Opinion of the Advocate General — ECLI:EU:C:2022:1002
Date: 2022-12-15
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-570/21 – 1 
Case C-570/21 
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: 
13 September 2021 
Referring court: 
Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for 
Warszawa-Wola, Poland) 
Date of the decision to refer: 
22 June 2021 
Applicants: 
I.S. 
K.S. 
Defendant: 
YYY. S.A. 
  
Subject matter of the main proceedings 
The applicants demand that the defendant be ordered to pay them a sum of money 
together with statutory interest for late payment in respect of sums unduly 
collected by the defendant on the basis of abusive clauses contained in a mortgage 
loan agreement with regard to the indexing of principal and interest repayment 
instalments on the loan, and the amount of the applicants’ debt. In the context of 
this dispute, a need has arisen to interpret the notion of ‘consumer’ and, first and 
foremost, the nature of the connection between the legal transaction carried out 
and the business activity pursued by a borrower who is a natural person. 
Subject matter and legal basis of the request 
Interpretation of European Union law, in particular Articles 2(1)(b) and 7(1) of 
Council Directive 93/13/EEC; Article 19(3)(b) TEU and Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/21 
 
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Questions referred 
1. Must Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts and its recitals be interpreted as not precluding the 
inclusion in the definition of ‘consumer’ of a person engaged in business activity 
who entered into an agreement concerning a loan indexed to a foreign currency 
together with a joint-borrower who is not engaged in business activity, which loan 
is intended to be used partly for the business purposes of one of the borrowers and 
partly for purposes unconnected with his or her business activity, and not only 
where business use is so marginal as to be negligible in the overall context of the 
agreement in question, and where it is irrelevant that the non-business element is 
predominant? 
2. If the answer to the first question is in the affirmative, must Article 2(b) of 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts and its recitals be interpreted as meaning that the concept of ‘consumer’ 
defined in that provision extends to a person who, at the time the agreement was 
signed, was engaged in business activity, whereas the other borrower was not 
engaged in any business activity, and subsequently those two persons entered into 
an agreement with a bank concerning a loan indexed to a foreign currency where 
the loan principal was used in part for the business purposes of one of the 
borrowers and in part for non-business purposes, where business use is not 
marginal and is not negligible in the overall context of the loan agreement, and 
where the non-business element is predominant, and given that if the loan 
principal had not been used for business purposes it would not have been possible 
to grant the loan for non-business purposes? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: recitals 4 and 10, Article 2(b) and Article 3(1) 
Directive 2011/83/EU of the European Parliament and of the Council of 
25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and 
Directive 1999/44/EC of the European Parliament and of the Council and 
repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European 
Parliament and of the Council: recital 17 
Regulation (EU) No 524/2013 of the European Parliament and of the Council of 
21 May 2013 on online dispute resolution for consumer disputes and amending 
Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on 
consumer ODR): recital 13 
YYY. 
 
3 
Provisions of national law relied on 
Kodeks cywilny  — Ustawa z dnia 23 kwietnia 1964 r. (Civil Code - Law of 
23 April 1964) (Dz. U.  No 16, item 93, as amended) (‘the CC’) 
Article 221 
A consumer is a natural person who conducts with an economic operator a legal 
transaction which has no direct link to that person’s business or professional 
activity. 
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 § 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 shall refer in 
particular to contractual provisions taken from a standard contract proposed to a 
consumer by a contracting party. 
§ 4. The burden of proving that a provision has been agreed individually rests 
with the person relying thereon. 
Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Banking Law of 29 August 
1997, consolidated text) (Dz U. 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 
allotted for a specified purpose, and the borrower undertakes to use that 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 concluded in writing and specify in particular: 
1) the parties to the agreement; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/21 
 
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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, in particular, to calculate the amount 
of the loan, its tranches and principal and interest instalments 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 pay principal and interest repayment 
instalments as well as repay the loan early in full or in part directly in that 
currency. In that 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 that account. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2006, the applicants submitted to the defendant’s legal predecessor, YYY. S.A., 
an application for a mortgage loan amounting to PLN 206 120, indexed to the 
Swiss franc (CHF). At the time of submitting the loan application and at the time 
of entering into the agreement, applicant I.S. was engaged in business activity in 
the form of a civil-law partnership. As for the purpose of the loan, the applicants 
indicated that the amount of PLN 96 120.00 was to be used to refinance their 
consumer liabilities and the amount of PLN 110 000 was to be used for any 
consumer purposes. The applicant K.S. performed work under a contract of 
employment.  
2 On 21 March 2006, the applicants entered into a mortgage loan agreement for the 
amount of PLN 198 996.73 indexed to the CHF under the terms and conditions set 
forth in the loan agreement and in the Terms and Conditions attached to the 
YYY. 
 
