Judgment;Summary — ECLI:EU:C:2021:341
Date: 2021-04-29
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-19/20 — 1 
Case C-19/20 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 January 2020 
Referring court: 
Sąd Okręgowy w Gdańsku (Regional Court in Gdańsk, Poland) 
Date of the decision to refer: 
30 December 2019 
Applicants: 
I.W. 
R.W. 
Defendant: 
Bank BPH Spółka Akcyjna [Bank BPH Joint-Stock Company] with 
its seat in Gdańsk (Poland) 
  
Subject matter of the case in the main proceedings 
The annulment of a loan agreement on the ground that it is contrary to the 
mandatory provisions of national law given the unfair nature of its indexation 
clauses, and on the ground that it was concluded by the applicants under the 
influence of an error regarding the total cost of the credit and the invalidity of the 
agreement in its entirety, as well as a claim for the return by the bank of the 
amounts paid by way of principal and interest payments as well as fees. 
Subject matter and legal basis of the reference 
The interpretation of Articles 2, 3(1) and (2) in conjunction with Article 4(1) and 
Articles 6(1) and 7(1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts (‘Directive 93/13’) with respect to the court’s obligation to 
declare a term in a contract concluded with a consumer unfair where, as at the date 
EN 
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of the judgment, as a result of an amendment to the contract by way of an annex, 
the term in question has been amended such that it is no longer unfair and the 
declaration that the term in its original wording was unfair may result in the 
annulment of the entire contract, and with respect to the possibility of finding that 
only some elements of the contractual term concerning the exchange rate set by 
the bank are unfair, namely, by eliminating the provision allowing the bank’s 
margin, which is a component of the exchange rate, to be determined unilaterally 
and in an unclear manner, as well as the question whether the public interest 
militates against the finding that only certain elements of the term in question are 
unfair in the manner described above. Furthermore, the question is whether the 
contract being annulled as a result of the exclusion of unfair terms amounts to a 
sanction understood as the result of a constitutive court decision with 
consequences from the date of conclusion of the contract and, also in the light of 
Article 47 of the Charter of Fundamental Rights of 30 March 2010, whether the 
national court is obliged to inform the consumer of the legal consequences of the 
contract being annulled, including of possible restitution claims by the trader. 
Questions referred 
1. Must Article 3(1) and (2) in conjunction with Article 4(1) and Articles 6(1) 
and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts (OJ 1993 L 95, p. 29) be interpreted as meaning that the 
national court is obliged to declare that a term in a contract concluded with a 
consumer is unfair (within the meaning of Article 3(1) of the directive) 
including where, as a result of an amendment to the contract made by the 
parties by way of an annex, that term has been amended such that it is no 
longer unfair and a finding that the term in its original wording was unfair 
may result in the annulment (invalidation) of the entire contract? 
2. Must Article 6(1), in conjunction with Article 3(1), the second sentence of 
Article 3(2) and Article 2 of Council Directive 93/13/EEC of 5 April 1993 
on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) be interpreted 
as permitting a national court to find that only certain elements of a contract 
term relating to the exchange rate fixed by the bank for the currency to 
which the loan extended to the consumer is indexed (such as in the main 
proceedings) are unfair, namely, by eliminating the provision allowing the 
bank’s margin, which is a component of the exchange rate, to be determined 
unilaterally and in an unclear manner, where leaving an unambiguous 
provision referring to the average exchange rate announced by the central 
bank (the Narodowy Bank Polski — National Bank of Poland), which does 
not require the eliminated term to be replaced with any legal provision, […] 
will result in real balance between the consumer and the trader being 
restored, although it will change the essence of the provision concerning the 
performance by the consumer of his obligation in a manner that is 
advantageous to him? 
BANK BPH 
 
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3. Must Article 6(1) in conjunction with Article 7(1) of Council Directive 
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 
L 95, p. 29) be interpreted as meaning that, even if the national legislature 
has introduced measures to prevent the continued use of unfair contract 
terms, such as that at issue in the main proceedings, by introducing 
provisions which require banks to stipulate in detail the methods and time 
limits for determining the exchange rate on the basis of which the amount of 
credit and principal and interest payments are calculated, and the rules for 
converting amounts into the currency in which the loan was disbursed or is 
to be repaid, the public interest militates against the finding that only certain 
elements of the term in question are unfair in the manner described in 
Question 2? 
