Judgment;Summary — ECLI:EU:C:2021:934
Date: 2021-11-18
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 of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 May 2020 
Referring court: 
Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for 
Warszawa-Wola, Warsaw, Poland) 
Date of the decision to refer: 
22 January 2020 
Applicants: 
M.P. 
B.P. 
Defendant: 
‘A.’ operating through ‘A.’ S.A. [a limited company] 
  
Subject matter of the case in the main proceedings 
A claim for payment of the amount of PLN 50 000 as unjustified amounts 
received by the defendant on the basis of abusive clauses contained in a loan 
agreement with respect to the indexation of loan payment amounts and the amount 
of the applicants’ debt. 
Subject matter and legal basis of the request 
Articles 3(1), 4(1) and 5 of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts (‘Directive 93/13’). 
EN 
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Questions referred 
1. In the light of Articles 3(1), 4(1) and 5 of Council Directive 93/13/EEC of 
5 April 1993 on unfair terms in consumer contracts and its recitals, pursuant 
to which contracts must be drafted in plain and intelligible language and 
doubts must be interpreted in the consumer’s favour, must a contractual term 
setting out the buying and selling rates of a foreign currency in a loan 
agreement indexed to a foreign currency be worded unequivocally, that is to 
say, in a manner that enables the borrower/consumer to determine that rate 
himself on any given day, or, in the light of the type of contract as referred 
to in Article 4(1) of Directive 93/13, the long-term nature (spanning several 
decades) of the contract and the fact that the amount in foreign currency is 
subject to constant changes (may change at any time), is it possible to 
formulate a more general wording of the contractual term, that is to say, one 
that refers to the market value of the foreign currency, in a manner which 
prevents a significant imbalance in the parties’ rights and obligations to the 
detriment of the consumer within the meaning of Article 3(1) of that 
directive? 
2. If the answer to the first [question] is in the affirmative, in the light of 
Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts and its recitals, it is possible to interpret a contractual 
term concerning the determination by the creditor (bank) of the buying and 
selling rates of a foreign currency in such a manner as to resolve doubts in 
the consumer’s favour and to assume that the contract determines the buying 
and selling rates of a foreign currency not in an arbitrary manner, but on 
free-market terms, especially if both parties had the same understanding of 
the contractual terms determining the buying and selling rates of the foreign 
currency or if the borrower/consumer was not interested in the disputed 
contractual term at the time of conclusion of the contract and during its 
performance, and was also not familiar with the content of the contract at the 
time of its conclusion and throughout its duration? 
Applicable provisions of EU law 
Directive 93/13: twentieth recital, Article 3(1), Article 4(1) and Article 5. 
Applicable provisions of national law 
Kodeks cywilny — ustawa z dnia 23 kwietnia 1964 r. (Law of 23 April 1964 — 
the Civil Code, Journal of Laws [Dz. U.], No 16, item 93, as amended; ‘the CC’). 
Article 65 
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§ 1. A declaration of intent should be interpreted as required by the 
circumstances in which it was made, the rules of social conduct and established 
customs. 
§ 2.  Contracts should be examined from the point of view of the parties’ 
intentions and the purpose of the contract rather than relying on the literal wording 
of the contract. 
Article 3531 
Contracting parties may arrange their legal relationship at their discretion as long 
as the substance or purpose of the contract are not contrary to the properties 
(nature) of the relationship, the law or the rules of social conduct. 
Article 3851 
§ 1. Provisions of a contract concluded with a consumer which have not been 
agreed individually shall not be binding on the consumer if his rights and 
obligations are set forth in a way that is contrary to good practice and grossly 
infringes his interests (abusive clauses). 
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. 
§ 3. Provisions of a contract which are not agreed individually are those over the 
content of which the consumer had no genuine influence. This refers 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. 
Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Banking Law of 29 August 
1997, consolidated text: Journal of Laws [Dz. U.] of 2019, item 2357) 
Article 69 in its current wording 
1. In a loan agreement, the bank undertakes to place at the borrower’s disposal 
for the period of time stipulated in the agreement a certain amount of money 
which can be used for a specified purpose, and the borrower undertakes to use this 
amount under the terms and conditions stipulated in the agreement, to return the 
amount of the utilised loan together with interest on set repayment dates and to 
pay a fee on the loan granted. 
