Judgment;Summary — ECLI:EU:C:2023:774
Date: 2023-10-12
Language of the case: Lithuanian
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Translation C-645/22–1 
Case C-645/22 
Request for a preliminary ruling 
Date lodged: 
13 October 2022 
Referring court: 
Lietuvos Aukščiausiasis Teismas (Lithuania) 
Date of the decision to refer: 
12 October 2022 
Applicants at first instance, appellants and appellants on a point of law: 
R. A. and Others. 
Defendant at first instance and appellant on a point of law: 
Luminor Bank AS, acting through Luminor Bank AS Lithuanian 
Branch 
  
[…] 
LIETUVOS AUKŠČIAUSIASIS TEISMAS (SUPREME COURT OF 
LITHUANIA) 
ORDER 
12 October 2022 
Vilnius 
The Civil Chamber of the Supreme Court of Lithuania […] [composition of the 
court], in examining, in accordance with the rules governing the written 
procedure, a part of a civil case on the basis of the appeals on a point of law 
brought by the applicants R. A. […] [and Others] and defendant Luminor 
Bank AS, acting through Luminor Bank AS Lithuanian Branch, against the 
decision of the Civil Chamber of the Lietuvos apeliacinis teismas (Court of 
Appeal of Lithuania) of 2 September 2021 in the civil case brought by the 
applicants R. A. […] [and Others] against defendant Luminor Bank AS, acting 
through Luminor Bank AS Lithuanian Branch, for modification of contracts and a 
EN 
REQUEST FOR A PRELIMINARY RULING OF 12. 10. 2022 – CASE C-645/22 
 
2  
declaration that the defendant is in breach of the contract terms regarding the 
calculation of instalments, 
has established the following: 
1 The dispute between the parties falls within the scope of European Union 
legislation (Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts (‘Directive 93/13/EEC’)) and national legislation (Lietuvos 
Respublikos civilinio kodeksas (Civil Code of the Republic of Lithuania; ‘the 
Civil Code’) and Lietuvos Respublikos civilinio proceso kodeksas (Code of Civil 
Procedure of the Republic of Lithuania; ‘the Code of Civil Procedure’)). 
2 […] [legal basis for referral to the Court of Justice; reference to provisions of 
European Union and national law]. 
3 […] 
4 In the case under consideration, the need for the court of cassation to refer 
questions to the Court of Justice is based on the fact that the content of legal 
provisions of European Union law relevant to resolving the case are not 
definitively clear with the application of either the doctrine of acte clair or that of 
acte éclairé. Therefore, the answer to the questions formulated in the operative 
part of this order and referred to the Court of Justice is of fundamental importance 
to the case under consideration, as it would make it possible to determine the legal 
consequences of a finding that the terms of a contract that constitute the main 
subject matter of the contract are unfair, and to resolve the issue of restoring the 
balance of rights and obligations of the parties to a credit contract denominated in 
a foreign currency. 
I. Legal context. European Union law 
5 Under Article 6(1) of Directive 93/13/EEC: 
Member States shall lay down that unfair terms used in a contract concluded with 
a consumer by a seller or supplier shall, as provided for under their national law, 
not be binding on the consumer and that the contract shall continue to bind the 
parties upon those terms if it is capable of continuing in existence without the 
unfair terms. 
6 Under Article 7(1) of Directive 93/13/EEC: 
Member States shall ensure that, in the interests of consumers and of competitors, 
adequate and effective means exist to prevent the continued use of unfair terms in 
contracts concluded with consumers by sellers or suppliers. 
II. Lithuanian legislation relevant for resolving the dispute between the 
parties 
LUMINOR BANK 
 