4. Should the annulment of the contract referred to in Article 6(1) of Council 
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 
(OJ 1993 L 95, p. 29), as a result of the exclusion of unfair terms as defined 
in Article 2(a) in conjunction with Article 3 of the directive, be understood 
as a sanction resulting from a constitutive court decision made at the express 
request of the consumer with consequences from the date of conclusion of 
the contract, that is to say, ex tunc, and do restitution claims by the consumer 
and the trader become due and payable upon the judgment becoming final? 
5. Must Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts (OJ 1993 L 95, p. 29) in conjunction with 
Article 47 of the Charter of Fundamental Rights of the European Union of 
30 March 2010 (OJ 2010 C 83, p. 389) be interpreted as imposing an 
obligation on the national court to inform a consumer who has requested that 
a contract be annulled in connection with the elimination of unfair terms of 
the legal consequences of such a judgment, including possible restitution 
claims by the trader (bank), even if such claims have not been raised in the 
proceedings in question, and also claims whose validity has not been clearly 
established, even if the consumer is represented by a professional legal 
representative? 
Applicable provisions of Community law 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: recitals 4, 21, 24 and Articles 3, 4 and 6; 
Charter of Fundamental Rights of the European Union of 30 March 2010: 
Article 47. 
Applicable provisions of national law 
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Civil Code of 23 April 1964, 
‘the Civil Code’) (consolidated text: Journal of Laws [Dz. U.] of 2019, item 
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1145): Articles 58, 120, 3531, 358 [in the wording as at 23 October 2008 (Journal 
of Laws [Dz. U.] No 228, item 1506)], which entered into force on 24 January 
2009), Articles 3851, 3852, 388, 405 and 410. 
Ustawa z dnia 17 listopada 1964 r. Kodeks postępowania cywilnego (Code of 
Civil Procedure of 17 November 1964) (consolidated text of 19 July 2019: 
Journal of Laws [Dz. U.] of 2019 item 1460): Articles 5, 1561, 1562 and 212. 
Ustawa z dnia 21 lipca 2011 r. o zmianie ustawy — Prawo bankowe oraz 
niektórych innych ustaw (Law of 21 July 2011 Amending the Banking Law and 
Certain Other Laws) (Journal of Laws [Dz. U.] No 165, item 984): Articles 1 and 
4. 
Succinct presentation of the facts and procedure 
1 In 2008, the applicants, as consumers, entered into a mortgage loan agreement 
with a term of 360 months with the defendant bank’s legal predecessor; the loan 
was intended to cover the costs of building a home. Before signing the loan 
agreement, the applicants held meetings with a financial advisor (intermediary), 
who recommended a loan indexed to the Swiss franc (CHF) and informed them 
that the CHF/PLN exchange rate could rise, which would affect the amount of 
their monthly payments. The applicants did not raise any questions about the 
structure of the indexed loan. 
2 In their loan application, they stated that they were applying for a loan in PLN 
which would be indexed to the CHF exchange rate and, on a separate form 
supplied by the bank, they submitted a declaration that they had been offered a 
loan in PLN and that they had chosen a foreign-currency loan, having been 
informed about the risks of taking out a loan in a foreign currency. 
3 Pursuant to the loan agreement, the loan is disbursed in PLN, and after its 
disbursement is indexed to the CHF in accordance with the defendant’s buying 
rate as at the disbursement date, which is indicated in the bank’s table of currency 
buying/selling rates. However, the loan repayments are made in PLN and are 
settled at the currency selling rate. The currency buying/selling rates stated in the 
bank’s table refer to the average exchange rate of the National Bank of Poland and 
the bank’s margin. The interest rate on the loan is based on the LIBOR 3M 
benchmark. 
