Information;Order — ECLI:EU:C:2024:453
Date: 2024-05-30
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-325/23 – 1 
Case C-325/23 
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: 
25 May 2023 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
27 October 2022 
Applicants: 
JF 
OP 
Defendant: 
Deutsche Bank Polska S.A. 
  
Subject matter of the main proceedings 
Reference for a preliminary ruling – Directive 93/13 – Article 3(1) and (2) – 
Contractual terms which have not been individually negotiated – Article 4(1) and 
(2) – Terms in plain intelligible language – Article 3(1) – Significant imbalance in 
rights and obligations arising under the contract, to the detriment of the 
consumer – Article 6(1) – Unfair terms in consumer contracts 
Subject matter and legal basis of the request 
The request for a preliminary ruling from the Sąd Okręgowy w Warszawie 
(Regional Court, Warsaw, Poland) (‘the referring court’), pursuant to Article 267 
TFEU, seeks an interpretation of Article 3(1) and (2), Article 4(2) and Article 6(1) 
of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (‘Directive 93/13’). 
EN 
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Questions referred for a preliminary ruling 
1. Should a term relating to the amount of a loan in foreign currency, which, 
such as that at issue in the main proceedings, has been created by converting the 
amount, in domestic currency, of the loan applied for by the consumer at an 
exchange rate established unilaterally by the bank before the conclusion of the 
agreement, be regarded as a contractual term which has not been individually 
negotiated within the meaning of Article [3](1) and (2) of Directive 93/13? 
If the term relating to the amount of the loan is regarded as not having been 
individually negotiated: 
2. Should Article 4(2) of Directive 93/13 be interpreted as meaning that the 
lack of information about the addition of an exchange rate spread to the amount of 
the loan in foreign currency forming part of a contractual term, such as that at 
issue in the main proceedings, constitutes a standalone condition which precludes 
that term from being regarded as drafted in plain intelligible language or is it 
necessary, for the purposes of the assessment of that term, to include an 
explanation of the exchange rate risk in accordance with paragraph 2 of the 
judgment of the Court of Justice in Case C-186/16? 
3. Should Article 3(1) of [Directive 93/13] be interpreted as meaning that the 
inclusion of a freely formed exchange rate spread in the amount of a loan in 
foreign currency forming part of a contractual term, such as that at issue in the 
main proceedings – thereby increasing the interest rate base and, consequently, the 
actual cost of the loan – constitutes a significant imbalance in rights and 
obligations arising under the contract, to the detriment of the consumer? 
4. Should Article 6(1) of Directive 93/13 be interpreted as not precluding a 
finding that a loan agreement denominated in foreign currency, such as that at 
issue in the main proceedings, is void on the grounds that the term relating to the 
amount of the loan is unfair, even if the terms concerning the drawdown and 
repayment of the loan in domestic or foreign currency are not unfair? 
Provisions of European Union law and case-law relied on 
Article 3(1) and (2), Article 4(2) and Article 6(1) of Directive 93/13. 
Judgments of 16 January 2014, Constructora Principado (C-226/12, 
EU:C:2014:10); of 30 April 2014, Kásler and Káslerné Rábai (C-26/13, 
EU:C:2014:282) (‘the judgment in Case C-26/13’); of 20 September 2017, 
Andriciuc and Others (C-186/16, EU:C:2017:703) (‘the judgment in Case 
C-186/16’); of 20 September 2018, OTP Bank and OTP Faktoring (C-51/17, 
EU:C:2018:750); of 3 October 2019, Dziubak (C-260/18, EU:C:2019:819); of 
10 June 2021, BNP Paribas Personal Finance (C-776/19 to C-782/19, 
EU:C:2021:470); of 18 November 2021, A. S.A. (C-212/20, EU:C:2021:934) (‘the 
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judgment in Case C-212/20’); and of 30 June 2022, Profi Credit Bulgaria 
(Offsetting ex officio in the event of an unfair term) (C-170/21, EU:C:2022:518). 
