Information;Order — ECLI:EU:C:2021:481
Date: 2021-06-10
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-198/20 — 1 
Case C-198/20 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
11 May 2020 
Referring court: 
Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for 
Warszawa-Wola in Warsaw, Poland) 
Date of the decision to refer: 
11 May 2020 
Applicants: 
MN 
DN 
JN 
ZN 
Defendant: 
X Bank S.A. 
  
Subject matter of the case in the main proceedings 
A claim for payment of PLN 46 412.79 plus interest and legal costs as a partial 
claim arising from the invalidity of a contract; alternatively, the applicants claim 
the amount of PLN 46 614.14 as a partial claim arising from consumers not being 
bound by unlawful contractual terms. 
Subject matter and legal basis of the reference 
Interpretation of recitals 11, 18 and 22 and Article 2(b) of Council Directive 
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts with a view to 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-198/20 
 
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defining the group of persons on whom consumer protection is conferred by that 
directive. 
The legal basis for the questions referred for a preliminary ruling is 
Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on 
the Functioning of the European Union. 
Questions referred 
1. First question: Must Article 2(b) of Council Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts (OJ 1993 L 95, 21.4.1993, p. 29–34 
[…], ‘Directive 93/13’), Article 3(1) and (2) and Article 4 of Directive 93/13 and 
its following recitals: 
- whereas the consumer must receive equal protection under contracts concluded 
by word of mouth and written contracts regardless, in the latter case, of whether 
the terms of the contract are contained in one or more documents; 
- whereas the assessment, according to the general criteria chosen, of the unfair 
character of terms, in particular in sale or supply activities of a public nature 
providing collective services which take account of solidarity among users, must 
be supplemented by a means of making an overall evaluation of the different 
interests involved; whereas this constitutes the requirement of good faith; 
whereas, in making an assessment of good faith, particular regard shall be had to 
the strength of the bargaining positions of the parties, whether the consumer had 
an inducement to agree to the term and whether the goods or services were sold or 
supplied to the special order of the consumer; whereas the requirement of good 
faith may be satisfied by the seller or supplier where he deals fairly and equitably 
with the other party whose legitimate interests he has to take into account; 
- whereas contracts should be drafted in plain, intelligible language, the consumer 
should actually be given an opportunity to examine all the terms and, if in doubt, 
the interpretation most favourable to the consumer should prevail; 
in the light of paragraphs 16 and 21 of the Court’s judgment of 3 September 2015, 
Costea (C-110/14, EU:C:2015:538) and points 20 and 26-33 of the Opinion of 
Advocate General Cruz Villalón delivered on 23 April 2015 
(ECLI:EU:C:2015:271), 
be interpreted as meaning that every consumer is entitled to the consumer 
protection conferred by Directive 93/13? 
Or, as suggested by paragraph 74 of the Court’s judgment of 30 April 2014, 
Kásler and Káslerné Rábai ([C-26/13], ECLI:EU:C:2014:282), is consumer 
protection only available to an average consumer, who is reasonably well 
informed and reasonably observant and circumspect? In other words, can the 
national court find the terms of a contract concluded by any consumer to be 
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unlawful or can it only find the terms of a contract concluded by a consumer who 
can be considered an average consumer, who is reasonably well informed and 
reasonably observant and circumspect, to be unlawful? 
2. Second question: If the answer to the first question is that consumer 
protection under Directive 93/13 is not available to every consumer, but only to an 
average consumer, who is reasonably well informed and reasonably observant and 
circumspect, can a consumer who did not read a contract for a mortgage loan 
indexed to a foreign currency amounting to PLN 150 000, concluded for 30 years, 
before its conclusion, be considered an average consumer, who is reasonably well 
informed and reasonably observant and circumspect? Can such a consumer be 
granted protection under Directive 93/13? 
3. Third question: If the answer to the first question is that consumer protection 
under Directive 93/13 is not available to every consumer, but only to an average 
consumer, who is reasonably well informed and reasonably observant and 
circumspect, can a consumer who, although he did read a draft contract for a 
mortgage loan indexed to a foreign currency amounting to PLN 150 000, 
concluded for 30 years, he did not fully understand it, and yet did not try to 
understand its meaning before its conclusion, and in particular did not ask the 
other party to the contract (the bank) to explain its meaning and the meaning of its 
individual provisions, be considered an average consumer, who is reasonably well 
informed and reasonably observant and circumspect? Can such a consumer be 
granted protection under Directive 93/13? 
