Information;Order — ECLI:EU:C:2022:915
Date: 2022-11-18
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-138/22 – 1 
Case C-138/22 
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: 
25 February 2022 
Referring court: 
Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (Poland) 
Date of the decision to refer: 
18 January 2022 
Applicants: 
TD 
SD 
Defendant: 
mBank S.A. 
  
Subject matter of the main proceedings 
A claim for payment of sum of money (PLN 51 325.81 together with statutory 
interest for late payment) as reimbursement for undue performance in connection 
with the invalidity of a mortgage agreement concluded by the applicants. 
Subject matter and legal basis of the request 
Interpretation of European Union law, in particular Articles 6(1) and 7(1) of 
Council Directive 93/13/EEC, and the principles of effectiveness and equivalence; 
Article 267 TFEU. 
Question referred for a preliminary ruling 
Must Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts and the principles of effectiveness and 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-138/22 
 
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equivalence be interpreted as meaning that, where there are both grounds for 
declaring a contract invalid owing to the fact that it contains unfair contractual 
terms (Article 3851(1) of the Polish Civil Code) and grounds for declaring a 
contract void owing to the fact that it contains terms which are contrary to the law 
(Article 58(1) and (3) of the Polish Civil Code): 
- the national court should always declare the contract incurably void and, as a 
result, the provisions of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts will not apply to that contract; 
or 
- the decision as to whether the contract may be regarded as incurably void 
should be left to the consumer? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union (OJ 2016 C 202, 7.6.2016): 
Article 169(1);  
Charter of Fundamental Rights of the European Union (OJ 2016 C 202, 7.6.2016, 
p. 391–407): Article 38;  
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29): recitals 4, 12, 21, 24; Articles 3(1), 6(1), 7(1) and 
8. 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Constitution of 
the Republic of Poland of 2 April 1997) 
Public authorities shall protect consumers, users and tenants against activities that 
threaten their health, privacy and safety and against unfair market practices. The 
scope of this protection is defined by law (Article 76). 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 – Civil 
Code) (Dziennik Ustaw (Journal of Laws) No 16, item 93, as amended), ‘the CC’) 
One may not use one’s right in a manner which would be contrary to its social and 
economic purpose or which is contra bonos mores. Any such act or omission by 
the rightholder shall not be treated as the exercise of the right and shall not be 
protected (Article 5). 
A consumer is a natural person who, when concluding and performing a consumer 
contract, does not act in the course of his trade or of another commercial activity 
(Article 221). 
MBANK 
 
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A seller or supplier is a natural person, a legal person or an organisational unit 
referred to in Article 331(1) which carries on a commercial or professional activity 
in its own name (Article 431). 
A legal transaction which is contrary to the law or intended to circumvent the law 
shall be invalid, unless a 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)). 
A legal transaction which is contra bonos mores shall be invalid (Article 58(2)). 
Where only part of a legal transaction is invalid, the transaction shall remain valid 
as to the remaining parts, unless circumstances indicate that the transaction would 
not have been carried out without the invalid terms (Article 58(3)). 
Subject to exceptions provided for by statute, property-related claims shall be 
subject to limitation (Art. 117(1)). 
Following the lapse of the limitation period, a person against whom a claim is 
pursued may avoid the duty to satisfy it, unless he waives his or her right to use 
the defence of limitation. However, waiving the defence of limitation before the 
lapse of the period of limitation shall be invalid (Article 117(2)). 
In exceptional cases, the court may, after weighing the interests of the parties, 
disregard the lapse of the limitation period on a claim against a consumer if it is 
justified by reasons of equity (Article 1171(1)). 
In exercising the authority under paragraph 1, the court should consider, in 
particular: (1) the length of the limitation period; (2) the length of time between 
the lapse of the limitation period and the assertion of the claim; (3) the nature of 
the circumstances that prevented the claimant from pursuing the claim, including 
the effect of the obliged party’s conduct on the claimant’s delay in pursuing the 
claim (Article 1171(2)). 
Unless a specific provision provides otherwise, the limitation period shall be ten 
years, and for claims concerning periodic payments as well as claims related to the 
conduct of business activity, it shall be three years (Article 118 of the CC in the 
wording in force until 8 July 2018). 
Unless a specific provision provides otherwise, the limitation period shall be six 
years, and for claims concerning periodic payments as well as claims related to the 
conduct of business activity, it shall be three years. However, the end of the 
limitation period shall be the last day of the calendar year unless the limitation 
period is shorter than two years (Article 118 of the CC in the wording in force as 
of 9 July 2018). 
The limitation period shall commence on the day on which the claim becomes 
due. Where the claim becoming due is dependent on the rightholder undertaking a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-138/22 
 
