Opinion of the Advocate General — ECLI:EU:C:2024:154
Date: 2024-02-22
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-76/22 – 1 
Case C-76/22 
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: 
5 February 2022 
Referring court: 
Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for 
Warszawa-Wola, Warsaw, Poland) 
Date of the decision to refer: 
5 February 2022 
Applicant: 
QI 
Defendant: 
Santander Bank Polska S.A. 
      
Subject matter of the main proceedings 
Claim for payment of an amount of commission for granting a mortgage as 
constituting the cost of that loan in the case of full repayment of the mortgage 
before the date indicated in the mortgage agreement.  
Subject matter and legal basis of the request 
Interpretation of EU law, in particular Article 25(1) of Directive 2014/17/EU and 
Article 16(1) of Directive 2008/48/EC; Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Must Article 25(1) of Directive 2014/17/EU be interpreted in the same way 
as Article 16(1) of Directive 2008/48/EC, that is to say must that provision be 
interpreted as meaning that the consumer’s right to reduce the total cost of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-76/22 
 
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mortgage in the case of early repayment thereof includes all the costs imposed on 
the consumer, including the commission for granting the mortgage? 
2. Must the obligation to reduce the total cost of a mortgage in the case of early 
repayment thereof, as provided for in Article 25(1) of Directive 2014/17/EU, be 
interpreted as meaning that the total cost of the mortgage should be reduced in 
proportion to the relationship of the length of the period between the date of the 
early repayment of the mortgage and the date originally agreed as the date of 
repayment of the mortgage to the length of the period originally agreed between 
the date of the drawdown of the mortgage and the date of the full repayment of the 
mortgage, or should the reduction of the total cost of the mortgage be 
proportionate to the loss of the expected benefits to the lender, that is to say to the 
relationship of the remaining interest to be paid after early repayment of the 
mortgage (due for the period from the date after actual full repayment to the date 
of the full repayment originally agreed) to the interest due for the entire duration 
of the mortgage originally agreed (from the date of the drawdown of the mortgage 
to the date of the full repayment of the mortgage agreed)? 
Provisions of European Union law relied on 
Directive 2014/17/EU of the European Parliament and of the Council of 
4 February 2014 on credit agreements for consumers relating to residential 
immovable property and amending Directives 2008/48/EC and 2013/36/EU and 
Regulation (EU) No 1093/2010 (‘Directive 2014/17’): recitals 50 and 66; 
Article 4(13); Article 25. 
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 
2008 on credit agreements for consumers and repealing Council Directive 
87/102/EEC (‘Directive 2008/48’): Article 3(g); Article 16. 
Provisions of national law relied on 
Ustawa o kredycie hipotecznym oraz o nadzorze nad pośrednikami kredytu 
hipotecznego i agentami z dnia 23 marca 2017 r. (Law of 23 March 2017 on 
mortgage credit and supervision over credit intermediaries and agents) (Dz. U. of 
2017, item 819; ‘the UKH’) 
Article 39(1) – In the case of full repayment of the mortgage before the date 
indicated in the mortgage agreement, the total cost of the mortgage shall be 
reduced by the interest and other costs of the mortgage for the period by which 
that agreement is shortened, even if the consumer incurred them before that 
repayment. 
Article 4(5) – For the purposes of this Law: ‘the total cost of the mortgage’ means 
all the costs which the consumer is required to pay in connection with the 
mortgage agreement, in particular: (a) interest, fees, commission, taxes and 
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margins, if known to the lender; (b) costs of ancillary services, in particular 
insurance, if these must be paid in order to obtain the mortgage or obtain it on the 
terms and conditions marketed – except for the costs of notarial and court fees 
paid by the consumer; 
Article 29(1)(1) – The mortgage agreement shall set out the elements indicated in 
Article 69(2) of the ustawa z dnia 29 sierpnia 1997 r. – Prawo bankowe (Law of 
29 August 1997 on banking law) and: fees and other costs associated with 
granting the mortgage, including fees for processing the mortgage application, and 
preparing and concluding the mortgage agreement and the conditions under which 
they may be amended; 
Article 40 
1. In a mortgage agreement the parties may make provision for compensation 
in the case of the full or partial repayment of the mortgage before the date 
indicated in that agreement. 
2. In the case of a variable interest rate mortgage, the lender may charge 
compensation only if the mortgage was repaid in full or in part within 36 months 
of the conclusion of the mortgage agreement. 
3. The compensation referred to in paragraph 2 may not be greater than the 
amount of interest which would have been charged on the mortgage repaid early 
in part or in full within one year of the date of actual repayment, or greater than 
3% of the repaid amount of the mortgage. 
4. If less than one year remained before the end of a variable interest rate 
mortgage agreement according to the date indicated therein, the compensation 
may not be greater than the interest which would have been payable for the period 
remaining until the end of the mortgage agreement. 
5. In the case of a variable interest rate mortgage, the interest rate on the date 
of the actual repayment shall be used to calculate the amount of interest referred to 
in paragraphs 3 and 4. 
6. In the case of a mortgage in which the interest rate is fixed for a particular 
period, the lender may charge compensation during that period. 