Applicable provisions of Community law 
Directive 93/13: recitals 11, 18 and 22; Articles 2, 3 and 4(1) 
Applicable provisions of national law 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 — the 
Civil Code, Journal of Laws [Dz. U.] of 2007, item 459, as amended, ‘the Civil 
Code’) 
Article 3851 
§ 1. 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 good practice and grossly 
infringes his or her interests (unlawful terms). This shall not apply to provisions 
setting forth the principal matters to be performed by the parties, including 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. 
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§ 3. The terms of a contract which have not been individually negotiated are those 
over the content of which the consumer had no genuine influence. This shall refer 
in particular to contractual provisions taken from a standard contract proposed to a 
consumer by a contracting party. 
§ 4. The burden of proving that a provision has been agreed individually rests with 
the person relying thereon. 
Article 3852 
The compliance of a contractual provision 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 the 
contracts connected with the contract which contains the provision assessed. 
Article 221  
A ‘consumer’ is a natural person who, when concluding and performing a 
consumer contract, does not act in the course of his trade or of another 
commercial activity. 
Article 65 
§ 1. A declaration of intent should be interpreted in accordance with the principles 
of social conduct and with established customs, taking into account the 
circumstances in which the intent was expressed. 
§ 2. Regard should be had to the contracts to determine the common intent of the 
parties and the specified objective of those contracts rather than focusing on the 
literal meaning of the terms used. 
Brief outline of the facts and procedure 
1 On 21 July 2008, the applicants, who are consumers, concluded a contract with 
the legal predecessor of the defendant Bank for a housing loan amounting to 
PLN 150 000, denominated in Swiss francs (indexed to the Swiss franc), for 
360 months. The amount of the loan denominated in Swiss francs was to be 
determined according to the foreign currency buying rate stated in the exchange 
rate table in force at the bank on the date of loan disbursement. The loan bore 
interest at the floating 3M LIBOR rate plus a fixed margin of 2.32 percentage 
points. Loan payments were expressed in CHF and were made in PLN according 
to the foreign currency selling rate stated in the exchange rate table in force at the 
bank on the payment date. 
2 At the time of concluding the contract, the applicant MN was attending an 
undergraduate course in education, the applicant DN was attending an 
undergraduate course in economics, while the applicant JN was employed at a 
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municipal office and had completed an agricultural technical college. At the time 
of concluding the contract, ZN was a driver with an elementary level of education. 
3 The formalities of the loan prior to signing the contract were handled by phone 
and fax or by post by MN — and not by DN, who had an economics 
background — using the services of a credit advisor whom the applicants had 
never met. All the documentation was not submitted to the bank, but sent to the 
advisor. Given MN’s and DN’s insufficient creditworthiness, the advisor 
suggested that MN’s parents (JN and ZN) become parties to the contract. The 
advisor indicated only one bank (the defendant’s legal predecessor) that was able 
to grant them a loan amounting to PLN 150 000, and then only indexed to a 
foreign currency. The applicants’ intention was to obtain a loan on the most 
favourable terms possible. The applicants themselves did not contact the bank’s 
employees. 
4 The contract was signed by MN acting on his own behalf and on behalf of DN, JN 
and ZN on the basis of a notarial power of attorney granted to him. The applicant 
MN did not read the documents at the bank before signing them. As instructed by 
an employee of the bank, when signing the contract, MN checked the borrowers’ 
personal details and the details of the property the loan concerned. He indicated 
that he had not received the draft contract previously and that no one had informed 
him of that possibility. In his opinion, since the documents were long, there was 
no time to read all of them. After signing the contract, the applicants MN and DN 
tried to read it, but unfortunately could not understand it, whereas the applicants 
JN and ZN had nothing to do with the contract after signing the power of attorney. 
5 The applicant MN was not interested in the foreign currency mechanism 
underlying loan contracts and did not know what caused movements in exchange 
rates. He decided to conclude such a contract because it was a popular type of 
contract at the time and had a good reputation among borrowers. He only became 
interested in exchange rate movements after the loan payments had increased 
significantly. The applicants concluded an annex to the loan agreement with the 
predecessor of the defendant bank, as a result of which they have been repaying 
the loan in Swiss francs since December 2012. 
6 On 20 September 2018, MN and DN submitted a demand for payment to the 
defendant bank and demanded that the contract be properly performed. They also 
submitted a complaint. On 26 September 2018, they submitted a set-off notice to 
the bank. 
