014/59 was in fact transposed into Polish law by Article 142(1) of the Law on the Bank Guarantee Fund, which has a different temporal scope from that of Article 135(1) and (4) thereof. In particular, Article 135(1) of the Law on the Bank Guarantee Fund deals with proceedings for the grant of protective measures that were brought before the initiation of a resolution process, while Article 135(4) of that law concerns requests made in respect of the entity under resolution during the period of special resolution. However, Article 70(1) of Directive 2014/59 covers a very short period of time, from the publication of a notice of the restriction (12) until midnight in the Member State of the resolution authority of the institution under resolution at the end of the business day following that publication.
32. In any event, I would point out that in Case C‑34/23 (13) – a recent case with similar factual circumstances to the present one – the Court was asked about the interpretation of Article 70(1) of Directive 2014/59 in relation to Article 135(1) and (4) of the Law on the Bank Guarantee Fund. The Court found in its order in that case that the dispute in the main proceedings concerned an application for interim measures, which clearly did not fall within the scope of Article 70(1) of Directive 2014/59.
33. The Court specifically stated that the action in the main proceedings, whereby the applicants had applied for protective measures in respect of a loan agreement, did not concern any securities. The Court added that a 'consumer who has brought an action for a declaration of invalidity of a mortgage loan agreement concluded with Getin Noble Bank, does not have the status of “a secured creditor” of that bank, within the meaning of Article 70(1) of Directive 2014/59'. (14) The Court ruled that the dispute in the main proceedings clearly did not fall within the scope of that provision, so that the question referred for a preliminary ruling, which related exclusively to an interpretation thereof, bore no relation to the subject matter of the dispute. (15)
34. Indeed, it is true that debtors, under a loan agreement (who may become creditors if the loan is declared void by a court), may be considered to be potential creditors or even ultimately as creditors. However, regarding consumer credit agreements, a secured creditor, as explained by the Commission at the hearing, is a lender or creditor who has a legal claim to the property or assets of the debtor. Therefore, it appears that those applicants who do not have a legal claim to the property at issue are not 'secured creditors' under that provision.
35. In the present case, the applicants, who are consumers, are also seeking protective measures in respect of a loan agreement with an institution under resolution. Therefore, the applicants in the main proceedings cannot be considered to be 'secured creditors' any more than in the case that gave rise to the abovementioned order. It follows, mutatis mutandis, that Article 70(1) of Directive 2014/59 bears no relation to the subject matter of the present dispute. Consequently, in accordance with that recent order of the Court, the present request for a preliminary ruling is manifestly inadmissible to the extent that it concerns that provision. Since Article 70(4) of that directive refers to the exercise of a power under that very same article, that provision is also not relevant for the purposes of the dispute at issue here.
36. Accordingly, the question raised by the referring court should be reformulated so that it asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, and in conjunction with Article 34(1)(b) and (g) of Directive 2014/59, should be interpreted as precluding a national legislation or practice which does not allow the grant of interim measures in order to suspend, for the duration of judicial proceedings, the obligation to make future monthly repayments of a loan, on the sole ground that the defendant bank is subject to a resolution procedure governed by Directive 2014/59. (16)
37. Since the referring court aims by its question referred for a preliminary ruling to establish the interaction between the provisions of Directive 2014/59 and Directive 93/13, read in the light of the principle of effectiveness, I will begin by examining those provisions and then turn to their mutual interaction.
B. The interpretation of Article 6(1) and Article 7(1) of Directive 93/13
38. The Court has held that Article 6(1) of Directive 93/13 must be interpreted as meaning that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he or she would have been in if that term had not existed. The obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts. (17) It could be asserted that, where banks are operating in normal circumstances, the Court has consistently upheld consumer protection where it conflicts with the interests of financial institutions, especially in the context of unfair terms in contracts. (18)
39. In the present case, the referring court considers that, if it found that certain terms of the mortgage loan agreement at issue are unfair, the remainder of the mortgage loan agreement at issue cannot be continued after those terms have been removed and it will be necessary to annul the contract in its entirety. Therefore, the present Opinion is based on the premiss that the referring court is sufficiently certain of the need to declare the mortgage loan agreement at issue to be invalid, with the result that a consumer would have a claim against the bank for reimbursement of the sums already paid under that agreement.
