The bankruptcy judge can also review abusive clauses in bankruptcy proceedings.
The Court of Justice of the European Union (CJEU) has once again made a move in the field of insolvency.
In its recent judgment of 3 July 2025 (case C-582/23) , the Court establishes that the bankruptcy judge is empowered to examine on his own initiative the possible unfairness of contracts entered into by the debtor before the bankruptcy proceedings.
And, if it deems it necessary, it may also adopt provisional measures to protect the bankrupt.
A preliminary question from Poland, echoed throughout Europe
The case comes to the CJEU from Poland.
A private individual in bankruptcy proceedings had among his creditors a financial institution with a mortgage loan indexed to foreign currencies.
Although that debt had already been acknowledged, the bankruptcy judge detected possible abusive clauses in the contract.
The question was: can that judge assess the validity of those clauses ex officio, even if the list of creditors has not been challenged?
The CJEU's answer is clear: yes , it can and must do so.
Consumer protection, also in competition
The Court recalls that Directive 93/13/EEC obliges national courts to review ex officio unfair terms in consumer contracts, even if there are previous final decisions.
This obligation extends to insolvency proceedings , since consumer protection does not cease due to the fact that the consumer is insolvent.
Furthermore, if necessary to guarantee that protection, the judge may adopt precautionary measures , such as suspending executions or limiting seizures, until the matter is resolved on its merits.
Keys for legal professionals and companies
This ruling forces a reconsideration of several aspects of insolvency practice:
- The contest judge is not absolutely bound by the final list of creditors if there are indications of contractual abuse.
- potentially void clauses can be reviewed even without a request from a party.
- Businesses Creditors must take extreme care in drafting their contracts, especially if the debtor is a consumer.
- In competitions with elements of best before date, The bankruptcy administrator must facilitate the analysis of the contractual conditions.
A new tool for defense in competition
The CJEU ruling reinforces the role of the judge as guarantor of contractual balance , also within the insolvency proceedings.
Companies acting as creditors must review their contractual practices and anticipate potential challenges, while debtors in vulnerable situations find an additional avenue for defense.
In a scenario where personal bankruptcy is becoming increasingly common , these types of resolutions open the door to reviewing clauses that were previously considered consolidated.
For companies, law firms, and insolvency administrators, it is important not to overlook this change in jurisprudence.
Do you need advice?
At RRYP Global, we have a team of bankruptcy and consumer protection lawyers.
We can help you with:
- Review contractual clauses to detect possible risks of abuse.
- Advising bankruptcy administrators in the detection and communication of abusive clauses.
- Represent creditors and debtors in challenge proceedings.
- Adapt contracts and business practices to the current European and national regulatory framework.
- Design effective procedural strategies in situations of vulnerability of the bankrupt.
Our approach combines legal knowledge, procedural experience, and a preventive approach that provides security and solidity to each case.
RRYP Global, international insolvency lawyers.