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specified act, the limitation period shall commence on the day on which the claim 
would have become due if the rightholder had undertaken that act at the earliest 
possible opportunity (Article 120(1)). 
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, and are not contra bonos mores 
(Article 3531). 
The terms of a contract concluded with a consumer which have not been 
individually negotiated 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 (unfair terms). This shall not apply to terms setting out the 
principal obligations to be performed by the parties, including price or 
remuneration, so long as they are worded clearly (Article 3851(1)). 
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)). 
The terms of a consumer contract which have not been individually negotiated are 
those over the content of which the consumer had no actual influence. This shall 
refer in particular to contractual terms taken from a standard contract proposed to 
a consumer by a contracting party (Article 3851(3)). 
The burden of proving that a contractual term has been individually negotiated 
rests with the person relying thereon (Article 3851(4)). 
The compliance of contractual terms with good practice 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 term being 
assessed (Article 3852). 
A person who, without legal basis, obtains a material benefit at the expense of 
another person shall be obliged to release the benefit in kind and, where that is not 
possible, to return the value thereof (Article 405). 
The provisions of the preceding articles shall apply in particular to undue 
performance (Article 410(1)). 
A performance is undue if the person who rendered it was not under any 
obligation or was not under any obligation towards the person to whom he 
rendered the performance, or if the basis for the performance has ceased to exist 
or if the intended purpose of the performance has not been achieved or if the 
transaction on which the obligation to render the performance was based was 
invalid and has not become valid since the performance was rendered 
(Article 410(2)). 
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Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Banking Law of 29 August 
1997, Dziennik Ustaw (Journal of Laws) No 140, item 939, as amended) 
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 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 (Article 69(1)). 
A loan agreement should be made in writing and stipulate, in particular: (1) the 
parties to the agreement; (2) the loan amount and currency; (3) the purpose for 
which the loan was granted; (4) the terms and conditions of loan repayment; (5) 
the loan interest rate and terms on which it may be changed; (6) the security for 
loan repayment; (7) the scope of the bank’s rights related to control over 
utilisation and repayment of the loan; (8) the dates and manner of making funds 
available to the borrower; (9) the amount of commission, if provided for in the 
agreement; (10) the terms on which the agreement may be amended and 
terminated (Article 69(2) in the wording in force as at the date on which the loan 
agreement was concluded). 
The loan interest rate shall be stipulated in the loan agreement; if the loan interest 
rate is variable, the following rules shall apply: (1) the loan agreement shall 
stipulate the terms on which the loan interest rate may be changed; (2) the 
borrower, the guarantor and, unless the agreement provides otherwise, other 
persons who are the bank’s debtors by virtue of the security on the loan, shall be 
notified in a manner stipulated in the agreement of each change in the loan interest 
rate (Article 76). 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2006 the parties entered into an agreement concerning a mortgage loan 
amounting to PLN 160 000, indexed to the Swiss franc (CHF). The loan amount 
expressed in CHF was determined on the basis of the CHF buying rate specified in 
the bank’s exchange rate table on the date and at the time of loan/tranche 
disbursement. The capital and interest payments were made in PLN, having been 
converted at the CHF selling rate according to the bank’s exchange rate table in 
force on the repayment date. In 2010 the parties concluded an annex to the loan 
agreement which amended it in such a manner that, as of the date of conclusion of 
the annex, the interest rate on the loan was equal to the LIBOR 3M CHF 
benchmark rate plus a fixed margin of 3% throughout the lending period. In 2013 
the parties concluded the final annex to the loan agreement, pursuant to which the 
borrowers were allowed to make payments under the loan directly in CHF. 
2 On 20 April 2020, the applicants filed a complaint with the defendant bank, 
demanding that unfair terms be removed from the loan agreement, and at the same 
time they indicated that the agreement was contrary to the law and therefore void 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-138/22 
 
