Standing of acquirers of claims in consumer credit disputes (Court of Justice case C-80/24)
In disputes over consumer credit, banks deal not only with consumers but also with companies whose business is to buy up claims from consumers, including claims related to the sanction of “free credit.” But this procedure generates many questions. Can consumers sell their claims against the bank? If so, under what conditions can the acquirer pursue the claim before the court?
The Court of Justice of the European Union resolved these issues in C-80/24, Zwrotybankowe.pl sp. z o.o. v PKO Bank Polski S.A. The court held that consumers may transfer their claims arising out of a consumer credit agreement, but the national courts can examine the assignment agreement if relevant to determine whether the plaintiff is entitled to pursue the claim.
This means in some instances the bank can effectively challenge the standing of the acquirer of the claim, resulting in rejection of the suit in its entirety.
Ruling by the Court of Justice in C‑80/24
The judgment in case C‑80/24 was issued in response to a request for a preliminary ruling from the District Court for Warsaw‑Śródmieście. The questions presented were, in essence:
- Whether Directive 2008/48/EC allows a consumer to assign their claims arising out of sanctions applied against the bank for infringement of national regulations on consumer credit?
- Must the court examine on its own motion whether the assignment agreement between a consumer and a third party contains unfair contractual terms within the meaning of Directive 93/13/EEC, when in the proceeding before the court the third party relies on the assignment agreement as the basis for its standing in a dispute with the consumer’s original counterparty (the bank)?
The response from the Court of Justice was partially unfavourable to the banks. On the first question, the court held that consumers do have a right to assign their rights under the consumer credit regulations, including, as in the case in which the national court requested a preliminary ruling, claims related to the sanction of “free credit.” According to the Court of Justice, “Such assignment is one of the legal options, which may be provided for by the national legal system, to allow consumers to defend their rights by sparing themselves difficulties and costs that might deter them from taking steps personally in relation to the seller of supplier concerned.” To hold otherwise, the court reasoned, would conflict with the objective of Directive 2008/48/EC, of ensuring all consumers in the Union a high and equal level of protection.
But the answer to the second question is key. The Court of Justice did find that in the dispute between the company that acquired the consumer claim and the bank, the national court does not need to examine on its own motion whether the assignment agreement includes “unfair terms” within the meaning of Directive 93/13/EEC. However, this applies only to examination of the abusiveness of provisions of the assignment at the court’s own initiative. The Court of Justice also found that it is for the national court to establish whether and to what extent national law permits it, or even obliges it, to ascertain whether the assignee has standing, in particular by examining the contract which may grant that party standing. In other words, depending on the specific case, it may be necessary to analyse the assignment agreement, including its validity and lawfulness.
Validity and effectiveness of the assignment agreement, and the assignee’s standing to bring suit against the bank
The response to the second question means that the Court of Justice did not limit the ability of national courts to examine whether the assignment agreement gives the acquirer of claims standing in the dispute with the bank. Even though the court has no duty to consider this question on its own motion, the bank can still assert as a defence the abusiveness of the assignment agreement, the low price for which the claims were acquired, or formal defects—thus implying a need for the national to analyse the plaintiff’s standing.
Therefore, if the national court finds that the assignment is invalid or ineffective, the suit will be dismissed due to the assignee’s lack of standing.
Rulings have already been issued in which Polish courts refuse to recognise standing to file suit on the part of acquirers of claims—reasoning that the assignment agreement is invalid or contains impermissible clauses. These cases also involve claims arising out of the sanction of “free credit,” but a uniform line of case law has not yet formed on this issue. Nonetheless, by way of example, the judgment of 6 September 2024 of the District Court for Łódź-Śródmieście (case no. XVIII C 83/24, non-final and unpublished) dismissed a suit by an acquirer of claims, due to the invalidity of the assignment agreement because it was contrary to public policy. The problem there was the disproportionality between the consideration provided by each party: in exchange for assignment of their claim, the consumer received only 10% of the value of the claim.
A similar position was taken by the Chorzów District Court in its judgment of 18 November 2024 (case no. I C 149/24, non-final and unpublished), where it dismissed a suit by a debt-collection company, finding that the assignment agreement did not specify the value of the claim being assigned and thus the consumer did not know the amount of the claim they were selling or for what price (as reported by A. Pantak, “Acquiring borrowers’ claims is unlawful,” Dziennik Gazeta Prawna, 7 January 2025).
