Judgment — ECLI:EU:C:2026:362
Date: 2026-04-30
Language of the case: Polish

Translation C-246/25 – 1 
Case C-246/25 [Hańczynek] i 
Request for a preliminary ruling 
Date lodged: 
1 April 2025 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
31 March 2025 
Applicant: 
AS 
Defendant: 
BNP Paribas Bank Polska S.A. 
  
ORDER 
[…] 
The Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) […] 
following the hearing […] of the case brought by AS 
against BNP Paribas Bank Polska spółka akcyjna with its seat in Warsaw for 
declaration and payment 
decides: 
I. to refer the following question to the Court of Justice of the European Union 
pursuant to Article 267 of the Treaty on the Functioning of the European Union: 
Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts, as well as the principles of effectiveness 
and proportionality, be interpreted as precluding a judicial interpretation of 
national legislation according to which, if it is found that an annex to a 
 
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 
REQUEST FOR A PRELIMINARY RULING OF 31. 3. 2025 – CASE C-246/25 
 
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contract contains unfair terms resulting in the invalidity of that annex, the 
annex is deemed never to have been concluded, and the contract is deemed to 
have been in force from the beginning in its unaltered version? 
II. […] 
[…] 
GROUNDS […] 
[…] 
1 Referring court: 
2 [court details] […] 
3 Parties to the main proceedings and their representatives: 
4 [details of parties] […] 
5 […] 
6 Subject matter of the dispute in the main proceedings and the relevant facts 
of the case 
7 On 3 January 2007, a building loan agreement in Polish zlotys (PLN) […] was 
concluded, pursuant to which the Bank Gospodarki Żywnościowej spółka akcyjna 
(the legal predecessor of the defendant) granted the applicant a loan amounting to 
PLN 415 144.09 […] with a final repayment date of 20 December 2021 […].On 
the date of conclusion of the agreement, the interest rate on the loan was 4.7% per 
annum. The interest rate was variable and was based on the 3M WIBOR reference 
rate, rounded to two decimal places, in effect at the bank on the date on which the 
loan agreement was signed, and during the period of the loan it was to be reset on 
the first day of each successive interest fixing period, taking into account the 
bank’s margin of 0.5 percentage points in the first year from the date the 
agreement was signed. After that initial period, the bank’s margin would be 1 
percentage point (paragraph 3(1)). 
8 On 15 February 2008, the parties signed Annex No 1 to the abovementioned loan 
agreement, pursuant to which the loan amount was increased to PLN 465 144.09 
(paragraph 1). 
9 On 20 March 2008, the parties signed Annex No 2 to the abovementioned loan 
agreement, pursuant to which the debt recorded in the bank’s books, amounting to 
PLN 465 144.09, was to be converted into Swiss francs (CHF) at the buying rate 
of 2.2169 (paragraph 1(1)). The loan amount after conversion was 
HAŃCZYNEK 
 
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CHF 209 817.35 (paragraph 1(2)). On the date the annex was signed, the interest 
rate on the loan was 4.4750% per annum. The interest rate was variable and was 
based on the 6M LIBOR reference rate rounded to the fourth decimal place, taking 
into account the bank’s margin of 1.6 percentage points (paragraph 2). The loan 
was to be repaid in PLN at the bank’s foreign exchange selling rate applicable on 
the repayment date (paragraph 3(1)). Interest, commissions and fees were 
calculated in the currency of the loan and were to be paid in PLN at the bank’s 
foreign exchange selling rate applicable on the repayment date (paragraph 3(2)). 
The exchange rate risk was borne by the borrower (paragraph 3(3)). The borrower 
was informed about the foreign exchange risk, which she confirmed by submitting 
a declaration using the template specified in separate regulations of the bank 
(paragraph 3(5)). The term of the loan was extended until 20 December 2026 
(paragraph 5). 
10 On 13 February 2015, the parties signed Annex No 2 to the abovementioned loan 
agreement, pursuant to which the applicant was authorised to make loan 
repayments directly in CHF (paragraph 1(1)). 
11 Pursuant to the abovementioned loan agreement, the bank disbursed to the 
applicant the amount of PLN 465 144.09, while the applicant paid to the bank a 
total of PLN 350 088.07 and CHF 83 920.95. 
12 On 25 November 2022, the applicant brought an action against the defendant, and 
on 8 August 2024 the applicant filed a pleading in which she modified her claim. 
Ultimately, the applicant made five separate claims, arranged in the following 
order. 
13 First, the applicant requested that the bank be ordered to pay her the sums of 
PLN 138 746.88 and CHF 83 920.95 with statutory interest for late payment and 
that the court find that the applicant was not bound by the contractual provisions 
contained in Annex No 2 of 20 March 2008 regarding the indexation of the 
parties’ obligations to the Swiss franc exchange rate. 
14 Second (in the event that the referring court dismissed the first claim), the 
applicant requested that the bank be ordered to pay her the sums of 
PLN 350 088.07 and CHF 83 920.95 with statutory interest for late payment and 
that the court find that the loan agreement of 3 January 2007 was invalid in its 
entirety (in view of the finding that, as a result of the conclusion of Annex No 2 
on 20 March 2008, the obligation was novated). 
15 Third (in the event that the referring court dismissed all previous claims), the 
applicant requested that the bank be ordered to pay her the sums of 
PLN 106 050.64 and CHF 83 920.95 with statutory interest for late payment and 
that the court find that the applicant was not bound by the provisions of the loan 
agreement regarding the loan interest rate being calculated on the basis of the 
WIBOR 3M reference rate and the bank’s fixed margin. 
REQUEST FOR A PRELIMINARY RULING OF 31. 3. 2025 – CASE C-246/25 
 