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pursuant to Article 58(1) and (2) of the CC. In its reply to the complaint, the bank 
indicated that the loan agreement complied with the law, was valid and did not 
contain any unfair terms. 
3 In a written statement of 10 August 2020 the applicants stated that they consented 
to the loan agreement being declared void in its entirety, considered the 
invalidation of the loan agreement to be in their favour, and accepted the 
consequences of the agreement’s invalidity, including financial consequences. The 
applicants stated that they were aware of the fact that as a result of the agreement 
being declared void in its entirety, the parties would be required to return to each 
other the payments made under the agreement, and they agreed to that. At the 
same time, the applicants stated that they were aware that the defendant bank 
could pursue claims against them for the use of capital without a contractual basis. 
4 At the hearing on 27 October 2020, the applicants were personally advised of the 
consequences of the loan agreement being declared void, after which they stated 
that they understood, and agreed to, the legal and financial consequences of the 
invalidity of that agreement. 
5 The bank disbursed the loan principal to the borrowers in PLN; no funds were 
disbursed by the bank in CHF. Until 10 February 2013 the applicants made all 
loan payments exclusively in PLN, and after that date (that is to say, after the 
conclusion of the final annex to the agreement) the applicants made all loan 
payments exclusively in CHF. 
6 In their statement of claim filed on 29 June 2020, the applicants requested that the 
amount of PLN 51 325.81 be awarded against the defendant as reimbursement for 
undue performance together with statutory interest for late payment [from] 
25 June 2020 until the date of payment. In justification of their claim, they 
indicated that the loan agreement contained unfair terms and was void. 
7 The defendant bank moved for the claim to be dismissed in its entirety and 
claimed that the agreement concluded by the parties was valid and did not contain 
unfair terms. 
The essential arguments of the parties in the main proceedings 
8 The applicants maintain that the invalidity of the contract is due to the inclusion of 
unfair terms and also arises independently from the fact that it is contrary to the 
law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The applicants, who are consumers, dispute two groups of clauses in the loan 
agreement which were not individually negotiated with them but rather copied 
from the standard agreement used by the defendant bank, namely the so-called 
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conversion clauses and the so-called variable interest rate clause. They claim that 
those contractual terms are contrary to the law and at the same time constitute 
unfair terms. In the opinion of the referring court, there are grounds for holding 
that all those contractual terms are unfair terms (Article 3851(1) of the CC), which 
would result in the entire agreement being void. At the same time, all those terms 
define the principal obligations to be performed by the parties under the mortgage 
loan agreement indexed to a foreign currency, which means that finding even one 
of those terms to be unfair or deeming it to be invalid must result in the invalidity 
of the entire loan agreement. At the same time, in the view of the referring court, 
the variable interest rate clause is also contrary to Article 69(2)(5) and 
Article 76(1) of the Banking Law, resulting in the agreement being incurably void 
(Article 58(1) and (3) of the CC). Therefore, the referring court rules out the 
conclusion that the loan agreement could be performed without any of the 
aforementioned provisions. As a result, the referring court concludes that the 
entire loan agreement is void ex tunc, and thus finds that the applicants’ claim 
based on the premiss that the agreement is void is well founded in substance. 
10 Therefore, invalidity may arise from two different legal grounds – the finding the 
agreement contains unfair terms (Article 3851(1) of the CC) or the finding that the 
agreement contains terms which are contrary to the law (Article 58(1) and (3) of 
the CC). The effect of the invalidity of the entire loan agreement ex tunc and of 
the resulting obligation to return all payments is not identical due to the different 
characteristics of the two types of invalidity, which in turn affect the scope of 
claims which the parties to the agreement may pursue. Specifically, the limitation 
period on both parties’ claims begins to run on different dates. 
11 The court takes into account ex officio the invalidity of the contract resulting from 
it being contrary to the law (Article 58(1) of the CC), and in view of the primacy 
of public interest over personal interest the court may declare the contract 
incurably void. Thus, a contract that is contrary to the law cannot remain in effect 
simply because the parties thereto wish it so. On the other hand, in the case of 
invalidity resulting from the presence of unfair terms (Article 3851(1) of the CC), 
the court also considers that invalidity ex officio but it is obliged to take into 
account the position of the consumer who may effectively oppose declaring the 
contract void, as this may be in the consumer’s personal interest, and thus the 
consumer may prefer to replace the unfair terms with a supplementary provision 
of national law. Finally, the consumer may also consent to such terms and thus 
restore their effectiveness. Since the essence of provisions on unfair terms is to 
protect the consumer, the consumer’s will should be decisive. 1 
 
