Judgment;Summary — ECLI:EU:C:2023:216
Date: 2023-03-16
Language of the case: Polish
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-6/22 – 1 
Case C-6/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
4 January 2022 
Referring court: 
Sąd Rejonowy dla Warszawy-Woli w Warszawie (Poland) 
Date of the decision to refer: 
19 May 2021 
Applicant: 
M.B. 
U.B. 
M.B. 
Defendant: 
X. S.A. 
  
Subject matter of the main proceedings 
A claim for repayment of sums paid in performance of a mortgage loan 
agreement, the amount of which was expressed in Polish currency indexed to a 
foreign currency (CHF). 
Subject matter and legal basis of the request 
Interpretation of EU law, in particular Article 3(1), Article 6(1), Article 7 and 
Article 8b of Council Directive 93/13/EEC; Article 19(3)(b) TEU and Article 267 
TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-6/22 
 
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Questions referred for a preliminary ruling 
a) Must Council Directive 93/13/EEC, in the light of its objective of protecting 
consumers against unfair terms in contracts with sellers or suppliers, be 
interpreted as meaning that, once a contract is declared invalid by a court under 
the rules of that directive, that directive, along with the protection of the 
consumer, ceases to apply and the rules governing settlement for the consumer 
and the seller or supplier must be sought under the national contract law 
governing the settlement of an invalid contract? 
b) In the light of Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 
on unfair terms in consumer contracts, where a court finds that the contractual 
term in question is unlawful and that the contract is not capable of continuing in 
existence after that term has been removed, in the absence of an agreement by the 
parties to fill the gap with clauses in accordance with their wishes and in the 
absence of supplementary provisions (directly applicable to the contract in the 
absence of an agreement by the parties), must that court declare the contract 
invalid on the basis of the wishes of the consumer who sought that declaration, or 
must the court examine, of its own motion, going beyond the form of order sought 
by the parties, the financial situation of the consumer in order to determine 
whether declaring the contract invalid would expose the consumer to particularly 
unfavourable consequences? 
c) Must Article 6 of Directive 93/13 be interpreted as meaning that, if the court 
comes to the conclusion that declaring the contract invalid would be particularly 
unfavourable to the consumer and, despite having been encouraged to do so, the 
parties fail to reach an agreement on the fulfilment of the contract, the court may, 
taking into account the objective interest of the consumer, fill the gap in the 
contract, created after the unfair terms have been ‘removed’ from it, not with rules 
of national law which are supplementary within the meaning of the judgment in 
Case C-260/18, that is to say, rules which are directly applicable to the gap in the 
contract, but with specific provisions of national law which can be applied to the 
contract in question mutatis mutandis or by analogy and which reflect a rule of 
national contract law? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 13 April 1993 on unfair terms in consumer 
contracts (‘Directive 93/13/EEC’): recitals 6 and 13; Article 1(2), Article 3(1), 
Article 6(1), Article 7(1) and Article 8b(1) 
Provisions of national law relied on 
Kodeks cywilny z dnia 23 kwietnia 1964 r. (tekst jednolity Dz. U. z 2020 r., 
pozycja 1740) (Civil Code of 23 April 1964, consolidated text, Dz. U. of 2020, 
item 1740) 
M.B. AND OTHERS 
 
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Article 5 
A right may not be exercised in a manner which would be contrary to its social 
and economic purpose or to the rules of social conduct. Any such act or omission 
by the entitled person shall not be treated as the exercise of the right and shall not 
be protected. 
Article 56 
A legal act shall give rise not only to the effects expressed therein, but also to 
those that arise from the law, from the rules of social conduct and from 
established customs. 
Article 5  
(1) A legal transaction which is contrary to the law or intended to circumvent the 
law shall be invalid, unless a relevant provision provides otherwise, in particular 
that the invalid terms of the legal act are to be substituted by relevant provisions 
of the law. 
(2) A legal transaction that is contrary to the rules of social conduct shall be 
invalid. 
(3) Where only part of the legal transaction is affected by the invalidity, the 
transaction shall remain in force as regards the remainder, except where 
circumstances show that without the terms affected by the invalidity the 
transaction would not be performed. 
Article 385 1 
(1) The terms of a contract concluded with a consumer which have not been 
individually agreed shall not be binding on the consumer if his or her rights and 
obligations are set forth in a way that is contrary to good practice and grossly 
infringes his or her interests (unfair contractual terms). This provision shall not 
apply to terms setting out the principal matters to be performed by the parties, 
including price or remuneration, so long as they are worded unambiguously. 
(2) If a contractual term is not binding on the consumer pursuant to § 1, the 
contract shall otherwise continue to be binding on the parties. 
(3) The terms shall be regarded as not having been agreed individually where the 
consumer did not have genuine influence on their content. This relates in 
particular to contractual terms taken from a standard contract proposed to a 
consumer by a contracting party. 
(4) The burden of proving that a term has been agreed individually shall lie with 
the person relying thereon. 
Article 405 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-6/22 
 
