Information;Order — ECLI:EU:C:2025:944
Date: 2025-11-10
Language of the case: Polish
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-160/25 – 1 
Case C-160/25 [Wawicz] i 
Request for a preliminary ruling 
Date lodged: 
25 February 2025 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
24 February 2025 
Parties initiating the proceedings before the referring court: 
JK 
KK 
KB 
AP 
Defendant: 
Bank BPH S.A. 
  
ANONYMISED VERSION 
[…] 
ORDER 
[…] 
The Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) […] 
[…] 
following consideration […] at the hearing 
 
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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of the action brought by the applicants JK, KK, KB, [and] AP 
against Bank BPH S.A., established in Gdańsk, 
seeking a finding and payment, and in the alternative seeking a finding 
hereby orders: 
I. the following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Should Article 3(1), Article 6(1) and Article 7(1) of Council Directive 
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as well as 
the principle of effectiveness, be interpreted as precluding a judicial 
interpretation of provisions of national legislation according to which: 
- the consumer is not bound only by the unfair element of a term of a 
credit agreement indexed to a foreign currency providing for the average 
exchange rate of the Narodowy Bank Polski (National Bank of Poland) (NBP) 
which is used as a basis for exchange rate conversions to be modified by a 
margin decided upon by the lending bank? 
- the consumer is bound by the remainder of the contractual term 
providing for the outstanding balance and the amount of principal and 
interest instalments to be converted using the NBP’s average exchange rate? 
II. the proceedings are stayed pursuant to Article 177(1)(31) of the [Kodeks 
postępowania cywilnego (Code of Civil Procedure)] pending a ruling from the 
Court of Justice of the European Union on the questions set out above. 
[…] 
GROUNDS […] 
[…] 
1 Referring court. 
2 [Details of the court] […] 
3 Parties to the main proceedings and their representatives. 
4 [Details of the parties] […] 
5 […] 
6 Subject matter of the dispute in the main proceedings and the relevant facts 
of the case: 
WAWICZ 
 
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7 By an application lodged on 24 November 2022, the applicants moved for a 
finding that the legal relationship resulting from [the] Credit Agreement […] of 
16 May 2007 was void, and for the defendant to be ordered to pay to them an 
amount of 369 587.64 Polish zlotys (PLN) plus default interest at the statutory rate 
from 26 October 2022 until the date of payment. In the alternative, should that 
claim not be upheld by the court, the applicants moved for a finding that they were 
not bound by the contractual terms contained in Section 1(1), Section 7(2), 
Section 10(6) and Section 17 of the above credit agreement. 
8 In their reasoning for the above claim, the applicants stated that the relevant 
contractual terms were unfair and therefore not binding on them. In the applicants’ 
view, those terms defined the main object of performance of the agreement; it 
would no longer be possible to perform the agreement following their removal, as 
a result of which the agreement was invalid. In the further alternative, however, 
should the court not accept the argument that the agreement was invalid and find 
that the agreement could be performed without the unfair contractual terms, the 
applicants moved for a finding that the aforesaid contractual terms were not 
binding on them. 
9 In its defence, the defendant requested that the action be dismissed, stating that the 
agreement was not invalid and did not contain unfair terms. 
10 On the basis of the bundle of documents, the referring court found that [a] Credit 
Agreement […] had been concluded on 16 May 2007, on the basis of which GE 
Money Bank S.A. (the predecessor in law of the defendant) granted JK and ZK a 
324-month loan for repayment of a mortgage granted by MultiBank on 
7 September 2004. The loan was subject to a variable interest rate calculated as 
the total of the L3 rate and the bank’s fixed margin. The substantive terms of the 
agreement included the following: 
11 The bank granted the borrower a loan in the amount of PLN 358 671.31, indexed 
to the exchange rate of the Swiss franc (CHF), subject to the conditions outlined 
in the agreement, and the borrower undertook to use the loan in accordance with 
the terms of the agreement, to return the amount of credit used plus interest by the 
dates specified in the agreement, and to pay the bank any fees, charges or other 
sums owed in connection with the agreement (Section 1(1), first sentence). 
