Judgment — ECLI:EU:C:2025:962
Date: 2025-12-11
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’. 30 In the present case, the request for a preliminary ruling contains a description of the factual and legal context of the dispute in the main proceedings sufficient to satisfy those requirements. First, that request reproduces the tenor of the national provisions applicable to the dispute in the main proceedings and of the relevant national case-law. Second, the referring court’s description of the circumstances in which ML submitted her declaration of set-off, and of the questions which that court expresses as to the legal consequences attached to such a declaration by national case-law, is sufficient to understand the reasons underlying the choice of the provisions of EU law of which that court seeks an interpretation and the link it establishes between those provisions and the national legislation applicable to the dispute before it. 31 In the second place, mBank and ML submit that the question referred for a preliminary ruling is hypothetical, on the ground that ML lodged her declaration of set-off only in the alternative and subsequently withdrew it by document of 4 November 2024. The question relating to set-off and the effects attached to that declaration is therefore irrelevant to the resolution of the dispute in the main proceedings. 32 In that regard, it should be noted that, following a request for information sent to it by the Court, the referring court confirmed that ML had withdrawn her declaration of set-off. However, that court stated that it wished to maintain its request for a preliminary ruling, on the ground that an answer to the question referred is still necessary for it to resolve the dispute in the main proceedings. That court stated, in that regard, that the Polish legislation allows the withdrawal of the plea of set-off, understood as a procedural plea, but does not authorise the withdrawal of a declaration of set-off, understood as a declaration going to the substance of the case. It added that, in any event, the initial declaration of set-off amounts to acknowledgment of a debt, which, under Article 123 of the Civil Code, interrupts the limitation period. Therefore, that period starts to run again from the date of that implied acknowledgment, without the subsequent withdrawal of the declaration being capable of having retroactive effect and nullifying that implied acknowledgment. 33 It is important to note that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 25, and of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraph 17 and the case-law cited). 34 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgments of 7 September 1999, Beck and Bergdorf, C‑355/97, EU:C:1999:391, paragraph 22, and of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraph 18 and the case-law cited). 35 In the present case, first, it is apparent from the response to the request for information, referred to in paragraph 32 above, provided by the referring court, which alone has jurisdiction to interpret the national law, that the declaration of set-off is equivalent, under Polish law, to acknowledgment of a debt, producing legal effects irrespective of whether it is withdrawn, which, moreover, is not permitted under the applicable national law. 36 Second, the dispute in the main proceedings concerns an action for restitution brought by a banking institution in order to obtain repayment of the capital lent under a mortgage loan agreement containing unfair terms and which must be annulled. The referring court is uncertain as to the compatibility with Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, of national case-law according to which the submission by a consumer of a declaration of set-off of his or her claim against that of the banking institution entails an implied waiver of the objection that the banking institution’s claim is time-barred. 37 In those circumstances, it is not obvious that the interpretation of Directive 93/13 that is sought bears no relation to the actual facts of the main proceedings or its purpose or that the problem raised is hypothetical. 38 In the third and last place, mBank submits that the provisions of Directive 93/13 are not applicable to the effects of a declaration of set-off made in the context of an action for restitution, with the result that that question is governed solely by national law. 39 It is sufficient to note in that regard that, where, as in the present case, it is not obvious that the interpretation of an act of EU law bears no relation to the actual facts of the main action or its purpose, the objection alleging that that act is inapplicable to the case in the main proceedings goes to the substance of the questions (judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement), C‑287/22, EU:C:2023:491, paragraph 27 and the case-law cited). 40 It follows from all the foregoing considerations that the question referred is admissible. Substance 41 By its single question, the referring court asks, in essence, whether Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as meaning that, in the context of the annulment in its entirety of a mortgage loan agreement concluded between a consumer and a banking institution, on the ground that that agreement contains an unfair term without which that agreement cannot continue in existence, it precludes the application of national case-law according to which the submission by that consumer of a declaration of set-off of his or her claim against that of that banking institution entails an implied waiver of the objection that the claim relied on by that institution is time-barred. 