Opinion of the Advocate General — ECLI:EU:C:2025:705
Date: 2025-09-11
Language of the case: Polish

Summary C-471/24 – 1 
Case C-471/24 
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: 
3 July 2024 
Referring court: 
Sąd Okręgowy w Częstochowie (Poland) 
Date of the decision to refer: 
31 May 2024 
Applicant: 
J.J. 
Defendant: 
PKO BP S.A. 
  
Subject matter of the main proceedings 
Unfair contractual terms – Invalidity of a contract – Variable interest rate clause –
WIBOR reference index 
Subject matter of legal basis of the request 
Interpretation of EU law, in particular of Article 1(2), Article 2, Article 3(1) and 
(2), second sentence, and Article 4(2) and Article 6(1) of Council Directive 
93/13/EEC; Article 267 TFEU. 
Questions referred for a preliminary ruling 
(a) Must Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts be interpreted as permitting examination of 
contractual clauses concerning a variable interest rate based on the WIBOR 
reference index? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
2  
(b) If the answer to the first question is in the affirmative, must Article 4(2) of 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts be interpreted as permitting examination of contractual clauses 
concerning a variable interest rate based on the WIBOR reference index? 
(c) If the answers to the first and second questions are in the affirmative, 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 clause concerning 
a variable interest rate based on the WIBOR reference index may be regarded as 
contrary to the requirement of good faith and causing a significant imbalance in 
the parties’ rights and obligations under the contract, to the detriment of the 
consumer, on account of the failure duly to inform the consumer of his or her 
exposure to the risk of a variable interest rate, in particular the failure to indicate 
how the reference index, which forms the basis for determining the variable 
interest rate, is determined and what uncertainties are associated with its non-
transparency and the uneven distribution of that risk between the parties to the 
contract? 
(d) If the answers to the previous questions are in the affirmative, must 
Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts, in conjunction with Article 3(1) and (2), second sentence, and 
Article 2 thereof, be interpreted as meaning that, if a contractual clause concerning 
a variable interest rate based on the WIBOR reference index is found to be unfair, 
there can be continued operation of a contract in which the interest rate on the 
amount of the loan capital will be based on a second component determining the 
interest rate included in the contract, that is to say the bank’s fixed margin, which 
will change the interest rate on the loan from variable to fixed? 
Provisions of European Union law relied on 
A. Treaty on the Functioning of the European Union: Article 169(1) 
B. Charter of Fundamental Rights of the European Union: Article 38 
C. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: recitals 4, 13, 21 and 24; Articles 1(2), 3(1), 4(2), 6(1), 7(1) and 
points 1(j) and 2(b) of the Annex ‘Terms referred to in Article 3(3)’ 
D. Regulation (EU) 2016/1011 of the European Parliament and of the Council 
of 8 June 2016 on indices used as benchmarks in financial instruments and 
financial contracts or to measure the performance of investment funds and 
amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) 
No 596/2014: recitals 1, 5, 6, 8, 10, 20, 26, 27, 63 and 71; Articles 2(1), 3(1)(3), 
3(1)(7)(d), and 20(1) 
E. Commission Implementing Regulation (EU) 2019/482 of 22 March 2019 
amending Commission Implementing Regulation (EU) 2016/1368 establishing a 
PKO BP 
 
3 
list of critical benchmarks used in financial markets pursuant to Regulation (EU) 
2016/1011 of the European Parliament and of the Council: recitals 1, 2 and 4 and 
the annex thereto 
F. Directive 2008/48/EC of the European Parliament and of the Council of 
23 April 2008 on credit agreements for consumers and repealing Council 
Directive 87/102/EEC: Articles 10(2)(f) and 3(j) 
G. Directive 2014/17/EU of the European Parliament and of the Council of 
4 February 2014 on credit agreements for consumers relating to residential 
immovable property and amending Directives 2008/48/EC and 2013/36/EU and 
Regulation (EU) No 1093/2010: Articles 4(3), 4(16), 11(1), 11(2)(c), 11(3), 11(5), 
and 13(1)(e) and (ea) 
Provisions of national law relied on 
A. Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) (Dz. U. of 2020, item 1740, as amended; ‘the Civil 
Code’) 
(a) A ‘consumer’ is a natural person who, when concluding and performing a 
consumer contract, does not act in the course of his or her trade or of another 
commercial activity (Article 221). 
