Judgment — ECLI:EU:C:2026:308
Date: 2026-04-16
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-753/24 – 1 
Case C-753/24 [Rzepacz] i 
Request for a preliminary ruling 
Date received: 
30 October 2024 
Referring court: 
Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) 
Date of the decision to refer: 
30 October 2024 
Party initiating the proceedings before the referring court: 
Powszechna Kasa Oszczędności Bank Polski S.A. 
Other party to the proceedings: 
MS and MS 
  
ORDER 
[…] 
The Sąd Okręgowy w Warszawie (Regional Court in Warsaw) […]: 
[…] 
after hearing […] in closed session 
the case brought by Powszechna Kasa Oszczędności Bank Polski, a joint-stock 
company with head office in Warsaw, 
against MS and MS 
for payment  
makes the following order: 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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I. to refer the following question to the Court of Justice of the European Union for 
a preliminary ruling pursuant to Article 267 TFEU: 
Should Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts and the principles of effectiveness, 
proportionality, legal certainty and access to justice be interpreted as 
meaning that they preclude national provisions which allow the domestic 
court, if so required by reasons of equity or the rules of social conduct, to 
grant a time-barred claim brought by a seller or supplier against a consumer 
for the recovery of sums wrongfully paid on the basis of an agreement which 
has become invalid because it contains unfair contractual terms? 
II. […]. 
 
[…] 
GROUNDS 
[…] 
 
[…] 
1 Referring court. 
2 [Details of the court] […]. 
3 Parties to the main proceedings and their representatives. 
4 P […]. 
5 […]. 
6 Subject matter of the dispute in the main proceedings and the relevant 
matters of fact. 
7 On 12 November 2007, Nordea Bank Polska S.A. (the claimant’s legal 
predecessor) concluded with the defendants a loan agreement denominated in 
Swiss francs (CHF), for an amount of CHF 157 958 and a period of 40 years […]. 
The content of the terms set out in the general part of this agreement was as 
follows. If the loan is denominated in a foreign currency, the loan amount 
disbursed in zlotys shall be determined by converting into zlotys the amount 
expressed in the currency in which the loan is denominated, based on the buying 
rate of this currency specified in the bank’s exchange rate table applicable on the 
date when the funds are disbursed, at the time when the currency conversions are 
performed (Section 1(2)). If the loan is denominated in a foreign currency, an 
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amount equivalent to the disbursed amount expressed in the foreign currency shall 
be disbursed in zlotys (Section 11(2)). The buying rate of the foreign currency 
specified in the bank’s exchange rate table applicable on the date when the funds 
are disbursed, at the time when the currency conversions are performed, shall 
apply to currency conversions for disbursed loan amounts (Section 11(3) of the 
general part of the agreement). If the loan is denominated in a foreign currency: 1/ 
the schedule of loan repayments shall be expressed in the currency in which the 
loan is denominated, 2/ the repayments shall be made in zlotys and shall be 
equivalent to the amounts expressed in the foreign currency, 3/ the instalments of 
the principal and interest under the loan being repaid shall be converted at the 
selling rate of the currency in question specified in the bank’s exchange rate table 
applicable on the date of repayment, at the time when the currency conversions 
are performed (Section 13(7) of the general part of the agreement). 
8 On the basis of the loan agreement, the bank placed PLN 333 000 at the 
borrowers’ disposal on 15 November 2007. 
9 On 29 May 2017, the consumers lodged a complaint at a branch of the bank. In 
this complaint, they stated that the agreement included unlawful contractual terms, 
and was therefore invalid. 