4 The provisions examined by the court as unfair read as follows: 
 ‘Paragraph 1(1). The Bank extends to the Borrower a Loan in the amount of PLN 
[…], indexed to the CHF exchange rate […], and the Borrower undertakes to 
utilise the Loan in accordance with the provisions of the Agreement, to repay the 
amount of the Loan utilised plus interest on the dates stipulated in the agreement 
and to pay to the Bank the commissions, fees and other amounts due as set forth in 
the agreement. The loan amount comprises: […] 
BANK BPH 
 
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As at the disbursement date, the loan balance is expressed in the currency to 
which the Loan is indexed according to the buying rate of the currency to which 
the Loan is indexed, as specified in the Table of buying/selling rates for mortgage 
loans extended by the Bank, which is described in detail in paragraph 17, and 
subsequently the foreign currency balance is converted each day into PLN 
according to the selling rate of the currency to which the Loan is indexed, as 
specified in the Table of buying/selling rates for mortgage loans extended by the 
Bank, which is described in detail in paragraph 17’. 
 ‘Paragraph 7(2). 
The disbursement of the amount of the Loan indicated in the Application for 
Disbursement shall be effected by transfer to the domestic bank account indicated 
in the Application. The date of the transfer shall be considered the date of 
disbursement of the Loan utilised. On each occasion, the amount disbursed in 
PLN shall be converted into the currency to which the Loan is indexed at the 
buying/selling rate for mortgage loans extended by the Bank in force as at the 
date on which the Bank effects the disbursement’. 
‘Paragraph 10(6). 
Each payment made by the Borrower shall be settled at the selling rate of the 
currency to which the Loan is indexed, as specified in the Table of buying/selling 
rates for mortgage loans extended by the Bank in force as at the day of [receipt] 
of funds by the Bank. (…)’ 
‘Paragraph 17. 
1. The buying/selling rates for mortgage loans extended by the Bank of the 
currencies included in the Bank’s offer applicable as at the date of the transaction 
shall apply to the settlement of Loan disbursements and payments. 
2. Buying rates shall be defined as the average PLN exchange rates vis-à-vis 
the currencies in question as published in the National Bank of Poland’s table of 
average exchange rates minus the purchase margin. 
3. Selling rates shall be defined as the average PLN exchange rates vis-à-vis 
the currencies in question as published in the National Bank of Poland’s table of 
average exchange rates plus the sale margin. 
4. In the calculation of buying/selling rates for mortgage loans extended by the 
Bank, the PLN exchange rate vis-à-vis the currencies in question as published in 
the National Bank of Poland’s table of average exchange rates on the business 
day in question as adjusted by the Bank’s purchase/sale margins shall apply […]’. 
5 When calculating the currency buying/selling rate, the bank took into account the 
average exchange rates calculated on each business day by the National Bank of 
Poland and added to (or deducted from) the rate in question the bank’s margin, the 
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method of calculating which was not stipulated in the agreement. The currency 
buying/selling rate determined in this manner was published and applied to 
settlements on the following day. 
6 On 7 March 2011, the parties concluded an annex to the loan agreement which 
provided for the possibility of making payments in either PLN or CHF. This 
annex contained provisions stipulating the method of calculating the bank’s 
margin used to determine the buying/selling rate of the currency to which the loan 
was indexed. Since the annex was concluded, the applicants have been making 
loan payments in CHF, purchasing the currency on the free market. 
7 After the appreciation of the CHF, which entailed a significant increase in loan 
payments expressed in PLN, measures were sought to remedy the difficult 
situation facing many consumers. Following the Court’s judgment of 3 October 
2019 in Case C-260/18, the Związek Banków Polskich (Polish Bank Association) 
published on its website an announcement indicating that if a loan agreement were 
to be annulled, the bank would have a claim for the repayment of the principal 
amount disbursed and also a claim for remuneration for the use of that principal 
amount for the period stipulated in the agreement. 