(b) A legal transaction which is contrary to the law or intended to circumvent 
the law shall be void, unless the relevant provision provides otherwise, in 
particular that the invalid terms of the legal transaction are to be substituted by 
relevant provisions of the law (Article 58(1)). 
(c) A legal transaction contrary to the rules of social conduct shall be void 
(Article 58(2)). 
(d) Where only part of the legal transaction is invalid, the other parts of the 
transaction shall remain in force, unless circumstances show that, without the 
invalid terms, the transaction would not have been carried out (Article 58(3)). 
(e) Contracting parties may arrange their legal relationship at their own 
discretion as long as the substance or purpose of the contract is not contrary to the 
properties (nature) of the relationship, the law or the rules of social conduct 
(Article 3531 ). 
(f) Interest on a sum of money shall be payable only if it results from a legal 
transaction or from a law, court decision or decision of another competent 
authority (Article 359(1)). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
4  
(g) If the interest rate is not otherwise specified, statutory interest shall be 
payable at a rate corresponding to the sum of the reference rate of the National 
Bank of Poland plus 3.5 percentage points (Article 359(2)). 
(h) The maximum interest rate resulting from a legal transaction may not exceed 
twice the statutory interest rate per annum (the maximum interest) 
(Article 359(21)). 
(i) If the interest rate resulting from a legal transaction exceeds the maximum 
interest rate, the maximum interest shall be payable (Article 359(22)). 
(j) Contractual terms may not exclude or limit provisions relating to the 
maximum interest, including where foreign law has been selected. In such a case, 
the provisions of this Law shall apply (Article 359(23). 
(k) The Minister for Justice shall announce, by means of a notice in the Official 
Journal of the Republic of Poland ‘Monitor Polski’, the statutory interest rate 
(Article 359(4)). 
(l) Contractual terms 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 provision shall not apply to 
terms setting out the parties’ main obligations, including price or remuneration, so 
long as they are worded clearly (Article 3851(1)). 
(m) 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 (Article 3851(2)). 
(n) The contractual terms which have not been individually negotiated are those 
over whose content the consumer has 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 (Article 3851(3)). 
(o) The burden of proving that a term has been negotiated individually shall lie 
with the person relying thereon (Article 3851(4)). 
(p) The compliance of contractual terms with good practice shall be assessed 
according to the state of affairs at the time of conclusion of the contract, taking 
into account its content, the circumstances in which it was concluded and also 
other contracts connected with the contract which contains the provisions being 
assessed (Article 3852). 
B. Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Banking Law of 
29 August 1997) (Dz. U. of 2023, item 2488, as subsequently amended). 
(a) 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 
PKO BP 
 
5 
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 (Article 69(1)). 
(b) The loan agreement must be drawn up in writing and specify, inter alia, the 
rate of interest payable on the loan and the conditions for changing it 
(Article 69(2)(5)). 
C. Ustawa z dnia 23 marca 2017 r. o kredycie hipotecznym oraz o nadzorze nad 
pośrednikami kredytu hipotecznego i agentami (Law of 23 March 2017 on 
mortgage credit and the supervision of mortgage credit intermediaries and agents) 
(Dz. U. of 2022, item 2245, as subsequently amended). 
(a) Borrowing rate [means] the interest rate expressed as a fixed or variable rate 
applied on an annual basis to the amount drawn down under a mortgage loan 
agreement (Article 4(21)). 
(b) The creditor, mortgage intermediary and agent shall be obliged to make 
available to the consumer at all times, on a durable medium or in electronic form, 
precise and comprehensible general information concerning the mortgage loan 
agreement, including at a minimum: 
i. in the case of mortgage loan agreements using a benchmark as a reference, 
the names of the benchmarks and the administrators thereof, as referred to in 
Article 3(1)(6) of Regulation (EU) 2016/1011 of the European Parliament and of 
the Council of 8 June 2016 on indices used as benchmarks in financial instruments 
and financial contracts or to measure the performance of investment funds and 
amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) 
No 596/2014, and the potential implications on the consumer (Article 10(1)(5)); 
ii. types of available mortgage borrowing rate, indicating whether fixed or 
variable or both, with a short description of the characteristics of a fixed and 
variable mortgage rate, including related implications for the consumer 
(Article 10(1)(6)). 