10 On 13 October 2017, the consumers lodged a statement of claim with the bank, in 
which they moved for the bank to be ordered to pay them an amount equivalent to 
the loan instalments they had paid in performance of the loan agreement. In the 
grounds for the statement of claim, the borrowers stated that the loan agreement 
contained unlawful contractual terms, and was therefore invalid. A copy of the 
statement of claim was served to the bank on 2 November 2017. In a statement of 
defence dated 1 December 2017, the bank moved for the consumers’ action to be 
set aside, stating that the agreement was valid and did not contain any unfair 
contractual terms. In a judgment dated 30 June 2023 […], the Sąd Okręgowy w 
Warszawie (Regional Court in Warsaw) found that the loan agreement concluded 
by the parties was invalid and ordered the bank to pay the borrowers 
PLN 241 416.34 together with default interest at the statutory rate. In the grounds 
for the judgment, the Regional Court stated that Section 1(2), Section 11(3) and 
Section 13(7)(3) of the agreement were unfair contractual terms without which 
performance of the agreement was impossible, and as a result the loan agreement 
was invalid; in view of this, the bank should repay to the consumers the equivalent 
of all of the loan instalments they had paid in performance of the agreement. 
11 The present proceedings were initiated by the bank, which on 29 December 2021 
brought an action against the borrowers in which it moved for the latter to be 
ordered to pay it PLN 333 000 together with default interest at the statutory rate. 
The claimant stated that since the loan agreement was invalid, the defendants 
should repay an amount equivalent to the loan capital that had been disbursed 
(Article 405 of the Civil Code in conjunction with Article 410(1) of the Civil 
Code). 
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12 In the statement of defence and the request to refer the matter to the Court of 
Justice of the European Union (the Court) for a preliminary ruling, the defendants 
stated that the action should be set aside since the bank’s claim was time-barred. 
The defendants stated that the three-year limitation period should be calculated at 
the latest from the date when the complaint or the copy of the statement of claim 
had been served to the bank in 2017, which would mean that the bank’s claim had 
become time-barred on 31 December 2020 at the latest. At the same time, the 
defendants stated that there were no grounds for applying Article 117(2)1 of the 
Civil Code, since, ‘the situation in which the claimant found itself was the result 
solely of the bank engaging in conduct which was contrary to the rules of social 
conduct and accepted principles of morality, since it had included in the loan 
agreement unlawful contractual terms resulting in the collapse of the entire legal 
relationship. Consideration should also be given to the professional nature of the 
claimant, which has access to a permanent legal service, and is therefore an entity 
that is fully aware of the rights to which it is entitled and the deadlines and 
procedures for asserting them. Invoking the principles of equity to contend that 
the bank is entitled to protection when it made use of unlawful contractual terms 
and exploited the weaker party to the legal relationship would be tantamount to an 
abuse of rights.’ 
13 Relevant provisions of law. 
14 Provisions of Polish law. 
15 Act of 23 April 1964 – Civil Code (consolidated text: Journal of Laws 2024, 
Item 1061, with later amendments). 
16 A right may not be exercised in a manner which would be contrary to its social 
and economic purpose or which would infringe the rules of social conduct. Any 
such act or omission by the entitled person shall not be treated as an exercise of 
the right and shall not be protected (Article 5). 
17 A legal transaction which is contrary to the law or intended to circumvent the law 
shall be invalid, unless the relevant provision provides otherwise, in particular that 
the invalid terms of the legal transaction are to be substituted by relevant 
provisions of law (Article 58(1)). 
18 Subject to the exceptions provided for by law, property-related claims shall be 
subject to limitation (Article 117(1)). 
19 Once the limitation period has expired, it shall no longer possible to pursue a 
claim against a consumer (Article 117(2)1). 
20 In exceptional cases, the court may, after weighing the interests of the parties, 
disregard the expiry of the limitation period for a claim against a consumer if it is 
justified by reasons of equity (Article 1171(1)). 
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21 In exercising the authority under paragraph 1, the court shall take into account, in 
particular: (1) the length of the limitation period; (2) the length of time between 
the expiry of the limitation period and the assertion of the claim; (3) the nature of 
the circumstances that prevented the claimant from pursuing the claim, including 
the effect of the obliged party’s conduct on the claimant’s delay in pursuing the 
claim (Article 1171(2)). 