5 
mortgage loan agreement. The first tranche of the loan was used to repay the 
overdraft on the account maintained for WWW. s.c. [WWW. civil-law 
partnership] run by one of the applicants (PLN 70 000) and to cover various 
insurance fees (PLN 1 216.80, PLN 3 979.93 and PLN 3 800); the second tranche 
of the loan transferred to the borrower’s account (PLN 93 880) was to be used to 
repay the borrowers’ loans and other financial liabilities, and also for any 
consumer purposes. Pursuant to §2(2) of the agreement, on the date of 
disbursement the loan amount was to be converted into the currency to which the 
loan was indexed at the buying rate set forth in the Bank’s Table of Exchange 
Rates for Foreign Currency Loans and Currency Indexed Loans drawn up by the 
Bank’s relevant unit, applicable on the date of disbursement. The amount of 
liability was to be determined as the equivalent of the required amount to be 
repaid expressed in the currency to which the loan was indexed, after its 
conversion at the selling rate set forth in the Bank’s Table of Exchange Rates to 
the currency stated in the agreement, applicable on the date of repayment. The 
borrowers stated that they were aware of the foreign exchange risk related to 
movements in the exchange rate of the currency to which the loan was indexed in 
relation to the PLN throughout the lending period and accepted that risk.  
3 The applicants brought an action against the defendant YYY. S.A. for payment of 
PLN 13 142.03 together with statutory interest for late payment on account of 
amounts unduly collected by the defendant on the basis of abusive clauses 
contained in the loan agreement. At the hearing, the applicant I.S. confirmed that 
PLN 70 000 of the loan granted by the legal predecessor of the defendant Bank 
had been used to repay the overdraft on the business account. After the repayment, 
the account had been closed. She further stated that repayment of that debt was a 
necessary condition for the granting of the loan by the legal predecessor of the 
defendant Bank. 
Essential arguments of the parties in the main proceedings 
4 According to the applicants, the claimed amounts were unduly collected by the 
defendant on the basis of abusive clauses in the loan agreement concerning the 
indexing of loan repayment instalments and the amount of the applicants’ debt. 
5 The defendant bank, in turn, maintained that the disputed agreement had been 
concluded for a business purpose and argued that the loan decision had explicitly 
stated that the loan had been granted for the purpose of repaying an overdraft 
related to business activities, and therefore the applicants could not take advantage 
of the legal protection provided for in Article 3851 of the CC. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The case at hand concerns unfair contractual clauses in an agreement concerning a 
loan indexed to a foreign currency. The dilemma faced by the referring court has 
to do not so much with the issues related to the loan agreement itself, which have 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/21 
 