40. With respect to the issue of the grant of interim measures, EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair. Therefore, those procedures fall within the domestic legal system of the Member States, (19) in accordance with the principle of the procedural autonomy of the Member States, on condition, however, that they comply with the principles of equivalence and effectiveness. (20)
41. In particular, with respect to the principle of effectiveness, it must be stressed that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter'), which applies, in particular, to the definition of detailed procedural rules relating to actions based on such rights. (21) It is settled case-law that a national court seised of a dispute governed by EU law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under EU law. (22) The Court has held that the principle of effective judicial protection of an individual's rights under EU law must be interpreted as requiring it to be possible in the legal order of a Member State for interim relief to be granted until the competent court has given a ruling on whether national provisions are compatible with EU law, where the grant of such relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights. (23) In sum, a national court seised of a dispute governed by EU law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under EU law.
42. Furthermore, the issue of the grant of interim measures in the context of proceedings relating to the rights which consumers derive from Directive 93/13 has been the subject of several judgments of the Court, including, recently, the judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement), (24) which was delivered after the present request for a preliminary ruling but which concerns factual circumstances relatively similar to it. (25)
43. In that case, the Court observed that Directive 93/13 precludes national legislation which does not allow the court adjudicating on the substance, which has jurisdiction to assess the unfairness of a contractual term, to grant interim measures, such as staying enforcement proceedings, where the grant of such measures is necessary to ensure the full effectiveness of its final decision, that legislation being liable to undermine the effectiveness of the protection intended by that directive. (26) The Court also pointed out that it may be necessary to grant such measures, inter alia, where there is a risk that the consumer will pay, in the course of legal proceedings the duration of which may be considerable, monthly instalments of a higher amount than that actually due if the term concerned were to be disregarded. (27)
44. The Court held that, accordingly, the protection guaranteed to consumers by Directive 93/13, in particular by Article 6(1) and Article 7(1) thereof, requires that the national court must be able to grant an appropriate interim measure, if that is necessary to ensure the full effectiveness of the forthcoming decision on the unfairness of contractual terms. (28) In particular, the Court emphasised that the grant of such an interim measure seems all the more necessary where that consumer has paid the bank concerned an amount greater than that of the sum borrowed even before he or she has initiated proceedings. (29) The Court concluded, in substance, that national case-law according to which the grant of interim measures to suspend payment of monthly instalments due under a loan agreement is refused, whereas those measures are necessary in order to guarantee the protection granted to consumers by Directive 93/13, does not appear to be consistent with the principle of effectiveness and, therefore, is not compatible with Article 6(1) and Article 7(1) of Directive 93/13. (30)
45. It follows that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, also guaranteed by Article 47 of the Charter, meaning that, where proceedings have been instituted by a consumer against a bank seeking the nullity of a contract on account of unfair terms contained in that contract, the national court should be able to grant interim measures suspending the performance of such a loan agreement during the course of those proceedings.
46. That being said, Article 47 of the Charter has direct effect in a case such as the present one. (31) Since the right to effective judicial protection guaranteed by that provision is not an absolute right, (32) it is for the national court, when applying EU law, to balance the interests at stake and to take all the necessary measures in order to guarantee the right to effective judicial protection. With respect to the interests at stake in the present case, the referring court highlights, on the one hand, the objective of the effectiveness of resolution and, in particular, the financial stability of the banking system, and, on the other hand, the effective judicial protection of the consumer. It is therefore necessary to examine the effects that stem from the application of Directive 2014/59.
C. The interpretation of the provisions of Directive 2014/59
47. The referring court states that as a result of the opening of resolution proceedings in respect of Getin Noble Bank, it is not allowed, pursuant to Article 135(1) and (4) of the Law on the Bank Guarantee Fund, to grant interim measures to consumers. Therefore, the key question in the present case is whether, when applying Directive 2014/59, the rights of consumers may be limited. In that context, that court refers, in particular, to Article 34(1)(b) and (g) of Directive 2014/59. Before analysing the principles set out in that provision, its scope should be analysed.
1. The scope of Article34(1)(b) and (g) of Directive 2014/59
(a) The concept of 'resolution action', 'resolution tools' and 'resolution powers' within the meaning of Article34(1) of Directive 2014/59
48. At the outset, it should be noted that Article 34(1) of Directive 2014/59 refers to three concepts, that is 'the resolution tools', 'the resolution powers', and 'the resolution action'. In my view, those three concepts do not have the same scope, such that, when a bridge institution tool is used, that provision may apply to resolution powers and actions and thus to acts that concern the residual entity at issue.