22 Unless a specific provision provides otherwise, the limitation period shall be six 
years, and for claims concerning periodic payments, as well as claims related to 
the pursuit of a business activity, it shall be three years. However, the end of the 
limitation period shall be the last day of the calendar year unless the limitation 
period is shorter than two years (Article 118). 
23 The 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 the accepted principles of 
morality and grossly infringes his or her interests (unlawful terms). This shall not 
apply to terms setting out the principal obligations to be performed by the parties, 
including price or remuneration, so long as they are worded clearly 
(Article 3851(1)). 
24 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)). 
25 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 405). 
26 The provisions of the preceding articles shall apply in particular to an undue 
obligation (Article 410(1)). 
27 An obligation shall be undue where the person who performed it was in no way 
obliged or was not obliged to the person for whom he performed it, or where the 
basis of the obligation ceased to exist or the intended objective of the obligation 
was not attained, or where the legal transaction requiring performance of the 
obligation was invalid and did not become valid after the obligation was 
performed (Article 410(2)). 
28 Provisions of European Union law. 
29 The Charter of Fundamental Rights of the European Union. 
30 Union policies shall ensure a high level of consumer protection (Article 38). 
31 Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article. Everyone is entitled to a fair and public 
hearing within a reasonable time by an independent and impartial tribunal 
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previously established by law. Everyone shall have the possibility of being 
advised, defended and represented. Legal aid shall be made available to those who 
lack sufficient resources in so far as such aid is necessary to ensure effective 
access to justice (Article 47). 
32 Council Directive 93/13 of 5 April 1993 on unfair terms in consumer 
contracts (OJ L 95, 21.4.1993, p. 29 – special edition in Polish, Chapter 15, 
Volume 2, p. 288) (‘Directive 93/13’). 
33 Member States shall lay down that unfair terms used in a contract concluded with 
a consumer by a seller or supplier shall, as provided for under their national law, 
not be binding on the consumer and that the contract shall continue to bind the 
parties upon those terms if it is capable of continuing in existence without the 
unfair terms (Article 6(1)). 
34 Member States shall ensure that, in the interests of consumers and of competitors, 
adequate and effective means exist to prevent the continued use of unfair terms in 
contracts concluded with consumers by sellers or suppliers (Article 7(1)). 
35 Justification for the reference for a preliminary ruling – link between the 
question and the referring court’s decision in the case. 
36 Section 1(2), Section 11(3) and Section 13(7)(3) of the loan agreement concluded 
by the parties contain unfair contractual terms (Article 3(1) of Directive 93/13), 
and the agreement is not capable of continuing in existence without the unfair 
terms (Article 6(1) of Directive 93/13). This means that the loan agreement is 
invalid (Article 58(1) of the Civil Code), and the parties should therefore restore 
to each other all payments made on its basis (Article 405 of the Civil Code in 
conjunction with Article 410(1) of the Civil Code). The present case relates to the 
bank’s claims against the consumers based on the invalidity of the loan 
agreement. The bank has moved for the consumers to be ordered to repay an 
amount equivalent to the capital disbursed, i.e. PLN 333 000. The merits of this 
claim do not raise any concerns on the part of the referring court per se, since it 
follows from the Court's case-law that a finding that a loan agreement is invalid 
creates an obligation for the consumer to repay the loan capital, 1 and in the event 
of the annulment of a loan agreement on the grounds that it contains unfair 
contractual terms, the bank is entitled to seek compensation from the consumer 
equivalent to the loan capital together with default interest at the statutory rate 
from the date of the payment request. 2 As a result, the claim as such is in line 
 
1 Cf. judgment of the Court of 30 April 2014, C-26/13, Kásler and Káslerné Rábai, paragraph 84. 
2 Cf,: 
- judgment of the Court of 15 June 2023, C-520/21, Bank M., paragraph 84, 
- order of the Court of 11 December 2003, C-756/22, Bank Millennium, paragraph 29, 
- order of the Court of 12 January 2024, C-488/23, Naniowski, paragraph 25. 