8 The national court considers that pursuant to the provisions of Polish law, that is, 
Article 3851(1) and (3) of the Civil Code, the provisions of the agreement 
concluded between the parties concerning the indexation of the loan amount 
expressed in Polish currency (PLN), and of interest and principal payments, to the 
Swiss franc (CHF) as well as the provisions concerning the rules for determining 
the exchange rate concern the main subject matter of the contract, also within the 
meaning of Article 4(2) of the directive (see the Court’s judgment of 
20 September 2017, Andriciuc, C-186/16, paragraph 38, and the Court’s judgment 
of 30 April 2014, Kásler and Káslerné Rábai, C-26/13, paragraph 59). The 
provisions concerning the indexation mechanism were expressed in language 
sufficiently intelligible for the applicants as consumers, after meeting with their 
credit advisor, to be sufficiently aware of the risk relating to a change in the 
currency exchange rate (although in practice they did not expect the CHF to 
appreciate as significantly as it did against the PLN), which they confirmed by 
submitting a declaration to that effect. In these circumstances, the national court 
does not regard the terms relating to the indexation mechanism as unfair within 
the meaning of Article 3851(1) and (3) of the Civil Code interpreted in accordance 
with Article 3(1), in conjunction with Article 4(2) of the directive. On the other 
hand, the national court finds that those terms of the agreement which concerned 
the method of determining the exchange rate were unfair under the 
aforementioned provisions, but only to the extent that they made the currency 
buying or selling rate dependent on the bank’s margin, which was set unilaterally 
by the bank using mechanisms unknown to the consumer. The national court 
considers that those elements of the term relating to the exchange rate which refer 
to the average rate as published by the National Bank of Poland as the basis for 
determining the exchange rate were not unfair. The national court also takes the 
view that after the inclusion in the annex to the loan agreement concluded 
BANK BPH 
 
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between the parties of a clarification concerning the mechanism for determining 
the bank’s margin as a component of the exchange rate, the term which concerned 
the method of determining the exchange rate ceased to be unfair. 
Essential arguments of the parties in the main proceedings 
9 The bank has moved for the action to be dismissed, stating that the agreement 
remains in compliance with national law, the consumers were not misled and the 
indexation clauses are not unfair. In addition, the defendant raised the plea that the 
applicants’ monetary claims are time-barred. The bank has not filed any restitution 
claims. 
Brief statement of and reasons for the reference 
First question 
10 The essence of the problem is whether, where it is found that a contract term in its 
original wording was unfair, this state of affairs should result in legal 
consequences in a situation where the term in question has been amended by the 
parties? The determination that a term is unfair must have the consequence of 
eliminating that term and restoring the consumer to the legal and factual situation 
that he would have been in if that term had not existed (see the Court’s judgments 
of 15 March 2012, Pereničová and Perenič, C-453/10, paragraph 31, of 
21 December 2016, Gutiérrez Naranjo and Others, C-154/15, C-307/15 and 
C-308/15, paragraph 61, and of 14 March 2019, Dunai, C-118/17). If only part of 
an agreement term cannot be declared unfair, it may be necessary for the entire 
agreement to be annulled — and with effect from the date of its conclusion (ex 
tunc). This, in turn, appears to contradict the previously expressed will of both the 
consumer and the bank, who, by concluding an annex which amended the unfair 
term, restored real balance between the parties. Thus, the judgment of the court 
would concern an agreement in a different wording than that binding on the 
parties as at the date of the judgment. Finding that the agreement is invalid (its 
annulment) would result in the bank being obliged to return not only the amounts 
paid to it by consumers under the unfair terms, but also those paid under the fair 
terms as amended by the annex. Such a result appears to contradict the purpose of 
the directive, which is to restore the balance between the parties while in principle 
preserving the validity of the contract as a whole (see the Court’s judgment of 
15 March 2012, Pereničová and Perenič, C-453/10, paragraph 31). 
11 As a result of the annex to the agreement concluded by the parties providing for a 
mechanism to calculate the bank’s margin, which is a component of the exchange 
rate of the currency to which the loan is indexed, in the event that the consumer 
exercises his right to repay the loan in Polish currency, the unfair contract term in 
its original wording is no longer binding on the parties. However, the loan balance 
was determined using this unfair term and a number of principal and interest 
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payments were made on that basis. This, in turn, gives rise to restitution claims by 
the applicants, which claims are legitimate at least in part. 
12 In its judgment of 20 September 2017, Andriciuc, C-186/16, the Court of Justice 
explained that the assessment of the unfairness of a contractual term must be made 
by reference to the time of conclusion of the contract at issue, taking account of all 
the circumstances which could have been known to the seller or supplier at that 
time, and which were such as to affect the future performance of that contract 
(paragraph 57). A similar view has also been established in the case-law of the 
Polish courts. 