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16 Fourth (in the event that the referring court dismissed all previous claims), the 
applicant requested that the bank be ordered to pay her the sums of 
PLN 88 759.56 and CHF 83 920.95 with statutory interest for late payment and 
that the court find that the applicant was not bound by the provisions of the loan 
agreement regarding the loan interest rate being calculated on the basis of the 
WIBOR 3M reference rate. 
17 Fifth (in the event that the referring court dismissed all previous claims), the 
applicant requested that the bank be ordered to pay her the sum of CHF 83 20.95 
with statutory interest for late payment and that the court find that Annex No 2 of 
20 March 2008 was invalid in its entirety. 
18 In its statement of defence and in all of its other pleadings, the defendant 
requested that the action be dismissed, stating that the annex to the loan agreement 
did not contain unfair contractual terms and there was no basis for concluding that 
the loan agreement or the annex thereto were invalid. 
19 In her pleading sent on 31 January 2025, the applicant requested that a question be 
referred to the Court of Justice for a preliminary ruling. 
20 Relevant provisions of law 
21 Polish law 
22 Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) (Dziennik Ustaw (Journal of Laws) No 16, item 
93, as amended) (‘the KC’) 
23 A legal transaction which is contrary to the law or intended to circumvent the law 
shall be invalid, unless the relevant provision provides otherwise, in particular that 
the invalid terms of the legal transaction are to be substituted by relevant 
provisions of law (Article 58(1)). 
24 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 terms setting 
out the principal obligations of the parties, including price or remuneration, so 
long as they are worded clearly (Article 3851(1)). 
25 If a contractual term is not binding on the consumer pursuant to paragraph 1, the 
contract shall otherwise continue to be binding on the parties (Article 3851(2)). 
26 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 3852). 
HAŃCZYNEK 
 
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27 If, in order to cancel an obligation, the debtor undertakes, with the creditor’s 
consent, to fulfil another obligation or even the same obligation, but on a different 
legal basis, the existing obligation shall be extinguished (novation) 
(Article 506(1)). 
28 In case of doubt, it shall be understood that a change in the content of an existing 
obligation does not constitute novation. This shall apply, in particular, where the 
creditor receives a promissory note or a cheque from the debtor (Article 506(2)). 
29 Provisions of European Union law 
30 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29) […] (‘Directive 93/13’) 
31 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)). 
32 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)). 
33 Justification for the reference for a preliminary ruling – link between the 
question and the referring court’s decision in the case 
34 In the view of the referring court, the contractual provisions of Annex No 2 of 
20 March 2008 concerning the conversion of the debt associated with the loan 
from PLN to CHF, the conversion of payments made in PLN to CHF at the bank’s 
selling rate and the related imposition of exchange rate risk on the applicant 
(paragraphs 1 and 3 of Annex No 2) constitute unfair terms (Article 3(1) of 
Directive 93/13). Those terms are not binding on the applicant, and at the same 
time Annex No 2 is not capable of continuing in existence without the unfair 
terms (Article 6(1) of Directive 93/13), and therefore the annex is invalid in its 
entirety. 
35 As the annex is invalid in its entirety, the applicant’s first claim (based on Annex 
No 2 remaining in force in part) cannot be upheld. The referring court must 
therefore assess the legal consequences of the invalidity of Annex No 2 of 
20 March 2008. Two solutions are possible here. 
36 The first solution is based on the assumption that the invalidity of Annex No 2 is 
tantamount to the annex never having been concluded; as a result, the loan 
agreement of 3 January 2007 was never altered by that annex, and therefore it has 
been in force and in effect from the beginning, without the changes introduced by 
Annex No 2. The adoption of that solution would mean that the referring court 
should uphold the applicant’s fifth (last) claim. 
REQUEST FOR A PRELIMINARY RULING OF 31. 3. 2025 – CASE C-246/25 
 