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with EU law. Nevertheless, it is necessary to analyse the principles by which the 
bank’s claim becomes time-barred. 
37 In the case at hand, the bank is asserting a property-related claim that is subject to 
limitation (Article 117(1) of the Civil Code) after three years, at the end of a 
calendar year (Article 118 of the Civil Code). According to domestic case-law, the 
date from which the limitation period for the bank’s claim starts to run is the date 
when the consumer first questioned the bank with regard to the binding nature of 
the contractual terms. 3 Based on the facts of the present case, the borrowers 
questioned the binding nature of the agreement’s terms in a complaint which was 
served to the bank on 29 May 2017, and subsequently in a statement of claim, a 
copy of which was served to the bank on 2 November 2017. This means that the 
claim asserted by the bank in the present case became time-barred on 
31 December 2020, and therefore the statement of claim lodged by the bank on 
29 December 2021 relates to a time-barred claim. This means that the bank cannot 
demand that the consumers satisfy its claim (Article 117(2)1 of the Civil Code), 
and the defendants can refrain from satisfying this claim (Article 117(2) of the 
Civil Code). Nevertheless, it is necessary to analyse whether, in the present case, 
reasons of equity provide grounds for disregarding the limitation period for the 
claim to which the bank is entitled (Article 1171 of the Civil Code) and whether 
the plea of time-barring entered by the defendants might potentially constitute an 
abuse of subjective rights (Article 5 of the Civil Code), since if either of these 
questions were answered in the affirmative, the referring court would be able to 
grant the bank’s action even though it relates to a time-barred claim. 
38 Reference for a preliminary ruling – merits of the case. 
39 In the case at hand, application of Article 1171 of the Civil Code or Article 5 of 
the Civil Code would mean that the court can grant the bank’s time-barred claim if 
it finds that the prerequisites set out in these provisions have been met. However, 
the problem is that the wording of these prerequisites is extremely vague, i.e. the 
court should take into account the ‘rules of social conduct’ (Article 5 of the Civil 
Code), the ‘interests of the parties’ and ‘reasons of equity’ (Article 1171(1) of the 
Civil Code), as well as the circumstances referred to in the non-exhaustive list set 
out in Article 1171(2) of the Civil Code. The referring court is therefore uncertain 
whether allowing the court such far-reaching freedom to decide whether the time-
barred claim of the seller or supplier can be granted is compatible with 
Article 7(1) of Directive 93/13 and the principles of effectiveness and legal 
certainty. This means that the consumer is left in a difficult situation, since even if 
he or she is sure that the claim of the seller or supplier is time-barred, he or she 
cannot know whether the claim might nevertheless be granted. However, basing a 
trial strategy solely on a plea of time-barring (or in other words refraining from 
satisfying the bank’s claim or from entering a plea of set-off) is associated with a 
 
3 Cf. Resolution No III CZP 25/22 of the Civil Chamber (full composition) of the Supreme Court of 25 April 2024. 
 
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significant legal risk, since in the event that this strategy fails the consumer may 
be ordered to pay default interest at the statutory rate as well as the costs of the 
proceedings, which may be significant. 