3 
7 Under Article 1.96 (‘Consequences of the nullity of part of a transaction’) of the 
Civil Code: 
The nullity of part of a transaction shall not result in the nullity of the entire 
transaction where it may be presumed that the contracting parties would have 
entered into that transaction even without the inclusion of the part declared null. 
8 Under paragraph 1 of Article 1.138 (‘Protection of civil rights’) of the Civil Code: 
[…] Civil rights shall be protected by the court acting within its jurisdiction and 
in accordance with the procedure established by law, in the following ways: (1) by 
recognition of those rights; (2) by restoration of the situation that existed before 
the right was infringed; … (5) by dissolution or modification of the legal 
relationship; … (8) in other ways provided for by law …. 
9 Under paragraph 8 of Article 6.2284 (‘Unfair terms in consumer contracts’) of the 
Civil Code: 
[…] Where a court finds a term or terms of the contract to be unfair, that term or 
those terms shall be invalid as from the conclusion of the contract, and the 
remaining terms of the contract shall remain binding on the parties, provided that 
the contract is capable of continuing in existence after the removal of the unfair 
terms. 
10 Under Article 6.145 (‘Grounds for restitution’) of the Civil Code: 
1. Restitution shall take place where a person is obliged to return to another 
person property which he or she has received unlawfully or by mistake, or where 
the transaction under which he or she received the property has been declared 
void ab initio, or where the obligation cannot be performed on account of force 
majeure. 
2. In exceptional cases, the court may modify the means of restitution or refuse 
restitution altogether, where this would result in an unjustifiable and unfair 
deterioration in the situation of one of the parties and a corresponding 
improvement in the situation of the other party. 
11 Under Article 6.237 (‘Obligation to return unduly acquired property’) of the Civil 
Code: 
1. A person who, without legal justification, has acquired by his or her own 
acts or otherwise, intentionally or negligently, property that he or she could not 
and ought not to have acquired, shall be obliged to return all of that property to 
the person at whose expense it was acquired, except in cases provided for by this 
Code. 
REQUEST FOR A PRELIMINARY RULING OF 12. 10. 2022 – CASE C-645/22 
 
4  
2. The obligation in paragraph 1 of this Article shall arise where the basis on 
which the property was acquired subsequently ceases to exist, except in cases 
provided for in Article 6.241 of this Code. … 
5. The provisions of this Chapter shall also apply in cases where the performance 
of the obligation is not connected with a transfer of property but only with the 
supply of certain services, or where the claim relates to the recovery of property 
from unlawful possession, the restitution of performance resulting from an invalid 
transaction, compensation for loss, settlement between the parties to an 
obligation, or the supply of services. 
12 […] 
13 […] 
[…] [Provisions of national civil procedure law that are irrelevant to the answer to 
the question referred] 
14 Under paragraphs 1 and 2 of Article 353 (‘Scope of proceedings’) of the Code of 
Civil Procedure: 
1. The court of cassation shall, within the scope of the appeal on a point of 
law, review the judgments and/or orders appealed against as regards the 
application of the law. The court of cassation shall be bound by the facts 
established by the court of first instance and the appeal court. 
2. The court shall have the power to go beyond the scope of an appeal on a 
point of law where the public interest so requires and the rights and legitimate 
interests of a person, society or the State would be infringed if the limits of the 
appeal were not exceeded. … 
III. Relevant facts 
15 In 2008, the applicants, who are consumers, entered into credit agreements with 
the defendant for loans in Swiss francs (‘the agreements at issue’), under which 
they borrowed from the defendant in Swiss francs (primary loan) or converted 
existing loans in euro and litas or refinanced loans held with other banks in 
currencies other than the Swiss franc. The agreements at issue provide that the 
applicants must repay the loan issued in Swiss francs in that currency. However, 
due to the significant depreciation of the national currency, the litas ([…] 
[reference to national law and legislation of the European Union], the euro has 
been legal tender in the Republic of Lithuania since 1 January 2015) in relation to 
the Swiss franc (the appreciation of the Swiss franc), the amount to be repaid by 
the applicants has almost doubled in the years following the conclusion of the 
agreements at issue. The applicants claim that the defendant misled them when 
issuing loans to them in Swiss franc, because it did not disclose the degree of risk 
of exchange rate fluctuations and the forecasts regarding the future appreciation 
known to it, and that they made a mistake when concluding the agreements at 
LUMINOR BANK 
 