12 On the disbursement date, the loan balance would be expressed in the foreign 
currency to which the loan was indexed on the basis of the buying rate for the 
foreign currency to which the loan was indexed, as specified in the table of 
buying/selling rates for mortgages granted by GE Money Bank S.A., which was 
described in detail in Section 17; subsequently, the foreign currency balance 
would be converted on a daily basis into Polish zlotys on the basis of the selling 
rate of the foreign currency to which the loan was indexed, as specified in the 
table of buying/selling rates for mortgages granted by GE Money Bank S.A., 
which was described in detail in Section 17 (Section 1(1), third sentence). 
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13 If the loan was indexed to a foreign currency exchange rate, a change in that 
exchange rate would affect the amount of the instalment and the balance of the 
loan debt, whereby the resulting risk that the balance of the debt might exceed the 
value of the real estate would be borne by the borrower (Section 6(3)). 
14 The amount in Polish zlotys paid out each time would be converted into the 
foreign currency to which the loan was indexed on the basis of the buying rate for 
the loan currency as specified in the table of buying/selling rates for mortgages 
granted by GE Money Bank S.A. and as applicable on the date on which the 
payment was made by the bank (Section 7(2), third sentence). 
15 Each of the payments made by the borrower would be settled on the date on which 
the funds were credited to the bank, on the basis of the selling rate for the 
currency to which the loan was indexed as specified in the table of buying/selling 
rates for mortgages granted by GE Money Bank S.A. and as applicable on the date 
on which the funds were credited to the bank (Section 10(6), first sentence). 
16 The buying/selling rates for the mortgages granted by GE Money Bank S.A., as 
applicable on the date of the transaction and in the foreign currencies used in the 
bank’s offer, would be used respectively for the settlement of loan 
drawdown/repayment transactions (Section 17(1)). Buying rates were defined as 
the average Polish zloty exchange rates for the given foreign currencies as 
published in the NBP’s table of average exchange rates, minus the buying margin 
(Section 17(2)). Selling rates were defined as the average Polish zloty exchange 
rates for the given foreign currencies as published in the NBP’s table of average 
exchange rates, plus the selling margin (Section 17(3)). The Polish zloty exchange 
rate for the given currencies as published in the NBP’s table of average exchange 
rates on the relevant working day, corrected by GE Money Bank S.A.’s 
buying/selling margin, would be used to calculate the buying/selling rates for 
mortgages granted by GE Money Bank S.A. (Section 17(4)). The buying/selling 
rates for the mortgages granted by GE Money Bank S.A., as applicable on the 
given working day and in the foreign currencies used in the bank’s offer, would be 
determined by the bank after 15:00 on the preceding working day, put on display 
at the bank’s headquarters and published on GE Money Bank S.A.’s website 
(www.gemoneybank.pl) (Section 17(5)). 
17 ZK died on 7 January 2015, and the following each inherited a quarter of his 
estate: JK, KK, KB and AP. 
18 Relevant provisions of law. 
19 Provisions of Polish law. 
20 Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) (Dziennik Ustaw No 16, Item 93, as amended) 
(‘the Civil Code’) 
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21 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 contractual terms). This shall not apply to terms setting 
forth the principal matters to be performed by the parties, including price or 
remuneration, provided they are worded clearly (Article 3851(1)). 
22 If a term of a contract is not binding on the consumer pursuant to paragraph 1, the 
contract shall otherwise continue to be binding on the parties (Article 3851(2)). 
23 The compliance of contractual terms with the accepted principles of morality shall 
be assessed according to the state of affairs at the time when the contract was 
concluded, taking into account its content, the circumstances in which it was 
concluded and also other contracts connected with the contract which contains the 
terms being assessed (Article 3852). 
24 Provisions of European Union law. 
25 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29) (‘Directive 93/13’). 
26 A contractual term which has not been individually negotiated shall be regarded as 
unfair if, contrary to the requirement of good faith, it causes a significant 
imbalance in the parties’ rights and obligations arising under the contract, to the 
detriment of the consumer (Article 3(1)). 
27 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)). 
28 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)). 