7 As part of the claim, the applicants demand that the contract be declared invalid 
due to the unlawful nature of the terms and conditions of the loan agreement.  
8 The defendant submits that the action should be dismissed in its entirety and that it 
should be awarded costs. 
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Essential arguments of the parties in the main proceedings 
9 The applicants base their claim that the contract should be declared invalid on the 
fact that it is not possible to modify the statutory loan framework using freedom of 
contract. In accordance with the applicants’ position, the provisions of the contract 
for a mortgage loan allow the bank to freely set the foreign currency (Swiss franc) 
exchange rate and thus the amount of the applicants’ debt. Therefore, the bank 
unilaterally determines the loan balance amount expressed in foreign currency, 
which is the basis for calculating interest and for determining the loan payment 
amounts. Moreover, the applicants allege that bank loan amounts may not be 
indexed and that the indexing mechanism stipulated in the contract is contrary to 
contract indexation rules. 
10 Furthermore, the applicants allege that the loan amount was not stated and that the 
principle that foreign currency liabilities may be repaid in Polish currency was 
infringed if it is assumed that the loan was in fact a foreign currency loan. They 
also allege that the bank engaged in an unfair practice which misled them. 
11 The applicants maintain that the contract cannot be performed owing to the 
unlawful nature of its currency conversion clauses. This unlawfulness consists in 
the ambiguity of the contract template and the bank’s failure to provide full 
information on the indexing clause using comprehensible language.  
12 Moreover, the unlawful nature of the indexing clause is evidenced by the fact that 
the consumer has no right to withdraw from the contract in view of the 
introduction of a contractual mechanism which increases his payments. 
13 Finally, the applicants take the view that the arbitrary mechanism for setting the 
Swiss franc exchange rate for the purpose of contractual settlements is also 
unlawful. If currency conversion clauses are deemed abusive, then maintaining 
loan indexation would amount to a reduction of provisions in order to maintain 
their effectiveness, which is prohibited. 
Brief statement of and reasons for the reference 
14 The referring court does not share the view that the invalidity of a loan agreement 
indexed on general terms arises from causes other than the unlawful nature of 
contractual clauses. When examining the unfair nature of contractual terms, the 
court followed the guidelines set out in the Court’s judgments cited above. In the 
event that the provisions of the contract are found to be unlawful, the court does 
not rule out declaring the contract to be invalid owing to the impossibility of its 
performance. 
15 At the outset, the referring court stresses that consumer protection has been 
enhanced as a result of the adoption and implementation of Council Directive 
93/13 in the Member States; examples of this trend in Polish law include the 
provisions of Articles 3851 and 3852 of the Civil Code. 
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16 The national court also draws attention to the extensive case-law of the Court of 
Justice in cases involving loans, including loans denominated in, or indexed to, a 
foreign currency, within the scope of which it refers, in particular, to the following 
judgments: of 14 June 2012, Banco Español de Crédito, C-618/10, 
EU:C:2012:349; of 15 March 2012, Pereničová and Perenič, C-453/10, 
EU:C:2012:144; of 14 March 2013, Aziz, C-415/11, EU:C:2013:164 ; judgment of 
26 February 2015, Matei, C-143/13, EU:C:2015:127, of 30 April 2014, Kásler 
and Káslerné Rábai, C-26/13, EU:C:2014:282; of 21 January 2015, Unicaja 
Banco and Caixabank, C-482/13, C-484/13, C-485/13 and C-487/13, 
EU:C:2015:21; of 3 December 2015, Banif Plus Bank, C-312/14, EU:C:2015:794; 
of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15, C-307/15 and 
C-308/15, EU:C:2016:980, Ana María Palacios Martínez and Banco Bilbao 
Vizcaya Argentaria SA (BBVA) (C-307/15), Banco Popular Español, SA and Emil 
Irles López, Teresa Torres Andreu (C-308/15), ECLI:EU:C:2016:980; of 20 
September 2017, Andriciuc and Others, C-186/16, EU:C:2017:703; of 31 May 
2018, Sziber, C-483/16, EU:C:2018:367; of 20 September 2018, OTP Bank and 
OTP Faktoring, C-51/17, EU:C:2018:750; of 14 March 2019, Dunai, C-118/17, 
EU:C:2019:207; of 26 March 2019, Abanca Corporación Bancaria and Bankia, 
C-70/17 and C-179/17, EU:C:2019:250, and judgment of 3 October 2019 based 
on a Polish reference for a preliminary ruling: Dziubak, C-260/18, 
ECLI:EU:C:2019:819. 