7. The compensation shall not be greater than the lender’s costs directly 
associated with early repayment. Ustawa o kredycie konsumenckim z dnia 12 
maja 2011 r. (Law on consumer credit of 12 May 2011) (Dz.U. No 126, item 715; 
the ‘UKK’) 
Article 5(6) – For the purposes of this Law: ‘the total cost of the credit’ means all 
the costs which the consumer is required to pay in connection with the credit 
agreement, in particular: (a) interest, fees, commission, taxes and margins, if 
known to the creditor; and (b) costs of ancillary services, in particular insurance, if 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-76/22 
 
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these must be paid in order to obtain the credit or obtain it on the terms and 
conditions marketed – except for the costs of notarial fees paid by the consumer; 
Article 49(1) – In the case of full repayment of the credit before the date indicated 
in the agreement, the total cost of the credit shall be reduced by the costs relating 
to the period by which that agreement is shortened, even if the consumer incurred 
them before that repayment. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 15 September 2017, the applicant, acting as a consumer, concluded with the 
defendant bank’s legal predecessor a mortgage agreement in the amount of 
PLN 106 600. The agreement provided for a mortgage period of 360 months and a 
commission for granting the mortgage of 2.50% of the amount thereof, which 
amounted to PLN 2 600. That amount was indicated as an element of the total cost 
of the mortgage. 
2 On 4 April 2019, the applicant made a full early repayment of the mortgage, that 
is to say after the expiry of 19 months from the conclusion of the mortgage 
agreement. Hence, the applicant claimed that the defendant should refund the 
commission for a period of 341 months, amounting to PLN 2 462.78. 
3 The applicant submitted a claim to the defendant stating the need to refund the 
commission. On 20 July 2020, the defendant rejected the applicant’s claim and 
refused to refund the commission. 
4 Consequently, the applicant brought an action for payment before the referring 
court. In its defence, the defendant contended that the action should be dismissed. 
The essential arguments of the parties in the main proceedings 
5 The defendant argued that the commission for granting the mortgage was a one-
off payment and is excluded from the obligation relating to proportional refund. 
By way of precaution, the defendant also stated that if the commission for 
granting the mortgage were to be partly refundable, the refund of part of the 
commission should not be proportionate to the relationship of the periods but 
proportionate to the remuneration expected by the lender for the customer’s use of 
the financing. It proposed applying the formula Amount of refund = Refund rate * 
Amount of the commission for granting the mortgage charged, where the Refund 
rate is the Interest payable (calculated from the date following the early full 
repayment to the agreed date for full repayment of the mortgage) / Interest for the 
entire mortgage period (the amount of interest due for the period from the starting 
point of the mortgage up to and including the date of repayment thereof). 
SANTANDER BANK POLSKA 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
6 As regards the first question referred, the referring court cites the judgment of the 
Court of Justice of 11 September 2019 in Case C-383/18, Lexitor sp. z o.o. v 
Spółdzielcza Kasa Oszczędnościowo-Kredytowa im. Franciszka Stefczyka and 
Others (ECLI:EU:C:2019:702), in which the Court of Justice held, in 
paragraph 37, that Article 16(1) of the Directive 2008/48/EC must be interpreted 
as meaning that the right of the consumer to a reduction in the total cost of the 
credit in the event of early repayment of the credit includes all the costs imposed 
on the consumer. In the view of the Court of Justice, it is not possible to determine 
the exact extent of the reduction in the total cost of the credit provided for in 
Article 16(1) of Directive 2008/48 from a comparative analysis of the different 
language versions of that provision carried out in paragraphs 25 to 26 of that 
judgment. On the one hand, the Dutch, Polish and Romanian language versions of 
that provision suggest a reduction in the costs associated with the remaining 
contract period, and on the other hand, the German and English language versions 
of that provision are characterised by a certain ambiguity and suggest that the 
costs associated with that period are to serve as an indication for the calculation of 
the reduction. The Italian language version of that provision refers, like the French 
language version, to interest and costs ‘owed’ for the remaining duration of the 
contract. Lastly, the Spanish language version requires a reduction that includes 
the costs corresponding to the remaining duration of the contract. Nevertheless, 
according to the settled case-law of the Court, it is necessary to interpret that 
provision not only by reference to its wording but also by reference to the context 
in which it occurs and the objectives pursued by the rules of which it is part (see, 
to that effect, judgment of 10 July 2019, Bundesverband der 
Verbraucherzentralen und Verbraucherverbande, C-649/17, EU:C:2019:576, 
paragraph 37). The referring court also refers to the Opinion of Advocate General 
Hogan delivered on 23 May 2019 in the abovementioned case of Lexitor sp. z o.o. 
(ECLI:EU:C:2019:451), in which the Advocate General analysed four possible 
interpretations of Article 16(1) of Directive 2008/48 (points 39 to 67 of the 
Opinion). He decided that not only are two interpretations compatible with the 
principles laid down in Directive 2008/48, but they are also likely to reflect what 
the EU legislature must have had in mind (point 66 of the Opinion). According to 
one interpretation (the second), the total credit cost must be reduced in proportion 
to the remaining contract period. The terms ‘for the remaining duration of the 
contract’ would only be an indication of how the reduction is calculated, namely 
in proportion to ‘the remaining duration of the contract’ (point 43 of the Opinion). 