Provisions of national law relied on 
1. Article 3581 § 1 of the ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny 
(Law of 23 April 1964 establishing the Civil Code) (consolidated text Dz. U. of 
2020, item 1740) (‘the Civil Code’): 
‘Where the subject matter of the obligation is, from its inception, a sum of money, 
performance shall be effected by payment of a nominal sum, unless otherwise 
stated in a specific provision’. 
Article 3851 of the Civil Code: 
‘§ 1. Terms of a contract concluded with a consumer which have not been 
individually negotiated 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 (unlawful terms). This shall not apply to terms setting 
out the principal performances to be rendered by the parties, including those 
relating to price or remuneration, so long as they are worded clearly. 
§ 2. If a contractual term is not binding on the consumer pursuant to paragraph 1, 
the contract shall otherwise continue to be binding on the parties. 
§ 3. The terms of a contract which have not been individually negotiated are those 
over the content of which the consumer had no actual influence. This shall refer 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 negotiated individually shall lie 
with the person relying thereon’. 
Article 405 of the Civil Code: 
‘Any person who, without legal grounds, obtains an economic advantage at the 
expense of another person shall be required to restore that advantage in kind and, 
where that is not possible, to return the value thereof’. 
Article 410 of the Civil Code: 
‘§ 1. The provisions of the preceding articles shall apply in particular to undue 
performance. 
§ 2. A performance is undue if the person who rendered it was not under any 
obligation at all 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 
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legal act on which the obligation to render the performance was based was invalid 
and has not become valid since the performance was rendered’. 
2. Article 69 of the ustawa z dnia 29 sierpnia 1997 r. – Prawo bankowe 
(Banking Law of 29 August 1997) (‘the Banking Law’) (consolidated text Dz. U. 
of 2022, item 2324): 
‘1. Under a loan agreement, a bank shall undertake to make available to the 
borrower, for the period stipulated in the agreement, an amount of money intended 
for a specified purpose, and the borrower shall undertake to use that money on the 
terms laid down in the agreement, to repay the amount of the loan used, plus 
interest, on specific reimbursement dates and to pay a commission on the loan 
granted. 
2. The loan agreement must be drawn up in writing and specify, inter alia: 
(1) the parties to the agreement; 
(2) the amount and currency of the loan; 
(3) the purpose for which the loan was granted; 
(4) the terms and date of reimbursement of the loan; 
(4a) in the case of a loan agreement denominated in, or indexed to, a currency 
other than the Polish currency, detailed rules laying down the methods for, and 
dates of, determination of the exchange rate on the basis of which, in particular, 
the amount of the loan, its tranches, and capital and interest payments are 
calculated as well as the rules for converting amounts into the currency in which 
the loan was drawn down or is being repaid; 
(5) the rate of interest payable on the loan and the conditions for changing it; 
(6) the security for reimbursement of the loan; 
(7) the scope of the bank’s powers as regards monitoring the use and 
reimbursement of the loan; 
(8) the dates on which and the manner in which the money is made available to 
the borrower; 
(9) the amount of the commission, if provided for in the agreement; 
(10) the conditions under which the agreement may be amended and terminated. 
3. In the case of a loan agreement denominated in, or indexed to, a currency other 
than the Polish currency, the borrower may make capital and interest payments 
and repay the loan early, in full or in part, directly in that currency. In this case, 
the loan agreement shall also set out the rules for opening and maintaining the 
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account in which funds intended for repayment of the loan are accumulated and 
the rules for making payments using that account’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 18 December 2006, the applicants applied to the defendant bank for a loan of 
200 000 zlotys (PLN) in Swiss francs (CHF), with a term of 15 years, for the 
purchase of building land. At the time of concluding the agreement, they signed a 
declaration that, having familiarised themselves with the terms on which the loan 
was granted in both PLN and CHF, and with the illustrations of the amount of the 
monthly repayment instalments to be paid in Polish and foreign currency, they 
were aware of the foreign exchange risk associated with taking out a loan in a 
foreign currency which could affect the amount of loan repayment instalments 
paid during the term of the loan, and had decided to take out the loan in CHF. 