17 In the context of this case-law of the Court of Justice, the national court draws 
particular attention to the judgment of 30 April 2014, Kásler and Káslerné Rábai, 
C-26/13, ECLI:EU:C:2014:282, citing the following grounds: 
74. […] it is for the referring court to determine whether, having regard to all the 
relevant information, including the promotional material and information provided 
by the lender in the negotiation of the contract for a loan, the average consumer, 
who is reasonably well informed and reasonably observant and circumspect, 
would not only be aware of the existence of the difference, generally observed on 
the securities market, between the selling rate of exchange and the buying rate of 
exchange of a foreign currency, but also be able to assess the potentially 
significant economic consequences for him resulting from the application of the 
selling rate of exchange for the calculation of the repayments for which he would 
ultimately be liable and, therefore, the total cost of the sum borrowed. 
18 The referring court would also like to draw attention to the judgment of the Court 
of Justice of 3 September 2015, Costea, C-110/14, ECLI:EU:C:2015:538, citing 
the following grounds: 
16. According to those definitions, a ‘consumer’ is any natural person who, in 
contracts covered by the directive, is acting for purposes which are outside his 
trade, business or profession. Likewise, a ‘seller or supplier’ is any natural or legal 
person who, in contracts covered by [Directive 93/13], is acting for purposes 
relating to his trade, business or profession, whether publicly owned or privately 
owned. 
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21. The concept of ‘consumer’, within the meaning of Article 2(b) of Directive 
93/13, is, as the Advocate General observes in points 28 to 33 of his Opinion, 
objective in nature and is distinct from the concrete knowledge the person in 
question may have, or from the information that person actually has. 
19 In addition, the referring court would like to refer to the Opinion of Advocate 
General Pedro Cruz Villalón delivered on 23 April 2015 in Costea, C-110/14, 
ECLI:EU:C:2015:271, citing in particular the following points:  
20. It is apparent from that provision that, for the purposes of the definition of 
consumer and the definition of seller or supplier, the sphere in which the 
individual concerned acts is relevant. Thus, Article 2(b) of the Directive provides 
that a consumer is ‘any natural person who, in contracts covered by this Directive, 
is acting for purposes which are outside his trade, business or profession’. By 
contrast, according to Article 2(c), a seller or supplier is ‘any natural or legal 
person who, in contracts covered by this Directive, is acting for purposes relating 
to his trade, business or profession […]’. 
26. Thus, the wording of the Directive and the case-law interpreting that 
instrument and Directive 85/577 appear to opt for a concept of consumer which is 
both objective and functional; therefore, as regards a specific person, it is not an 
inherent, unalterable category, but is, on the contrary, a quality which may be 
assessed by reference to a person’s status in relation to a particular legal 
transaction or operation, among the many which he may carry out in his daily life. 
As Advocate General Mischo observed in Di Pinto, [Or. 15] as regards the 
concept of consumer in the context of Article 2 of Directive 85/577, the persons 
referred to in that provision ‘are not defined in abstracto, but rather according to 
what they do in concreto’, so that the same person, in different circumstances may 
be sometimes a consumer and sometimes a seller or supplier. 
27. That conception of a consumer as an actor in a specific legal transaction, 
which entails both objective and functional elements as the case may be, is also 
confirmed in the context of the Brussels Convention, a context in which the Court 
has also interpreted the term ‘consumer’; however, as I shall point out below, the 
analogy must be qualified when interpreting the directive, taking account of the 
different objectives of the two measures. Thus, in Benincasa, the Court held that, 
in order to determine whether a person has the capacity of a consumer, ‘reference 
must be made to the position of the person concerned in a particular contract, 
having regard to the nature and aim of that contract, and not to the subjective 
situation of the person concerned. […] [T]he self-same person may be regarded as 
a consumer in relation to certain transactions and as an economic operator in 
relation to others.’ 
28. In short, this is an objective and functional definition which is satisfied on the 
basis of a single criterion: the legal transaction in particular must form part of 
activities which are outside a person’s trade, business or profession. As the 
Romanian Government has observed, the Directive does not lay down any 
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additional criteria for establishing the status of consumer. It is, moreover, a 
concept which is defined from a situational perspective, in other words, in relation 
to a specific legal transaction. Accordingly, no one can be deprived of the 
possibility of being treated as a consumer in relation to a contract which is outside 
his trade, business or profession by reason of his general knowledge or his 
occupation, and instead regard must be had exclusively to his position vis-à-vis a 
specific legal transaction. 