2. A loan agreement should be made in writing and stipulate, in particular: 
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(1) the parties to the agreement; 
(2) the loan amount and currency; 
(3) the purpose for which the loan was granted; 
(4) the loan repayment terms and dates; 
(4a) in the case of loans denominated in, or indexed to, a currency other than the 
Polish currency, detailed rules specifying the methods for, and dates of, 
determining the exchange rate which is used, n particular, to calculate the amount 
of the loan, its tranches and principal and interest payments as well as the rules for 
converting amounts to the currency in which the loan was disbursed or is being 
repaid; 
(5) the loan interest rate and the conditions for changing it; 
(6) the manner of securing repayment of the loan; 
(7) the scope of the bank’s rights related to controlling utilisation and repayment 
of the loan; 
(8) the dates and manner of placing the funds at the borrower’s disposal; 
(9) the amount of fee, if provided for in the agreement;  
(10) the conditions governing amendment and termination of the agreement. 
3. In the case of loans denominated in, or indexed to, a currency other than the 
Polish currency, the borrower may make principal and interest payments as well 
as repay the loan early in full or in part directly in that currency. In this case, the 
loan agreement shall also set out the rules for opening and maintaining the 
account in which funds intended for repayment of the loan are accumulated and 
the rules for making payments using this account. 
Article 69 in its wording as at the agreement conclusion date, that is, 16 May 2008 
1. In a loan agreement, the bank undertakes to place at the borrower’s disposal 
for the period of time stipulated in the agreement a certain amount of money 
which can be used for a specified purpose, and the borrower undertakes to use this 
amount under the terms and conditions stipulated in the agreement, to return the 
amount of the utilised loan together with interest on set repayment dates and to 
pay a fee on the loan granted. 
2. A loan agreement should be made in writing and stipulate, in particular: 
(1) the parties to the agreement; 
(2) the loan amount and currency; 
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(3) the purpose for which the loan was granted; 
(4) the loan repayment terms and dates; 
(5) the loan interest rate and the conditions for changing it; 
(6) the manner of securing repayment of the loan; 
(7) the scope of the bank’s rights related to controlling utilisation and repayment 
of the loan; 
(8) the dates and manner of placing the funds at the borrower’s disposal; 
(9) the amount of fee, if provided for in the agreement; 
(10) the conditions governing amendment and termination of the agreement. 
Article 111 in its wording as at the agreement conclusion date, that is, 16 May 
2008 
l. The Bank shall announce at the place where it conducts its business, in a 
generally accessible manner: 
(1) the interest rates applicable to funds in bank accounts and to loans; 
(2) the applicable fee rates and the amount of fees charged; 
(3) the interest capitalisation dates; 
(4) the exchange rates applied; 
(5) the balance sheet, together with the opinion of the statutory auditor, for the 
most recent period subject to audit; 
(6) the composition of the bank’s Management Board and Supervisory Board; 
(7) information on the terms on which cross-border transfers are executed; 
(8) the names of persons authorised to enter into commitments on behalf of the 
bank or an organisational unit thereof; 
(9) information on domestic or foreign entrepreneurs referred to in Article 6a(1) 
if those entrepreneurs have access to information protected by banking secrecy 
when performing the activities referred to in this provision for the benefit of an 
organisational unit of the bank. 
2. In addition to the information referred to in subparagraph 1, cooperative 
banks shall also indicate their area of operation and their affiliating bank. 
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Ustawa o Narodowym Banku Polskim z dnia 29 sierpnia 1997 r. (Law on the 
National Bank of Poland of 29 August 1997, consolidated text: Journal of Laws 
[Dz. U.] of 2019, item 1810) 
‘Article 1 
The National Bank of Poland (‘the NBP’) is the central bank of the Republic of 
Poland. 
Article 24 
1. The NBP shall implement the currency policy established by the Council of 
Ministers in consultation with the Council. 
2. The rules for setting the exchange rate of the Polish złoty against foreign 
currencies shall be determined by the Council of Ministers in consultation with the 
Council. 
3. The NBP shall publish current foreign currency exchange rates and other 
foreign exchange rates.’ 