29 Reasons for the reference. 
30 In its judgment of 26 March 2019, the Court found that Articles 6 and 7 of 
Directive 93/13 precluded an accelerated repayment clause of a mortgage loan 
contract that had been found to be unfair from being maintained in part, with the 
elements that made it unfair removed, where the removal of those elements would 
be tantamount to revising the content of that clause by altering its substance (see 
judgment of the Court of Justice of 26 March 2019, Abanca Corporación 
Bancaria and Bankia, C-70/17 and C-179/17, paragraph 64). 
31 In its judgment of 29 April 2021, the Court reiterated the above position and 
stated that ‘it is only if the element of the indexation term in the mortgage loan at 
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issue in the main proceedings relating to Bank BPH’s margin consisted of a 
contractual obligation distinct from the other contractual terms, capable of being 
the subject of an individual examination of its unfairness, that the national court 
could remove it.’ The Court concluded by stating that Article 6(1) and Article 7(1) 
of Directive 93/13 did not preclude the national court from removing only the 
unfair element of a term in a contract provided that that element consisted of a 
separate contractual obligation, capable of being subject to an individual 
examination of its unfair nature, but that they precluded the referring court from 
removing only the unfair element of a term in a contract where such removal 
would amount to revising the content of that term by altering its substance (see 
judgment of the Court of Justice of 29 April 2021, Bank BPH, C-19/20, 
paragraphs 70, 71 and 80). 
32 The Court also upheld that position in its judgment of 8 September 2022 and held 
that a contractual term requiring the bank’s consent to pay instalments of a loan 
denominated in Swiss francs (CHF) directly in that currency does not constitute a 
separate contractual obligation (see judgment of the Court of Justice of 
8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign 
currency), C-80/21 to C-82/21, paragraphs 62 to 64). 
33 It follows from the foregoing case-law that it is for the national court to assess 
whether those parts of the terms of a CHF-indexed credit agreement which 
provide for the NBP’s average rate to be reduced by a buying margin or increased 
by a selling margin can be regarded as separate contractual obligations. The 
problem consists in assessing the following (bolded) parts of Section 17(2)-(4) of 
the agreement: 
- Buying rates are defined as the average Polish zloty exchange rates for the 
given foreign currencies as published in the NBP’s table of average exchange 
rates, minus the buying margin (Section 17(2)). 
- Selling rates are defined as the average Polish zloty exchange rates for the 
given foreign currencies as published in the NBP’s table of average exchange 
rates, plus the selling margin (Section 17(3)). 
- The Polish zloty exchange rate for the given currencies as published in the 
NBP’s table of average exchange rates on the relevant working day, corrected by 
GE Money Bank S.A.’s selling margin, will be used to calculate the 
buying/selling rates for mortgages granted by GE Money Bank S.A. (Section 
17(4)). 
In its judgment of [29] April 2021, the Court of Justice found that the national 
court alone has jurisdiction to carry out an assessment of this kind, but the Polish 
courts have taken different approaches to this assessment in their past decisions. 
For this reason, the referring court asks the Court of Justice to provide further 
guidance on the criteria for this assessment, in order to enable the national courts 
to hand down decisions which are in line with the objectives of Directive 93/13. 
WAWICZ 
 
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34 In an order of 7 February 2023 relating to a substantively identical credit 
agreement concluded by the defendant bank, the Sąd Najwyższy (Supreme Court, 
Poland) found that, ‘as regards the agreement examined in this case, however, the 
appellate court established that the disputed indexation clauses applied equally to 
the calculation of the actual credit obligation (principal performance), the method 
of calculating the instalments due and the calculation of a margin. For this reason, 
there were no grounds for interpreting a separate rule of law relating solely to the 
bank’s margin.’ (see the grounds of the order of the Sąd Najwyższy (Supreme 
Court) of 7 February 2023, I CSK 4195/22). 
35 A similar view was taken by the Sąd Najwyższy (Supreme Court) in its judgment 
of 18 May 2022, in which it found that ‘the indexation clause was worded in such 
a way that the buying rate for the foreign currency was defined as the result of the 
following calculation: the average exchange rate for the foreign currency 
published in the NBP’s table of exchange rates minus the buying margin. 