2 The bank’s staff informed the borrowers of the risks in accordance with the 
recommendation of the Polish Banking Supervisory Authority. The information 
included, in particular, a comparison of the amount of the loan repayment 
instalments in CHF at the current rate. 
3 After accepting the applicants’ application the day before the conclusion of the 
agreement (31 January 2007), the bank set the amount of the loan in CHF on the 
basis of its current buy rate (PLN 2.3528), rounding it up to the nearest ten CHF. 
The bank’s buy rate was lower than the interbank market rate and the average 
central bank rate, as it included the buy spread. At the meeting, the borrowers 
were handed a contract for the previously prepared amount of the loan – 
CHF 85 010 – which was no longer subject to further negotiations. 
4 The parties to the main proceedings concluded a mortgage loan agreement on 
1 February 2007. The applicants are borrowers and concluded the agreement as 
consumers. The defendant is the legal successor of the bank which granted the 
loan. 
5 The bank granted the applicants a foreign currency-denominated loan of 
CHF 85 010. The amount of the loan and the amount of the repayment instalments 
were calculated in CHF. The rate of interest on the loan was linked to the LIBOR 
(CHF) rate. 
6 On 8 February 2007, the applicants requested drawdown of the loan in PLN and 
received PLN 197 960.76 as the product of the amount of the loan and the bank’s 
buy rate on the day of the drawdown (PLN 2.3255). The bank deducted an agreed 
commission of 1% of the loan from the amount drawn down. 
7 The loan was repayable in PLN, with the repayment instalments calculated in 
CHF being multiplied by the bank’s selling rate in force two business days before 
the date on which each repayment instalment was to be paid. The agreement also 
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indicated the CHF account for early repayment of the loan. It was possible to pay 
repayment instalments in CHF with the bank’s agreement. 
8 The applicants repaid the loan in full by 4 November 2019 in the amount of 
PLN 323 240.87, which included repayment of the capital (PLN 291 258.87). 
9 On 31 January 2020, they brought an action before the referring court against the 
bank demanding the repayment of all the amounts paid. They claim damages in 
the amount of PLN 324 102.37 by way of reimbursement for performances 
rendered under the agreement. 
The essential arguments of the parties in the main proceedings 
10 The applicants claim that the conversion terms are unfair and that the removal of 
those terms would render the contract void. More specifically, they argue that the 
contractual terms concerning exchange rate conversions from CHF to PLN are 
unfair and that, as a result of their removal, the contract could not be performed 
and should therefore be declared void. 
11 The defendant bank contends that the action should be dismissed and argues that 
the terms of the contract were not unfair, in particular because the CHF/PLN 
conversions were not necessary, since the loan could be drawn down and repaid 
directly in CHF. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The questions which the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, 
Poland) has referred for a preliminary ruling arise from the acceptance of the 
following assumptions resulting from national law: 
– the effect of the inclusion in a contract of prohibited contractual terms 
containing the amount and currency of the loan and of the exclusion of 
those terms from the contract is that the entire contract is not capable 
of continuing in existence, amounting to the contract being void under 
national law (Article 3851 of the Civil Code, Article 69(1) and (2) of 
the Banking Law); 
– the basis of a claim for reimbursement of performances rendered is 
Article 410 of the Civil Code, which provides for the obligation to 
reimburse a performance rendered and not due – in particular, a 
performance that has been rendered on the basis of an invalid legal act 
requiring the rendering of such a performance. 