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been addressed by the Court’s case-law concerning the interpretation of Articles 3, 
4 and 5 of Directive 93/13/EEC (see, inter alia, the judgments of the Court: of 
14 June 2012, Banco Español de Crédito SA v Joaquín Calderon Camino, 
C-618/10, ECLI:EU:C:2012:349; of 30 April 2014, Árpád Kásler v OTP 
Jelzálogbank Zrt, C-26/13, ECLI:EU:C:2014:282; of 31 May 2018, Zsolt Sziber v 
ERSTE Bank Hungary Zrt, C-483/16, ECLI:EU:C:2018:367; of 14 March 2019, 
Zsuzsanna Dunai v ERSTE Bank Hungary Zrt., C-118/17, ECLI:EU:C:2019:207; 
and of 3 October 2019, Kamil Dziubak, Justyna Dziubak v Raiffeisen Bank 
International AG, C-260/18, ECLI:EU:C:2019:819), but rather with the scope of 
application of that directive. The referring court found that it was necessary to 
interpret the notion of ‘consumer’ and, first and foremost, the nature of the 
connection between the legal transaction carried out and the business activity 
pursued by a borrower who is a natural person. Article 221 of the Civil Code, 
which implements Directive 93/13/EEC in the Polish legal system, uses the rather 
vague criterion of no direct link between a consumer’s business or professional 
activity and the legal transaction carried out by the consumer. Therefore, a literal 
interpretation of that provision leads to the conclusion that an indirect link is 
permissible. 
7 As regards the interpretation of Article 2(b) of Directive 93/13/EEC, the referring 
court notes that the Court of Justice ruled on that issue in the following judgments: 
of 22 November 2001, Cape SNC v Idealservice SRL and Idealservice MN RE 
SAS v OMAI SRL, C-541/99; of 15 January 2015, Birute Śiba v Arunas Debėnas, 
C-537/13; of 3 September 2015, Horaţiu Ovidiu Costea v S.C. Volksbank 
România S.A., C-110/14. The issue was also touched upon in the following orders 
of the Court: of 19 November 2015, Dumitru Tarcău, llena Tarcău v Banca 
Comercială intesa SanPaolo România S.A. and Others, C-74/15; of 14 September 
2016, Pavel Dumitras and Mioara Dumitras v BRD Groupe Société Générale – 
Sucursala Judeţeană Satu Mare, C-534/15 as well as in the following judgments: 
of 21 March 2019, Henri Pouvin and Marie Dijoux, Épouse Pouvin v Electricité 
de France (EDF), C-590/17; of 2 April 2020, Condominio Di Milano, Via Meda v 
Eurothermo SPA, C-329/19; of 9 July 2020, S.C. Raiffeisen Bank S.A. v J.B., 
C-698/18. Essentially, the referring court has doubts as to whether borrowers who 
are spouses, only one of whom is engaged in business activity, and who enter into 
an agreement concerning a loan indexed to a foreign currency (which may contain 
abusive clauses within the meaning of Article 3(1) of the directive), where a 
smaller (but not marginal) part of the principal disbursed under that loan is used to 
repay the overdraft on the business account (PLN 70 000 out of the total amount 
of PLN 198 996.73 granted) maintained for one of the borrowers (and is thus used 
for a purpose connected with the business activity of one of the borrowers), and 
part is used for consumer purposes not connected with business activity 
(PLN 128 996.73 out of the total amount of PLN 198 996.73 granted), may be 
regarded as consumers within the meaning of Article 2(b) of the directive. The 
essence of the ruling in the present case, which will determine the next stage of its 
examination, is therefore whether a person who acts in a dual (mixed) role when 
entering into a legal transaction with an economic operator is protected by the 
directive. 
YYY. 
 
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8 The issue of so-called mixed contracts (where a natural person enters into a legal 
transaction both for business and non-business purposes) has been considered by 
the Court of Justice in connection with procedural rules determining jurisdiction 
in consumer matters. In its judgment of 20 January 2005 in Case C-464/01, 
Johann Gruber/Bay WA AG, the Court held that the rules of jurisdiction laid down 
by the Convention of 27 September 1968 on Jurisdiction and the Enforcement of 
Judgments in Civil and Commercial Matters must be interpreted as meaning that a 
person who concludes a contract for goods intended for purposes which are in part 
within and in part outside his trade or profession may not rely on the special rules 
of jurisdiction laid down in Articles 13 to 15 of the Convention, unless the trade or 
professional purpose is so limited as to be negligible in the overall context of the 
supply, the fact that the private element is predominant being irrelevant in that 
respect. Moreover, it is for the court seised to decide whether the contract at issue 
was concluded in order to satisfy, to a non-negligible extent, needs of the business 
of the person concerned or whether, on the contrary, the trade or professional 
purpose was negligible. To that end, that court must take account of all the 
relevant factual evidence objectively contained in the file. On the other hand, it 
must not take account of facts or circumstances of which the other party to the 
contract may have been aware when the contract was concluded, unless the person 
who claims the capacity of consumer behaved in such a way as to give the other 
party to the contract the legitimate impression that he was acting for the purposes 
of his business. 
9 In the cited judgment in Case C-464/01, the rules of jurisdiction in consumer 
contracts are an exception to the general jurisdiction rules arising from Council 
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters (now 
Regulation No 1215/2012) and must therefore be interpreted strictly. Such 
restrictive interpretation of the concept of ‘consumer’ results from the fact that 
consumer jurisdiction derogates from the general rule that the court of the 
Member State where the defendant has his habitual residence has jurisdiction to 
hear the case. In the view of the referring court, if the questions referred for a 
preliminary ruling were answered in the manner set out in that judgment, the 
objectives of Directive 2011/83/EU (recital 17) and Regulation No 524/2013 
(recital 13) could be infringed. In the aforementioned legislation, it is expressly 
indicated that in the case of mixed contracts (such as in the present case), the 
business purpose need not be ‘marginal’ (as in Gruber), but it is sufficient for it to 
be so ‘limited’ as not to be predominant in the overall context of the contract. 
Therefore, the EU legislature requires a much broader interpretation of the 
concept of ‘consumer’ than that which follows from the judgment in Case 
C-464/01. In the legislation currently in force that is functionally linked to 
Directive 93/13/EEC, a consumer is also a person who has entered into a contract 
with an economic operator partly for purposes relating to his or her business 
activity and partly for consumer purposes, although the business purpose need not 
be minimal (insignificant) and it is sufficient that it does not predominate over the 
non-business purpose. Those differences in the interpretation of the concept of 
‘consumer’ require clarification by means of a request for a preliminary ruling, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/21 
 