Similarly, the selling rate for the foreign currency was defined as the result of the 
following calculation: the average rate for the foreign currency published in the 
NBP’s table of exchange rates plus the selling margin. In each case, reference was 
made to the table of buying/selling rates for mortgages granted by [X.] Bank S.A. 
(as at the date when the funds were credited to the bank). The agreement did not 
however describe the principles according to which the margin – as a factor which 
affected the foreign currency exchange rate – should be calculated, and instead 
left this to the bank’s discretion. This mechanism, which leaves the bank free to 
determine foreign exchange rates, is manifestly contrary to good practice and 
grossly infringes the consumer’s interests, while the clause – which is ambiguous 
in terms of its content and thus allows the seller or supplier complete freedom to 
take decisions on a matter of vital importance for the consumer, given that it 
pertains to loan costs – is an inadmissible term …. In the view of the Sąd 
Najwyższy (Supreme Court), the removal of only part of the term relating to the 
bank’s margin alters the meaning of the contractual term as a whole without 
actually eliminating the threat to the consumer’s interests. This alteration does not 
suffice for a finding that the term setting forth the principal matters to be 
performed by the parties has been worded clearly and unambiguously. The typical 
consequence of a judicial finding that a contractual term is unfair is that the 
consumer is returned to the same legal and factual situation that would have 
existed had the term not been present in the original agreement. This consequence 
did not ensue in the actual case in question following the removal of the term 
relating to the bank’s margin. A different interpretation would have contributed to 
eliminating the dissuasive effect on sellers or suppliers of the straightforward non-
application with regard to the consumer of those unfair terms, in so far as those 
sellers or suppliers would remain tempted to use those terms in the knowledge 
that, even if they were declared invalid, the agreement would remain in force, in 
such a way as to safeguard the interest of those sellers or suppliers, which appears 
unjustified in the context of Directive 93/[13]/EEC’ (see the grounds of the 
judgment of the Sąd Najwyższy (Supreme Court) of 18 May 2022, 
II CSKP 1316/22). 
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36 Nevertheless, an alternative view is adopted in most of the past decisions handed 
down by the Sąd Najwyższy (Supreme Court), namely that the reference to the 
NBP’s average rate and the reference to GE Money Bank S.A.’s buying/selling 
margin are two separate contractual terms. 
37 For example, in its judgment of 1 June 2022 the Sąd Najwyższy (Supreme Court) 
concluded that ‘a contractual term relating to the bank’s margin in relation to the 
specification of the exchange rate for the Swiss franc is a separate clause, meaning 
that it is possible to remove only the element relating to the modification of the 
NBP’s average exchange rate for the bank’s margin.’ On the basis of this 
assessment, the Sąd Najwyższy (Supreme Court) reached the following 
conclusion: ‘Given the circumstances of the present case, removal of the aforesaid 
term relating to the bank’s margin means that the NBP’s average rate would have 
binding force in the mutual relations between the parties. As a result, it is 
objectively possible for the agreements linking the defendant and the applicants to 
remain in force. This is also consistent with the objective of Directive 93/13, 
namely that the remainder of the agreement should in principle continue to be 
binding on the parties. Lastly, it must be stressed that removal of the inadmissible 
contractual term in this case is not equivalent to the alteration of an unfair term, 
which is inadmissible under the directive, and in particular the replacement of an 
inadmissible term with another term. There is consequently no removal of the 
dissuasive effect on sellers or suppliers of the straightforward non‑application 
with regard to the consumer of those unfair terms’ (see paragraph 10 of the 
grounds of the judgment of the Sąd Najwyższy (Supreme Court) of 1 June 2022, 
II CSKP 364/22). 