(c) Prior to the conclusion of the mortgage loan agreement, the creditor, 
mortgage intermediary and agent shall be obliged to provide the consumer, on a 
durable medium, with the personalised information necessary to enable him or her 
to compare mortgage loans available on the market, assess the consequences of 
taking them out, and make an informed decision on the conclusion of a mortgage 
loan agreement (Article 11(1)). 
(d) The information referred to in paragraph 1 shall be provided by the creditor, 
mortgage intermediary and agent on a mortgage credit information form, as 
prescribed in Annex 1 to this Law (Article 11(2)). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
6  
(e) The mortgage loan agreement shall set out the factors listed in Article 69(2) 
of the Banking Law of 29 August 1997 and the method and terms for fixing the 
interest rate on whose basis the amount of capital and interest payments are 
calculated (Article 29(1)(8)). 
(f) If the parties have not agreed on a fixed interest rate for the mortgage loan, 
the method for fixing the interest rate referred to in paragraph 1(8) shall be 
determined as the value of the reference index and the amount of the margin fixed 
in the mortgage loan agreement (Article 29(2)). 
Succinct presentation of the facts and procedure in the main proceedings 
On 1 August 2019, a variable-rate mortgage loan agreement in the amount of 
PLN 413 436.69 was concluded between PKO BP S.A. and J.J. WIBOR 6M was 
stated as the reference index. On the day the agreement was drawn up, the annual 
interest rate on the loan (that is to say the sum of the reference index and the PKO 
BP S.A. margin) was 3.64% and the actual percentage rate on the day the 
agreement was concluded was 4.29%. Before the agreement was signed, forms 
were generated for J.J. containing information on the risk associated with the 
variable interest rate and simulations showing the relationship between a change 
in the interest rate and a change in the amount of the instalment to be repaid. A 
separate document provided information on interest rate risk. The applicant was 
not informed as to how the WIBOR reference rate is determined, which factors 
influence the amount thereof, or that the information provided by the defendant 
bank influences the fixing of that rate. Pursuant to the agreement, the bank 
informed the borrower that he bears the interest rate risk posed by an increase in 
the loan instalment in the event of an increase in the reference index, including the 
risk of a significant change or discontinuation of the publication of the reference 
index and the consequences thereof. Under the agreement, the reference index 
means the interest rate used together with the margin to fix the interest rate on the 
loan. Once the loan has been released in full, the borrower has the right to apply 
for a change in the interest rate on the loan from the WIBOR 6M reference index 
to a fixed base rate applicable for the fixed term of the loan. Changes to the 
interest rate require the conclusion of an annex to the agreement. WIBOR 6M 
means the reference index of six-month zloty deposits on the Polish interbank 
market, determined in accordance with the regulations concerning WIBID and 
WIBOR reference indices, published on the information website of the 
administrator of that benchmark. Pursuant to the agreement, PKO BP S.A. charges 
interest on the loan at a variable rate, on an annual basis, the amount of which is 
determined, on the date starting the first and subsequent six-month reference index 
periods, as the sum of the reference index and the PKO BP margin. The first 
reference index period may be shorter and starts from the day following that on 
which the loan or the first instalment thereof was disbursed. The end of the first 
reference index period falls on the last day on which the loan instalment and 
interest are to be repaid before the expiry of the first six-month reference index 
period. Subsequent six-month reference index periods end on the day before the 
PKO BP 
 
7 
day which falls on the same date as the day on which the previous six-month 
reference index period began. Changes in the reference index are effected on the 
day on which the loan instalment and interest are to be repaid, and interest 
according to the new index is calculated from the day following date on which 
repayment is to be made. A change in the reference index changes the borrowing 
rate by the same number of percentage points. 
By letter of 2 August 2022, J.J.’s authorised representative filed a complaint 
with the bank in which it contested the lawfulness of the contractual clauses 
concerning the variable interest rate. The complaint was rejected by the 
bank. On 20 September 2023, Amendment No 1 to the loan agreement was 
signed, the object of which was to change the date on which loan instalment 
was be repaid, to change the date of full repayment of the loan, and to 
incorporate an annex specifying how to proceed in the event of a significant 
change in or cessation of the benchmark. 
