As consumer law remains under-enforced, it becomes all too common for consumers to assign their claims to third-party claim management companies, which typically operate on a contingency basis and take a percentage of the amounts successfully recovered. In Case C‑80/24, the consumer assigned their claim against a bank to Zwrotybankowe.pl, one such claim management company, which would retain 50% of the recovered amounts as remuneration. The assigned claim arose under Art. 30(1) of the Polish Law on Consumer Credit, which implements Art. 23 of the Consumer Credit Directive 2008 and imposes a penalty for the bank’s failure to comply with information obligations. In a proceeding brought by Zwrotybankowe.pl against the creditor bank, questions arose as to the assignability of the consumer claim in question and the court’s duty to assess the assignment agreement ex officio under the Unfair Terms Directive.
The first question concerns whether the Consumer Credit Directive precludes the assignment of consumer claims thereunder. This is because Art. 22(2) of said Directive prohibits the consumer from waiving their rights under it. A broad interpretation of this provision could suggest that consumers cannot assign claims arising under the Directive to third-party companies that make a profit from these legitimate claims (paras 13-14). However, the CJEU rejected such an interpretation. In particular, it drew an analogy with its reasoning in Case C‑11/23 concerning Art. 15 of Regulation (EC) No 261/2004, which similarly provides an ‘exclusion of waiver’. In that case, the airline’s general conditions included a prohibition of the transfer of passenger rights, in particular the right to compensation. The Court disallowed such a prohibition, in order ‘to ensure a high level of protection for air passengers and to enable [consumers] effectively to exercise their rights’, including ‘the freedom to choose the most effective way in which to defend his or her right’, such as ‘to transfer his or her claim to a third party in order to spare him- or herself difficulties and costs that might deter him or her from taking steps personally in relation to that carrier with the prospect of a limited financial return’ (para 27). Based on an analogous reasoning rooted in the rationale of weaker party protection, the Court held that Art. 22(2) of the Consumer Credit Directive likewise does not preclude the assignment of consumer claims arising under the Directive.
The second question goes on to ask: if the claim is assignable, should courts assess the unfairness of the assignment agreement ex officio – when the dispute before them arises from a different contract, namely the credit agreement? Recalling its case law on ex officio review under the Unfair Terms Directive, the Court confirmed that such a duty is limited to ‘the subject matter of the dispute’ (para 38). In this case, the assignment agreement ‘does not come within the limits of the subject matter of the dispute before it’ and therefore falls outside the ex officio review obligation under EU law (para 40). Moreover, since the consumer was not a party to the proceedings, the imbalance between a consumer and a trader, which justifies ex officio intervention, was also absent (paras 41-43). Accordingly, the Court concluded that the Unfair Terms Directive does not require national courts to assess the assignment agreement ex officio in such circumstances. Finally, the Court added that, where national law does allow such an ex officio review, the principle of effectiveness should serve to safeguard consumers’ procedural rights (para 46).
The reasoning in Zwrotybankowe.pl seems to give away a rather permissive stance towards third-party enforcement of consumer claims. Given that many instruments within the EU consumer acquis contain comparable prohibitions on waiver, one may ask whether the Court’s analogy extends to those regimes as well. Sure, consumers should have the freedom to spare themselves from the ‘difficulties and costs’ of private enforcement, but how much should they pay for such convenience? And if these ‘difficulties and costs’ stem from a systematic failure in consumer enforcement, is the privatisation of enforcement – and the shifting of its costs to consumers whose rights have been infringed in the first place – really the right call?