The need for a systemic interpretation—similar experiences from the insurance market and defence against suits by companies buying up compensation claims
With a view to a functional and systemic interpretation, it should be pointed out that the ability to examine an assignment agreement for its validity or abusiveness was confirmed in the resolution of a seven-judge panel of the Supreme Court of Poland of 29 May 2019 (case no. III CZP 68/18), stating: “That the claims to which the request by the First President of the Supreme Court [for a resolution by the seven-judge panel] pertains are generally transferrable under current law, obviously does not mean exclusion of assignment agreements concerning such claims and, in essence, the underlying sales contracts (in the case of a sale-related assignment), or collection-related service contracts (in the case of assignment for the purpose of collection), from evaluation in light of the general rules on the validity of legal acts (Civil Code Art. 58) or in light of the regulations protecting consumers against the effects of impermissible contractual clauses (Civil Code Art. 3851). Indeed, what may be relevant in this respect is oversight of the level of the price for the acquired claim or the level of the fee for collection-related services, as well as the conditions for payment of the established price or the agreed fee. These issues are undoubtedly very socially sensitive.”
Although this resolution primarily involved the assignment of claims against insurers under motor vehicle policies, its general conclusions concerning the possibility of examining an assignment agreement can also be applied by analogy in cases where the acquirer of rights under a consumer credit agreement pursues claims against banks.
Another example is the judgment of the Człuchów District Court of 7 May 2025 (case no. I C 175/24), which involved a dispute between an insurance company and a professional acquirer of claims for insurance compensation. The court dismissed the suit, finding that the plaintiff lacked standing. The reason for the finding of a lack of standing was the invalidity of the assignment agreement under Civil Code Art. 58 §2, under which a legal act contrary to public policy (“principles of social coexistence”) is invalid. The court pointed out that the assignment agreement was submitted without the annex that supposedly contained information about the acquisition price, so that the court could not assess whether there was an equivalence of consideration between the parties to the assignment agreement, or the plaintiff had set a grossly low price in relation to the claim it acquired. As stated in the judgment: “This fact, in the court’s assessment, is of great relevance. As the plaintiff acquired the claim under an assignment agreement from the immediate injured party, who was a consumer and held the claim against an insurance company, the court must first examine the issue of whether the consumer concluding the agreement for assignment of the claim was aware of the amount of further compensation she could pursue against the insurance company, whether she was informed by the professional entity involved in acquisition of such claims by assignment for the purpose of pursuing them before the court, and whether the price offered for acquisition of such claim constituted an appropriate equivalent for the consumer, taking into account the amount of the further compensation which the acquirer of the claim would pursue for itself (Civil Code Art. 3851), and consequently, whether the specific assignment agreement conflicts with the legal principle of full compensation for the immediate injured party (Civil Code Art. 58 in connection with Art. 361 and 363).”
Another reason for finding the assignment agreement invalid under Civil Code 58 §2 was that the attorney representing the consumer (the injured party) was also an employee of the acquirer of the claim (the plaintiff). Combined with the problem that the assignment agreement was largely “blank,” this meant that the attorney could establish on his own the terms of the assignment, without the knowledge or consent of the injured party.
The injured party had no true awareness of the content of the agreement, nor was informed how the assignment might impact the amount of compensation she was entitled to.
Summary
In C-80/24, Zwrotybankowe.pl sp. z o.o. v PKO Bank Polski S.A., the Court of Justice held that consumers have a right to sell their claims, and in the dispute between the acquirer of the claim and the bank the national court is not required to examine at its own initiative whether the assignment agreement contains unfair contract terms.
But the Court of Justice also stressed that if a party to the dispute, e.g. the bank, asserts a defence concerning the lawfulness of the terms of the assignment, then the national court may consider this defence in assessing whether the assignee has standing to file suit.
This means that in disputes between a bank and an acquirer of consumer claims, it is essential to closely analyse:
- The assignment agreement
- The set of claims
- The terms of the fee, and
- The method for setting the price.
Any imperfections in the documentation, or provisions contrary to the broad interests of the consumer, can affect the determination of whether the assignee has standing to sue. An example could be an acquisition price for the claim that is grossly low in relation to the value of the assignment, or a situation where the consumer was not duly informed of the amount of the claim sold and the consequences of the assignment.
Mateusz Kosiorowski, adwokat, Anna Szczęsna, Dispute Resolution & Arbitration practice, Wardyński & Partners