49. First, I would observe that the expression 'resolution action' means, according to Article 2(1)(40) of that directive, the decision to place an institution or entity referred to in point (b), (c) or (d) of Article 1(1) under resolution pursuant to Article 32 or 33, the application of a resolution tool, or the exercise of one or more resolution powers. In that respect, it is clear that the expression 'resolution action' therefore encompasses not only those tools and powers, but also the decision to place an institution or entity under resolution, making it an umbrella term referring to different acts relating to the resolution procedure.
50. Second, the expression 'resolution tool' in that provision means, under Article 2(1)(19) of that directive, a tool referred to in Article 37(3) thereof, namely the sale of business tool, the bridge institution tool, the asset separation tool, and the bail-in tool.
51. In the present case, it appears that the resolution tool that was applied was the bridge institution tool within the meaning of Article 37(3)(b) of Directive 2014/59 and in accordance with Article 40 thereof. The application for interim measures in the main proceedings relates to assets (a loan denominated in a foreign currency) which remained at Getin Noble Bank, that is, the initial entity (or residual entity). Conversely, it does not relate to the assets transferred to the bridge institution, namely Velo Bank, created under the resolution procedure.
52. In accordance with Article 37(6) of Directive 2014/59, read in the light of recitals 50, 60 and 69 of that directive, where the resolution tools referred to in point (a) or (b) of paragraph 3 of that article are applied and are used to transfer only part of the assets, rights or liabilities of the institution under resolution, the residual institution or entity from which the assets, rights or liabilities have been transferred is to be wound up under normal insolvency proceedings. Therefore, in the present case, since the bridge institution tool was used, the assets which remained at Getin Noble Bank are subject to normal insolvency proceedings.
53. The period of time after the decision to apply the bridge institution tool and before the winding up of the institution or entity under insolvency proceedings should also be covered by the concept of 'resolution tools', since the application of that tool establishes the status of the residual entity during that period. The principles set out in Article 34(1)(b) and (g), of Directive 2014/59 are no longer relevant for the purposes of the assets remaining in the residual institution or entity only after the winding up of the institution or entity under normal insolvency proceedings has been started.
54. Third, Article 34(1) of Directive 2014/59 also refers to 'resolution powers', which under Article 2(1)(20) of that directive is defined as a power referred to in Articles 63 to 72 thereof.
55. In that respect, I would observe that those latter articles encompass a vast array of powers.
56. In particular, since Article 63(1)(d) refers to 'the power to transfer to another entity, with the consent of that entity, rights, assets or liabilities of an institution under resolution', it appears that the concept of 'resolution powers' covers the decision to initiate special resolution in relation to the defendant bank using a bridge bank set up, and the acts that relate to the institution under resolution and to the residual institution or entity before it is placed under normal insolvency proceedings.
57. Accordingly, to the extent that Article 34(1) of Directive 2014/59 refers to 'resolution action', 'resolution tools' and 'resolution powers', that provision does indeed seem to apply to the initial decision whereby the national authorities decide to place the entity under resolution. It also applies to the situation of the residual institution or entity before it is wound up in the context of normal insolvency proceedings, that is, in the present case, Getin Noble Bank, and thus to the examination of a request for protective measures submitted to the court against that residual institution or entity.
58. Consequently, I take the view that the general principles governing resolution set out in Article 34(1)(b) and (g) of Directive 2014/59 do apply to a situation where applicants request protective measures (interim measures) in the context of proceedings brought against a residual entity before it is wound up under normal insolvency proceedings, since that residual entity has been the subject of the resolution actions, tools and powers of the national authorities.
(b) The concept of 'creditor' within the meaning of Article34(1)(b) and (g) of Directive 2014/59
59. It is necessary to determine whether consumers such as the applicants, who have initiated proceedings in order to obtain a declaration on the invalidity of the loan agreement at issue on account of unfair contractual terms applied therein, are also 'creditors' within the meaning of Article 34(1)(b) and (g) of Directive 2014/59.
60. Typically, the concept of 'creditor' refers to any entity or person that has a claim against the debtor. To the extent that, in the present case, the consumers in question seek suspension of their obligation to pay future monthly repayments on a loan, they appear, prima facie, to be debtors. However, it is apparent from the request for a preliminary ruling that the applicants are potential creditors since the proceedings they have initiated are highly likely to lead to a declaration of the invalidity of the loan agreement at issue in its entirety.