Brief outline of the facts and procedure 
1. On 16 May 2008, B.P. and M.P. (borrowers acting in their capacity as consumers) 
concluded a mortgage loan agreement with (A) S.A. [a limited company] on the 
basis of the contract template presented to them. Under the agreement, the bank 
undertook to make the amount of PLN 460 000 available to the borrowers. The 
loan was indexed to a foreign currency (the Swiss franc — CHF). The term of the 
loan was 480 months, and the interest rate was set as the sum of the LIBOR 3M 
(CHF) benchmark rate and the bank’s fixed margin of 1.20 percentage points. The 
loan amount was disbursed to the applicants in three tranches at the buying rates 
stipulated in the defendant bank’s tables. On 10 January 2013, the parties 
concluded an annex to the agreement providing for the possibility of repaying the 
indexed loan granted to the borrowers in CHF, that is, in the foreign currency to 
which the loan was indexed. The possibility of concluding such an annex had 
existed since 2009. 
2. In accordance with the Loan Terms and Conditions in force at the Bank, a loan 
indexed to a foreign currency is a loan the interest rate of which is based on a 
benchmark rate applicable to a currency other than PLN and the disbursement and 
repayment of which are effected in PLN on the basis of the exchange rate of the 
foreign currency in question to PLN according to the table (§ 2(2)). According to 
the definition, the table means the foreign exchange rate table in force at the bank 
(§ 2(12)). In the case of loans indexed to a foreign currency, the loan was 
disbursed in PLN at a rate not lower than the buying rate in accordance with the 
table in force when the loan was disbursed. Where the loan was disbursed in 
tranches, the rate applied was not lower than the buying rate in accordance with 
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the table in force when the tranche in question was disbursed. The loan debt 
balance is expressed in foreign currency and calculated at the exchange rate 
applied upon disbursement of the loan (§ 7(4)). According to the Terms and 
Conditions, in the case of loans indexed to a foreign currency, loan payments are 
expressed in the foreign currency in question and on each subsequent loan 
payment date they are debited to the bank account referred to in subparagraph 1 at 
the selling rate in accordance with the exchange rate table in force at the Bank as 
at the end of the working day preceding the loan payment due date (§ 9(2)). 
3. In connection with their application for a mortgage loan indexed to a foreign 
currency, the applicants signed a statement to the effect that they were fully aware 
of the exchange rate risk, that they chose not to take out a loan in PLN and instead 
chose to take out a loan indexed to the CHF, that they were aware of the 
provisions of (A) Terms and Conditions with respect to loans indexed to a foreign 
currency and that they had been informed that the current foreign currency 
exchange rates were published at the bank’s branches. Moreover, the applicants 
acknowledged that they were aware that the exchange rate risk had an impact on 
their liability towards bank (A) and on the amount of loan payments, that the loan 
would be disbursed in PLN according to the rules stipulated in the Terms and 
Conditions and that the loan debt balance was expressed in foreign currency; the 
loan payments were expressed in foreign currency and were to be made in PLN 
according to the rules stipulated in the Terms and Conditions. The borrowers 
initialled every page of the loan application, agreement, Terms and Conditions 
and annex to the agreement. The applicants read the agreement and reviewed the 
Terms and Conditions, but without reading the latter carefully. 
4. If it had been assumed that the loan was a PLN loan, the indexation clause had 
been omitted and the interest rate adopted had been the one applicable to a loan 
indexed to a foreign currency, namely, LIBOR 3M + margin, then the amount of 
payments due in the period from 16 May 2008 to 10 October 2014 would have 
been PLN 95 491.32. The difference between the amount actually paid by the 
applicants under the agreement and the amount that they would have paid if the 
disputed indexation clauses had been omitted is PLN 50 492.46 in favour of the 
applicants.  
5. The exchange rates applied by the bank in its table were market rates, and the 
insignificant differences between the rates applied by different banks are 
attributable to differences in buying and selling prices on the interbank market. 
The bank’s use of buying and selling rates results from the need to ensure the 
security of the funds entrusted to it by limiting the size of the currency position it 
opens. The bank’s main method of eliminating foreign exchange risk is obtaining 
funding in Swiss francs on the interbank market. 
6. The difference between the loan amount which the applicants would have to pay if 
they had concluded a PLN loan agreement with an interest rate applicable to such 
agreements (PLN 176 584.79) and the amount they actually paid under the 
agreement (PLN 145 983.78) in the period from 16 May 2008 to 10 October 2014 
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is PLN 30 601.01 to the detriment of the applicants. As at 11 February 2017, this 
difference amounts to PLN 24 803.31 to the detriment of the applicants. 
