# C_2023296EN.01001801.xml

| 21.8.2023 | EN | Official Journal of the European Union | C 296/18 |
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21.8.2023

EN

Official Journal of the European Union

C 296/18

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Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 10 May 2023 — AJ v Bank BPH S.A.

(Case C-301/23, Bank BPH)

(2023/C 296/20)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicant: AJ

Defendant: Bank BPH S.A.

Questions referred

| 1. | Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) and the principle of effectiveness, be interpreted as precluding a judicial interpretation of national legislation pursuant to which a consumer may not effectively seek a declaration from a court that a contract concluded by him or her contains contractual terms which are not binding on him or her or that that contract is invalid in its entirety? |
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1.

Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) and the principle of effectiveness, be interpreted as precluding a judicial interpretation of national legislation pursuant to which a consumer may not effectively seek a declaration from a court that a contract concluded by him or her contains contractual terms which are not binding on him or her or that that contract is invalid in its entirety?

| 2. | Are Articles 4(2) and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts to be interpreted as meaning that the requirement that the contractual terms be drafted in plain, intelligible language is satisfied in relation to a credit agreement linked to a foreign currency exchange rate in the case where the bank has provided the borrower with:






  — | a historical chart of the exchange rate of that foreign currency against the national currency showing that that exchange rate has changed by several dozen percentage points over several years, and |
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2.

Are Articles 4(2) and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts to be interpreted as meaning that the requirement that the contractual terms be drafted in plain, intelligible language is satisfied in relation to a credit agreement linked to a foreign currency exchange rate in the case where the bank has provided the borrower with:

—

a historical chart of the exchange rate of that foreign currency against the national currency showing that that exchange rate has changed by several dozen percentage points over several years, and

| — | a simulation showing the effect of an increase of several dozen percentage points in the exchange rate of the foreign currency on the amount of the loan instalments? |
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a simulation showing the effect of an increase of several dozen percentage points in the exchange rate of the foreign currency on the amount of the loan instalments?

| 3. | Must Articles 4(2) and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that the requirement that the contractual terms be drafted in plain, intelligible language should be analysed against the model of the average consumer, or should the individual situation and characteristics of the consumer at the time of the conclusion of the contract be taken into account, including, in particular, his or her knowledge, education and experience? |
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3.

Must Articles 4(2) and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that the requirement that the contractual terms be drafted in plain, intelligible language should be analysed against the model of the average consumer, or should the individual situation and characteristics of the consumer at the time of the conclusion of the contract be taken into account, including, in particular, his or her knowledge, education and experience?

| 4. | Must Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that a contractual term which provides that the margin applied by a bank is to be the arithmetic mean of the margins applied by several other specifically named commercial banks is contrary to the requirement of good faith and causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer? |
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4.

Must Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that a contractual term which provides that the margin applied by a bank is to be the arithmetic mean of the margins applied by several other specifically named commercial banks is contrary to the requirement of good faith and causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer?

| 5. | Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principle of effectiveness, be interpreted as precluding a judicial interpretation of national legislation pursuant to which the national court may declare that the consumer is not bound only by the unfair element of the contractual term (providing for modification of the average rate of the National Bank of Poland by a spread margin), which does not constitute a separate contractual obligation, but that he or she is bound by the rest of that contractual term? |
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5.

Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principle of effectiveness, be interpreted as precluding a judicial interpretation of national legislation pursuant to which the national court may declare that the consumer is not bound only by the unfair element of the contractual term (providing for modification of the average rate of the National Bank of Poland by a spread margin), which does not constitute a separate contractual obligation, but that he or she is bound by the rest of that contractual term?

| 6. | Must Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that the obligation on the national court to inform the consumer of the legal consequences which the declaration of invalidity of a contract may have covers only claims for restitution arising from the invalidity of the contract or as meaning that that obligation covers any hypothetical legal consequences (even if they are doubtful, debatable or unlikely) which may result from the invalidity of the contract? |
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6.

Must Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be interpreted as meaning that the obligation on the national court to inform the consumer of the legal consequences which the declaration of invalidity of a contract may have covers only claims for restitution arising from the invalidity of the contract or as meaning that that obligation covers any hypothetical legal consequences (even if they are doubtful, debatable or unlikely) which may result from the invalidity of the contract?

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(1)  OJ 1993 L 95, p. 29.

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