61. Directive 2014/59 does not explicitly define the type of obligations that give rise to the status of creditor and thus it does not impose any limitations in that regard. Therefore, the term 'creditor' is to be interpreted in a manner such that it also includes potential creditors when they are consumers and there is a high likelihood of their claim of invalidity being accepted by the national court. (33) That interpretation aligns with the broader objectives of ensuring the protection and fair treatment of all stakeholders involved in the resolution process set by Directive 2014/59. (34)
62. In the present case, even if the national court has not yet delivered a judgment on the invalidity of the loan agreement at issue in the main proceedings, the applicants' claim for invalidity is a formal legal action that may result in a change of status from debtor to creditor.
63. Consequently, the applicants may be considered to be creditors within the meaning of Article 34(1)(b) and (g) of Directive 2014/59, even if the court has not yet delivered its judgment on the validity of the loan agreement. In that regard, it should be observed that it is solely for the national court before which the dispute has been brought to determine, in the light of the particular circumstances of the case, whether in this instance there is a sufficient likelihood of the debtor becoming such a creditor. The present Opinion is based on the premiss that the consumers at issue are indeed creditors within the meaning of that provision.
2. The content of the principles set out in Article34(1)(b) and (g) of Directive 2014/59
64. Article 34(1) of Directive 2014/59 sets out the general principles governing resolution, including, first, the principle that shareholders are to bear first losses (point (a)), and that creditors are to bear losses after the shareholders in accordance with the order of priority of their claims under normal insolvency proceedings, save as expressly provided otherwise (point (b)). Second, Article 34(1)(g) of Directive 2014/59 lays down the 'no creditor worse off principle' ('the NCWO principle'), which requires that the restructuring procedures under that directive be conducted by the national authorities in such a way that no creditor incurs greater losses than under normal insolvency proceedings. That principle is regarded as a cornerstone of the resolution regimes. (35)
(a) The comparison of resolution with the treatment received under normal insolvency proceedings
65. On the one hand, the principles established under Article 34(1)(b) of Directive 2014/59 concern the order in which losses must be borne: namely, shareholders first, and then creditors. That principle should be read in the light of the fundamental principle underlying Directive 2014/59, enshrined in recitals 5 and 50 thereof, whereby the costs of resolution of a bank must be borne primarily by the bank's shareholders and not by its creditors.
66. On the other hand, the NCWO principle under Article 34(1)(g) of Directive 2014/59 ensures that resolution measures are designed in such a way that creditors are treated at least as favourably as they would be under national insolvency procedures. Its application entails a comparison of what a creditor has received in the context of resolution and what he or she would have received in the event of normal insolvency proceedings. The NCWO principle ensures that the resolution process is fair and predictable, maintaining a level of equivalence with national insolvency procedures by protecting creditors' rights. Therefore, that principle is seen as a key safeguard that ensures that resolution actions are not more detrimental to creditors than normal insolvency proceedings would be.
67. However, it is important to highlight the fact that insolvency proceedings constitute a field of action in which Member States may exercise their own powers, as insolvency laws are not harmonised at EU level. (36) Article 34(1)(g) of Directive 2014/59 is therefore only relevant to the assessment of the equal treatment of creditors in situations of resolution procedures and insolvency proceedings under the national legislation examined by the referring court.
68. In that respect, the referring court is of the view that granting protection by suspending the obligation to pay loan instalments under the agreement at issue in the main proceedings may be permissible in insolvency proceedings. (37) Therefore, a national measure which does not permit the security of such a claim to be granted would disadvantage consumers who are creditors by comparison with such consumers at banks that are wound up under insolvency proceedings. Thus, adopting such an interpretation would be contrary to Article 34(1)(g) of Directive 2014/59. (38)
69. Under Directive 2014/59, the amount of a bank's liabilities to creditors is limited by the date of the publication of the notice , which establishes the point at which creditors' claims and obligations are measured for the purposes of resolution. (39) However, a consumer who pays sums to the bank after the announcement of resolution, pursuant to an agreement containing unfair terms, will incur an increase in the amount of his or her losses. As stated by the referring court, in the case of normal insolvency proceedings, the consumer could rely on a protective measure to suspend performance of the contract.
70. It follows from the national legislation at issue that, in the case of resolution, no enforcement or protective measures may be brought against an institution under resolution. (40)
71. Consequently, a consumer who cannot seek such a measure may find himself or herself in a less favourable situation than the creditors of an entity that is subject to normal insolvency proceedings, since that consumer will be obliged to perform the loan contract without the possibility of obtaining a protective measure, leading to a continuous increase of the consumer's claim against the bank, despite the adoption of a resolution decision.
