Pursuit of Claims Against Consumers on the Grounds of a Promissory Note – Comments on the Court of Justice of the European Union’s Judgment of 13 September 2018 in Case C–176/17

Abstract

It seems that the extraordinary appeal is the only appropriate measure to revoke an order for payment to ensure compliance with the principle of a democratic state ruled by law and implementing the rules of social justice. Taking into account the position of the Constitutional Tribunal based on Article 76 of the Constitution, in accordance with the CJEU’s interpretation of Directive 31/13 in the case C–176/17 and expressed in its ruling of 11 July 2011, P 1/10, the Supreme Court’s judicature stresses that, “the consumer has a weaker procedural position because he is in a dispute with a professional entity.” Therefore, in addition to the provisions of the Code of Civil Procedure, the court conducting promissory note proceedings against consumers must also apply provisions aimed at consumer protection of its own motion. Thus, by disregarding other factors and limiting itself only to the formal verification of whether the submitted promissory note has been duly completed and its contents and truthfulness do not give rise to any doubts, the adjudicating court does not fulfill its obligation under Article 76 of the Polish Constitution in connection with the provisions of Article 7(1) of Directive 93/13. Meanwhile, it should of its own motion examine whether the provisions agreed between the parties are just and fair.