5 
issue. In 2017, the applicants brought judicial proceedings by which they sought, 
inter alia, modifications to the credit agreements concluded with the defendant, 
namely, from the date of their conclusion: to change the currency from Swiss 
franc (CHF) to euro (EUR) at the exchange rate as of the date of issuing the loan; 
to change the base interest rate from LIBOR CHF to LIBOR EUR; to convert all 
the instalments (each instalment) made by the applicants in Swiss franc to repay 
the credit (payment of the loan and interest) into EUR at the exchange rate as of 
the date of payment of each such instalment. 
16 By a decision of 20 November 2018, the Vilniaus apygardos teismas (Vilnius 
Regional Court) rejected the applicants’ claims. After examining the case on the 
basis of the applicants’ appeal, by order of 5 May 2020, the Court of Appeal of 
Lithuania upheld the decision of the Vilnius Regional Court of 20 November 
2018. 
17 After examining the case on the basis of the applicants’ appeal on a point of law, 
by order of 14 April 2021, the Supreme Court of Lithuania transferred the part of 
the case regarding the assessment of whether the terms of the disputed consumer 
contracts concluded by the applicants and the defendant are unfair to the appeal 
court for re-examination and upheld the other part of the order of the appeal court. 
The court of cassation decided that there were no grounds for finding that the 
defendant had misled them by failing to disclose the risk of fluctuation in the 
exchange rate of the Swiss franc; however, this did not, in itself, mean that the 
courts were not required to assess whether the terms of the consumer contracts are 
fair. 
18 In re-examining the case, by the order of 4 May 2021, the Court of Appeal of 
Lithuania ordered the applicants to submit their views on the possible application 
of restitution in the case, and also invited the parties to submit proposals as to 
how, if the agreements at issue were modified, the main terms of the agreement 
should be modified. The applicants stated in their written observations that they 
were requesting that the court modify the main terms of the agreements at issue in 
the manner proposed by them in their action. The applicants also provided 
calculations for the amount of credit in euro for each of them as of the date on 
which the credit was issued. The defendant stated in its written observations that: 
(1) there are no grounds for finding the provisions of the agreements at issue to be 
non-transparent and unfair and for modifying on that basis the terms of the 
agreements or for applying restitution; (2) it does not agree with the applicants’ 
request to modify the terms of the agreements at issue in such a way that the 
currency of the credit is the euro and the interest is calculated at the EURIBOR 
rate; (3) there are no grounds for replacing the provisions of the agreements at 
issue with supplementary rules because there is no supplementary rule in the 
Lithuanian national legal system that regulates the currency to be used in credit 
agreements in the event that a court finds the terms of such an agreement to be 
unfair, and the parties to the case have not reached an agreement on the provision 
to be applied by them. 
REQUEST FOR A PRELIMINARY RULING OF 12. 10. 2022 – CASE C-645/22 
 
