Opinion of the Advocate General — ECLI:EU:C:2019:405
Date: 2019-05-14
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 16 April 2018 — Kamil Dziubak, Justyna Dziubak v Raiffeisen Bank Polska SA (Case C-260/18) Language of the case: Polish Referring court Sąd Okręgowy w Warszawie Parties to the main proceedings Applicants: Kamil Dziubak, Justyna Dziubak Defendant: Raiffeisen Bank Polska SA Questions referred Do Articles 1(2) and 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 1 make it possible — if the determination of certain contractual provisions which stipulate the manner in which an obligation is to be performed by the parties (its amount) as unfair were to result in the contract being annulled in its entirety, which would be unfavourable to the consumer — to fill gaps in the contract not pursuant to a supplementary provision of law which explicitly replaces the unfair term, but rather pursuant to provisions of national law which provide for supplementing the effects of a legal transaction as expressed in its substance to include the effects arising from the principles of equity (rules of social conduct) or established customs? Should the possible assessment of the consequences for the consumer of the contract being annulled in its entirety be conducted on the basis of the circumstances existing at the time of its conclusion or on the basis of those existing at the time when the dispute arose between the parties concerning the effectiveness of the clause in question (at the time when the consumer claimed that the clause was abusive), and what relevance attaches to the position taken by the consumer in such a dispute? Is it possible to uphold provisions which are unfair contractual terms within the meaning of Directive 93/13/EEC if the adoption of this solution would be objectively beneficial to the consumer at the time when the dispute is being settled? Could declaring certain contractual provisions stipulating the amount and manner of performance of an obligation by the parties to be unfair result in a situation in which the form of the legal relationship determined on the basis of the contract, except for the effects of unfair terms, may differ from that intended by the parties with respect to the parties’ main obligation; without limitation, does declaring a contractual provision to be unfair mean that other contractual provisions related to the consumer’s main obligation which have not been claimed to be abusive may continue to apply where the form of those provisions (their incorporation in the contract) was inextricably linked to the provision challenged by the consumer? ____________ 1 OJ 1993 L 95, p. 29.