7. During the period covered by the statement of claim, the payments for a loan 
indexed to the CHF were for the most part lower than payments for a PLN loan; at 
the same time, in the case of a loan indexed to the CHF, the principal is repaid at a 
rate that is several times higher than in the case of a PLN loan. As an example, on 
the basis of a selective analysis of payments in equal periods of six months, it can 
be shown that in July 2009, for instance, the monthly payment for a loan indexed 
to the CHF was PLN 1 825.06, of which the principal amounted to PLN 991.92, 
which is more than 54% of the payment, while the payment for a PLN loan was 
PLN 2 485.27, of which the principal amounted to PLN 288.73, which is more 
than 11% of the payment. In January 2010, the payment for a loan indexed to the 
CHF was PLN 1 712.60, of which the principal amounted to PLN 965.73, which 
is more than 56% of the payment, while the payment for a PLN loan was 
PLN 2 357.96, of which the principal amounted to PLN 255.56, which is more 
than 10% of the payment. In January 2013, the payment for a loan indexed to the 
CHF was PLN 2 019.29, of which the principal amounted to PLN 1 299.12, which 
is more than 64% of the payment, while the payment for a PLN loan was 
PLN 2 396.93, of which the principal amounted to PLN 298.60, which is more 
than 12% of the payment. In January 2014, the payment for a loan indexed to the 
CHF was PLN 2 030.99, of which the principal amounted to PLN 1 320.26, which 
is more than 65% of the payment, while the payment for a PLN loan was 
PLN 1 928.45, of which the principal amounted to PLN 484.85, which is more 
than 25% of the payment. Finally, in July 2014, the payment for a loan indexed to 
the CHF was PLN 2 041.59, of which the principal amounted to PLN 1 362.16, 
which is more than 66% of the payment, while the payment for a PLN loan was 
PLN 1 938.79, of which the principal amounted to PLN 537.15, which is more 
than 27% of the payment. 
Essential arguments of the parties in the main proceedings 
1. The applicants claim that the contractual terms were abusive owing to the fact that 
the defendant was free to set arbitrarily the CHF buying and selling rates in the 
bank’s foreign exchange rate table for foreign currency loans and loans indexed to 
foreign currencies. In addition, they point out that there are no provisions in the 
agreement or in the Terms and Conditions on the method for measuring the values 
on the basis of which the CHF buying and selling rates are determined. The 
exchange rate published in the bank’s table is determined on the basis of the 
exchange rate on the interbank market in the following manner: the buying or 
selling rate deviates in one direction or the other from the interbank rate in 
accordance with the decision of the bank’s management, and consumers have no 
influence on the manner in which foreign currency buying and selling rates are 
determined. As a result, in determining the amount of the debt and the loan 
payments to be made on the basis of prohibited clauses, the defendant acted 
unlawfully and is obliged to return the sums unduly charged. The applicants’ 
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claim concerns the difference between the amounts collected by the defendant as 
loan repayment and the amounts that would have been due in the absence of 
abusive clauses.  
2. In its response to the claim, the defendant bank indicated that for over eight years 
the applicants had not questioned the validity of the loan agreement or its 
individual terms, had performed the agreement and had benefited economically 
from the choice of this type of loan in comparison with a PLN loan. The claim 
that their consumer interests have been infringed is an attempt to evade the effects 
of a financial decision that no longer delivers the expected benefits. According to 
the bank, the indexation clause is not subject to examination for compliance with 
Article 3851 of the CC, since it was individually agreed upon by the parties and 
neither contains any provisions contrary to good practice nor infringes the 
interests of the consumer; furthermore, the bank does not determine the exchange 
rate table in a free and arbitrary manner, and the CHF buying and selling rates in 
the defendant’s exchange rate tables correspond to market values. The bank also 
pointed out that under Article 111 of the Banking Law, it is obliged to publish the 
exchange rates it applies in isolation from any contractual relationships and in 
isolation from any contractual templates, and at the time the agreement was 
concluded there were no legal regulations requiring banks to specify precise 
indicators and mathematical models for determining foreign currency exchange 
rates. The bank added that exchange rates, which can change in a fraction of a 
second, are determined on the basis of global market indicators, which are beyond 
the bank’s control, and policies for maintaining exchange rate tables are 
supervised by the Polish Financial Supervision Authority. 