29. That conclusion is not called into question by Volksbank’s submissions based 
on the spirit of the Directive, referring, in particular, to a number of recitals in the 
preamble to the Directive. Taking a systematic approach to the Directive, the idea 
that the consumer is vulnerable and in a weak position as regards both his 
bargaining power and his level of knowledge is the rationale for the Directive, 
since it is based on a situation in which a consumer agrees to terms drawn up in 
advance by the seller or supplier without being able to influence the content of 
those terms. However, those notions of vulnerability and weakness, which 
generally underlie EU consumer protection law as a whole, were not given 
concrete form in the legislative [Or. 16] expression of the concept of consumer as 
necessary conditions through its definition in positive law. Thus, neither the 
definition of consumer nor any other provisions of the Directive make the 
existence of the status of consumer in a particular situation subject to a lack of 
knowledge, a lack of information or a genuine position of weakness. 
30. It would undermine the practical effect of the Directive if it were possible to 
call into question the status of consumer in each individual case, based on factors 
related to the experience, education, occupation and even the intelligence of the 
consumer. In particular, lawyers (or those with a law degree, and other 
professionals) would be deprived of protection in many aspects of their private 
affairs. As the Romanian Government points out, even where the level of 
knowledge of the person in question may be comparable to that of the lender, that 
does not alter the fact that his bargaining power is the same as that of any other 
natural person vis-à-vis a seller or supplier. 
31. The Court held in Šiba that ‘lawyers display a high level of technical 
knowledge which consumers may not have’. However, those considerations 
referred to a situation in which the lawyer in question ‘provides a legal service for 
a fee, in the course of his professional activities, to a natural person acting for 
private purposes’ and is, therefore, a seller or supplier within the meaning of 
Article 2(c) of the Directive. 
32. Further, an interpretation of the kind proposed by Volksbank would result in 
all persons who had legal advice or professional advice of another kind when the 
contract was concluded being denied the status of consumer. 
33. In addition, the effect of the knowledge or specific situation of the person 
concerned has been rejected by the Court in areas distinct from that of the 
Directive, when the objective requirement that the activity must be outside the 
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trade, business or profession of the person concerned was not satisfied. That 
occurred in relation to Directive 85/577, with regard to which the judgment in Di 
Pinto shows that where a person acts in the context of his trade, business or 
profession a genuine lack of knowledge in the particular case does not detract 
from his status as a seller or supplier. 
20 Bearing in mind the judgment in Kásler and Káslerné Rábai, and in particular 
paragraph 74 thereof, in the light of the facts of the case where only one of the 
consumers (MN) signed the contract for a loan without reading it, the court has 
doubts as to whether such consumer(s) can be granted protection under Directive 
93/13. 
21 Since some consumers either do not conclude such contracts at all or very rarely, 
it would appear that when concluding such a contract, the consumer should show 
an above-average interest in contractual terms and exercise above-average care to 
protect his interests. In the view of the referring court, a consumer who has not 
read a contract such as the one at issue in the present case before signing it and 
likewise a consumer who has read the contract but has not understood it, and yet 
has made no effort to understand it, cannot be regarded as average consumers, 
who are reasonably well informed and reasonably observant and circumspect. The 
court therefore has doubts as to whether consumer protection can be granted to 
consumers such as those in the main proceedings, and whether the court can find 
that the terms of a contract concluded by such consumers are unlawful. 
22 The referring court took account of the fact that, on the one hand, in their 
definitions of a consumer both Article 2(b) of Directive 93/13 and Article 221 of 
the Civil Code do not literally impose any requirements on the consumer, merely 
indicating that a consumer is a natural person who enters into a contract not in 
connection with any business activity. This is also pointed out in paragraph 21 of 
the Court’s judgment of 3 September 2015, Costea, C‑ 110/14, EU:C:2015:538, 
where it is stated that the concept of ‘consumer’ is objective in nature and is 
distinct from the concrete knowledge the person in question may have, or from the 
information that person actually has. Attention should also be drawn to the views 
of Advocate General Pedro Cruz Villalón presented in point 74 of his opinion in 
Costea, C-110/14, ECLI:EU:C:2015:271. On the other hand, both national and the 
Court’s case-law indicate that the appropriate benchmark is not just any consumer, 
but rather an average consumer, who is reasonably well informed and reasonably 
observant and circumspect. This is articulated explicitly in paragraph 74 of 
judgment C-26/13, ECLI:EU:C:2014:282. 