(b) The ex post compensation mechanism
72. The compensation mechanism in Articles 73 to 75 of Directive 2014/59 is central to the application of the NCWO principle. It requires the comparison of the treatment received by creditors in the course of the resolution action with the treatment they would have received under normal insolvency proceedings. For that purpose, the national insolvency law that would have been applicable had those entities entered normal insolvency proceedings should be taken into account.
73. In essence, compensation amounts to the equivalent of the shortfall that the creditors have suffered, that is, the difference between the amount they actually recovered in the resolution proceedings and the amount they would have recovered if the institution had been subjected to normal insolvency proceedings. (41) Therefore, shareholders and creditors who suffer such greater losses are entitled to ex post compensation. (42) Such a mechanism seeks to balance financial stability and fairness, ensuring that while the institution is resolved efficiently, creditors are protected.
74. In particular, on the one hand, the resolution procedure established by Directive 2014/59 is an exceptional instrument aimed primarily at ensuring the stability of financial markets where such stability could be compromised by the failure of a cross-border institution. (43) The purpose of the resolution procedure is to provide public authorities with a set of instruments enabling them to intervene sufficiently early and quickly, to ensure the critical financial and economic functions of the institution concerned and to limit the negative effects of the failure. (44) Therefore, that directive pursues broader financial stability objectives, such as maintaining confidence in the financial system and avoiding systemic risk. On the other hand, the compensation mechanism laid out in Articles 73 to 75 of Directive 2014/59 provides key protections for creditors by ensuring that they are not treated unfairly during the resolution of a failing institution. It follows that the abovementioned compensation mechanism aims to strike a balance between allowing authorities to resolve failing institutions in the public interest and safeguarding the legitimate financial interests of creditors.
3. Application to the present case
75. If, due to resolution proceedings, the applicants' assets that stay with the residual entity suffer greater losses than they would have under normal insolvency proceedings – which it is for the national court to assess – the applicants, on the basis of the NCWO principle, are entitled to ex post compensation. However, that compensation mechanism does not necessarily entail procedural protection. Indeed, it should be observed that Directive 2014/59 does not provide for specific provisions with respect to interim measures brought by creditors against a bank under resolution. It follows that legislative measures such as Article 135(1) and (4) of the Law on the Bank Guarantee Fund, which concern the issue of interim measures brought by creditors in a dispute concerning contractual obligations with the residual entity, are outside the scope of that directive.
D. Striking a balance between the aims of consumer protection and resolution proceedings
76. As has been explained earlier, (45) under Directive 2014/59, a creditor may receive ex post compensation where that individual incurs greater losses than he or she would have incurred if the institution had been wound up under normal insolvency proceedings. Therefore, the key question is whether the ex post compensation mechanism under that directive provides sufficient protection for a consumer who has to make payments to the remaining entity throughout the procedure in which he or she seeks to annul the contract on the grounds that it contains unfair terms.
77. In that respect, the judgment of 5 May 2022, Banco Santander (Resolution of Banco Popular), (46) whilst it demonstrates that the ex post compensation mechanism can be a useful tool, it does not address the sufficiency of that mechanism where national law precludes interim measures to suspend payments under a loan agreement. Since the adoption of an interim measure allowing for the suspension of the performance of a loan agreement is a different matter from ex post compensation, which concerns the material aspects of the restitution, that judgment is not relevant for the purposes of the case at hand. (47)
78. It is clear from the oral submissions of the parties at the hearing before the Court that Article 135(1) and (4) of the Law on the Bank Guarantee Fund does not transpose any of the provisions of Directive 2014/59, but rather constitutes a rule supplementing the rules laid down in that directive. Since Directive 2014/59 does not harmonise the procedures applicable to interim measures adopted in proceedings that involve a bank undergoing a resolution procedure, those measures fall within the national legal system of the Member States.
79. In that context, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures governing actions for safeguarding rights which individuals derive from EU law. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (48)
80. With respect to the principle of effectiveness, as I have already observed, the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, reaffirmed in Article 7(1) of that directive, (49) which applies, in particular, to the definition of detailed procedural rules relating to actions based on such rights. (50) In particular, it is for the national courts to give full effectiveness to the rights deriving from Directive 93/13, read in the light of Article 47 of the Charter, and to disapply national rules or national practices that prohibit the grant of interim measures in order to suspend payments under a credit agreement that is allegedly unlawful on grounds of unfair terms. (51)
81. It is true that, in the judgment of 5 May 2022, Banco Santander (Resolution of Banco Popular), (52) the Court ruled that the objectives of ensuring the stability of the banking and financial system and preventing a systemic risk are objectives of public interest pursued by the European Union.