42 It must be borne in mind that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 54 and the case-law cited). 43 It is therefore the case that, given the nature and significance of the public interest constituted by the protection of consumers, Directive 93/13 and, in particular, Article 7(1) thereof, read in conjunction with its 24th recital, obliges the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. To do this, it is for the national courts to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer concerned, unless the consumer objects (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 56 and the case-law cited). 44 While the Court has already defined, on several occasions, the way in which the national court must ensure that the rights which consumers derive from Directive 93/13 are protected, the fact remains that, in principle, EU law does not harmonise the procedures applicable to examining whether a contractual term is unfair or the consequences to be drawn from a finding that such a term is unfair. Thus, in the absence of specific EU rules governing the matter, the means of the implementation of the consumer protection provided for by that directive are governed by the internal legal order of the Member States by virtue of the principle of procedural autonomy of those States. Nevertheless, those means of implementation must not be less favourable than those governing similar domestic actions (principle of equivalence) and may not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgments of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraph 39, and of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraphs 45 and 46 and the case-law cited). 45 As regards the principle of effectiveness, which is the only principle concerned by the issues raised by the referring court, it should be noted that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraph 48 and the case-law cited). 46 In addition, the Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, also guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (judgment of 10 June 2021, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 29 and the case-law cited). 47 The adequate and effective means that are to guarantee the consumer a right to an effective remedy must include the possibility of taking part in an action brought against him or her by a seller or supplier, under reasonable procedural conditions, so that the exercise of his or her rights is not subject to conditions, in particular time limits, costs or other procedural requirements, which make it excessively difficult or impossible in practice to exercise the rights guaranteed by Directive 93/13 (see, to that effect, judgments of 1 October 2015, ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 59, and of 3 April 2019, Aqua Med, C‑266/18, EU:C:2019:282, paragraph 53 and the case-law cited). 48 In the present case, it is apparent from the order for reference that, in the context of an action for restitution brought by mBank in order to recover a debt arising from a mortgage loan agreement which must be annulled on the ground that it contains unfair terms, ML raised an objection that that claim was time-barred and simultaneously submitted a declaration of set-off in order to offset her own claim against that of the banking institution. 49 It is also apparent that, on the date on which the action in the main proceedings was brought, the banking institution’s claim was time-barred, with the result that, in view of the objection to that effect raised by ML, the referring court would be required to dismiss the action. However, that court notes that, according to national case-law, the submission of a declaration of set-off, in accordance with Article 499 of the Civil Code, entails waiver of the objection that a claim is time-barred, within the meaning of Article 117(2) of that code, with the result that the objection raised by ML cannot be accepted and that the bank’s claim cannot be regarded as time-barred. 50 In that regard, it should be noted, in the first place, that making entitlement to rely on the objection that a claim is time-barred subject to abstaining from any declaration of set-off amounts, in reality, to restricting the possibility for the consumer to exercise a procedural right provided for by the national legislation, namely the right to assert a reciprocal claim arising from the annulment of the loan agreement at issue. Such a limitation may, in the context of an action brought by the seller or supplier against the consumer, constitute a barrier liable to prevent or deter the consumer from effectively exercising his or her procedural rights, contrary to the case-law cited in paragraphs 46 and 47 above. 51 In the second place, it is apparent that the national case-law at issue in the main proceedings is also liable to call into question the dissuasive effect that Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) of that directive, is designed to attach to a finding of unfairness in respect of terms in contracts concluded between consumers and sellers or suppliers (see, by analogy, judgment of 14 December 2023, Getin Noble Bank (Limitation period for actions for restitution), C‑28/22, EU:C:2023:992, paragraph 74 and the case-law cited). 