3. The defendant added that, in compliance with Recommendation S, from April 
2009 it indicated in the Terms and Conditions that foreign exchange rates were 
determined taking into account the following factors: average exchange rates 
announced by the National Bank of Poland, the current situation in the foreign 
exchange market, the bank’s current foreign exchange position and expected 
movements in foreign exchange rates. 
Brief statement of and reasons for the request 
1 An analysis of Council Directive 93/13, which is implemented in the Polish legal 
system by, inter alia, Article 3851 of the CC, of the provisions of Polish law cited 
above and of the case-law of the Court of Justice, including, in particular, the 
case-law relating to Article 5 of the directive and the judgments in Cases 
C-186/16, C-96/14 and C-26/13, has not provided answers to the questions posed 
by the referring court. 
2 The court’s first doubt is whether, in the light of Articles 3(1), 4(1) and 5 of 
Council Directive 93/13/EEC and of Articles 69 and 111 of the Banking Law in 
their wording at the time when the agreement was concluded, it is possible to 
require the bank to ensure that the contractual term determining the foreign 
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currency buying and selling rates in a loan agreement indexed to a foreign 
currency are formulated in a completely unambiguous manner — that is to say, in 
such a manner that the borrower/consumer would be able to determine that rate 
himself on any given day — in the context of the nature of that agreement, 
national legislation and established customs at the time when the agreement is 
concluded. On the day on which the agreement was signed, there were no 
provisions obliging [the bank] to indicate the rules for determining foreign 
exchange rates, and Article 69(2) of the Banking Law, in its then wording, 
included a requirement that a loan agreement had to be made in writing and listed 
the mandatory elements of such an agreement (for instance, the amount and 
currency of the loan, the purpose for which the loan was being granted, the loan 
repayment terms and dates or the loan interest rate and the conditions governing 
any change to it). The situation changed on 26 August 2011, that is to say, more 
than 3 years after the agreement had been signed, with the introduction of 
Article 69(2)(4a) of the Banking Law, which stipulated that, in the case of loans 
denominated in, or indexed to, a currency other than the Polish currency, the loan 
agreement should include detailed rules specifying the methods for, and dates of, 
determining the exchange rate, which is used, in particular, to calculate the 
amount of the loan, its tranches and principal and interest payments as well as the 
rules for converting amounts to the currency in which the loan was disbursed or is 
being repaid. However, this provision did not exclude the bank’s freedom to 
determine the amount of foreign currency; it only introduced an obligation to 
specify the rules for, and dates of, determining exchange rates. In the draft 
explanatory memorandum to the law which added point 4a it was stated, inter alia, 
that, as a result of this provision being introduced, the borrower would be 
adequately informed by the bank about the essential rules relating to loan 
repayment. Thanks to this solution, banks would compete with one another on 
currency spreads. The referring court points out that there is no provision in 
national law stipulating how exchange rates should be determined, which appears 
appropriate in a free market environment. 
3 In this context, the referring court points out that when assessing the possibility of 
unambiguously formulating the rules for determining exchange rates, the rules for 
determining exchange rates applied by the NBP as at the agreement conclusion 
date cannot be disregarded. Pursuant to § 2(1) of Resolution No 51/2002 of the 
NBP Management Board of 23 September 2002 on the method for calculating and 
announcing current foreign exchange rates, average EUR/PLN and USD/PLN 
exchange rates are calculated on the basis of so-called quotations. The quotation 
mechanism consists in sending daily enquiries to 10 banks from the ‘List of banks 
which are candidates for performing the role of money market dealers according 
to turnover volumes on the interbank foreign exchange market — spot 
transactions in the PLN area’ concerning the EUR and USD buying and selling 
rates in PLN applied at those banks. In accordance with § 2(2) of the resolution, 
the exchange rates of foreign currencies such as the CHF are calculated on the 
basis of the EUR/PLN exchange rate calculated in accordance with § 2(1) and the 
EUR market exchange rates vis-à-vis individual currencies as at 11 a.m. The 
defendant bank was on the list of banks which are candidates for performing the 
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role of money market dealers, which means that the exchange rates from the 
defendant bank’s tables formed the basis for determining the NBP exchange rate. 