By an action brought 18 September 2023, the applicant J.J. sought an order 
requiring the defendant bank to pay a sum of money and a declaration that 
certain terms of the variable interest mortgage loan agreement, in so far as 
they relate to WIBOR, constitute unlawful contractual terms and are not 
binding on the applicant (are ineffective vis-à-vis the applicant) as from the 
time the agreement was concluded. He also raised an alternative claim, 
requesting that the defendant be ordered to pay him a sum of money and a 
declaration that certain terms of the loan agreement, in so far as they relate 
to WIBOR, are invalid from the time the agreement was concluded. The 
applicant also requested that the defendant be ordered to pay him the costs 
of the proceedings. In its defence, the defendant bank contended that the 
action should be dismissed in its entirety. 
The essential arguments of the parties in the main proceedings 
In the view of the applicant, he was not presented with any actual alternative in 
terms of a different reference index or an agreement with a fixed or 
periodically fixed interest rate. The variable interest rate of the loan 
agreement was presented by the defendant as the most favourable from the 
point of view of his interests, as well as being available and easy to obtain. 
The applicant was not provided with reliable, plain and comprehensive 
information on the risks associated with concluding a loan agreement with a 
variable interest rate or information on the determination of the WIBOR 
index, including matters relating to the calculation thereof, in particular the 
fact that the determination of the WIBOR index is influenced exclusively by 
the banks granting credit to consumers, including the defendant bank. Thus, 
the defendant bank had the real possibility of freely determining applicant’s 
debt, in particular to increase it, regardless of the economic conditions 
prevailing in the interbank market and the specific economic reality. In the 
view of the applicant, the defendant bank had the real possibility of freely 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
8  
determining applicant’s debt, in particular to increase it, regardless of the 
economic conditions prevailing in the interbank market and the specific 
economic reality. By contrast, the applicant had no possibility of checking 
whether that debt had been determined properly or any influence on the 
defendant conducing those activities properly. Instead, variable interest rate 
clauses should refer to objective indices over which neither party has any 
influence. The applicant argued that the defendant charges him an 
unjustifiably inflated fee each month the agreement is performed in order to 
refinance its costs in obtaining the funds made available to [him] and (the 
bank’s hidden margin). The applicant considers that the content of the 
agreement, in so far as it refers to the WIBOR index, does not in any way 
allow him to assess the economic consequences of the debt assumed since he 
was given no explanation of what that index reflects. In the applicant’s view, 
the WIBOR is a stand-alone contractual term which can be removed without 
affecting the substance of the loan agreement.  
The defendant, on the other hand, alleged that the applicant has no legal interest in 
raising the claim. It also contended that no evidence has been furnished for 
the claim. In support of its position, it rejected most of the circumstances set 
out by the applicant. It pointed out that the bank has no possibility of 
determining the WIBOR index and there has been no manipulation of that 
index by the banks or any agreement between them on determining the 
index. In incorporating the WIBOR into the agreement, the bank was 
complying with statutory requirements. It contested the pleas raised by the 
applicant alleging that WIBOR index had been determined incorrectly, it is 
inadequate in relation to actual transactions, and it is susceptible to 
manipulation. It noted that the applicant had been correctly informed of the 
risks associated with a variable interest rate and that it was his decision to be 
bound by a loan agreement of that kind. It denied that the variable interest 
rate exclusively pursued banks’ own economic interests. It noted that the 
terms of the loan agreement concerning the interest rate were the main 
object of the parties’ performance. In addition, the interest rate was 
negotiated between the parties at least in terms of the margin. It noted that 
the circumstances to which a change in the interest rate is subject were 
stated in the agreement. Finally, it denied that the variable interest rate 
mechanism constituted an unfair term, in particular that the clauses 
governing that mechanism were contrary to good practice or infringed the 
consumer’s interests. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
1 To date, neither the Sąd Najwyższy (Supreme Court) nor the Court of Justice of 
the European Union have ruled on the possibility of examining the potential 
unfairness of contractual terms relating to benchmarks. Although the Court of 
Justice ruled in its judgments in C-125/18, C-655/20, C-143/13 and C-265/22 on 
clauses concerning variable interest rates, the contractual clauses concerned in 
PKO BP 
 
9 
particular those relating to ‘critical benchmarks’ as referred to in the Benchmarks 
Regulation (BMR). However, the determination of the interest rate according to 
the two criteria referred to differs significantly and therefore it is not possible to 
apply the same assessment criteria to both those methods. 