Second question 
13 The clause examined in the main proceedings (paragraph 17(2), (3) and (4) of the 
agreement) was of an unfair nature as regards the bank’s margin, which was 
calculated by the bank, and the original wording of the agreement did not include 
the rules for calculating that margin, which in the court’s view was contrary to the 
requirements of good faith and caused a significant imbalance in rights to the 
detriment of the consumer. In the agreement, the currency buying rate was defined 
as the result of the following calculation: the average exchange rate published in 
the National Bank of Poland’s table of exchange rates minus the purchase margin, 
and, conversely, the currency selling rate was defined as the result of the 
following calculation: the average exchange rate published in the National Bank 
of Poland’s table of exchange rates plus the sale margin. In the present case, the 
elimination of the provision concerning the bank’s margin, which is one of the 
two factors affecting the exchange rate, does not result in the consequent gap 
having to be replaced with any other provision. Although this operation changes 
the essence of the original wording of the contractual provision, since it deprives 
the bank of the profit resulting from the currency spread, it should be noted that it 
was precisely the bank’s unclear amount of profit resulting from the exchange rate 
spread that made the term unfair. Therefore, its elimination remedies the 
unfairness. 
14 The national court is facing the question whether, in the light of Article 3851(1) of 
the Civil Code as interpreted in accordance with EU law, in the context of 
Article 6(1) of the directive and the case-law of the Court of Justice to date, it is 
permissible to eliminate as unfair only one element of a contract term while 
leaving the rest intact. In the view of the national court, this situation differs from 
those on the basis of which the doctrine prohibiting the reduction of provisions in 
order to maintain their effectiveness was expounded, since it does not require the 
gap arising after the elimination of part of a term to be replaced by any other 
provision. On the other hand, it does not amount to a simple exclusion of an entire 
contractual provision. Therefore, in the view of the national court, there is a need 
clarify the doubts relating to the interpretation of Article 6(1) of the directive and 
to answer the question whether it is permissible to eliminate only part of a term 
which makes that term unfair, without the need to replace it with any other 
provision, even if that would change the essence of the term in question. 
BANK BPH 
 
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Third question 
15 In the view of the referring court, it is necessary to interpret Article 6(1) in 
conjunction with Article 7(1) and recitals 1, 2, 3, 6, 7, 8 and 21 of the directive to 
decide whether, where a Member State has adopted legislation which has the 
effect of preventing unfair terms (such as those at issue in the main proceedings) 
from being included in a contract, it is still necessary to discourage traders from 
using such terms by penalising them where it is found that a contract provision is 
unfair. The court has doubts as to whether there is justification for prohibiting the 
reduction of provisions in order to maintain their effectiveness (understood as the 
permissibility of eliminating part of a contractual term), which may lead to the 
entire contract being annulled, as it is not the judgment which will cause banks to 
refrain from including in their agreements terms such as the one at issue in the 
main proceedings, since they will be prevented from including such terms by the 
law adopted by the Member State. As a result of the banks’ practices in regard to 
granting loans indexed to foreign currencies, the Polish legislature, by adopting 
the Law of 29 July 2011 Amending the Banking Law and Certain Other Laws, 
introduced, as a significant element of loans denominated in, or indexed to, a 
currency other than the Polish currency, detailed rules for establishing the 
methods and dates of determining the exchange rate, which is used in particular to 
calculate the amount of the loan, its tranches and principal and interest payments 
as well as the rules of converting amounts to the currency in which the loan was 
disbursed or is being repaid (Article 1(1)). Thus, in the view of the court, the 
Polish legislature has fulfilled its obligation arising from recitals 4 and 21 and 
Article 7(1) of the directive. 
16 The case-law to date, in which the Court of Justice prohibited the reduction of 
provisions in order to maintain their effectiveness, concerned a situation in which 
the eliminated part of a contract term was to be replaced by a legal provision or by 
a ruling made by the court itself. The Court justified the prohibition on such 
actions aimed at preserving the binding effect of a contract term while eliminating 
those elements which were unfair by citing the public interest protected by the 
directive (Court judgment of 14 June 2012, Banco Español de Crédito, C-618/10, 
paragraphs 67–69). This public interest is described in the directive’s recitals and 
consists in protecting citizens as consumers against abuse by sellers or suppliers, 
in particular against the unfair exclusion or restriction of consumer rights in 
contracts. This purpose should in principle be achieved through the adoption of 
legal norms which implement the directive. The directive assumes that sanctions 
consisting in the invalidation of unfair terms, and sometimes of the entire contract, 
by court rulings should have a dissuasive effect for the future. The courts’ creative 
jurisprudence could undermine this objective (Court judgment of 12 June 2012, 
Banco Español de Crédito, C-618/10, paragraphs 65–69; Court judgment of 
21 December 2016, Gutiérrez Naranjo and Others, C-154/15, C-307/15 and 
C-308/15, paragraphs 56–57 and 60–61). 