1 See: 
 Judgment of the Court of Justice of 4 June 2009, Pannon GSM, C-243/08, paragraph 33; 
 Judgment of the Court of Justice of 14 June 2012, Banco Español de Crédito, C-618/10, 
paragraph 63; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-138/22 
 
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 Judgment of the Court of Justice of 21 February 2013, Banif Plus Bank, C-472/11, 
paragraph 27; 
 Judgment of the Court of Justice of 14 April 2016, Sales Sinués and Drame Ba, C-381/14 and 
C-385/14, paragraph 25; 
 Judgment of the Court of Justice of 3 October 2019, Dziubak, C-260/18, paragraphs 53–55; 
 Judgment of the Court of Justice of 11 March 2020, Lintner, C-511/17, paragraph 43; 
 Judgment of the Court of Justice of 9 July 2020, lbercaja Banco, C-452/18, paragraph 25; 
 Judgment of the Court of Justice of 29 April 2021, Bank BPH, C-19/20, paragraphs 46–47, 94–
95; 
 Order of the Court of Justice of 16 November 2010, Pohotovosť, C-76/10, paragraph 62; 
 Judgment of the Court of Justice of 15 March 2012, Pereničová and Perenič, C-453/10, 
paragraph 30; 
 Judgment of the court of justice of 26 April 2012, lnvitel, C-472/10, paragraph 42; 
 Judgment of the Court of Justice of 21 February 2013, Banif Plus Bank, C-472/11, 
paragraph 27; 
 Judgment of the Court of Justice of 30 May 2013, Jőrös, C-397/11, paragraphs 51 and 53; 
 Judgment of the Court of Justice of 30 May 2013, Asbeek Brusse and de Man Garabito, 
C-488/11, paragraph 49; 
 Order of the Court of Justice of 3 April 2014, Sebestyén, C-342/13, paragraph 35; 
 Judgment of the Court of Justice of 21 January 2015, Unicaja Banco and Caixabank, C-482/13, 
C-484/13, C-485/13 and C-487/13, paragraph 28; 
 Judgment of the Court of Justice of 21 April 2016, Radlinger and Radlingerová, C-377/14, 
paragraph 97; 
 Judgment of the Court of Justice of 21 December 2021, Gutièrrez Naranjo, C-154/15, C-307/15 
and C-308/15, paragraph 61; 
 Judgment of the Court of Justice of 7 August 2018, Banco Santander and Escobedo Cortés, 
C-96/16 and C-94/17, paragraph 73; 
 Judgment of the Court of Justice of 13 September 2018, ProfiCredit Polska, C-176/17, 
paragraph 41; 
 Judgment of the Court of Justice of 14 March 2019, Dunai, C-118/17, paragraph 41; 
 Judgment of the Court of Justice of 26 March 2019, Abanca Corporación Bancaria and Bankia, 
C-70/17 and C 179/17, paragraph 52; 
 Judgment of the Court of Justice of 7 November 2019, ProfiCredit Polska, C-419/18 and 
C-483/18, paragraph 47; 
 Judgment of the Court of Justice of 7 November 2019, Kanyeba, C-349/18 to C-351/18, 
paragraph 66; 
 Judgment of the Court of Justice of 3 March 2020, Gómez del Moral Guasch, C-125/18, 
paragraph 58; 
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12 In the case of a contract containing unfair terms, a court may not declare the 
contract void if the consumer objects. This difference is material from the point of 
view of when the limitation period begins to run for the parties’ claims for the 
return of undue payments made in the performance of an invalid contract. The 
application of the provision that governs the beginning of the limitation period 
(Article 120(1) of the CC) has different results where the contract is incurably 
void and where the contract is void as a result of the removal of unfair terms. 
13 If the contract is incurably void (Article 58 of the CC), the limitation period on a 
claim for the return of undue payment begins to run from the date on which the 
payment should have been returned if the creditor had called upon the debtor to 
perform the obligation at the earliest possible opportunity, and thus within such 
time from the undue benefit having been gained as is necessary to return it without 
undue delay; usually, that ‘earliest possible opportunity’ is the day on which the 
payment was made. From the point of view of the start of the limitation period, it 
is irrelevant when the person making the payment learned that it was undue or 
when he or she actually called upon the debtor to return the payment, including 
where he or she was unaware that the contract provisions were void. Thus, the 
limitation period on the bank’s claim for the reimbursment of principal begins to 
run on the date when that principal was disbursed, while the limitation period on 
the borrower’s claim for the return of loan payments begins to run with respect to 
each of those payments on the date on which they were made. 
14 On the other hand, the limitation period on the parties’ claims for the return of 
undue payments made in the performance of the contract which is void due to the 
presence of unfair terms (Article 3851(1) of the CC), without which that contract 
could not be performed, begins to run on different dates. In that case, the 
limitation period on the borrower’s/consumer’s claim for the return of undue 
payment begins to run on the date on which the borrower/consumer learned (or, 
by exercising due diligence, should have learned) that the contract was void or 
      
