In Poland, R.S. took out a mortgage loan. The loan, provided by a Polish bank (G SA), was indexed in Swiss francs and was taken out by R.S. in 2007. The total amount was 489,821.63 Polish zloty (around US $ 135,000; Euro: 115.110), with a term of 360 months. R.S. was declared personally insolvent by a Polish insolvency court in October 2019 and an insolvency practitioner (IP) was subsequently appointed.
The IP drew up a list of claims, which was approved by the supervisory judge. This list became binding on the insolvency court, meaning the court – under national Polish law – did not have jurisdiction to assess any possible unfair contract terms. Preliminary questions were submitted to the CJEU. The Polish court questioned whether a national regime that prevents the court from assessing the risks of unfair terms ex officio, once a list of claims has been approved, is compatible with Directive 93/13/EEC on unfair terms in consumer contracts – in particular Articles 6(1) and 7(1)).
Article 6(1) of Directive 93/13/EEC provides that national courts must assess the abusiveness of contract terms ex officio and not only at the request of the consumer. And Article 7(1) declares that unfair terms are not binding on the consumer. In short: must an insolvency judge assess ex officio under all circumstances whether there are unfair terms in a contact that is binding on a debtor (natural person or consumer) and, if so, can he also take interim measures to temporarily protect the consumer’s position?
In its ruling of July 2025, the CJEU confirmed the existence of such an ex officio assessment. National insolvency courts must assess ex officio whether contractual terms are unfair, even if the list of claims has already been declared binding and approved. If the assessment can only be carried out through the supervisory court, the CJEU noted that would lead to delays in the insolvency proceedings. However, the CJEU continued, that would hinder effective judicial protection and potentially discourage consumers from exercising their EU rights, which would violate the principle of effectiveness of EU law.
According to the CJEU, the fact that the list of claims is final does not absolve the insolvency court from the obligation to examine the unfairness of terms. Consumer protection – as a public interest – takes precedence. The CJEU then ruled that, in addition, the insolvency court must have the power to take interim measures while the assessment of the contractual terms is ongoing, guaranteeing protection for consumers regarding their (precarious) financial situation.
The relationship between consumer law and insolvency law has been dealt a blow. National rules that prevent the insolvency court from assessing unfair terms and imposing certain interim measures are incompatible with EU law. After referral, the national court must reopen the case: this means the insolvency court must reassess the loan terms, including any unfairness and its consequences (such as debt reduction or extinguishment).
In summary, EU consumer law does allow an insolvency court to assess whether the terms of a credit agreement on which a list of claims submitted in the insolvency proceedings are based are unfair. Nor should national insolvency legislation prevent the court from amending the list. It must be able to suspend the proceedings and refer the assessment of the potentially unfair nature of the contractual terms to the appropriate court. National insolvency law must also allow the court, if the agreement has not been examined for unfairness, to order interim measures to improve the insolvent person’s situation pending a decision to close the investigation into the unfairness of the terms in a credit agreement on which a claim is based. It is up to the court’s discretion to assess whether a measure to reduce the amounts withheld from the insolvent consumer’s salary, pending a decision on the unfairness of the clauses of the contract in question, is necessary for that purpose.
The judgment underscores the importance of effective legal protection in insolvency situations, and above all, confirms that consumer rights must not be undermined by procedural obstacles.
This is not just another ordinary ruling.
In Poland, in around 2010, over 700,000 mortgages in Swiss francs (CHF) were outstanding, totalling over 150 billion Polish zloty (US $ 41 billion; 35 billion euros) in loans. The much lower Swiss interest rate was naturally attractive to Polish consumers, so monthly payments were lower, and many Poles bought homes that would have been unaffordable with a Polish loan. Polish banks promoted such “Swiss” loans.
But a doomsday scenario is now slowly emerging. After the 2008 global financial crisis and the Swiss central bank’s decision in 2015 to abolish the minimum exchange rate of CHF/EUR, the Swiss franc rose sharply. Polish households saw their monthly payments and total debt rise dramatically. This naturally led to social unrest and legal disputes with banks in Poland. The CJEU’s ruling will therefore have a profound effect in Poland, but certainly also in other member states.
That brings me to a second point. I don’t rule out that many national insolvency laws currently don’t offer the flexibility the CJEU prescribes for consumers. Should national legislators be granted a short period to bring their insolvency laws into line with the current requirements of consumer law? Or does this ruling already take effect immediately?
Reference
Court of Justice of the EU, July 3, 2025, Case-582/23 (Wiszkier); ECLI:EU:C:2025:518.
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on 11 September 2025. See www.globalrestructuringreview.com.