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Fourth question 
17 In the view of the referring court, the Polish legislature, contrary to recital 21 and 
Article 6(1) of the directive, has not fully implemented into the Polish legal order 
the objectives of the directive consisting in the need to ensure that a contract 
concluded between a consumer and a seller (supplier) is not binding if this is not 
possible after unfair terms have been excluded therefrom. Pursuant to 
Article 3851(2) of the Civil Code, if a contractual provision is not binding on the 
consumer, the contract shall otherwise continue to be binding on the parties. The 
national legislature has omitted the reservation ‘if it is capable of continuing in 
existence without the unfair terms’ stipulated in Article 6(1) of the directive. 
Under the Polish Civil Code, it is permissible to invalidate a contract with 
retroactive effect (that is, from the date of conclusion) on the basis of a 
constitutive court decision issued at the request of a party to the contract under the 
exploitation clause (Article 388 of the Civil Code). Obviously, the conditions for 
the exercise of that right by a party to the contract are clearly different from those 
set out in Article 3(1) and (2) of the directive. 
18 However, the case-law of the Court concerning the interpretation of Article 6(1) 
of the directive points to aspects of the sanction of annulling the contract (where it 
is not possible for it to continue after abusive clauses have been removed from it) 
which are different than those presented in the case-law of Polish courts. In its 
judgment of 30 April 2014, Kásler and Káslerné Rábai, C-26/13, paragraph 84, 
the Court found that, in general, the consequence of an annulment is that the 
outstanding balance of the loan becomes due forthwith. In its judgment of 
3 October 2019, Dziubak, C-260/18, the Court indicated that maintaining the 
contract in force or its annulment by the court after unfair terms have been 
removed depends on the consumer’s will (see paragraphs 2 and 4 of the operative 
part). On the other hand, in its judgment of 21 December 2016, Gutiérrez Naranjo 
and Others, C-154/15, C-307/15 and C-308/15, the Court emphasises the 
consumer’s right to restitution of advantages wrongly obtained, to the consumer’s 
detriment, by the seller or supplier on the basis of that unfair term (see 
paragraph 66). This could mean that the annulment of the contract after the 
elimination of abusive clauses occurs as a result of a constitutive court decision 
and not by operation of law, and occurs at the request of just one party to the 
contract (the consumer), resulting in the consumer’s claim for the restitution of 
advantages wrongly obtained by the trader. On the basis of the judgments cited, 
the national court has doubts as to whether this is the meaning of the sanction 
consisting in the contract being annulled. 
19 The interpretation of Article 6(1) of the directive on the substance of the contract 
being annulled is required for the referring court to interpret the national law in 
accordance with the purpose of the directive. Determining the nature of this 
sanction is necessary in order to assess the due date of the restitution claims raised 
by the applicants and the validity of the defendant’s plea that these claims are 
time-barred. Consequently, it is important from the point of view of assessing 
whether contract annulment is in the consumer’s interest, since if a judgment 
BANK BPH 
 
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declaring the contract to be invalid (annulling the contract) is assumed to be 
constitutive in nature, it cannot be ruled out that in other proceedings the bank will 
seek the repayment of the disbursed (utilised) loan from the consumer and it can 
be assumed that this claim will not be time-barred. Ultimately, a discrepancy 
between the interpretation of Article 6(1) of the directive and national law and the 
impossibility of interpreting national law in accordance with the purpose of the 
directive could indicate that the directive has not been correctly implemented and 
this could result in the liability of the Polish State for damages. 