 Judgment of the Court of Justice of 9 July 2020, lbercaja Banco, C-452/18, paragraph 23; 
 Judgment of the Court of Justice of 9 July 2020, Raiffeisen Bank and BRD Groupe Société 
Générale, C-698/18 and C-699/18, paragraphs 53–54; 
 Judgment of the Court of Justice of 16 July 2020, Caixabank, C-224/19 and C-259/19, 
paragraphs 50–52; 
 Judgment of the Court of Justice of 25 November 2020, Banca B, C-269/19, paragraphs 29 and 
43; 
 Judgment of the Court of Justice of 27 January 2021, Dexia Nederland, C-229/19 and C-289/19, 
paragraph 62; 
 Judgment of the Court of Justice of 29 April 2021, Bank BPH, C-19/20, paragraphs 43–44, 50 
and 84; 
 Judgment of the Court of Justice of 10 June 2021, BNP Paribas Personal Finance, C-776/19 – 
C-782/19, paragraphs 36–37. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-138/22 
 
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that it contained unfair terms. 2 On the other hand, the question of when the 
limitation period begins to run for the bank’s claim for the return of undue 
payment (the loan principal disbursed) arouses controversy. It may begin on the 
date on which the consumer makes a final and binding decision as to whether he 
or she consents to the invalidity of the contract containing the unfair terms or 
consents to the unfair terms remaining effective and thereby avoids the 
invalidation of the contract. 3 The limitation period on the bank’s claim may also 
begin to run from the date on which it receives the earliest representation by the 
consumer from which it is apparent that the consumer challenges the validity of 
the contract. 
15 Moreover, the legal consequences of situations where regulations on unfair terms 
(Article 3851(1) of the CC) as well as regulations on the incurable invalidity of a 
legal transaction (Article 58 of the CC) apply at the same time, and thus the ruling 
that the court should give in such a case, still need to be clarified. The question 
which of those regulations have precedence was resolved by the Sąd Najwyższy 
(Supreme Court) in its resolution of 13 January 2011, according to which ‘a 
standard contract provision that is contrary to a mandatory statutory provision 
cannot be deemed an unfair term (Article 3851(1) of the CC)’. The Supreme Court 
further clarified that ‘a standard contract provision that is contrary to the law 
cannot have legal effect (Article 58(1) of the CC) and cannot determine the rights 
and obligations of consumers and is not capable of grossly infringing their 
interests. Consequently, it cannot be assessed from the point of view of its 
compliance with good practice’. 
16 Therefore, the referring court is considering whether the national regulation 
governing the consequences of the incurable invalidity of a contract does not 
conflict with the provisions of Directive 93/13 and, in particular, with the 
principle of effectiveness. Namely, in a situation where the provisions of an 
agreement may be simultaneously classified as unfair terms (Article 3851(1) of the 
CC) and as contrary to the law or contra bonos mores (Article 58 of the CC), as in 
the case at hand, the court is obliged to declare the agreement incurably void 
according to the aforementioned resolution by the Supreme Court. As a result of 
 