It should be added here that the NBP, as an entity with a systemic function 
mentioned in Article 227 of the Konstytucja Rzeczypospolitej Polskiej 
(Constitution of the Republic of Poland), the operation of which is governed by 
statute and which implements monetary policy and, more importantly, currency 
policy, changed the rules for setting exchange rates three times in 18 years, that is 
to say, within a period shorter than the term of the agreement.  
4 Therefore, it is questionable whether, in the light of the long-term nature of the 
loan agreement indexed to a foreign currency and the unforeseeable nature of 
changes in the foreign exchange market, it is at all possible to require the 
defendant to specify, precisely and strictly, the rules for determining the foreign 
exchange rate or rather, taking into account the type of service, pursuant to 
Article 4(1) of Directive 93/13, it is possible to refer to the more general concept 
of a free market exchange rate, especially as the bank’s potential freedom to 
determine the exchange rate of a foreign currency — within the range set by the 
market — would not result in a significant economic imbalance to the detriment 
of the consumer within the meaning of Article 3(1) of the directive. This doubt 
appears to be confirmed by the Terms and Conditions applied by the defendant 
after the introduction of Article 69(2)(4a) of the Banking Law. As the defendant 
pointed out, from the moment the amendment in question was introduced, 
pursuant to the Terms and Conditions, foreign exchange rates have been 
determined by taking into account the following factors: average exchange rates 
announced by the National Bank of Poland, the current situation in the foreign 
exchange market, the bank’s current foreign exchange position and expected 
movements in foreign exchange rates. This wording of the Terms and Conditions, 
although it indicates the criteria for determining the foreign currency exchange 
rate, does in fact make it impossible to determine this exchange rate on account of 
the rules being vague and imprecise. 
5 If it is considered that in the case of a loan agreement indexed to a foreign 
currency the contractual provision concerning the rules for determining exchange 
rates can be general in nature and refer to a market rate, another doubt arises as to 
whether it is possible to interpret a contractual term concerning the determination 
by the creditor (bank) of the buying and selling rates of a foreign currency in such 
a manner as to resolve doubts in the consumer’s favour and to assume that the 
agreement determines the buying and selling rates of a foreign currency not in an 
entirely arbitrary manner, but on market terms. 
6 In this context, it is necessary to determine whether it is possible to remove the 
ambiguity of the contractual term setting the rules for determining the foreign 
currency exchange rate in accordance with the recitals and Article 5 of Directive 
93/13 without removing the disputed contractual provision itself. Such a solution 
might be indicated by the distinction between the possibility of interpreting 
contractual terms in the consumer’s favour under Article 5 of the directive and the 
possibility of excluding a contractual term which has been found to be unfair 
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under Article 6 of the directive. The interpretation of declarations of intent and 
contracts in the national legal order is governed by Article 65 of the CC, which 
takes as its point of reference the rules of social conduct and established customs 
in the case of declarations of intent and, in the case of contracts, the joint intention 
of the parties and the purpose of the contract. In essence, then, the question is 
whether an ambiguous provision present in a contract concluded with a consumer 
can be removed by way of interpreting the joint intention of the parties and the 
purpose of the contract, or whether such a contractual provision should be 
automatically considered ineffective within the meaning of Article 3851 of the CC. 
This is important in the context of the applicants’ testimony that at the time when 
the agreement was concluded they believed that an objective exchange rate, for 
example the NBP rate, would be used for conversion purposes, and in the context 
of the defendant’s claims that the rate which it used was a market rate rather than 
an arbitrary one. 