Fifth question 
20 The answer to this question will be relevant to the main proceedings if the Court 
finds that under Article 6(1) of the directive, the court is obliged to examine the 
unfairness of a term even if that term has been subsequently amended by the 
parties, and this precludes only certain elements of a contract term from being 
considered unfair. In this case, there will be grounds to declare the entire contract 
invalid. 
21 According to the case-law of the Court of Justice concerning the interpretation of 
Article 6(1), consumer protection can be assured only if account is taken of the 
consumer’s actual and therefore current interests. Similarly, the consequences 
against which those interests must be protected are those which would actually 
occur, in the circumstances existing or foreseeable at the time when the dispute 
arose, if the court were to annul that contract (Court judgment of 3 October 2019, 
Dziubak, C-260/18, paragraph 53, and Court judgment of 21 February 2013, Banif 
Plus Bank, C-472/11, paragraphs 23, 27 and 35). The Court also pointed out that 
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. The consumer must a fortiori 
be entitled to object to being protected, under that same system, against the 
unfavourable consequences caused by the contract being annulled (Court 
judgment of 3 October 2019, Dziubak, C-260/18, paragraphs 54 and 55). 
22 Since Directive 93/13 assumes that consumers are the weaker party to the contract 
and to the judicial process (recital 5 and Article 7(1) of the Directive), appropriate 
safeguards should be provided for them to pursue their claims in court. As a 
consequence, the court is obliged not only to examine of its own motion the 
unfairness of contractual provisions, but also to inform the consumer and the 
trader about the unfair terms identified. The requirements of effective judicial 
protection of the rights that individuals derive from EU law, as guaranteed by 
Article 47 of the Charter of Fundamental Rights of the European Union, impose 
on the national court which has found of its own motion that a contractual term is 
unfair the obligation to inform the parties to the dispute of that fact and to invite 
each of them to set out its views on that matter (see Court judgment of 
21 February 2013, Banif Plus Bank, C-472/11, paragraphs 29 and 36). However, a 
consumer can only make the decision as to whether or not to avail himself of the 
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protection of the system established under Directive 93/13 and the subsequent 
provisions of national law which implement it only if he is aware not only of the 
unfairness of the contractual term itself, but also of the effects of the system of 
protection being put into motion, that is, the elimination of unfair terms from the 
contract, the ability of the contract to continue and the consumer’s rights and 
obligations which result from the exclusion of unfair terms or from the annulment 
of the contract. In its judgment in Dziubak, C-260/18, paragraph 66, the Court 
indicated that where the national court considers a contractual term to be unfair, it 
is required not to apply it, an obligation from which there is no derogation unless 
the consumer, after having been informed of it by that court, does not intend to 
assert its unfair or non-binding status. However, the Court did not define the scope 
of the court’s obligation to provide information in this respect. In particular, it is 
important whether this obligation to provide information only concerns the mere 
finding that a term is unfair or whether it extends to the legal and, subsequently, 
economic consequences of that finding. In the view of the referring court, only the 
provision of full information to the consumer, that is, information on the 
unfairness of the term or the need for the contract to be annulled, and further on 
the effects of its annulment consisting in the requirement on both parties to return 
the consideration obtained from the other (and other possible effects under 
national law, for instance concerning the limitation period on claims) will allow 
the consumer to make an informed decision on whether to use the protection 
system. 
23 Consumers who are not entirely aware of their legal situation may be exposed to 
the risk of making procedural decisions without being fully informed, relying on 
the suggestions of their legal representative. On the other hand, national 
legislation is based on the assumption that a party to the proceedings has 
confidence in his legal representative, and where a party to the proceedings is 
represented by a legal representative, this relieves the court of a number of 
information obligations. The point is simply to establish whether the risk of 
assessing the legal consequences of the consumer’s decision to use the protection 
system should be left to the consumer himself and his attorney. The consumer’s 
decision to request annulment of the contract may only be made once he has been 
informed of all the possible consequences of that request being granted in the 
judgment. 
24 In order to interpret the national law governing civil procedure in accordance with 
the purpose of the directive, Article 6(1) of the directive must be interpreted with 
respect to the scope of the court’s information obligations in proceedings 
involving consumers. In the court’s view, certain procedural provisions may be 
interpreted in such a manner as to achieve the objectives of the directive provided 
that the national court’s duty to provide information is clarified by the Court’s 
interpretation.