2 As regards the first question referred, it must first be determined whether the 
clauses at issue can be examined by reference to Directive 93/13 in view of its 
exclusion ratione materiae, as referred to in Article 1(2). It follows from the 
provisions of the Law on mortgage that, where the parties have not agreed on a 
fixed interest rate for a mortgage loan, the method for fixing the interest rate 
referred to in paragraph 1(8) is to be determined as the value of the reference 
index and the amount of the margin fixed in the mortgage loan agreement 
(Article 29(2)). The method for fixing the interest rate for the loan instalment laid 
down in the contract thus corresponds to the statutory provisions. It is beyond 
doubt that the WIBOR is a benchmark as referred to in the provision cited [as is 
evident, inter alia, from the content of Commission Implementing Regulation 
(EU) 2016/1368 establishing the WIBOR as a critical benchmark]. In view of the 
foregoing, that the method for determining contractual clauses fixing the variable 
interest rate is not subject to the assessment against the provisions of Directive 
93/13 on account of its exclusion ratione materiae as set out in Article 1(2). It 
should be recalled that in its judgment of 3 March 2020, C-125/18, Marc Gómez 
del Moral Guasch v Bankia SA, the Court of Justice ruled that Article 1(2) of 
Directive 93/13 must be interpreted as meaning that a contractual term in a 
mortgage loan agreement concluded between a consumer and a seller or supplier, 
which provides that the interest rate applicable to the loan is based on one of the 
official reference indices provided for by the national legislation that may be 
applied by credit institutions to mortgage loans, falls within the scope of that 
directive, where that national legislation does not provide either for the mandatory 
application of that index independently of the choice of the parties to the 
agreement or for the supplementary application thereof in the absence of other 
arrangements established by those parties. However, the situation referred to in 
that judgment may not arise in the present case as the obligation to apply a 
benchmark where a variable interest rate is applied is referred to expressly in the 
Law on mortgage. In addition, a crucial benchmark within the meaning of the 
BMR is applied in this case. It would therefore appear that the application of such 
benchmark is not mandatory, which only then, according to the case-law cited 
above, makes it possible to assess the contractual term incorporating that 
benchmark into the contract. In addition, the consumer protection where a crucial 
benchmark is applied is much greater than that afforded by the benchmark 
referred to in the abovementioned case-law in view of the provisions of the BMR, 
which lay down in detail the rules for creating a benchmark, the requirements for 
the administrator of such a benchmark, and severe penalties for failure to comply 
with the rules in determining that benchmark. Nonetheless, doubt arises as to 
whether or not adopting such an interpretation will give rise to a situation where it 
will not be possible to assess those provisions by reference to the exposure of 
consumers’ interests from the offering to them of products with variable interest 
rates based on a benchmark which, in their view, is based on non-transparent 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
10  
requirements, clearly favouring credit institutions, and thus exposing them to the 
associated risk. In such a situation, the applicant’s entire arguments will become 
redundant and thus consumers will be deprived of real protection against 
potentially unfair terms. Although the provisions of EU law (the BMR) and 
national law (the Civil Code and the Law on mortgage) explicitly allow for the 
possibility of using a variable interest rate clause in contracts concluded with 
consumers, it is necessary to consider whether or not the current practice of 
financial service providers, the majority of whom (up to 90%) offer products with 
variable interest rate, allows the consumer to avoid the risk of a variable interest 
rate, even where a loan is granted at a very low interest rates and with a real 
prospect of a significant increase in them. Thus, consumers are deprived of a real 
choice of being bound by an offer which meets their expectations, in particular the 
possibility of avoiding exposure to the risk of a variable interest rate, irrespective 
of whether a fixed interest rate also entails a risk for the consumer. Regarding the 
contractual clauses as terms as referred to in Article 1(2) of the directive would 
therefore make it impossible to assess such a situation. An additional related 
problem concerns the extent to which a civil court is bound by a previously 
adopted final administrative decision. The WIBOR benchmark is now subject to 
the restrictions laid down in BMR, most of which have been in force since 
1 January 2018. Under that regulation, authorisation for the administration of 
certain benchmarks to be used subsequently in financial instruments and contracts 
requires an administrative decision adopted by competent authority in an 
appropriate procedure (Article 34 et seq. of the BMR). The case-law of the 
national courts accepts that once an administrative decision becomes final, it is 
binding on any court in civil proceedings, which in principle precludes any 
examination of whether or not it was adopted properly. Even if a final 
administrative decision affects relationships under civil law, the possible judicial 
review thereof is exceptional in nature and limited solely to determining such far-
reaching procedural defects which disqualify the decision as an administrative act. 