82. That being said, it is important to note that the case that gave rise to that judgment concerned an entity created after resolution, whereas the claim in the present proceedings relates to the residual entity, which is to be wound up. Therefore, as argued by the Commission at the hearing, a grant of interim measures with respect to the assets of that entity does not threaten the financial stability of the banking system. (53) In that respect, it is important to highlight the sequence of events in the main proceedings, where the bridge bank was set up immediately after the adoption of the resolution decision, such that if certain categories of debtors were granted interim measures allowing the suspension of payments to that residual entity, that would not affect the financial health of the newly created entity. Moreover, it is of essential importance that the interim measure at issue is not aimed at constituting security over the insolvent bank's existing assets, but merely seeks suspension of the consumer's future payments. (54)
83. The same distinction applies with respect to the Novo Banco cases, where the claims relating to the contracts were directed at the bridge bank set up by the national authority. (55) In those cases, the consumers' actions could not be effective because they would have undermined the stability of the financial system, (56) whereas in the present case, the request at issue concerns payments to an entity under potentially unfair contract terms where the entity is bound to be wound up in any case. Therefore, the considerations relevant to those cases with respect to the objective of the stability of the financial system are not applicable to the present case.
84. It follows that, as stated by the Commission at the hearing, in the present case, consumer rights do not need to be weighed against financial stability, since the interim measures at issue concern only the suspension of an increase in the claim of a consumer against the residual entity and, therefore, the financial stability of the banking system is not threatened. Member States' rules or practices which supplement the provisions of Directive 2014/59 cannot hinder the effectiveness of the protection provided under Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the effective judicial protection enshrined in Article 47 of the Charter, where the claims concern such interim measures and pose no threat to the financial stability of the banking system within the meaning of Directive 2014/59.
85. However, in the abovementioned case, C‑287/22, (57) the Court held that the assessment of the need to grant such an interim measure must be carried out in concreto, in the light of the objective of ensuring the full effectiveness of the decision to be taken. Thus, the national court must determine whether the suspension of the consumers' obligations is necessary in order to ensure the restoration of their factual and legal situation, in particular in the light of the risk of having to repay an amount greater than the amount borrowed. (58) It follows that, under Directive 93/13, the national court must grant interim measures consisting in the suspension of a consumer's obligation to make payments when, first, it has sufficient evidence as to the unfairness of one or more contractual terms so that it is likely that the loan agreement concerned is invalid or, at the very least, that a repayment of the monthly instalments due under that agreement will have to be made to the consumer concerned. (59)
86. In the present case, first, as I have already pointed out above, the referring court seems to consider that, because of a future ruling on the unfair terms of the loan agreement at issue, the residual entity will indeed have to repay the sums paid by the consumers under that agreement. Therefore, that condition appears to be fulfilled.
87. Second, the Court ruled in that case that it is for the national court to determine, in the light of all the circumstances of the case, whether the suspension of that consumer's obligation to pay those monthly instalments for the duration of the proceedings concerned is necessary in order to ensure the restoration of the legal and factual situation in which that consumer would have been in the absence of that term or those terms. Thus, that court will be able to take into account, in particular, the financial situation of the same consumer and the risk that he or she runs of having to repay to the bank concerned an amount, which exceeds that which he or she has borrowed from that bank. (60)
88. In the present case, the referring court has explained that the consumers will soon repay (or have already repaid) to the residual entity an amount that is in excess of the capital paid out. The referring court is therefore concerned that, due to the insolvency proceedings to which Getin Noble Bank is subject subsequent to the resolution decision, the consumers will not be able to recover the sums transferred to that bank, which may exceed the assets to be distributed between the creditors. If that materialises, subject to final verification by the referring court, the full effectiveness of a decision finding that certain terms of the loan agreement at issue in the main proceedings are unfair cannot be guaranteed. The second condition appears therefore also to be satisfied. Accordingly, Article 3851 of the Civil Code, implementing Directive 93/13 in Polish law, should be interpreted in such a way as to ensure the maximum effective attainment of the objectives of that directive. In principle, under Directive 93/13, the referring court, subject to final verification, should order interim measures in the present case.
89. In that respect, during the hearing, the Commission argued that since the entity at issue was under resolution pursuant to Directive 2014/59, the interim measures allowed should be limited only to the securing of claims which pertain to the monthly instalments relating to interest on the loan, but not to the contractual obligations of the consumer to pay such instalments on the capital amount borrowed.