38 A similar view was taken by the Sąd Najwyższy (Supreme Court) in its judgment 
of 20 June 2023, in which it stated that ‘a contractual term (term of a contract) 
forms part of the declaration by the parties, and may be a sentence, but may also 
be a part of a sentence with a separate normative meaning. A term of a contract is 
not always expressed in a separate textual unit (a separate sentence, paragraph or 
article); it should be interpreted to mean a separate decision regulating some 
aspect of the relations between the parties, which may be set out in the contractual 
document in various ways, for example as a separate sentence, but also as a part of 
a sentence. The term regarding the addition (or subtraction) of the bank’s margin 
to (or from) the NBP’s average exchange rate fulfils this criterion. It performs an 
independent economic role which is separate from that performed by the term 
referring to the NBP’s average exchange rate as the basis for indexation. The 
purpose of the latter is to allow the loan to function as an indexed loan in the first 
place, as such a loan would be impossible if the foreign currency exchange rate 
were not specified. Conversely, the aim of introducing a margin is to secure 
additional economic benefit for the bank, as remuneration of sorts for the foreign 
currency conversions. In the view of the Sąd Najwyższy (Supreme Court), 
interfering in the agreement by removing the bank’s opportunity to add a margin 
suffices to achieve the objective, as it returns the consumer to the same legal and 
factual situation that would have existed had the unfair term in the agreement not 
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been stipulated’ (see the grounds of the judgment of the Sąd Najwyższy (Supreme 
Court) of 20 June 2023, II CSKP 1476/22). 
39 A similar viewpoint was expressed in the judgment of the Sąd Najwyższy 
(Supreme Court) of 22 February 2024, in which that court stated that ‘“term of a 
contract” means a fragment of a declaration that has normative meaning, which 
may be a sentence but may also be a fragment of a sentence with normative 
meaning (for example, see judgments of the Sąd Najwyższy (Supreme Court) of 
27 February 2004, V CK 293/03, OSNC 2005, No 3, Item 51, and of 8 June 2017, 
V CSK 563/16, with reference to Article 58(3) of the Civil Code, regarding the 
invalidity of part of the legal transaction). A term of a contract is not always 
expressed in a separate textual unit, and in any case this is not of decisive 
importance for a finding that the substance of the relevant textual unit can be 
regarded as a single term of a contract. Such an interpretation of a “term of a 
contract” might result in accidental outcomes dependent solely on the form in 
which the parties adopt their declaration of intent, or in other words on whether a 
number of terms were expressed in separate sentences or as elements of a single 
contractual term that was delineated from the others either linguistically or 
graphically (see judgment of the Sąd Najwyższy (Supreme Court) of 1 June 2022, 
II CSKP 364/22, OSNC-ZD 2022/4/51). Having regard to the above, the finding 
made in the case under examination to the effect that Section 17 of the loan 
agreement was unfair necessitates an answer to the question of whether the 
specification of the foreign currency exchange rate as “the NBP’s average rate” 
minus or plus the bank’s margin comprises two “terms of the contract” (the first 
relating to an independent factor (the NBP’s average rate) and the second to a 
factor dependent solely on the will of a party to the contract (the bank’s margin)), 
or whether it is a single inseparable contractual term capable of being the subject 
of an assessment as to whether it is unfair. The Sąd Najwyższy (Supreme Court) 
sitting in the case shared the reasoning set out in the judgment of the Sąd 
Najwyższy (Supreme Court) of 1 June 2022, II CSKP 364/22, which led to the 
conclusion that a contractual term relating to the bank’s margin in relation to the 
specification of the exchange rate for the Swiss franc is a separate clause, meaning 
that it is possible to remove only the element relating to the modification of the 
NBP’s average exchange rate for the bank’s margin’ (see the grounds of the 
judgment of the Sąd Najwyższy (Supreme Court) of 22 February 2024, 
II CSKP 11/23). 
40 In the judgment of 5 June 2024, the Sąd Najwyższy (Supreme Court) again found 
that ‘a contractual term relating to a bank’s margin in relation to the specification 
of the exchange rate for the Swiss franc is a separate clause, making it possible to 
remove only one fragment of a textual unit contained in an agreement, namely that 
relating to the modification of the NBP’s average rate by this margin’ (see the 
grounds of the judgment of the Sąd Najwyższy (Supreme Court) of 5 June 2024, 
II CSKP 1468/22). 
41 In its judgment of 30 October 2024, the Sąd Najwyższy (Supreme Court) 
furthermore stated that ‘a contractual term relating to a bank’s margin in relation 
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to the specification of the exchange rate for the Swiss franc is an independent 
clause, allowing the removal of a single textual unit of the agreement alone, or in 
other words that relating to the modification of the NBP’s average rate by this 
margin …. This interpretation is supported in particular by the argument that a 
finding that the relevant term is unfair cannot be predicated on the division of the 
agreement into textual units. If this were the case, the parties could influence 
whether terms of a contract were unfair without altering their substance (the rights 
and obligations established) merely by dividing these up terms or merging them 
together in appropriate fragments (sentences, sections, paragraphs, and so on). 