40 The referring court notes that, in principle, the objectives of Directive 93/13 do 
not appear to preclude a situation where, as a result of the invalidity of a contract 
arising from the inclusion therein of unfair terms, a seller or supplier will not be 
able effectively to require the consumer to reimburse the payment made under that 
contract or the equivalent of thereof. Precisely this kind of situation may occur 
when the claim of the seller or supplier proves to be time-barred, and the domestic 
court does not perceive any grounds for disregarding the effects of the time-
barring. It follows from the Court’s case-law that, ‘if the referring court were to 
take the view that, pursuant to the relevant provisions of national law, the 
contracts would not be capable of continuing in existence after the term regarding 
cost has been removed, Article 6(1) of Directive 93/13 does not preclude the 
invalidation of those contracts, even if, as a result, the seller or supplier does not 
receive any remuneration for the services provided.’4 Nevertheless, the absence of 
any opportunity to receive remuneration for services is not the same as an absence 
of any opportunity to recover funds that have already been disbursed. The absence 
of any opportunity for the bank to recover all the money it disbursed in 
performance of the mortgage loan agreement (while at the same time being 
obliged to repay an amount equivalent to all the instalments paid by the 
borrowers) means that the bank incurs a significant loss. This effect may therefore 
be regarded as excessive for the objective of consumer protection, and it may thus 
infringe the principle of proportionality. What is more, the absence of any 
opportunity for the bank to recover the aforesaid disbursements may be regarded 
as an infringement of the court’s right of access to justice as referred to in 
Article 47 of the Charter of Fundamental Rights. 
41 Certain key reasons may furthermore argue in favour of granting the bank’s time-
barred claim. Pursuant to Article 1171(2)(1) of the Civil Code, the court should 
take into account the length of the limitation period, which in the present case is 
three years (Article 118 of the Civil Code); this can be regarded as a short period, 
particularly when compared to the length of the limitation period for a consumer’s 
claim, which is currently six years. What is more, the length of time between the 
expiry of the limitation period and the assertion of the claim (Article 1171(2)(2) of 
the Civil Code) may also be an argument for granting a time-barred claim 
provided that it is not too long (in the present case it is less than a year). Finally, 
significance may also be attached to, ‘the nature of the circumstances that 
prevented the claimant from pursuing the claim, including the effect of the obliged 
party’s conduct on the claimant’s delay in pursuing the claim’ (Article 1171(2)(3) 
of the Civil Code). Based on the facts of the present case, a number of 
circumstances of this kind can be observed. Firstly, although the borrowers lodged 
a statement of claim against the bank back in 2017, they continued at all times to 
 
4 Cf. judgment of the Court of 12 January 2023, C-395/21, D.V., paragraph 59. 
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make payments on the basis of this agreement, which might have led the bank to 
believe that the consumers intended to perform the terms of the agreement 
(although it might also be considered that the borrowers paid the instalments for 
fear that the agreement might be terminated, and the amounts owing recovered by 
the bank). Secondly, the court proceedings that ended with a finding that the 
agreement was invalid owing to the fact that it contained unfair contractual terms 
were conducted between 2017 and 2024 and were therefore protracted; during this 
period, the bank may therefore have remained uncertain as to how the court would 
rule, and whether it would be convinced by the arguments of the bank or the 
borrowers. Thirdly, until 2019 at least the bank may have been guided by the line 
of domestic case-law that dominated at this time, which assumed that it was 
possible for a loan agreement to remain in force after removing from it unfair 
contractual terms in the form of ‘conversion clauses’ with a content similar to that 
of Section 1(2), Section 11(3) and Section 13(7)(3) of the loan agreement 
concluded by the parties to the present proceedings. 5 A new line of domestic 
case-law only began to emerge in the aftermath of the judgment handed down by 
the Court on 3 October 2019, in which it stated that annulling the conversion 
clauses would lead not only to the removal of the indexing mechanism and the 
exchange difference, but also, indirectly, to the disappearance of the exchange rate 
risk, which is directly linked to the indexing of the loan at issue to a currency, 
while the terms relating to the exchange rate risk define the main subject matter of 
a loan agreement such as that at issue in the main proceedings, such that the 
objective possibility of continuing the loan agreement at issue appears, in those 
circumstances, uncertain. 6 It was only after the handing down of this landmark 
ruling by the Court that the national courts began to assume that a finding that 
conversion clauses were unlawful contractual terms would lead to the annulment 
of the entire loan agreement. 7 Finally, a situation where the borrower recovers 
from the bank all of the payments he or she has made while the bank cannot 
pursue the recovery of an amount equivalent to the loan capital disbursed because 
 
5 Cf.: 
- judgment of the Supreme Court of 14 July 2017, II CSK 803/16, 
- judgment of the Supreme Court of 13 December 2018, V CSK 559/17, 
- judgment of the Supreme Court of 27 February 2019, II CSK 19/18, 
- judgment of the Supreme Court of 4 April 2019, III CSK 159/17, 
- judgment of the Supreme Court of 9 May 2019, I CSK 242/18. 