2 See: 
 Judgment of the Court of Justice of 9 July 2020, Raiffeisen Bank and BRD Groupe Société 
Générale, C-698/18 and C-699/18, paragraphs 82–83; 
 Judgment of the Court of Justice of 16 July 2020, Caixabank and Banco Bilbao Vizcaya 
Argentaria, C-224/19 and C-259/19, paragraphs 91–92; 
 Judgment of the Court of Justice of 22 April 2021, Profi Credit Slovakia, C-485/19, 
paragraphs 63, 64 and 66; 
 Judgment of the Court of Justice of 10 June 2021, BNP Paribas Personal Finance, C-776/19, 
C-777/19, C-778/19, C-779/19, C-780/19, C-781/19 and C-782/19, paragraphs 47–48; 
3 Resolution of 7 May 2021 by a panel of seven judges of the Sąd Najwyższy (Supreme Court), 
which has the force of a legal principle, Ref. No III CZP 6/21. 
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the contract being declared incurably void, the consumer loses the ability to object 
to its invalidity.  
In the view of the national court, the fact that the contract must be declared void 
even against the consumer’s will appears to contradict the position of the Court of 
Justice, which found that ‘the right to effective consumer protection includes the 
option to waive the exercise of one’s rights, with the consequence that, where 
appropriate, account must be taken of the intention expressed by the consumer 
where, although aware of the non-binding nature of an unfair term, that consumer 
states nevertheless that he or she is opposed to that term being disregarded, thus 
giving his or her free and informed consent to the term in question. Directive 
93/13 does not go as far as making the system of protection against the use of 
unfair terms by suppliers or sellers, a system which it introduced for the benefit of 
consumers, mandatory. Accordingly, where the consumer prefers not to rely on it, 
that system of protection is not applied’. 4 
17 In the present case, the inability to object to the invalidity of the contract is not of 
key importance because declaring the contract incurably void will cause the 
limitation period on both parties’ claims to run from the date of the payments 
made. As a result, the applicants’ claim for the return of amounts paid before 
29 June 2010 will be time-barred. Thus, the applicants will be able to demand 
from the defendant repayment of the equivalent of payments made under the loan 
in the period from 29 June 2010, including the amount claimed in this case, which 
is the equivalent of payments made under the loan in the period from 29 June 
2010 to 11 February 2013. Such a ruling, in so far as the applicants’ claim is 
deemed to be partially time-barred, does not appear to be compatible with the 
position of the Court of Justice, which indicates that a regulation which allows the 
limitation period on the consumer’s claims to expire before he or she learns about 
the presence of unfair terms in a contract to which he or she is a party is contrary 
to the principle of effectiveness. 5 
 