Consequently, it should be assumed that a fragment of an agreement that 
expresses a separate normative meaning can be deemed inadmissible. This 
viewpoint has been set out in past judicial decisions relating to terms providing for 
the adjustment of prices to include tax on goods and services …. The fragment of 
a sentence in a credit agreement in the case at hand providing for an increase or 
reduction in the NBP’s average foreign currency exchange rate equivalent to the 
bank’s margin should be assessed similarly (or in other words as a separate 
clause)’ (see the grounds of the judgment of the Sąd Najwyższy (Supreme Court) 
of 30 October 2024, II CSKP 1939/22). 
42 Lastly, in an order of 6 November 2024, the Sąd Najwyższy (Supreme Court) 
found that ‘it is possible for a contract to remain in force following the removal of 
unfair terms in a situation where the contract contains elements necessary for 
specifying substantive content that characterises the relevant legal relationship, 
and is based on an objective criterion (the NBP’s average exchange rate) used to 
specify the value of the loan amount repaid. In this case, the Sąd Najwyższy 
(Supreme Court) found that the only inadmissible aspect was the arbitrary 
determination of the bank’s margin, and consequently assumed that the term 
would be ineffective in that respect alone. This would mean that both the buying 
rate and the selling rate were the same as the NBP’s average exchange rate. The 
above position implies that it is possible for part of a term that is linguistically 
inseparable to remain in force if the inadmissible fragments can be removed 
without altering the structure and meaning of the term’ (see the grounds of the 
order of the Sąd Najwyższy (Supreme Court) of 6 November 2024, 
I CSK 3948/23). 
43 The referring court however has doubts as to whether the above interpretation is 
compatible with the objectives of Directive 93/13 as elucidated in, inter alia, the 
judgment of the Court of Justice of 29 April 2021 (C-19/20). The most serious 
concerns are raised by the assessment that the parts of the contractual terms which 
read ‘minus the buying margin determined by a decision of the bank’ and ‘plus the 
selling margin determined by a decision of the bank’ constitute separate 
contractual obligations which are capable of being the subject of an individual 
examination of their unfairness, as referred to in paragraph 80 of the judgment of 
the Court of Justice of 29 April 2021 in Case C-19/20. It appears that, in so far as 
the parts of the terms in question provide only for modification of the NBP’s 
average rate, this demonstrates their accessory nature and that they thus do not 
exist in isolation, separate from the rest of the contractual terms. It is therefore 
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difficult to concur with the argument that the wording ‘minus the buying margin 
determined by a decision of the bank’ and ‘plus the selling margin determined by 
a decision of the bank’ define any rights or obligations whatsoever for the parties 
to the agreement. As a result, the referring court wishes to ask the Court of Justice 
for guidance on how to interpret the phrase ‘contractual terms’ as referred to in 
Article 3(1) and Article 6(1) of Directive 93/13. 
44 In the above context, the European Commission appears to be right in its finding 
that ‘the relevant elements of Section 17(2) and (3) of the agreement do in fact 
seem to be an integral part of the buying and selling rates respectively. In this 
respect, it would be difficult to claim that they are separate and independent 
obligations. Furthermore, references to the buying/selling rate can at the very least 
be found elsewhere in Section 17. As a result, removing the contested fragments 
would be insufficient; it would then be necessary to amend the wording of 
Section 17 (and thus alter its substance to some extent) in order to maintain the 
coherence of the legal text. Such an alteration would be contrary to Article 6(1) of 
Directive 93/13, as has been emphasised on many occasions by the Court’ (see the 
written comments of the European Commission of 15 September 2023 in Case 
C-301/23, p. 25, paragraph 63). 