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A person who, with no legal basis, has obtained a material benefit at the expense 
of another person shall be obliged to release the benefit in kind and, where that is 
not possible, to return the value thereof. 
Article 406 
The obligation to release shall include not only the benefit directly obtained, but 
also everything that, in the event of disposal, loss or damage, was obtained in 
exchange for that benefit or as compensation for damage. 
Article 409 
The obligation to release the benefit or return the value thereof shall expire if the 
person who obtained that benefit has used or lost it in such a manner that he or she 
is no longer enriched, unless, by disposing or using that benefit, he or she should 
have expected that the obligation to return would ensue. 
Article 410 
(1) The provisions of the preceding articles shall apply in particular to undue 
performance. 
(2) A performance shall be undue if the person who rendered it was not under any 
obligation or was not under any obligation towards the person to whom he or she 
rendered the performance, or if the basis for the performance has ceased to exist 
or if the intended purpose of the performance has not been achieved or if the legal 
act on which the obligation to render the performance was based was invalid and 
has not become valid since the performance was rendered. 
 
Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (tekst 
jednolity Dz. U. z 2021 r., pozycja 1805) (Law of 17 November 1964 – Code of 
Civil Procedure, consolidated text, Dz. U. of 2021, item 1805). 
Articles 227 and 321 
 
Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Dz. U. 1997 Nr 140 poz. 939 z 
późn. zmianami) (Law of 29 August 1997 Banking Law, Journal of Laws [Dz. U.] 
of 1997, No 140, item 939, as amended) 
Article 69 (in the version applicable at the time of conclusion of the contract) 
(1) Under a loan agreement, the bank undertakes to place at the borrower’s 
disposal, for the period stipulated in the agreement, a certain amount of money 
allotted for a specified purpose, and the borrower undertakes to use that amount 
under the terms and conditions stipulated in the agreement, to return the amount of 
M.B. AND OTHERS 
 
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the loan used together with interest on set repayment dates, and to pay a 
commission fee on the loan granted. 
(2) A loan agreement should be concluded in writing and should, in particular, 
specify: 
1) the parties to the agreement; 
2) the loan amount and currency; 
3) the purpose for which the loan was granted; 
4) the loan repayment terms and dates; 
5) the loan interest rate and the conditions under which the interest rate may be 
changed; 
6) the manner of securing repayment of the loan; 
7) the scope of the bank’s rights related to monitoring use and repayment of the 
loan; 
8) the dates and manner of placing the funds at the borrower’s disposal; 
9) the amount of commission fee, if provided for in the agreement; 
10) the conditions governing amendment and termination of the agreement. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 4 June 2007 the applicants, as consumers, entered with the defendant bank into 
a mortgage loan agreement for the amount of PLN 339 881.92, indexed to a 
foreign currency (CHF), for the purchase of a residential property. The repayment 
of the loan with an interest rate based on the LIBOR was to be made in 
360 monthly instalments. The applicants repay it in Polish currency. 
2 In accordance with the wording of the agreement, the amount of the applicants’ 
liability is fixed as the equivalent of the required repayment expressed in CHF. 
The amount in foreign currency formed the basis for determining the borrower’s 
debt balance and for calculating interest, and subsequently the instalment 
amounts.. The amount of the liability was fixed as the equivalent of the required 
repayment expressed in CHF after its conversion at the currency selling rate 
specified in the Table of Exchange Rates created by the bank. The currency rate 
which forms the basis for the calculation of the instalments was specified by the 
bank in an unlawful manner, since the bank could unilaterally determine it and, 
therefore, it could unilaterally determine the applicants’ liability. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-6/22 
 