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37 The second possible solution is to assume that the invalidity of Annex No 2 of 
20 March 2008 made the loan agreement of 3 January 2007 itself invalid in its 
entirety, which would mean that the parties should return to each other all the 
amounts paid under the agreement. The adoption of that solution would mean that 
the referring court should uphold the applicant’s second claim. 
38 Reasons for the reference for a preliminary ruling – merits of the case 
39 The prevailing position in national case-law is that the invalidity of an annex to a 
contract is tantamount to recognising that the annex was never concluded, and that 
the contract was in effect at all times in its original form. As the Sąd Najwyższy 
(Supreme Court, Poland) has pointed out: ‘Finding that the annex that introduced 
indexation was not binding on the parties due to its unfair terms resulted in a 
return to the previous state of affairs, namely one in which the applicant took out a 
loan in PLN and was obliged to pay the appropriate interest on it (at the WIBOR 
rate, where the mechanism for calculating interest is significantly different from 
that on loans denominated in, or indexed to, a foreign currency – the LIBOR 
rate)’. 1 In the view of the Supreme Court, an annex that changes the currency of 
the loan does not result in the obligation being novated. 2 Nevertheless, according 
to the Supreme Court, even if such an annex to a contract were to be considered a 
novation, ‘an invalid novation agreement cannot result in the obligation arising 
from a previous legal relationship being cancelled’. 3 In the literature, it is also 
pointed out that the invalidity (annulment) of the renewal (novation) makes the 
previous obligation valid, 4 and thus the parties are bound by the former 
obligation, which remains unchanged. 5 The consequence of annulling the 
novation, and thus also the new obligation, is the restoration of the previous legal 
relationship. 6 Therefore, all the obligations and rights arising from the original 
legal relationship remain in force. 7 The invalidity of the novation agreement 
causes the original obligation to remain unchanged, and the previous obligation is 
 
1 See the judgment of the Supreme Court of 2 June 2021, No I CSK 114/21. 
2 See the judgment of the Supreme Court of 9 May 2019, No I CSK 242/18. 
3 See order of the Supreme Court of 29 May 2024, No I CSK 2045/23. 
4 See E. Gniewek and P. Machnikowski (eds), Kodeks cywilny. Komentarz, 11th edition, Warsaw 2023, 
Article 506, paragraph 7. 
5 See: 
- W. Kurowski [in:] Kodeks cywilny. Komentarz. Tom III. Zobowiązania. Część ogólna (art. 353–534), 
M. Fras and M. Habdas (eds), Warsaw 2018, Article 506, point 1; 
- G. Sikorski [in:] Kodeks cywilny. Komentarrz aktualizowany, P. Nazaruk (ed.), LEX/el. 2024, 
Article 506, point 8. 
6 See A. Olejniczak (ed.), System Prawa Prywatnego. Prawo zobowiązań – część ogólna, vol. 6, 2023, 
chapter XI, paragraph 66, note 285. 
7 See M. Gutowski (ed.), Kodeks cywilny. Tom II. Komentarz. Art. 353–626, 3rd edition, Warsaw 2022, 
Article 506, note 48. 
HAŃCZYNEK 
 
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not cancelled, as there is a close and inseparable connection between the 
cancellation of the former obligation and the creation of the new one. 8 To sum 
up – the invalidity of the novation agreement means that the previous obligation 
does not expire, and no new obligation arises. 9 
40 In its case-law to date, the referring court has also inclined towards the above 
position. That position appears convincing, because the unfair contractual terms 
were included not in the agreement itself, but in an annex thereto, and therefore 
should affect the legal assessment of just the annex, and not of the agreement 
itself. Such a solution appears consistent with Article 6(1) of Directive 93/13, as 
the unfair contractual terms contained in the annex are not binding on the 
consumer in their entirety. Furthermore, it would seem illogical to assume that the 
invalidity of the annex also entails the invalidity of the agreement, as the 
agreement was concluded before the annex, and prior to the conclusion of the 
annex nothing prevented the agreement from being effectively performed. Finally, 
declaring only the annex invalid appears to be in line with the principle of 
proportionality, as only the annex to the loan agreement contained unfair 
contractual terms, and thus in order to achieve the goal of protecting consumers 
from those unfair terms it is sufficient to invalidate the annex while leaving the 
agreement in force. To assume that the loan agreement itself is also invalid, and 
with retroactive (ex tunc) effect, would have overly far-reaching legal 
consequences that are not necessary to achieve the objective pursued by the 
provisions of EU law. 
41 On the other hand, however, the referring court wonders whether Article 7(1) of 
Directive 93/13 and the principle of effectiveness do not necessitate a finding that 
the invalidity of the annex to the loan agreement also results in the invalidity of 
the entire agreement amended in that manner. That is because the invalidity of the 
loan agreement entails more far-reaching and disadvantageous consequences for 
the bank than the invalidity of just the annex to the loan agreement. The invalidity 
of the annex to the agreement only requires that any difference in the amount of 
the loan repayments made to date is settled, while the invalidity of the entire loan 
agreement means that the bank should return to the borrower all the payments 
made under the loan (it is true the bank may also demand that the borrower return 
the equivalent of the loan principal, but that claim may be time-barred). 
 