6 Cf. judgment of the Court of 3 October 2019, C-260/18, Dziubak, paragraph 44. 
7 Cf.: 
- judgment of the Supreme Court of 11 December 2019, V CSK 382/18, 
- Resolution No III CZP 25/22 of the Civil Chamber (full composition) of the Supreme Court of 25 April 2024. 
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its claim has become time-barred may be regarded as contrary to the rules of 
social conduct and reasons of equity, and thus as contrary to the principle of 
proportionality. As the Court has pointed out, the principle of proportionality, 
which is a general principle of EU law, requires that the national legislation 
implementing that law does not go beyond what is necessary to achieve the 
objectives pursued. 8 
42 On the other hand, the arguments put forward by the defence counsel are also 
worthy of notice. He firstly submitted that the bank was an institution benefiting 
from a permanent legal service, and should therefore be aware of the legal 
consequences of including contractual terms with the relevant content in its 
agreements. This position is essentially based on the Court's case-law, since the 
Court has pointed out several times that a banking institution generally has a legal 
department specialised in the matter – such a legal department having drafted the 
contract in question in that case – which is able to follow the development of the 
case-law of the national court and to draw conclusions from it regarding the 
contracts already concluded by that institution, 9 and then to act accordingly. 10 
The fact that the seller or supplier lodged a statement of claim after the expiry of 
the limitation period may thus be regarded as a failure to apply due diligence, 
which should not be excused by reasons of equity, all the more so in a case 
involving an action by a seller or supplier against a consumer. Secondly, the 
defence counsel stated that the current situation was a result of the fact that the 
bank had included unfair contractual terms in the agreement, and thus if the bank 
had not infringed the rules of social conduct in this way, the agreement would not 
have become invalid, and as a result the bank would not have needed to seek 
judicial redress to recover the payments wrongfully made in performance of this 
agreement. Since the bank itself infringed principles of equity by including unfair 
terms in the agreement, it would be unjust for the bank to invoke reasons of equity 
in the present case in order to avoid the negative consequences of its omission, 
which involved lodging a statement of claim for payment following the expiry of 
the limitation period. Otherwise a rule might have been put in place whereby a 
party cannot invoke rules of equity if that same party has infringed them, and 
 
8 Cf. judgment of the Court of 15 June 2023, C-520/21, Bank M, paragraph 73. 
9 Cf.: 
- judgment of the Court of 25 April 2024, C-484/21, Caixabank, paragraph 46, 
- judgment of the Court of 25 April 2024, C-561/21, Banco Santander, paragraph 53. 
10 Cf.: 
- judgment of the Court of 13 July 2023, C-35/22, CAJASUR Banco, paragraph 32, 
- judgment of the Court of 25 January 2024, C-810/21 to C-813/21, Caixabank, paragraph 58. 
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nemo auditur propriam turpitudinem allegans (no one may rely on his or her own 
wrong doing). 11 
43 This situation thus makes it clear that it is necessary in the present case to 
determine whether attainment of the objectives of Directive 93/13 might not 
infringe the principle of proportionality, and furthermore whether the objectives of 
this Directive might to a certain extent limit the bank’s right of access to justice. 
An interpretation of EU law in the aforesaid scope is therefore necessary in order 
to give a decision on this case, and the referring court accordingly requests the 
Court to provide the relevant guidance. 
44 Question referred for a preliminary ruling. 
45 [Repetition of the question] […]: 
[…]. 
46 Staying of main proceedings. 
47 […]  
[…] 
 
11  Cf.: judgment of the Court of 15 June 2023, C-520/21, Bank M, paragraph 81.