4 See: 
 Judgment of the Court of Justice of 4 June 2009, Pannon GSM, C-243/08, paragraphs 33 and 
35; 
 Judgment of the Court of Justice of 15 January 2013, Banif Plus Bank, C-472/11, paragraph 35; 
 Judgment of the Court of Justice of 14 April 2016, Sales Sinués and Drame Ba, C-381/14 and 
C-385/14, paragraph 25; 
 Judgment of the Court of Justice of 3 October 2019, Dziubak, C-260/18, paragraphs 54–55; 
 Judgment of the Court of Justice of 9 July 2020, Ibercaja Banco, C-452/18, paragraphs 25-26; 
 Judgment of the Court of Justice of 29 April 2021, Bank BPH, C-19/20, paragraphs 46–47 and 
94–95. 
5 See: 
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18 However, the above assessment could be different if we look at the matter more 
broadly, namely by taking into account the limitation period on the defendant 
bank’s claim for the return of the loan principal made available to the applicants, 
which also begins to run at different times depending on whether the agreement is 
found to be incurably void or rather void as a result of unfair terms. If the loan 
agreement were declared incurably void, the limitation period on the bank’s claim 
would be three years from the date of the bank making its payment thereunder On 
the other hand, if the loan agreement were deemed invalid due to the presence of 
unfair terms, the limitation period on the bank’s claim would be three years 
(expiring at the end of a calendar year) from the date of submission by the 
consumer of a representation indicating that he or she does not consent to the 
unfair terms contained in the agreement and consents to the agreement being 
declared void, or from the first representation by the consumer in which he or she 
challenges the validity of the agreement (the complaint drawn up before the trial, 
the statement made in writing during the current proceedings on 10 April 2020, or 
the statement made orally at the hearing); as a result, the limitation period on all of 
the bank’s claims would expire only on 31 December 2023. In the present case, 
the incurable invalidity of the loan agreement means that all of the bank’s claims 
are time-barred, whereas invalidity resulting from the inclusion of unfair terms in 
the agreement means that none of the bank’s claims are time-barred.  
19 In the light of the above, it is understandable that the bank’s claim for the return of 
principal is central to the applicants’ legal position, because if the referring court 
finds that the loan agreement is invalid as a result of the presence of unfair terms, 
the borrowers will have a claim against the bank for the return of the equivalent of 
all loan payments made under the loan, which will not be time-barred, and the 
bank will have a claim against the borrowers for payment of PLN 195 000, which 
will likewise not be time-barred. If, on the other hand, the referring court finds 
that the loan agreement is incurably void, the borrowers will have a claim against 
the bank for the return of the equivalent of all loan payments made since 29 June 
2010 (including the claim for the return of loan payments made until 11 February 
2013, which they are pursuing in the case at hand), and at the same time, both the 
borrowers’ claim against the bank for the return of the equivalent of loan 
payments made until 28 June 2010 and the bank’s claim against the borrowers for 
payment of PLN 195 000 will be time-barred. 
      
 Judgment of the Court of Justice of 9 July 2020, Raiffeisen Bank and BRD Groupe Société 
Générale, C-698/18 and C-699/18, paragraphs 82–83; 
 Judgment of the Court of Justice of 16 July 2020, Caixabank and Banco Bilbao Vizcaya 
Argentaria, C-224/19 and C-259/19, paragraphs 91–92; 
 Judgment of the Court of Justice of 22 April 2021, Profi Credit Slovakia, C-485/19, 
paragraphs 63, 64, 66; 
 Judgment of the Court of Justice of 10 June 2021, BNP Paribas Personal Finance, C-776/19, 
C-777/19, C-778/19, C-779/19, C-780/19, C-781/19 and C-782/19, paragraphs 47–48. 
MBANK 
 
13 
20 In the light of the above, it is apparent that although in some respects the 
borrowers would be in a worse position if the agreement were declared incurably 
void than if the invalidity resulted from the presence of unfair terms, it may 
ultimately prove significantly more advantageous. This is because, if the 
agreement were declared incurably void, the bank’s claim for payment of 
PLN 195 000, that is to say, a much larger amount than the time-barred portion of 
the borrowers’ claim, would also become time-barred. Therefore, it cannot be 
concluded that the provisions of national law which allow a contract containing 
unfair terms to be declared incurably void are unequivocally unfavourable to the 
consumer. 
21 On the other hand, however, it cannot be said with certainty that, from the 
consumer’s point of view, the incurable invalidity of a contract will always be 
preferable to invalidity resulting from the presence of unfair terms. This is due to 
the fact that the bank’s claim, although time-barred if the contract is deemed to be 
incurably void, does not expire but is transformed into a natural obligation, and 
the court may, in a case brought by the bank, disregard the effect of the period of 
limitation under Article 1171 of the CC. 
22 In view of all the above considerations, it must be stated that the incurable 
invalidity of a loan agreement and the invalidity of a loan agreement resulting 
from the removal of unfair terms clearly produce different legal effects, and the 
most significant difference in practice is the time when the limitation period 
begins to run. Therefore, the question arises whether the mere possibility that the 
provisions of national law on the incurable invalidity of legal transactions 
(Article 58 of the CC) may limit the consumer’s rights stemming from the 
provisions of Directive 93/13 is sufficient reason for the national court to 
disregard those potentially unfavourable provisions of national law in every case. 
In the referring court’s view, such a conclusion would be too far-reaching. 
23 Firstly, in its recent case-law the Court of Justice permits the application of 
provisions of national law instead of allowing the consumer’s claim based on 
Article 6(1) of Directive 93/13 in so far as ‘the implementation of the measures 
thus provided for by that national legislation makes it possible to re-establish the 
legal and factual situation which would have existed for the consumer in the 
absence of that unfair term’. 6 
24 Secondly, in the view of the referring court, even if the finding that a loan 
agreement is incurably void (Article 58 of the CC) precludes the terms of that 
agreement from being deemed unfair terms, that does not conflict with the 
provisions of Directive 93/13, Article 8 of which allows Member States to adopt 
stricter rules than those provided for in that directive. 
25 Thirdly, and most importantly, it would hardly be rational or fair to preclude a 
consumer from pursuing claims based on the contract being incurably void 
 