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since adopting the interpretation indicated in Case C-464/01 would result in the 
claim in the present case being dismissed, the applicants having used 65% of the 
loan for a non-business purpose and 35% for a business purpose of one of the 
borrowers, which cannot be considered a marginal (insignificant) percentage. On 
the other hand, adopting the interpretation stipulated in the recitals of the later 
consumer directives would result in the borrowers having the status of consumers, 
which in turn would open the way for an examination of the agreement in terms of 
possible abusive clauses. It is equally important to determine the criteria for the 
court to determine whether the business purpose of one of the applicants was not 
predominant but only limited, such as, for instance, the fact that without the 
repayment of business debt, the loan could not have been made for a non-business 
purpose. 
10 The continued application before national courts of the interpretation given in 
Case C-464/01 without clarification of the questions set out in the order for 
reference may result in borrowers in similar cases being deprived of the status of 
consumer, which would prevent them from obtaining effective legal protection 
under national law, which would in turn be contrary to Article 47 of the Charter of 
Fundamental Rights. 
11 In addition, the date on which the parties entered into the agreement in question 
(21 March 2006), that is to say, before the entry into force of the provisions of 
Directive 2011/83/EU and of Regulation No 524/2013, as well as the principle of 
legal certainty and the criteria of systemic interpretation which require identical 
concepts to be interpreted uniformly throughout the legal system, militate in 
favour of adopting a definition of ‘consumer’ based on Directive 93/13/EEC in the 
same manner as the Court of Justice did in Case C-464/01. 
12 In view of the serious doubts concerning the interpretation of the concept of 
‘consumer’ which are set out above, the referring court takes the view that the 
conditions for inadmissibility of the request for a preliminary ruling under the 
doctrine of acte éclairé or acte clair are not met. A broad interpretation of the 
concept of ‘consumer’ under Article 2(b) of Directive 93/13/EEC, deriving from 
recital 17 of Directive 2011/83/EU and from recital 13 of Regulation 
No 524/2013, is to be favoured under the teleological interpretation due to the 
functional connection between those pieces of legislation. 
13 In the view of the referring court, the concept of ‘consumer’ under Article 2(b) of 
Directive 93/13/EEC precludes an interpretation such as that resulting from the 
judgment in Case C-464/01. The fact that a contract is linked to business activity 
should not mean a priori that a party to the legal transaction in question loses his 
or her consumer status if the contract, in a negligible part, was entered into for the 
purpose of carrying out business activity. Moreover, the partial link to business 
activity need not be negligible or marginal as indicated in the judgment in Case 
C-464/01. It is sufficient to show that, admittedly, the link between the contract in 
question and business activity is limited and not predominant in the overall 
YYY. 
 
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context of the contract, but it does not necessarily need to be of a marginal 
(negligible) nature. 
14 In the light of the foregoing, the questions referred for a preliminary ruling should 
be answered in the affirmative by stating that Article 2(b) of Directive 93/13/EEC 
and its recitals must be interpreted as not precluding the inclusion in the definition 
of ‘consumer’ of a person engaged in business activity who entered into an 
agreement concerning a loan indexed to a foreign currency together with a joint-
borrower who is not engaged in business activity, which loan is intended to be 
used partly for the business purposes of one of the borrowers and partly for 
purposes unconnected with his or her business activity, also where business use is 
not so marginal as to be negligible in the overall context of the agreement in 
question. However, that business use must be limited and must not be 
predominant, and the fact that if the loan principal had not been used for business 
purposes it would not have been possible to grant the loan for non-business 
purposes may provide an objective criterion informing the assessment as to 
whether the business purpose of the agreement is limited and the non-business 
purpose predominant.