7 There is also doubt concerning the procedure for assessing whether a contractual 
term is unfair. In the light of the position taken by national authorities such as the 
Urząd Ochrony Konkurencji i Konsumentów (Office of Competition and 
Consumer Protection) and the Rzecznik Finansowy (Financial Ombudsman) as 
well as the case-law of the national courts, it may be assumed that the assessment 
as to whether a contractual term concerning the determination of the buying and 
selling rates of a foreign currency in a loan agreement indexed to a foreign 
currency is unfair in the light of Directive 93/13 can be made only on the basis of 
the literal wording of the agreement. However, in the light of the judgments of the 
Court of Justice (of 26 January 2017 in Case C-421/14 and the reference therein to 
the judgment of 4 June 2009, Pannon GSM, C-243/08, EU:C:2009:350, 
paragraph 39, and of 14 March 2013, Aziz v Catalunyacaixa, C-415/11), the 
assessment of a contractual term must be carried out in the light of all the relevant 
circumstances. While contractual terms in such cases are identical or similar, the 
circumstances attending the conclusion of such contracts by the parties justify the 
question whether issues such as the following are relevant to assessing whether a 
contractual term is prohibited: (a) the performance of the contract which is 
intended to reproduce the circumstances at the time of its conclusion; (b) the 
failure to sign an annex to the contract enabling the loan to be repaid directly in a 
foreign currency; (c) the effect of the disputed contractual terms on the 
consumer’s willingness to conclude the contract; (d) the consumer’s 
understanding of the disputed contractual term; or (e) the consumer’s lack of 
interest in the disputed contractual term at the time when the contract is concluded 
and performed, including the consumer’s failure to read the contract at the time of 
its conclusion and throughout its duration. This doubt arises from the thesis 
expressed in the judgments in Cases C-415/11 and C-421/14, in which it was 
pointed out that an imbalance contrary to the principle of good faith can be said to 
exist when contractual provisions establish rights and obligations in a manner that 
would not be accepted by the parties in the course of fair negotiations. In the view 
of the referring court, an assessment of the circumstances in which the contract 
was concluded, including the joint intention of the parties to determine what 
foreign exchange rates would apply during the performance of the contract, must 
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be conducted in the light of the thesis expressed in the judgments of the Court of 
Justice in Cases C-415/11 and C-421/14. The referring court take the view in his 
context that more than marginal significance attaches to the actions of the parties 
at the time of the conclusion of the contract, as mentioned above in points (a) to 
(e). 
8 The question of whether a particular contractual provision would be accepted by 
the parties can be answered on the basis of the above considerations. In particular, 
the issues of contract performance, the fact of the consumers not attaching 
importance to the rules for determining the foreign exchange rate and their lack of 
familiarity with the contract throughout its duration allow the conclusion to be 
drawn that the contract would have been concluded even if the consumers had 
learned the details of the bank’s method for determining the foreign exchange rate 
in the course of fair negotiations. In the present case, these doubts are 
compounded by the fact that one of the applicants has testified that he expected 
the exchange rate to be determined in an objective manner, pointing to the NBP 
rate as an example. On the other hand, the defendant states that it was obliged to 
apply a market exchange rate, and therefore, in fact, also an objective one. It may 
therefore be the case that the parties had a joint understanding of the contractual 
provision in question, which would have been accepted in the course of fair 
negotiations, thus meeting the requirement of good faith as referred to in the 
judgments of the Court of Justice in Cases C-415/11 and C-421/14. This justifies 
the doubt as to whether the parties’ joint willingness to use an objective rate 
allows the contractual term in question to be regarded as unfair, or whether it is 
possible, in this respect, to remove doubts in such a way as to take the view that 
the foreign exchange rate in the bank’s table is not an arbitrary exchange rate, but 
rather an exchange rate determined freely as allowed by Articles 69 and 111 of the 
Banking Law, but only within the market range. 
9 All of the above questions referred for a preliminary ruling are relevant to 
determining the correct standard arising from the provisions of Directive 93/13 
and, consequently, are also highly relevant to the provisions of national law. In 
view of the large number of cases against various banks pending before the 
national courts, in which the first and primary argument is usually the lack of 
freedom in determining foreign currency exchange rates, the Court’s reply will be 
extremely useful in resolving not only the dispute pending before the referring 
court but also many other domestic legal disputes of this type. A negative answer 
to the first question will essentially allow similar cases to be resolved efficiently 
without the need to consider other issues, including foreign exchange risk. 
10 The fact that the nature of a mortgage loan indexed to a foreign currency, where 
the agreement is concluded for several decades (in the case under consideration — 
for 40 years), probably makes it impossible to formulate the contractual provision 
in such an unambiguous manner that it applies for the entire duration of the 
contract would suggest that the question should be answered in the affirmative. 