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The essential arguments of the parties in the main proceedings  
3 The applicants based their claim on the assertion that the mortgage loan agreement 
contains unlawful terms which, being unfair, do not bind the parties. The amount 
claimed by the applicants was indicated without legal basis, since the terms of the 
agreement used to determine the CHF exchange rate constituted unlawful 
contractual terms, which results in them being ineffective The agreement cannot 
therefore be fulfilled in that regard, which justifies the conclusion that the clause 
of the agreement concerning the indexation of the loan amount is also invalid. The 
amount of the claim was calculated as if the loan had been granted in Polish 
currency without indexation, but at the interest rate for a loan indexed to a foreign 
currency. The applicants also explained that they accept that the national court 
may declare the contract invalid. 
4 According to the applicants, the contractual clauses in § 9(2) and § 10(3) are 
unfair, since they allowed the bank to freely shape the indexation currency 
exchange rates and did not specify any rules for such shaping, thus enabling the 
bank to unilaterally determine the applicants’ obligations. Declaring those 
contractual clauses to be unlawful will preclude the determination of the 
indexation currency exchange rate. Therefore, the applicants submit that the terms 
concerning the indexation of the loan should be removed from the contract and the 
applicants’ due liability should be determined without the reference to the clauses 
concerning indexation, thus rendering the applicants liable to repay instalments as 
if it was a loan in PLN with an interest rate based on the LIBOR. 
5 The applicants also explained that they accept that the contract may be declared 
invalid by the Court on a preliminary basis. 
6 According to the defendant, such a framework for a loan in PLN indexed to a 
foreign currency falls within the framework of a bank loan and did not infringe 
Article 69 of the Banking Law. As regards the applicants’ argument that the 
contract should be settled on the basis of the interest rate applicable to the 
indexation currency, but as if the loan had been granted in Polish currency without 
indexation, the defendant contended that this would amount to creating a contract 
contrary to the parties’ intentions, which would be incompatible with the 
provisions of the law. The defendant also pointed out that the alleged unfairness of 
the contractual terms in the part providing for currency conversion at the rate in 
force at the defendant bank was misplaced, since the Bank applied the market 
exchange rates. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
The questions referred for a preliminary ruling aim to determine the correct 
procedure that the court should follow in applying the provisions of Directive 
93/13/EEC and the provisions of Polish law transposing that directive into the 
Polish legal order. 
M.B. AND OTHERS 
 
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The concept of a loan agreement indexed to a currency other than Polish currency 
only appeared in Polish law in 2011, with the amendment to the Banking Law. 
That legislation was limited to introducing the obligation to specify in the contract 
the detailed rules for determining the currency exchange rate on the basis of which 
the amount of the loan and the capital and interest instalments are calculated and 
the rules for converting them to the currency in which the loan is disbursed, as 
well as to enabling the borrower to repay the loan in foreign currency. The 
purpose of the ‘indexation of the loan amount’ was to apply the interest rate 
applicable to loans in the currency of indexation, which was significantly lower 
than the interest rate for loans in Polish currency. On the other hand, that 
indexation made the amount of the debt dependent on the currency exchange rate 
applicable on a given date. 
As regards the first question, according to the settled case-law of the Court, the 
system of protection introduced by Directive 93/13/EEC is based on the idea that 
the consumer is in a weak position vis-à-vis the seller or supplier, as regards both 
his or her bargaining power and his or her level of knowledge. This leads to the 
consumer agreeing to terms drawn up in advance by the seller or supplier without 
being able to influence their content (judgments: C-484/08 and C-70/17). 
The Court has also held that the objective of Directive 93/13/EEC consists in 
protecting the consumer and restoring the balance between the parties by not 
applying those contractual terms held to be unfair, whilst maintaining, in 
principle, the validity of the other terms of the agreement at issue (CJEU 
judgments C-96/16, C-94/17 and C-19/20). 
The Court of Justice of the European Union held, in Case C-260/18, that where a 
contract contains unlawful contractual terms, the rules of the directive are not 
intended to declare that the loan agreement is invalid but merely allow for that 
possibility. Accordingly, if the court finds that the conversion clauses are unfair 
and do not bind the parties from the outset, and filling that gap in the contract is 
necessary for the contract to continue as the parties intended, that gap in the 
contract may be filled in such a way that the judgment may contain the parties’ 
consensus as to the supplementing of the content of the contract. If no such 
consensus is reached, the gap created after a part of the contract is found to be 
unfair may be filled by the court with the supplementary provisions specified in 
the judgment, that is to say, provisions directly applicable to that type of contract 
(laid down by the national legislature for that purpose) in the absence of 
contractual rules to the contrary. If the contract is not supplemented as provided 
for above, the national court may declare the contract invalid. 
In the absence, in Polish law, as indicated by the referring court, of directly 
applicable, supplementary provisions that could fill that gap in the contract, the 
only alternative is to declare the contract invalid. In that case, it appears that the 
effects of such a declaration of invalidity should be sought under national law. In 
its judgment C-349/18, the Court, while examining a contract of carriage, held, by 
relying on Directive 93/13/EEC, that the consequences of such an invalidated 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-6/22 
 