90. In that context, it is important to take note of the risk that the consumers run of having to repay to the bank concerned an amount which exceeds the sum they borrowed from the bank subject to resolution, which has been submitted to valuation by the resolution authorities. Therefore, for the purposes of the effectiveness of the resolution carried out under Directive 2014/59, it can be conceived that the borrowed capital is reimbursed by way of monthly instalments whilst the proceedings are still ongoing. That being said, the payment of interest by the consumer should be suspended in any event in order to avoid a situation in which the consumer pays an excess amount to the remaining entity that is due to be wound up. In sum, the interim measures should be limited to the amount exceeding the capital of the borrowed amount.
V. Conclusion
91. In the light of the above considerations, I propose that the Court answer the question referred for a preliminary ruling by the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) as follows:
Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and Article 34(1)(b) and (g) of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, read in the light of the principle of effectiveness and the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding national legislation or a national practice which does not allow the grant of interim measures in order to suspend, for the duration of the judicial proceedings, on the sole ground that the defendant bank is subject to a resolution procedure, the contractual obligation of a consumer to pay the monthly instalments of a loan that exceed the capital amount borrowed by the consumer, in so far as the interim measures correspond to the monthly instalments relating to interest on the loan, and on condition that the loan has remained with the residual entity after the resolution decision was taken.
3 Directive of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190), also known as 'the Bank Recovery and Resolution Directive' or 'the BRRD'.
4 The exact time frame of the acts in question is not provided in the reference for a preliminary ruling. However, it appears from the file submitted to the Court that Getin Noble Bank was first subject to a resolution decision and then submitted to insolvency proceedings. The parties confirmed at the hearing that the application for interim measures was made between the two procedures.
10 Dz. U. of 2022, item 1520, consolidated text of 9 June 2022.
11 The terms in question are similar to those of the contract analysed in the judgment in the case that gave rise to the judgment of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819).
12 Publication made in accordance with Article 83(4) of Directive 2014/59.
13 Order of 20 February 2024, Getin Noble Bank (C‑34/23, EU:C:2024:203).
16 The reformulated question does not include the principle of proportionality, which does not appear to be relevant for the purposes of the present analysis. See, to that effect, judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491), which also contained a reference to 'effectiveness and proportionality'.
18 See, for example, judgments of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349); of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164); of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282); of 21 January 2015, Unicaja Banco and Caixabank (C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21); and of 26 March 2019, Abanca Corporación Bancaria and Bankia (C‑70/17 and C‑179/17, EU:C:2019:250).
19 See, judgment of 22 September 2022, Vicente (Action for the recovery of lawyers' fees) (C‑335/21, EU:C:2022:720, paragraph 53 and the case-law cited).
20 See, to that effect, judgment of 13 September 2018, Profi Credit Polska (C‑176/17, EU:C:2018:711, paragraph 57 and the case-law cited).
21 Judgments of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraph 54 and the case-law cited), and of 10 June 2021, BNP Paribas Personal Finance (C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 29).
22 Judgments of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 107), and of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 297), citing judgment of 19 June 1990, Factortame and Others (C‑213/89, EU:C:1990:257, paragraph 21).
23 Judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 77 and operative part, point 2).
25 The Court ruled in that case on 15 June 2023, that is to say, after the court's decision to refer the question for a preliminary ruling in the present case on 26 October 2022.
26 See, to that effect, judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491, paragraph 41 and the case-law cited).
31 See, by way of analogy, judgments of 8 November 2022, Deutsche Umwelthilfe (Approval of motor vehicles) (C‑873/19, EU:C:2022:857), in the area of environmental law, and of 20 February 2024, X (Lack of reasons for termination) (C‑715/20, EU:C:2024:139), in the area of the framework agreement on fixed-term work and the principle of non-discrimination.
32 Judgment of 5 September 2024, Banco Santander (Resolution of Banco Popular II) (C‑775/22, C‑779/22 and C‑794/22, EU:C:2024:679, paragraph 80 and the case-law cited).
33 In that respect, I agree with the applicants' argument made at the hearing that the status of a creditor stems from the restitutory effect that the national court's future judgment might entail and, therefore, the effectiveness of the protection guaranteed by Directive 93/13.
34 See recitals 5, 10, 31 and 48 of Directive 2014/59, which support the interpretation that that directive aims to ensure the protection and fair treatment of all stakeholders while minimising the need for public financial intervention.