6 See the judgment of the Court of Justice of 2 September 2021, OTP Jelzálogbank, C-932/19. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-138/22 
 
14  
(Article 58 of the CC) merely because those claims could exclude potentially 
more far-reaching claims based on the exercise of rights under Directive 93/13 
and under Article 3851(1) of the CC which implements that directive. Moreover, 
such an approach would be contrary to the principle of equivalence, since it would 
mean that a borrower who is not a consumer could pursue a claim against the bank 
based on the loan agreement being incurably void (Article 58 of the CC), whereas 
a consumer who had entered into a loan agreement on identical terms could not 
pursue a similar claim merely because the incurable invalidity of the agreement 
(Article 58 of the CC) precludes the application of the provisions on unfair terms 
(Article 3851(1) of the CC and Directive 93/13), which could potentially entail 
less favourable consequences for the consumer. This would result in a paradox of 
sorts, since provisions designed to protect the consumers’ interests would in 
practice limit their legal options for pursuing their claims. Meanwhile, a consumer 
who is aware that the incurable invalidity of a contract may entail disadvantageous 
consequences for him or her, but on the other hand may enable him or her to 
obtain even greater benefits, may be interested in taking such a risk. 
26 For those reasons, according to the referring court, the provisions of Directive 
93/13 do not preclude national legislation which allows a contract to be declared 
incurably void (Article 58 of the CC) and which therefore excludes the application 
of the provisions of Directive 93/13 solely on the ground that the incurable 
invalidity of a contract may prove less favourable to the consumer than the 
invalidity of that contract resulting from the presence of unfair terms. 
27 The above position implies doubts as to the precedence of regulations where two 
different grounds for establishing invalidity coincide (incurable invalidity under 
Article 58 of the CC, or invalidity under Article 3851(1) of the CC). National case-
law provides that where grounds for applying Article 58 of the CC and 
Article 3851(1) of the CC coincide, Article 58 of the CC should take precedence 
because of its more far-reaching legal consequences. This does not appear to be in 
conflict with the provisions of Directive 93/13, especially since a claim based on 
Article 58 of the CC enables the consumer to pursue even more far-reaching 
claims than those stemming from Article 6(1) of Directive 93/13, which appears 
to be in line with Article 8 of Directive 93/13. 
28 However, the referring court sees another solution, according to which, where 
there are grounds for alternatively declaring a contract incurably void (Article 58 
of the CC) or void as a result of the presence of unfair terms (Article 3851(1) of 
the CC), it may be considered whether it should be left to the consumer himself or 
herself to decide on the legal consequences. The national court is contemplating 
an interpretation of the provisions of national law (in accordance with the 
principle that those provisions are to be interpreted in conformity with EU law) 
which would grant the consumer that right. Such an interpretation appears to be in 
line with the provisions of Directive 93/13 as well as with Article 169(1) TFEU 
and Article 38 of the Charter of Fundamental Rights of the European Union. 
MBANK 
 
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29 In the light of the foregoing, the referring court proposes that the answer to the 
question referred for a preliminary ruling should be that in the situation at hand, 
the decision as to whether the contract can be declared incurably void should be 
left to the consumer.