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relationship do not fall within the scope of that directive, but within the scope of 
national law. 
The referring court notes in that context that the rules of national contract law are 
intended to preserve equality between the rights of both parties. The effects of 
such an invalidated contract under national law are defined by the rules governing 
undue performance and are not intended to establish equal losses for both parties, 
without regard for the need to protect one of the parties, that is to say, the 
consumer. 
Applying the rules of national law would mean that the ‘deterrent effect’ of the 
directive (Article 7 of the directive) would not be applied, since the provisions of 
national law do not provide for sanctions that can be applied by a court ruling on 
an individual case of a consumer relying on the unfairness of certain contractual 
terms. 
As regards the second question, if the answer to the first question is in the 
affirmative, there is a need to interpret the Court’s line of reasoning in cases 
which are based on Directive 93/13/EEC. 
In its judgment C-70/17 and judgment C-269/19, the Court indicated that the 
consequence of a declaration of invalidity with regard to a contract would be that 
the outstanding balance of the loan would become due forthwith and would be 
likely to be in excess of the consumer’s financial capacities. Such a situation can 
arise where the consumer has little or no savings and where the value of the 
property purchased has increased. 
In its judgment C-19/20, the Court pointed out that the invalidity of a contract 
cannot depend on an express request to that effect by a consumer, but should be a 
matter of objective application by the national court of the criteria established 
under national law. The applicable rules of procedure under Polish law provide 
that a ruling should be given in the context of the applicant’s claims and the 
allegations made against the defendant. They do not provide for a possibility for 
the court to examine factual circumstances which are not relied on by any of the 
parties. The question to be decided is whether the national court, having instructed 
the consumer on the consequences of a finding that the contract is invalid, should 
rely on the course of action resulting from the pleas made by the parties and 
restrict itself to evidence submitted by them or whether, in order to determine 
objectively whether the invalidity of the contract would expose the consumer to 
particularly unfavourable consequences, the national court may determine the 
consumer’s financial situation on its own initiative. 
As regards the third question, where a national court finds, having regard to the 
criteria laid down in Articles 3 and 5 of Directive 93/13/EEC, that, in the light of 
the particular circumstances of the case, a term in a contract between a seller or 
supplier and a consumer does not meet the requirements of good faith, balance 
and transparency, thus constituting an unfair term of the contract, and is invalid by 
M.B. AND OTHERS 
 
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operation of law, the court may not, pursuant to Article 6(1) of the directive, 
modify that contract by revising that term (judgments: C-618/10, C-26/13, 
C-70/17). 
In its judgment C-125/18, the Court held that if it were open to the national court 
to revise the content of unfair terms, such a power would be liable to compromise 
attainment of the long-term objective of Article 7 of Directive 93/13/EEC. This 
would contribute to eliminating the dissuasive effect on sellers or suppliers of the 
straightforward non-application with regard to the consumer of those unfair terms, 
in so far as those sellers or suppliers would still be encouraged to use those terms 
in the knowledge that, even if they were declared invalid, the contract could 
nevertheless be modified, to the extent necessary, by the national court in such a 
way as to safeguard the interest of those sellers or suppliers. 
In its judgment C-260/18, the Court pointed out that, exceptionally, a gap in a 
contract, created as a result of the declaration of invalidity of unfair contractual 
terms, may be replaced by supplementary provisions, established by the national 
legislature for the contracts in question, in order to preserve the balance between 
the rights and obligations of the parties to the contract; only such provisions are 
covered by the presumption that they are fair. 
The referring court points out that such provisions, which could be applied 
directly to the contract, do not exist in the Polish legal system. 
In that judgment, the Court indicated that Article 6 of Directive 93/13/EEC 
precludes the gap in the 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 by the effects arising from the principle of 
equity or from established customs. 
In its judgment of 25 November 2020, C-269/19, the Court stated that, where the 
national court takes the view that the agreement at issue cannot, in accordance 
with contract law, legally continue to exist after the unfair terms in question have 
been removed, and where there are no supplementary provisions of national law 
and where the consumer has not expressed his or her wish to retain the unfair 
clauses, and/or annulling the contract would expose the consumer to particularly 
unfavourable consequences, the system of consumer protection established in 
Directive 93/13/EEC demands that, in order to restore the effective balance 
between the reciprocal rights and obligations of the parties, the national court 
must, while taking into account all of its national law, take all the measures 
necessary to protect the consumer from the particularly unfavourable 
consequences which could result from the annulment of the loan agreement in 
question (paragraph 41). 
The referring court asks the Court about the correct interpretation of Directive 
93/13/EEC in a situation where it is not possible to achieve both objectives, that is 
to say, which of the objectives of the directive is more important, the protection of 
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the consumer, including protection against the unfavourable effects resulting from 
declaring the contract invalid, or the achievement of a deterrent effect on a seller 
or supplier, that is to say, a ‘sanction’ which precludes the contract from being 
filled by rules of national law which are not supplementary within the meaning 
attributed to that concept by the Court in its judgment C-260/18.