52 As is apparent from the information set out by the referring court and recalled in paragraph 49 above, that national case-law appears to be such as to lead to a seller or supplier being able to recover a debt which is time-barred solely on the ground that the consumer, while raising an objection that that claim was time-barred, has exercised a procedural means granted to him or her under national law, namely the submission of a declaration of set-off. That case-law is thus liable to render ineffective the mechanism established by Directive 93/13 for the purposes of preventing the use of unfair terms in contractual relations between sellers or suppliers and consumers, since it has the effect of neutralising the legal effects of the annulment of the contract at issue and of allowing the seller or supplier to derive an advantage from his or her own unlawful conduct, which gave rise to that annulment. 53 In the third and last place, it should be borne in mind that the system of protection of the consumer against unfair terms and against the unfavourable consequences of the annulment of the contract in its entirety, implemented by Directive 93/13, is not applicable if the consumer objects to it. The latter is entitled, after having been informed by the national court, not to assert the unfair and non-binding nature of a term, thus giving free and informed consent to the term in question and thereby preventing the contract from being invalidated. In order for the consumer to be able to give free and informed consent, it is for the national court to indicate to the parties, in the context of national procedural rules and in the light of the principle of equity in civil proceedings, objectively and exhaustively the legal consequences which the removal of the unfair term may entail, irrespective of whether or not they are represented by a professional representative (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraphs 94, 95 and 97). 54 Similarly, a waiver of the objection that a claim is time-barred cannot be presumed solely on the basis of national case-law which regards a procedural act, such as a declaration of set off, as an implied expression of intention to waive that objection, without it being verified that the consumer has expressed a free and informed intention to do so. The same interpretation applies, a fortiori, in a situation such as that at issue in the main proceedings, where the consumer has, by another procedural act submitted at the same time, expressly expressed the contrary intention to rely on the defence of limitation. 55 As the Polish Government stated, in essence, in its written observations, Article 7(1) of Directive 93/13 and the principle of effectiveness require that the consumer be able effectively to assert the rights conferred on him or her by that directive, without the exercise of a particular procedural right being automatically treated as an implied waiver of another right. It must therefore be held that national case-law which infers an implied waiver of the objection that a claim is time-barred from the mere submission of a declaration of set-off, without verifying the consumer’s intention, fails to comply with that requirement. 56 That assessment cannot be invalidated by the fact that ML was represented by a lawyer who, in the light of his function, ought to be aware of the national case-law at issue, such a circumstance, in principle, not affecting the protection conferred on consumers by Directive 93/13 (see, by analogy, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 40 and the case-law cited). 57 It must also be borne in mind that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it. The requirement of such an interpretation entails, in particular, the obligation for national courts to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgment of 26 June 2019, Addiko Bank, C‑407/18, EU:C:2019:537, paragraphs 65 and 66 and the case-law cited). 58 In the present case, it is for the referring court to satisfy itself that the provisions of national law cannot be interpreted in such a way as to prevent or deter the consumer, on the sole ground that that consumer has submitted a declaration of set-off, from being able effectively to rely on the objection that the claim relied on by the banking institution is time-barred. 59 Accordingly, it is for that court to disapply, if necessary, of its own motion, the national case-law at issue in the main proceedings, since that case-law does not appear to be compatible with Article 7(1) of Directive 93/13. 60 In the light of the foregoing considerations, the answer to the question raised is that Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as meaning that, in the context of the annulment in its entirety of a mortgage loan agreement concluded between a consumer and a banking institution, on the ground that that agreement contains an unfair term without which that agreement cannot continue in existence, it precludes the application of national case-law according to which the submission by that consumer of a declaration of set-off of his or her claim against that of that banking institution entails an implied waiver of the objection that the claim relied on by that institution is time-barred. Costs 61 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Ninth Chamber) hereby rules: Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of the principle of effectiveness, must be interpreted as meaning that, in the context of the annulment in its entirety of a mortgage loan agreement concluded between a consumer and a banking institution, on the ground that that agreement contains an unfair term without which that agreement cannot continue in existence, it precludes the application of national case-law according to which the submission by that consumer of a declaration of set-off of his or her claim against that of that banking institution entails an implied waiver of the objection that the claim relied on by that institution is time-barred. [Signatures] * Language of the case: Polish. i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.