Therefore, if the Financial Supervision Authority (Komisja Nadzoru 
Finansowego) has, within the scope of its jurisdiction, adopted a final decision on 
the authorisation of the administration of the WIBOR benchmark since it has 
determined in the course of the administrative proceedings that it satisfies all the 
requirements under the BMR (Decision of 16 December 2020, Official Journal of 
the Financial Supervisory Authority No 32/2020 of 17 December 2020), the court 
cannot, even by applying the conditions laid down in Article 3851 of the Civil 
Code, make its own findings of fact leading to an examination of the extent to 
which the value of the WIBOR benchmark was based on actual transactions and 
the extent to which it was based on a different type of input data, which is 
primarily disputed by the applicant. The binding nature of the final administrative 
decision results in the exclusion from judicial review of the conditions for 
calculating the benchmark since the decision of the administrative authority 
presupposes compliance of the methodology of that benchmark with generally 
applicable provisions of law (the BMR). 
3 As regards the second question referred for a preliminary ruling, it would be 
necessary to assess whether the assessment of the contractual clauses concerning 
PKO BP 
 
11 
the method for fixing of the variable interest rate is precluded by Article 4(2) of 
the directive, under which the assessment of the unfair nature of the terms is to 
relate neither to the definition of the main subject matter of the contract nor to the 
adequacy of the price and remuneration, on the one hand, as against the services 
or goods supplies in exchange, on the other, in so far as these terms are in plain 
intelligible language. In its judgment of 26 February 2015, C-143/13, Matei, the 
Court of Justice explicitly favoured the possibility of examining such contractual 
clauses in terms of their unfairness, ruling that Article 4(2) of Directive 
93/13/EEC on unfair terms in consumer contracts must be interpreted as meaning 
that ‘main subject matter of the contract’ and ‘adequacy of the price and 
remuneration, on the one hand, as against the services or goods supplies in 
exchange, on the other’ do not, in principle, cover the types of terms in the credit 
agreements concluded between a professional and consumers, which allow, under 
certain conditions, the lender unilaterally to alter the interest rate. However, at the 
same time it made it clear that it is for referring court to verify that classification 
of those contractual terms having regard to the nature, general scheme and 
stipulations of the agreements concerned and the legal and factual context of 
which they form part. However, that judgment was delivered in different 
circumstances since in the loan agreement at issue in Case C-143/13 the bank 
reserved the right to alter the current rate of interest in the event of significant 
changes on the financial markets, the new rate of interest being notified to the 
borrower. However, in the present case, the alteration of the interest rate depended 
exclusively on changes in the reference index, as applied in the agreement. It can 
therefore be assumed that the alteration of the interest rate depended on a factor 
external to the lender since it was not the lender who set the reference index, that 
is to say the alteration did not depend only on the intention of one of the parties to 
the loan agreement. Although the interest rate could also be altered in the event of 
an increase in the bank’s margin, the circumstances under which the bank could 
increase the margin, and the amount by which the margin could be increased, 
were clearly set out in the agreement. The arguments contained in the cited 
judgment of the Court of Justice cannot be applied in full to the facts of the 
present case. It should also not be forgotten that the applicable provisions of the 
Law on Banking explicitly mention that clauses concerning the interest rate and 
how it is altered must form part of a loan agreement (Article 69(2)(5) of the Law 
on Banking), and the provisions of the Law on Mortgage explicitly specify the 
content of those clauses (Article 29(2) of the Law on Mortgage). Consequently, 
when laying down the clauses of the agreement in that respect, the lenders have no 
latitude in terms of its formulation.  