13 The referring court has stated that an unfair clause is ineffective from the outset 
and by law, and that it is required to consider this ex officio on the basis of the 
material findings made during the proceedings. However, a consumer who is 
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aware of the unfair nature of a term may give his or her consent to that term both 
during a dispute before a court and by extrajudicial means, but, in both cases, it 
will be effective only if he or she has been fully informed of the legal 
consequences which the definitive ineffectiveness (nullity) of that term may 
entail. From the day of the refusal to approve a clause without which a loan 
agreement cannot be binding, either that agreement is suspended if the waiting 
period for approval has expired and it becomes definitively ineffective (void), or, 
if the conditions for it to be upheld on the basis of an alternative regulation are 
satisfied, it becomes retroactively effective in a form which covers that alternative 
regulation. 
14 In the course of the proceedings, the referring court has informed the parties that it 
regards the contractual term providing for the loan to be granted in CHF and 
laying down the obligation to repay it at the subsequent exchange rate as unfair. 
According to that court, a contractual term worded in that way constitutes a term 
defining the principal performances to be rendered by the parties, but is subject to 
a test of unfairness as it does not meet the requirements of non-ambiguity 
provided for in [the judgment in Case C-186/16]. Such a term is unfair because it 
includes the bank’s exchange rate spread and transfers the foreign exchange risk 
to the consumer, even if the loan is drawn down and may be repaid directly in the 
foreign currency. 
15 As regards the first question referred, the referring court seeks, in essence, to 
determine whether the term relating to the amount of the loan can be regarded as a 
contractual term which has not been individually negotiated, in a situation where 
the amount of the loan in foreign currency was set exclusively by the bank, by 
converting the amount applied for into the domestic currency even before the 
conclusion of the agreement and at a rate determined exclusively by the bank, and 
then presenting the agreement thus prepared in advance to the consumer for 
approval. 
16 That court has noted that the particular feature of a foreign currency-denominated 
loan as opposed to a conventional foreign currency loan is the fact that it is drawn 
down and, as a general rule, repaid, in the domestic currency. It has pointed out 
that the applicants had applied for a loan of PLN 200 000, to be granted in CHF. 
On the basis of that application, the bank drew up an agreement setting the 
amount of the loan at CHF 85 010. The amount expressed in CHF was calculated 
by dividing the amount in PLN by the buy rate on the day preceding signature of 
the agreement and rounding up to the nearest ten CHF. The final amount of the 
loan, despite bearing some relation to the amount expected by the borrowers, was 
therefore determined by the seller or supplier. Consequently, the borrowers must 
be considered to have merely accepted the amount of the loan expressed in CHF, 
where that amount was unilaterally determined by the bank prior to the drafting of 
the agreement. In other words, the amount of the loan was prepared in advance by 
the bank and presented to the borrowers for approval, which leads to the view that 
it was not subject to individual negotiations. Furthermore, the manner in which the 
amount in CHF was determined arose not from any contractual arrangement 
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between the bank and the borrowers, but only from the bank’s internal regulations. 
The agreement also did not provide any clarification as to how the exchange rate 
was to be determined. 
17 Accordingly, in the view of the referring court, it would have to be assumed that a 
term of a credit agreement relating to the amount of a loan expressed in a foreign 
currency and determined on the basis of an exchange rate set exclusively by the 
bank even before the conclusion of the agreement – such as that at issue in the 
main proceedings – is a term that has not been individually negotiated. 
18 If the first question is answered in the affirmative, it will be necessary to answer 
the subsequent questions referred, as is observed by the referring court. 
19 As regards the second question referred, the referring court seeks, in essence, to 
determine the scope of the examination of the requirement that terms containing 
the amount and currency of the loan agreement at issue in the main proceedings 
must be drafted in plain, intelligible language. 