Since the NBP changed its rules for determining foreign exchange rates three 
times in 18 years, it appears reasonable to doubt whether a commercial bank can 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-212/20 
 
14  
be required to adopt an unambiguous solution in this regard, and for such a long 
period.  
11 Reference to an arithmetic formula which would take into account interbank 
market rates indicated by the Reuters or Bloomberg news services, adjusted for 
margins, might not make the contractual term in question sufficiently clear and 
certain. In view of such a long contract term and the unpredictability of the 
economic situation, reference to data from these news services could prove 
insufficient and their reliability cannot be checked. It should be noted, however, 
that since the NBP exchange rate results from the exchange rates set by 
commercial banks (including the defendant bank) in their tables, a reference to the 
NBP rate in the agreement could also be challenged as being arbitrary owing to 
the indirect influence of commercial banks on the NBP rate. Therefore, the 
possibility of considering the NBP rate as an objective indicator which is 
independent of the will of commercial banks is also questionable. In this situation, 
perhaps the only certain, albeit quite general, contractual provision would be one 
referring to the market buying and selling rates of the foreign currency in 
question. At the same time, the certain generality of the disputed contractual 
provision could be justified, in the light of Article 3(1) of the directive, by the 
nature of a loan agreement indexed to a foreign currency, which is concluded for 
several decades. At the same time, allowing the bank some freedom to determine 
exchange rates — only within the market range — prevents such a contractual 
provision from being assessed as creating a significant imbalance to the detriment 
of the consumer under Article 4(1) of the directive. National legislation does not 
prohibit banks from determining their own exchange rates in accordance with 
Articles 69 and 111 of the Banking Law, and the free market could possibly 
guarantee realistic and objective foreign exchange rates. 
12 As regards an affirmative answer to the second question, it should be noted that 
since Directive 93/13 makes a distinction between the possibility of removing the 
ambiguity of a contractual term under Article 5 and the requirement to remove the 
disputed contractual term under Article 6, it appears that the more lenient solution 
should be used first and an attempt should be made to remove the contractual 
ambiguity, thus making it possible for the contract to remain fully in force in 
accordance with the parties’ will. The will of the parties may be determined using 
Article 65 of the CC. This is supported by the fact that the parties indicated that 
exchange rates under the agreement must be objective, which the defendant 
understood as the market rate, while the applicants did not have a specific position 
in this regard, indicating the NBP exchange rate, for instance. 
13 In particular in its judgment in Case C-421/14, the Court of Justice indicated that 
it is for the national court to determine, in the light of the criteria indicated, 
whether a particular contractual term is actually unfair in the circumstances of the 
case (paragraph 57). In paragraph 61 of that judgment, the Court also pointed out 
that, pursuant to Article 4(1) of Directive 93/13, the unfairness of a contractual 
term must be assessed taking into account the nature of the goods or services for 
which the contract was concluded and by referring, at the time of conclusion of 
‘A.’ OPERATING THROUGH ‘A.’ 
 
15 
the contract, to all of the circumstances attending its conclusion. The judgment 
also refers to the judgment in Case C-243/08 (paragraph 39), in which the Court 
indicates that Article 4 of the Directive provides that the unfairness of a 
contractual term is to be assessed taking into account the nature of the goods or 
services for which the contract was concluded and by referring, at the time of 
conclusion of the contract, to all the circumstances attending the conclusion of it 
(see also the Court’s judgment in Case C-415/11, paragraph 71). 
14 In addition, it should be noted that the disputed contractual provision, although not 
sufficiently precise, does not allow bad faith to be attributed to the defendant bank 
since throughout the entire period of performance of the contract it used, in 
accordance with its understanding of the contract, market exchange rates, also at a 
time when the issue of abusive contractual provisions did not arise. In this respect, 
the bank cannot be said to have shaped the contractual term in such a manner as to 
place the consumer at a disadvantage by using arbitrary foreign exchange rates 
which are detached from market rates. Similar contractual provisions in loan 
agreements of this type were common practice at other banks as well. Economic 
considerations may also militate in favour of recognising that these exchange rates 
are market rates. It should be noted that, even where the bank had the freedom to 
set exchange rates within the market range, the result was that the borrowers in the 
present case were in a more favourable economic situation than if they had been 
party to a PLN loan agreement with the interest rate applicable to such 
agreements.