# C_2020304EN.01000601.xml

| 14.9.2020 | EN | Official Journal of the European Union | C 304/6 |
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14.9.2020

EN

Official Journal of the European Union

C 304/6

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Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie (Poland) lodged on 12 May 2020 — M.P., B.P. v ‘A.’ operating through ‘A.’ S.A.

(Case C-212/20)

(2020/C 304/08)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Woli w Warszawie

Parties to the main proceedings

Applicants: M.P., B.P.

Defendant:‘A.’ operating through ‘A.’ S.A.

Questions referred

| 1. | In the light of Articles 3(1), 4(1) and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) and its recitals, pursuant to which contracts must be drafted in plain and intelligible language and doubts must be interpreted in the consumer’s favour, must a contractual term setting out the buying and selling rates of a foreign currency in a loan agreement indexed to a foreign currency be worded unequivocally, that is to say, in a manner that enables the borrower/consumer to determine that rate himself on any given day, or, in the light of the type of contract as referred to in Article 4(1) of Directive 93/13, the long-term nature (spanning several decades) of the contract and the fact that the amount in foreign currency is subject to constant changes (may change at any time), is it possible to formulate a more general wording of the contractual term, that is to say, one that refers to the market value of the foreign currency, in a manner which prevents a significant imbalance in the parties’ rights and obligations to the detriment of the consumer within the meaning of Article 3(1) of that directive? |
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1.

In the light of Articles 3(1), 4(1) and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) and its recitals, pursuant to which contracts must be drafted in plain and intelligible language and doubts must be interpreted in the consumer’s favour, must a contractual term setting out the buying and selling rates of a foreign currency in a loan agreement indexed to a foreign currency be worded unequivocally, that is to say, in a manner that enables the borrower/consumer to determine that rate himself on any given day, or, in the light of the type of contract as referred to in Article 4(1) of Directive 93/13, the long-term nature (spanning several decades) of the contract and the fact that the amount in foreign currency is subject to constant changes (may change at any time), is it possible to formulate a more general wording of the contractual term, that is to say, one that refers to the market value of the foreign currency, in a manner which prevents a significant imbalance in the parties’ rights and obligations to the detriment of the consumer within the meaning of Article 3(1) of that directive?

| 2. | If the answer to the first [question] is in the affirmative, in the light of Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and its recitals, it is possible to interpret a contractual term concerning the determination by the creditor (bank) of the buying and selling rates of a foreign currency in such a manner as to resolve doubts in the consumer’s favour and to assume that the contract determines the buying and selling rates of a foreign currency not in an arbitrary manner, but on free-market terms, especially if both parties had the same understanding of the contractual terms determining the buying and selling rates of the foreign currency or if the borrower/consumer was not interested in the disputed contractual term at the time of conclusion of the contract and during its performance, and was also not familiar with the content of the contract at the time of its conclusion and throughout its duration? |
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2.

If the answer to the first [question] is in the affirmative, in the light of Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and its recitals, it is possible to interpret a contractual term concerning the determination by the creditor (bank) of the buying and selling rates of a foreign currency in such a manner as to resolve doubts in the consumer’s favour and to assume that the contract determines the buying and selling rates of a foreign currency not in an arbitrary manner, but on free-market terms, especially if both parties had the same understanding of the contractual terms determining the buying and selling rates of the foreign currency or if the borrower/consumer was not interested in the disputed contractual term at the time of conclusion of the contract and during its performance, and was also not familiar with the content of the contract at the time of its conclusion and throughout its duration?

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(1)  OJ 1993 L 95, p. 29, Special edition in Polish: Chapter 15 Volume 002 P. 288 — 293.

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