20 It has cited the judgment in Case C-186/16, in which the Court held that the 
requirement that a contractual term must be drafted in plain intelligible language 
requires, in the case of loan agreements, financial institutions to provide 
borrowers with sufficient information to enable them to take prudent and well-
informed decisions. In that connection, that requirement means that a term under 
which the loan must be repaid in the same foreign currency as that in which it was 
contracted must be understood by the consumer both at the formal and 
grammatical level, and also in terms of its actual effects, so that the average 
consumer, who is reasonably well informed and reasonably observant and 
circumspect, would be aware both of the possibility of a rise or fall in the value of 
the foreign currency in which the loan was taken out, and would also be able to 
assess the potentially significant economic consequences of such a term with 
regard to his or her financial obligations. The referring court has also recalled that, 
according to the judgment of 18 November 2021, A. S.A. (C-212/20, 
EU:C:2021:934), the content of a clause of a loan agreement concluded between a 
seller or supplier and a consumer that sets the buying and selling prices of a 
foreign currency to which the loan is indexed must enable a consumer who is 
reasonably well informed and reasonably observant and circumspect to 
understand, on the basis of clear and intelligible criteria, the way in which the 
foreign currency exchange rate used to calculate the amount of the repayment 
instalments is set, in order that that consumer is able to determine himself or 
herself, at any time, the exchange rate applied by the seller or supplier. 
21 According to the referring court, that interpretation can be directly transposed to a 
term of a loan agreement which is denominated in a foreign currency. An 
unambiguous statement of the amount of a loan denominated in CHF must be 
accompanied, first, by an indication of how the amount in CHF was calculated, in 
particular taking into account the exchange rate spread and its significance for the 
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amount of the applicants’ future payments, and, secondly, the provision of 
appropriate information about the foreign exchange risk. 
22 The referring court has stated that the extent of information about the foreign 
exchange risk that is required has already been the subject of several judgments of 
the Court of Justice and that the second question referred does not concern this. 
What matters, however, is the relationship between the two conditions of 
transparency of such terms. The referring court has observed that, in the light of 
the judgment in Case C-186/16, it appears that inaccurate information about the 
foreign exchange risk is sufficient to regard the contractual term in question as not 
having been unambiguously expressed. This leads to the conclusion that those two 
conditions are alternatives to one another and that the lack of appropriate 
information about the inclusion of the exchange rate spread will also result in the 
term being regarded as ambiguous. In the opinion of the referring court, such an 
interpretation is supported indirectly by the judgment in Case C-212/20, in which, 
with regard to a similar index-linked loan agreement, the Court of Justice 
indicated that it is of fundamental importance for the purpose of compliance with 
the requirement of transparency to determine whether the loan agreement sets out 
transparently the reason for and the specific features of the mechanism for 
converting the foreign currency, and the relationship between that mechanism and 
the mechanism laid down by other terms of the agreement, so that the consumer is 
put in a position to understand, on the basis of clear, intelligible criteria, the 
economic consequences for him or her which derive from it. 
23 The referring court has noted that the lower the buying price adopted by the bank, 
the higher the amount of the loan expressed in CHF became. This means that the 
basis for calculating interest and other charges automatically increased, while the 
amount paid to borrowers in PLN did not increase. Reducing the exchange rate 
(by increasing the spread) in this situation is akin to charging an additional hidden 
commission that increased the outstanding balance. 
24 According to the referring court, the lack of information about the addition of the 
exchange rate spread to the amount of the loan in foreign currency forming part of 
a contractual term, such as that at issue in the main proceedings, constitutes an 
independent condition which precludes such a term from being regarded as 
expressed in plain, intelligible language, irrespective of the extent of the 
information about the foreign exchange risk. 
25 As regards the third question referred, the referring court seeks, in essence, to 
establish whether the inclusion of a spread in the amount of the foreign currency-
denominated loan (as is the case in the main proceedings) constitutes a sufficient 
basis for finding a substantial imbalance between the parties to the contract and, 
consequently, for finding that such terms containing the amount of the loan 
determined in this way are unfair. 