According to another interpretation (the fourth), the reduction to which the 
consumer would be entitled corresponds to the one-off or recurring payments not 
yet fallen due when the early repayment was made (point 46 of the Opinion). In 
paragraph 68 of his opinion, the Advocate General concluded that Article 16(1), 
read in conjunction with Article 3(g) of Directive 2008/48/EC, is to be interpreted 
as meaning that, where a consumer has made an early repayment, the reduction to 
which that consumer is entitled may concern costs for which the amount does not 
depend on the duration of the credit agreement. However, a Member State cannot 
limit – and a national court cannot interpret its national legislation – this reduction 
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simply to the amount of expenses saved by the credit institution as a result of the 
early repayment. 
7 The national court takes the view that the interpretation set out by the Court of 
Justice in its judgment in Lexitor sp. z o.o. (C-383/18) in relation to Article 16(1) 
of Directive 2008/48/EC should be applied mutatis mutandis when interpreting 
Article 25(1) of Directive 2014/17/EU since Directives 2008/48/EC and 
2014/17/EU are linked. This is evidenced by the reference in Article 4(13) of 
Directive 2014/17/EU to Article 3(g) of Directive 2008/48/EC. In addition, both 
directives seek to protect consumer rights in the market in financial services. 
8 However, the referring court noted the difference in the wording of Article 39(1) 
of the UKK and Article 49(1) of the UKK, which implement, respectively, 
Article 25(1) of Directive 2014/17/EU and Article 16(1) of Directive 2008/48/EC. 
These differences are not demonstrated in the wording of the cited provisions of 
the directives. 
9 In the view of the referring court, Article 39(1) of the UKH can also be 
interpreted – as the defendant proposes – as meaning that the reduction of the 
costs borne by the consumer in connection with the early repayment of the 
mortgage will not include the commission for granting the mortgage as a one-off 
cost incurred before the mortgage started. A cost which is not spread over time. 
10 In the light of the well-known circumstances surrounding the conclusion of long-
term mortgage agreements, the referring court is uncertain as to whether it might 
be legitimate to interpret Article 25(1) of Directive 2014/17/EU differently from 
Article 16(1) of Directive 2008/48/EC. What is at issue is an interpretation which 
takes that difference into account and gives a credit institution the certainty that at 
least the costs associated with the granting of credit will not be reduced in the case 
of early settlement of debts by the consumer – borrower. 
11 Since the Court of Justice interprets Article 25(1) of Directive 2014/17/EC in the 
same way as it interpreted Article 16(1) of Directive 2008/48/EC, for a national 
court interpreting Article 39 of the UKH in conformity with EU law only one 
interpretation would be permissible. The national court will assume that a 
commission for granting the mortgage is also subject to corresponding reduction 
in respect of time remaining until the end of the mortgage repayment period 
originally agreed. 
12 With regard to the second question, – as the defendant argued correctly – 
neither the directives nor the provisions of national law lay down the methodology 
for calculating the part of the amount of the costs which should be reduced or 
refunded to the consumer in the case of early repayment of the credit. Neither the 
judgment of the Court of Justice or the Opinion in Case C-383/18 provide any 
unequivocal guidance in that regard. 
13 The referring court is inclined towards one of the two approaches whereby the 
refund applied is to be proportionate to the relationship of the period in which the 
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agreement is not executed (on account of early repayment) to the period of the 
agreement originally agreed. The amount of the part of the commission to be 
refunded should be calculated as follows: The part of the commission to be 
refunded = Amount of the commission charged for granting the mortgage * the 
refund rate. The refund rate would be = to the length in days of the period from 
the date following early repayment to the date on which the full repayment of the 
mortgage was to be made under the agreement / the length in days of the period 
between the agreed date of the drawdown of the mortgage until the date of the 
agreed full payment of the mortgage. Apart from that, Article 25(1) of Directive 
2014/17/EU refers to the ‘remaining duration of the contract’, and it can be 
assumed that the possibility of appropriate compensation (under Article 25(3) of 
Directive 2014/17/EU)) was implemented by Article 40 of the UKH. 
14 A second possible solution would be a refund proportionate to the relationship 
(quotient) of the interest lost by the lender (for the period after the early full 
repayment until the date of the full payment originally agreed) and the total 
interest (for period from the date of the drawdown of the mortgage up to and 
including the date of the agreed full repayment of the mortgage). This quotient 
would be the refund rate which, when multiplied by the value of the commission 
for granting the mortgage, would provide the amount of the part of the 
commission to be refunded. This line of interpretation appears to be indicated by 
Article 25(3) of Directive 2014/17/EU and in part by Article 66 thereof, which 
provide for the possibility of appropriate compensation for undertakings. 
15 On the other hand, it could also be argued that the possibility of appropriate 
compensation, provided for in Article 25(3) of Directive 2014/17/EU, was 
implemented in Article 40 of the UKH.