# C_2019413EN.01001101.xml

| 9.12.2019 | EN | Official Journal of the European Union | C 413/11 |
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9.12.2019

EN

Official Journal of the European Union

C 413/11

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Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie — Poland) — Kamil Dziubak, Justyna Dziubak v Raiffeisen Bank International AG, prowadzący działalność w Polsce w formie oddziału pod nazwą Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA

(Case C-260/18) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Consumer contracts - Unfair terms - Mortgage loan indexed to a foreign currency - Term relating to arrangement of the exchange rate between the currencies - Effects of a declaration that a term is unfair - Whether it is possible for the court to remedy unfair terms by having recourse to general terms of civil law - Assessment of the consumer’s interests - Continued existence of the contract without unfair terms)

(2019/C 413/12)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicants: Kamil Dziubak, Justyna Dziubak

Defendant: Raiffeisen Bank International AG, prowadzący działalność w Polsce w formie oddziału pod nazwą Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA

Operative part of the judgment

| 1. | Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract. |
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1.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract.

| 2. | Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C-26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor. |
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2.

Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C-26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor.

| 3. | Article 6(1) of Directive 93/13 must be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract from being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree. |
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3.

Article 6(1) of Directive 93/13 must be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract from being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree.

| 4. | Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld. |
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4.

Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld.

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(1)  OJ C 259, 23.7.2018.

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