35 Gortsos, C.V., 'Banking Resolution: The EU Framework Governing the Resolution of Credit Institutions', in Amtenbrink, F., Herrmann, C., and Repasi, R. (eds), The EU Law of Economic and Monetary Union (New York, 2020; online edn, Oxford Academic), https://doi.org/10.1093/oso/9780198793748.003.0046, accessed 7 November 2024.
36 To date, the only acts in that area are Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19), which mainly concerns the issue of private international law in situations relating to cross-border insolvency proceedings, and Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18), dealing with the area of preventive corporate restructuring.
37 It should be noted that, at the hearing before the Court, the parties disagreed on the permissibility of the grant of interim measures under national law. It stems from the pleadings of the parties that there is a distinction to be made between the grant of interim measures with respect to the assets of a bank undergoing insolvency proceedings, which appears to be prohibited, and the grant of interim measures with respect to the reimbursement of the loan, which appears to be allowed.
38 In that respect, even though the reference for a preliminary ruling does not explain the relevance of Article 34(1)(b) of Directive 2014/59, but it is cited in the question referred, I shall include that provision in my analysis. It is indeed possible to infer that since it sets out the order in which creditors are to bear losses, that court has doubts as to the effects of a potential rejection of the claim of the applicants – who are consumers – under Article 135(4) of the Law on the Bank Guarantee Fund.
39 See Article 69(1) of Directive 2014/59 and Article 83(4) thereof, according to which the resolution authority shall publish or ensure the publication of a copy of the order or instrument by which the resolution action is taken, or a notice summarising the effects of the resolution action.
40 See Article 135(1) and (4) of the Law on the Bank Guarantee Fund.
41 The principle of compensation of shareholder and of creditors should be read in the light of recitals 50 and 51 of Directive 2014/59. In particular, recital 50 thereof states that shareholders and creditors should be entitled to receive in payment of, or compensation for, their claims in the winding up proceedings not less than what it is estimated they would have recovered if the whole institution had been wound up under normal insolvency proceedings.
42 Article 73(a) of Directive 2014/59 requires the Member States to ensure that, in the event of a partial transfer of assets and liabilities to a bridge institution, the creditors whose claims rest with the insolvent bank 'receive in satisfaction of their claims at least as much as what they would have received if the institution under resolution had been wound up under normal insolvency proceedings'. The relevant creditors are thus guaranteed compensation for the shortfall they suffer as a consequence of the transfer of potentially valuable assets out of the insolvent estate. Pursuant to Articles 75 and Article 101(1)(e) of Directive 2014/59, any shortfall will be paid by the resolution financing schemes. The resolution financing schemes are funded by the institutions under supervision by the resolution authorities.
47 See, by analogy, View of Advocate General Wahl in Sánchez Morcillo and Abril García(C‑169/14, EU:C:2014:2110, point 53) where he contrasted procedural remedies with substantive matters.
48 Judgments of 6 October 2015, Orizzonte Salute (C‑61/14, EU:C:2015:655, paragraph 46), and of 21 December 2021, Randstad Italia (C‑497/20, EU:C:2021:1037, paragraph 58).
50 See, by analogy, regarding Directive 93/13, judgment of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraph 54 and the case-law cited). See also, my Opinion in Všeobecná úverová banka (C‑598/21, EU:C:2023:22, point 97 et seq.).
53 Moreover, that case does not concern an action for damages against an institution under resolution or an action for nullity of the share subscription contract, under national law. Therefore, that case does not concern the grant of interim measures to suspend the performance of a contract, which is a procedural measure intended to protect the effective judicial protection of an individual.
54 The referring court has explained that the 'security concerns a non-pecuniary claim for a declaration that the agreement is invalid and such a claim has no direct pecuniary consequences for the insolvent person', while adding that such 'security does not constitute security over the insolvent person's assets within the meaning of Article 146(3) of the Law on insolvency'.
55 See judgment of 5 September 2024, Novo Banco and Others (C‑498/22 to C‑500/22, EU:C:2024:686, paragraph 24). With respect to Case C‑500/22, the Court highlighted that the claim at issue in the main proceedings/in that case arose under a contract of sale not concluded with the residual entity but with the new entity, that is Novo Banco, and related to a bond which, on the date on which that contract was concluded, formed part of the assets and liabilities of Novo Banco.
56 See, in particular, paragraphs 142 and 143 of that judgment.
57 Judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) (C‑287/22, EU:C:2023:491, paragraph 59).