45 Furthermore, there are concerns as to the assessment of whether the outcome of 
the review of the contractual terms set out in the judgments of the Sąd Najwyższy 
(Supreme Court) cited above is compatible with Article 7(1) of Directive 93/13 
and the principle of effectiveness. The Sąd Najwyższy (Supreme Court) 
concluded that the defendant bank’s loan agreement was valid and should remain 
in force, with the only modification being that the NBP’s average rates, 
unmodified by the defendant bank’s margin, should apply to the exchange rate 
conversions. This implied minimal interference with the substance of the 
agreement and an obligation on the bank to reimburse only a small part of the 
performance rendered by the borrower, equivalent to the exchange rate spread that 
was applied. On the other hand, the referring court queries whether an effect of 
this kind pursues the objectives of Directive 93/13, including in particular the 
‘deterrent objective’ referred to in paragraph 80 of the judgment of the Court of 
Justice of 29 April 2021 in Case C-19/20. The above line of interpretation thus 
seems to pursue an outcome tantamount to revising the content of an unfair 
contractual term which, as found by the Court, ‘would contribute to eliminating 
the dissuasive effect on sellers or suppliers of the straightforward non‑application 
with regard to the consumer of those unfair terms (see, to that effect, the order in 
Pohotovost’, paragraph 41 and the case‑law cited), in so far as those sellers or 
suppliers would remain tempted to use those terms in the knowledge that, even if 
they were declared invalid, the contract could nevertheless be modified, to the 
extent necessary, by the national court in such a way as to safeguard the interest of 
those sellers or suppliers.’ (see judgment of the Court of Justice of 14 June 2012, 
Banco Espańol de Credito, C-618/10, paragraph 69). 
46 Having regard to the above, the conclusion reached in the national literature, 
namely that ‘the phrases “buying margin” and “selling margin” do not act alone as 
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independent obligations capable of being the subject of an examination of their 
unfairness, and instead can be considered capable of being the subject of an 
effective assessment of this kind only in conjunction with other supplementary 
substantive terms of the agreement, appears to be the correct one. The term can 
therefore be regarded as a single indexation clause, and the additional phrase “plus 
or minus a margin” does not have any separate substantive meaning for the 
agreement. The agreement provides for a single performance (the disbursed loan 
and loan instalments in an amount based on the bank’s table of exchange rates) 
without any distinction between the performance based on the NBP’s average rate 
and the performance involving the bank’s margin, which merely clarifies this 
obligation. This is corroborated by the outcome of a linguistic interpretation and 
the use of the words “plus” and “minus”, emphasising that the margin plays a 
merely corrective role in relation to the concept of the “selling rate” and the 
“buying rate”. Disregarding the margin would consequently mean that the 
conversion clauses, in the version set out in the substantive part of the agreement, 
would be rendered devoid of all of their previous sense and meaning. This would 
not affect merely the arithmetical value; such a procedure, involving the “dividing 
up” of the contractual term in question, would modify the term without retaining 
its original substance and purpose, which would run counter to the requirement for 
terms to be transparent and provide effective protection so that sellers and 
suppliers are discouraged from including unfair contractual terms in their 
contracts. Removal of the element relating to the margin would be equivalent to a 
reduction upholding the effectiveness of the unfair indexation clause (made up of 
intrinsically linked elements) by splitting it up into a defective part and an 
admissible part (an average Polish zloty exchange rate for the relevant foreign 
currency as published in the NBP’s table of exchange rates), which would alter the 
meaning of the agreement and weaken the preventive effect of the provisions in 
terms of consumer protection by encouraging sellers or suppliers to use “hybrid” 
unfair terms in order to avoid the agreement being cancelled through the option of 
splitting the terms into fragments. This procedure would alter the original meaning 
of the contractual term, as it would deprive the bank of the profit resulting from 
the currency spread, and it is precisely the (unclear) profit earned by the bank 
resulting from the difference in foreign currency exchange rates that rendered the 
contractual term unfair’ (see Asłanowicz, Paulina, Kredyty waloryzowane do 
waluty obcej w praktyce orzeczniczej (Loans indexed to a foreign currency in 
judicial practice), WKP 2023, pp. 182-183). 
47 Questions referred 
48 [repetition of the questions referred] […] 
49 Staying of the proceedings before the referring court. 
50 […]