8 See: 
- T. Wiśniewski [in:] Komentarz do Kodeksu cywilnego. Księga trzecia. Zobowiązania, vols I–II, 10th 
edition, G. Bieniek (ed.), Warsaw 2011, Article 506, point 3; 
- A. Rzetecka-Gil [in:] Kodeks cywilny. Komentarz. Zobowiązania – część ogólna, LEX/el. 2011, 
Article 506, point 9; 
- A. Janiak [in:] Kodeks cywilny. Komentarz. Tom III. Zobowiązania – część ogólna, 2nd edition, 
A. Kidyba (ed.), Warsaw 2014, Article 506, points 10–11. 
9 See P. Machnikowski (ed.), Zobowiązania. Część ogólna. Tom II. Komentarz, Warsaw 2024, 
Article 506, note 34. 
REQUEST FOR A PRELIMINARY RULING OF 31. 3. 2025 – CASE C-246/25 
 
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Accordingly, declaring the loan agreement invalid in its entirety ex tunc would 
undoubtedly have a greater dissuasive effect by discouraging sellers or suppliers 
from including unfair terms in contracts. The Court of Justice has repeatedly 
emphasised the importance of the ‘dissuasive effect’ in its case-law. 10 
42 Another argument that may support the view that Article 7(1) of Directive 93/13 
and the principle of effectiveness require the recognition that the invalidity of the 
annex to the loan agreement also results in the invalidity of the agreement itself 
lies in the economic effects of the invalidity of the loan agreement on the 
consumer. As previously indicated, the invalidity of the annex itself means only 
that the amount of the loan repayments made to date must be settled, while the 
invalidity of the entire loan agreement means that the bank should return to the 
borrower the equivalent of all payments made under the loan. Thus, from a purely 
financial point of view, the invalidity of the entire loan agreement is much more 
advantageous for the consumer than the invalidity of just the annex to the 
agreement, and therefore provides much stronger motivation for the consumer to 
pursue his or her claims in court. As the Court of Justice points out in its case-law, 
in order to achieve the dissuasive effect (which derives from Article 6(1), read in 
conjunction with Article 7(1), of Directive 93/13), it is necessary to ensure 
appropriate restitutory effects for consumers. 11 Moreover, the Court of Justice has 
also pointed out that the distribution of losses resulting from the invalidation of 
the contract should not be equal. 12 
43 Nevertheless, the referring court has doubts as to whether an analysis limited to 
the financial impact of a particular ruling should be decisive in light of the 
principles arising from Directive 93/13. Indeed, the Court of Justice has indicated 
that the examination of whether there is a significant imbalance in the parties’ 
rights and obligations arising under the agreement, to the detriment of the 
consumer, cannot be limited to a quantitative economic evaluation based on a 
comparison between the total value of the transaction which is the subject of the 
contract, on the one hand, and the costs charged to the consumer under that clause, 
on the other. 13 While it is true that the above criterion is relevant to the 
application of Article 3(1) of Directive 93/13, it should nevertheless be considered 
whether it can also be useful for the application of Articles 6(1) and 7(1) of 
 
10 See: 
- judgment of the Court of Justice of 14 June 2012, Banco Español de Crédito, C-618/10, 
paragraph 69; 
- judgment of the Court of Justice of 30 April 2014, C-26/13, Kásler, paragraph 79. 
11 See the judgment of the Court of Justice of 21 December 2016, Gutièrrez Naranjo, C-154/15, 
C-307/15 and C-308/15, paragraph 63. 
12 See the judgment of the Court of Justice of 16 March 2023, M.B. and Others (Effects of the 
invalidation of a contract), C-6/22, paragraphs 24–28. 
13 See the judgment of the Court of 18 November 2021, A S.A., C‑212/20, paragraphs 65–66. 
HAŃCZYNEK 
 
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Directive 93/13. In order to clarify those doubts, the referring court refers the 
question below to the Court of Justice for a preliminary ruling. 
44 Question referred for a preliminary ruling 
45 [repetition of the question referred for a preliminary ruling] […] 
[…] 
46 Staying of the main proceedings 
47 [justification under national law] […] 
[…]