26 The referring court has cited the judgment in Case C-26/13, in which the Court of 
Justice, addressing the issue of the exchange rate difference (spread), held that the 
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exclusion of the assessment of the unfairness of a term being limited to the 
adequacy of the price and the remuneration on the one hand as against the services 
or goods supplied on the other, it cannot apply where there is a challenge to the 
variation between the selling rate of exchange of a foreign currency, which must 
be used in accordance with that term in order to calculate the repayment 
instalments, and the buying rate of exchange of that currency, which must be used 
in accordance with other terms of the loan agreement in order to calculate the 
amount of the loan advanced. Moreover, that exclusion cannot apply to terms that 
merely determine the conversion rate of the foreign currency in which the loan 
agreement is denominated, without however any foreign exchange service being 
supplied by the lender in making that calculation. The above ruling draws 
attention to the nature of the spread as an additional fee charged by the bank. 
27 The inclusion of the exchange rate spread in the amount of the loan was, unlike a 
commission, not reported at all. All the elements enabling an economic evaluation 
of the agreement concluded and a comparison of that agreement with other 
offers – in particular the amount of interest or commission – were based on the 
amount of the loan expressed in CHF. The actual annual interest rate is also based 
on this amount. These ratios do not show the increase in the amount of the capital 
by part of the spread. Contrary to appearances, the inclusion of the spread in the 
amount of the loan is not even indicated by the conversion clause concerning the 
drawdown of the loan in PLN. The wording of that clause suggests that the spread 
affects only the amount payable to the borrowers. 
28 As has been noted by the referring court, the Court of Justice, in its judgment of 
16 January 2014, Constructora Principado (C-226/12, EU:C:2014:10), has 
already stated that the question whether a significant imbalance exists cannot be 
limited to a quantitative economic evaluation based on a comparison between the 
total value of the transaction which is the subject of the contract and the costs 
charged to the consumer under that term. On the contrary, a significant imbalance 
can result solely from a sufficiently serious impairment of the legal situation in 
which the consumer, as a party to the contract in question, is placed by reason of 
the relevant national provisions, whether this be in the form of a restriction of the 
rights which, in accordance with those provisions, he or she enjoys under the 
contract, or a constraint on the exercise of those rights, or the imposition on him 
or her of an additional obligation not envisaged by the national rules. 
29 The inclusion of even a relatively small spread in the amount of the loan occurring 
without any counterpart on the part of the bank is a kind of commission which 
merely increases the amount of the borrower’s performances. According to the 
referring court, that contractual structure constitutes unfair treatment of the 
consumer, who is entitled to expect full transparency from the bank regarding the 
scope of the performances due and the elements comprising the lender’s 
remuneration. Abuse of the consumer’s trust by failing to disclose the portion of 
the spread hidden in the amount of the loan, and the fact that it constitutes 
revenue, undermines the interests of the consumer to a much greater extent than 
the economic burden resulting from the levying of a fee. It must therefore be held 
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that such a lack of proportion in the determination of the parties’ rights and 
obligations constitutes a significant imbalance within the meaning of Article 3(1) 
of Directive 93/13. 
30 As regards the fourth question referred, the referring court asks, in essence, 
whether the existing case-law of the Court of Justice, which states that the foreign 
exchange risk is transferred to the consumer on the basis of conversion clauses, 
does not preclude the legal assessment of denominated loan agreements, such as 
the one at issue in the main proceedings, expected by the referring court. 
31 The referring court has cited the judgment of 30 June 2022, Profi Credit Bulgaria 
(Offsetting ex officio in the event of an unfair term) (C-170/21, EU:C:2022:518), 
in which the Court of Justice held that the objective pursued by Article 6(1) of 
Directive 93/13, and in particular its second part, consists not in cancelling all 
contracts containing unfair terms but in 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 contract concerned. That contract 
must continue in existence, in principle, without any amendment other than that 
resulting from the deletion of the unfair terms. Thus, that contract may be 
continued as long as, in accordance with the rules of domestic law, such 
continuity of that contract is legally possible without the unfair terms. 