4 The next question to be resolved is whether those terms were set out in plain 
intelligible language – the requirement that a contractual term must be drafted in 
plain intelligible language, in keeping with the Court of Justice’s ruling in 
previous judgments, 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 (see, to that effect, judgment of 20 September 2017, 
Andriciuc and Others, C-186/16, EU:C:2017:703, paragraph 51). In particular, 
whether all the information likely to have a bearing on the extent of his 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
12  
commitment has been communicated to the consumer, enabling him to estimate in 
particular the total cost of his loan (see, to that effect, judgment of 20 September 
2017, Andriciuc and Others, C-186/16 EU:C:2017:703, paragraph 47 and the 
case-law cited). The relevant information to be taken into account by the national 
court in carrying out the necessary checks in that regard includes not only the 
content of the information provided by the lender in the negotiation of the loan 
agreement in question, but also the fact that the essential information relating to 
the calculation of the reference rate is easily accessible on account of its 
publication (see, to that effect, judgment of 3 March 2020. Gómez del Moral 
Guasch, C-125/18, EU:C:2020:138, paragraphs 52, 53 and 56). Furthermore, the 
Court of Justice held that where a contract uses a variable interest rate, set by the 
central bank of a Member State and published in its easy-to-access official 
journal, a reference in that agreement to that base rate is such as to enable an 
average consumer who is reasonably observant and circumspect to ascertain and 
understand the arrangements for varying the rate of late-payment interest, 
provided that the method of calculating the rate of late-payment interest is set out 
in the credit agreement. In that regard, two conditions must be fulfilled. Firstly, 
that method of calculation must be set out in a way which is readily understood by 
an average consumer who does not have specialist knowledge in the financial field 
and must enable him or her to calculate the rate of late-payment interest based on 
the information provided in the credit agreement. Secondly, the frequency with 
which the base rate may be varied, which is determined by national provisions, 
must also be set out in the credit agreement concerned (see judgment of 3 March 
2020, Gómez del Moral Guasch, C-125/18, EU:C:2020:138, paragraph 53).  
5 In the present case, the amount of the variable interest rate is fixed on the basis of 
a benchmark established by an entity appointed in accordance with the BMR and 
the amount of that index is publicly available. Information about the entity which 
establishes the benchmark and on what basis and the duration of that benchmark, 
and also how the interest rate is fixed on the basis of that benchmark, were 
included in the loan agreement in question. It is therefore necessary to decide 
whether the necessary information should also include an explanation of how the 
WIBOR mechanism is formed and what factors influence the change in the level 
thereof, and whether that information can be provided by reference to the 
information on the website of the administrator of that benchmark. 
6 Does the bank’s duty to provide information also extend to the provision of 
information with regard to the fact that the WIBOR administrator calculates the 
benchmark on the basis of data provided directly by banks, which do not in fact 
conclude transactions between themselves on the basis of the data provided to the 
administrator for the purpose of determining the index, particularly since neither 
Article 10(1)(5) of the Law on Mortgages, nor Directives 2008/48/EC (Article 10) 
and 2014/17/EU (Article 11) of the European Parliament and of the Council, 
require the lender to provide such information. Next, therefore, does the bank’s 
duty to provide information extend to informing the consumer of the extent of the 
bank’s freedom to provide the data necessary to set the reference index and also 
the criteria on which it relies in drawing up those data, so that the consumer is 
PKO BP 
 
13 
able to understand the factors influencing the setting of the reference index so that, 
by observing the economic environment, he or she can correctly anticipate, in 
good time, upcoming changes in the index in order to prepare for them. 
7 The question also arises as to whether the bank must give notice that it also 
provides the data on the basis of which the administrator calculates the WIBOR 
and which factors it takes into account in compiling those data for the 
administrator. Is it then possible for that information, given its complexity and the 
fact that it relates to the interbank money market, to be presented in a manner 
which would be clear and comprehensible to an average consumer with no 
financial knowledge and can it therefore influence the consumer’s decision-
making process? It should be noted in that regard that, in its order of 17 November 
2021, C-655/20, Marc Gómez del Moral Guasch, the Court of Justice held that it 
is permissible for a contract not to include a full definition of the reference index 
used to calculate a variable rate, nor is it necessary to provide an information 
booklet setting out the past fluctuations of that index if the data have been 
officially published. 