23 It is worth noting that the later Directive 2005/29/EC of the European Parliament 
and of the Council of 11 May 2005 concerning unfair business-to-consumer 
commercial practices in the internal market and amending Council Directive 
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European 
Parliament and of the Council and Regulation (EC) No 2006/2004 of the 
European Parliament and of the Council already explicitly mentions in recital 18 
that the benchmark should be the average consumer, who is reasonably well-
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informed and reasonably observant and circumspect, taking into account social, 
cultural and linguistic factors (including characteristics that make consumers 
particularly vulnerable to unfair commercial practices). 
24 In this regard, it should be added that Article 4(1) of Directive 93/13 (in its 
English and German versions) requires that, when assessing the unfairness of a 
contractual term, the nature of the goods or services for which the contract was 
concluded as well as all the circumstances attending the conclusion of the contract 
should be taken into account. Similarly, both Article 65(1) and Article 3852 of the 
Civil Code require that the circumstances in which the contract was concluded 
must be taken into account. 
25 Therefore, in the opinion of the referring court, the following circumstances 
cannot be disregarded: the nature of the subject matter of the contract, the amount 
and term of the contract for a mortgage loan (PLN 150 000, 30 years) and the fact 
that the loan amount was indexed to a foreign currency. The circumstances 
attending the conclusion of the contract are also relevant, namely, that the 
consumers signed the contract without reading it and made no effort to understand 
the contract after signing despite the fact that they did not understand it. 
26 In these circumstances, the referring court has doubts as to whether consumer 
protection can be granted to any consumer or only to an average consumer, who is 
reasonably well informed and reasonably observant and circumspect. In other 
words, can the national court find the terms of a contract to be unlawful where the 
contract was concluded by a consumer who cannot be considered an average 
consumer, who is reasonably well informed and reasonably observant and 
circumspect? 
27 On the one hand, it appears reasonable to protect every consumer, even a 
consumer who behaves not entirely reasonably (does not read the contract before 
signing it or does not understand the contract yet takes no steps to understand it), 
from possible contractual clauses which are unlawful. Granting protection even to 
consumers such as those would induce sellers or suppliers to refrain from 
including unfair terms in contracts. This would provide an argument in favour of 
granting consumer protection to every consumer without exception. 
28 On the other hand, granting consumer protection to a consumer who did not read 
the contract before signing it, or did not understand the contract, but still 
concluded it and made no effort to understand it (especially a contract such as the 
one examined in the present case) may result in a situation where the consumer, 
many years later, is able to invoke the unlawful nature of clauses in the contract if 
he does not obtain the expected benefits from it. In this instance, the consumer 
could nullify the risks (in this case, the exchange rate risk) that he voluntarily 
assumed when concluding the contract. This is incompatible with the principles of 
legal certainty, contract stability and pacta sunt servanda. Moreover, Directive 
93/13 was not adopted with a view to being applied to complex long-term 
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financial commitments, which, in the view of the referring court, must also be 
taken into account when answering the questions referred for a preliminary ruling. 
29 The national court has analysed the case-law of the Court of Justice, but did not 
find an explicit answer to the questions referred for a preliminary ruling as set out 
in this request; the referring court did not even find sufficient guidance that would 
enable it to decide these questions itself. Therefore, it has decided to refer 
questions to the Court of Justice. 
30 As regards the answer to the first question, the national court wishes to draw 
attention to the dilemma of the limits of consumer protection. The conflicting 
values of consumer protection on the one hand, and the principles of legal 
certainty, stability of contracts and pacta sunt servanda on the other, must be 
balanced. If the Court concludes that not every consumer is entitled to protection, 
but only a consumer who can be considered an average consumer, who is 
reasonably well informed and reasonably observant and circumspect, the referring 
court points out that in its view, when answering the second question, both a 
consumer who has not read a contract such as the one at issue in the present case 
(a mortgage loan indexed to a foreign currency) before signing it and a consumer 
who, although he has read it, has not understood it and yet has made no effort to 
understand it, cannot be regarded as an average consumer, who is reasonably well 
informed and reasonably observant and circumspect. Consequently, the answer 
should be that consumer protection should not be granted to a consumer who has 
signed a contract such as the one at issue in the present case without reading it and 
that the unlawful nature of the terms of such a contract cannot be examined.