32 To regard the amount of the loan in a foreign currency-denominated loan 
agreement as a term which has not been individually negotiated and, 
subsequently, to regard it as non-binding on the consumer leads to the collapse of 
the agreement. The referring court’s doubts relate to the existing case-law of the 
Court of Justice, which states that, in similar contracts, the consumer is exposed to 
the foreign exchange risk not because of the expression of the amount of the loan 
in a foreign currency, but because of the terms determining the repayment of the 
loan. 
33 In the judgment in Case C-186/16, the Court of Justice held, as the referring court 
states, that the term in a loan agreement in a foreign currency providing for the 
repayment of that loan in the same currency in which it was granted is an essential 
obligation of the contract. Consequently, the Court concluded that that term 
imposes on the borrower a foreign exchange risk which will potentially be 
difficult for him or her to bear. For its part, the requirement that that contractual 
term must be drafted in plain intelligible language requires, in the case of loan 
agreements, financial institutions to provide borrowers with more detailed 
information to enable them to take prudent and well-informed decisions. 
34 The referring court has also cited the judgment of 10 June 2021, BNP Paribas 
Personal Finance (C-776/19 to C-782/19, EU:C:2021:470), in which the Court of 
Justice pointed out that a contractual term which provides that the currency of 
transaction is a foreign currency and the euro (the domestic currency) is the 
currency of repayment, as a result of which the foreign exchange risk is borne by 
the consumer, constitutes in principle a term relating to a principal performance to 
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be rendered by the parties. Consequently, the Court concluded that the 
requirement of non-ambiguity is satisfied where the seller or supplier has provided 
the consumer with sufficient and accurate information to enable the average 
consumer, who is reasonably well informed and reasonably observant and 
circumspect, to understand the specific functioning of the financial mechanism in 
question and thus to evaluate, on the basis of simple, intelligible criteria, the 
potentially significant economic consequences of such terms with regard to his or 
her financial obligations throughout the term of the agreement. 
35 The Sąd Najwyższy (Supreme Court, Poland) – and, in its view, other courts – 
also consider that the foreign exchange risk is transferred by terms requiring 
currency conversion at the rate set by the bank. Given that, in accordance with the 
judgment of 3 October 2019, Dziubak (C-260/18, EU:C:2019:819), this is a 
ground for declaring the entire term unfair and removing it from the contract, in 
such cases the courts declare contracts lacking one of the elements determining 
the principal performances to be rendered by the parties void. However, if, as in 
the present case, in addition to drawdown and repayment in the domestic currency 
at the bank’s rate, there has been, from the outset, the possibility of the loan being 
drawn down and repaid in a foreign currency, the terms of the agreement are 
generally regarded as fair. Consequently, the borrowers’ actions are dismissed 
even though the borrower has been contractually burdened by the foreign 
exchange risk. 
36 The referring court has stated that, if an agreement provides the possibility for the 
loan to be both drawn down and repaid in a foreign currency, there is no obstacle 
to the performance of that agreement in disregard of the conditions imposing 
conversion into the domestic currency. Terms providing for drawdown and 
repayment in the currency of the debt cannot be regarded as unfair, as they reflect 
the principle of nominalism. Thus, the granting of effective legal protection to the 
consumer solely on account of the unfair nature of the currency conversion terms 
appears doubtful: the consumer will continue to be burdened by the foreign 
exchange risk even if the unfair term is removed from the agreement. Such a 
situation appears to be at odds with the long-term objectives of the directive in 
question because a minor and indeed practically insignificant difference in the 
content of the contract would result in contracts that create the same imbalance 
between the parties as foreign currency-indexed loans remaining legally intact. 
37 An examination of terms determining the amount and currency of the loan from 
the point of view of unfairness – as a term transferring the foreign exchange risk – 
supports the conclusion that the consumer is not bound by that term even without 
analysing the terms referring to currency conversion. Consequently, even 
regarding the latter set of terms as fair allows conclusions to be drawn from the 
unfair nature of the foreign exchange risk. For all the aforesaid reasons, the 
referring court proposes that the fourth question referred be answered in the 
affirmative.