8 As regards the third question referred for a preliminary ruling, it must be noted 
that the source of the imbalance between the parties to the agreement with regard 
to all aspects relating to that agreement can be sought in the fact that the bank, as a 
professional, had knowledge of the method for determining the WIBOR reference 
index and was aware that there were doubts as to the transparency of the 
determination of that rate, but did not inform the consumer thereof prior to the 
conclusion of the loan agreement. In establishing whether or not there has been an 
infringement of consumer rights for the purposes of Article 3 of the directive, it is 
necessary to compare the consumer’s situation with a situation where the 
consumer would have been correctly informed about the method for establishing 
reference index and the risk of a variable interest rate; in that context, the market 
and legal circumstances associated with the use of the WIBOR reference index in 
loan agreements cannot be disregarded. Given the circumstances of the Polish 
banking market at the time the agreement in question was concluded, the vast 
majority of banks only offered loans with a variable interest rate. Therefore, the 
consumer could have no possibility of choosing an offer with a fixed interest rate. 
At the same time, the lack of fixed interest rate loans on the market cannot affect 
the assessment of the specific agreement. Consequently, the question arises as to 
whether a properly informed consumer could, where there is doubt as to the 
transparency of the determination of the WIBOR reference index, have chosen a 
different credit product in order to achieve his or her intended objective. Nor is it 
possible to disregard the fact that, pursuant to Article 29(2) of the Law on 
Mortgage, when signing a loan agreement with a variable interest rate, the bank 
has no possibility of amending the method by which the variable interest rate is set 
as that method is clear from a provision of law. Consequently, the choice of 
another offer on the market for a loan with a variable interest rate would have 
involved the same conditions as with the defendant bank (WIBOR). In addition, 
the WIBOR index used was considered a crucial benchmark within the meaning 
of the BMR. It is also necessary to clarify whether or not, by offering a product 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/24 
 
14  
with a variable interest rate, there has been a gross infringement of the consumer’s 
interest in that he is exposed to an unlimited risk of an increase in interest rates 
during the term of the agreement, which is not limited in any way, in particular the 
lender has not offered any solution limiting that risk, taking into account, 
however, that in Polish law the legislature has set a maximum ceiling for interest 
resulting from legal transactions, which it did in Article 359 of the Civil Code. 
9 The fourth question referred for a preliminary ruling asks what effect the 
elimination of the clauses on variable interest rates as unfair contractual terms will 
have on the continuation in existence of the agreement. In the consumer’s view, it 
is possible to eliminate the reference to the reference index from the terms 
concerning the variable interest rate and leave the clauses concerning the bank’s 
margin in place. In essence, there would be a change in the method of charging 
interest from a variable interest rate to a fixed interest rate. According to the 
finding of the Court of Justice in its judgment of 29 April 2021, C-19/20, 
Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning 
that, first, they do not preclude the national court from removing only the unfair 
element of a term in a contract concluded between a seller or supplier and a 
consumer where the deterrent objective pursued by that directive is ensured by 
national legislative provisions governing the use of that term, provided that that 
element consists of a separate contractual obligation, capable of being subject to 
an individual examination of its unfair nature. On the other hand, those provisions 
preclude the national court from deleting only the unfair element of a term of a 
contract concluded between a seller or supplier and a consumer where such 
deletion would amount to revising the content of that term by affecting its 
substance. Consequently, in the view of the referring court, it should be assumed 
that the contractual clause referring to the reference index may be regarded as a 
separate contractual obligation, which would make it possible to eliminate only 
those provisions, leaving the rest of the contract in force. However, it is necessary 
to consider whether or not such a reduction maintaining the effectiveness of the 
overall contract is precluded by the fact that, as a result of such a change, the 
substance of the term is altered. As a result of the elimination of the reference 
index from the agreement, the interest rate on the loan changes from a variable 
rate to a fixed rate, which can only be altered in the event of a change in the 
bank’s margin, as referred to in Paragraph 2(7) of the agreement. Such 
amendment of the agreement will be contrary to the very name of the contract 
(variable-interest mortgage contract). The question also arises as to whether such 
amendment of the agreement will be in keeping with the intention of the 
contracting parties. The abovementioned judgment of the Court of Justice in 
C-19/20 was delivered in the context of loan agreement indexed to the Swiss franc 
offered at the time by GM Money Bank S.A. in Gdańsk, which specified the 
method for fixing the buying and selling rates of the currency by combining an 
objective factor, namely the average exchange rate set by the NBP, and a 
subjective factor, namely the bank’s margin. In that context, the Polish courts held 
that it was not possible to divide that term into separate contractual obligations 
and deemed the abovementioned contractual term unfair in its entirety. An 
PKO BP 
 
15 
analogy can be seen between the clause in question and the variable interest rate 
clause at issue in this case.