6  
19 By the decision adopted on 2 September 2021, the Court of Appeal of Lithuania 
found that the main terms of the agreements at issue are unfair (fail to meet the 
requirement of transparency) and, on that basis, modified the agreements at issue 
as of the date of their conclusion, by changing the currency of the loans from 
Swiss franc to euro at the exchange rate of the date of issuing the loans, and by 
changing the base interest rate from LIBOR CHF to EURIBOR. According to that 
court, in so far as a modification of the currency of the credit taken out by the 
applicants is sought in the present case, it is consistent with the principles of 
justice, fairness and reasonableness to change the currency of the credit to the 
national currency rather than to any other foreign currency. The court stated that 
such a modification of the terms of the agreements at issue in accordance with the 
applicants’ claim would not prevent the achievement of the objectives pursued by 
Directive 93/13/EEC. The court referred to the Opinion of Advocate General 
Kokott delivered in NG, OH v SC Banca Transilvania SA, C-81/19, according to 
which Article 6(1) of Directive 93/13/EEC must be interpreted as meaning that a 
national court is not prevented from removing an unfair term and substituting it 
with a supplementary rule that replaces the formal balance between the rights and 
obligations of the parties with an effective balance which re-establishes equality 
between them if, first, the contract concerned cannot be maintained once the 
unfair term has been removed without substitution; second, the annulment of the 
contract would have particularly unfavourable consequences for the consumer; 
and, third, there is no supplementary provision under national law and no 
provision that the parties to the contract concerned have opted for which could act 
as a substitute for the term removed. 
20 In its appeal on a point of law, the defendant asked the Supreme Court of 
Lithuania to set aside the part of the decision of the Court of Appeal of Lithuania 
by which the applicants’ claims regarding the modification of the agreements at 
issue were upheld and to resolve the matter on the merits, that is to say, to dismiss 
the applicants’ action in its entirety. The defendant submitted that the appeal 
court: (1) incorrectly found the provisions of the agreements at issue to be unfair; 
(2) even though it found the terms of the agreements at issue to be unfair, the 
court was not entitled to modify the terms of the agreements at issue since there is 
no supplementary legal rule in the Republic of Lithuania that could have been 
applied instead of the terms removed, and the modification of such terms on the 
basis of the general principles of law (justice, fairness and reasonableness) is 
prohibited by the provisions of Article 6(1) of Directive 93/13/EEC. 
21 The Supreme Court of Lithuania, having assessed the fact that the case raises 
questions of law concerning the consequences of finding the terms of the 
agreements at issue, which constitute the main subject matter of the contract, to be 
unfair, by its order of 26 May 2022 informed the persons involved in the case of 
the intention of the court of cassation to exceed the limits of the appeal on a point 
of law (Article 353 of the Code of Civil Procedure). 
22 By a partial ruling of 25 August 2022, the Supreme Court of Lithuania upheld the 
part of the decision of the Court of Appeal of Lithuania of 2 September 2021 
LUMINOR BANK 
 
7 
which found the terms of the agreements at issue to be unfair. At the same time, 
the court resumed the examination of the case in respect of the part of the decision 
of the appeal court which settled the applicants’ claim relating to the modification 
of the disputed credit agreements. The parties to the case were, inter alia, invited 
to state their position on the following issues: (1) whether the parties have reached 
an agreement (or are prepared to reach such an agreement) on the provision of 
national law applicable to the dispute, on the basis of which the court could rule 
on the modification of the terms of the agreements found to be unfair; (2) if the 
answer to the preceding question is in the negative, whether the applicants 
(consumers) intend to maintain the terms of the agreements found to be unfair; (3) 
does the mere fact that the consumer expressed the intention to preserve the 
contract by replacing the unfair term contained therein mean that the court, after 
finding that the term of the contract is unfair and that the contract cannot remain 
valid following the removal of the unfair term, should rule on the issue of 
replacing the unfair term?; (4) if the answer to the preceding question is in the 
affirmative, can the court rule on the issue of replacing the unfair term without 
first ruling on the (im)possibility of annulling the contract in its entirety? 
23 The applicants stated in their written observations that, owing to the passive 
behaviour of the defendant, the parties had failed to reach a compromise 
agreement regarding the modification of the terms of the agreements found to be 
unfair. The applicants also indicated that they did not agree to maintain the terms 
of the agreement found to be unfair and adhered to the position that, if the terms 
of the agreements at issue were found to be unfair, the most correct solution to the 
dispute would be to modify the agreements in the way that they indicated in their 
action. However, if the court were to decide that, upon finding the terms of the 
agreements at issue to be unfair, there are no legal grounds for modifying the 
agreements, the agreements at issue should be declared invalid and restitution 
should be applied. In the event of restitution, the defendant would have to repay to 
each of the applicants all amounts in Swiss franc that it has received from the 
applicants in Swiss franc, and the applicants would be required immediately to 
return to the bank the full amount of the balance of the loan in euro. If restitution 
were applied, it would also be appropriate to establish that the mortgage 
agreements by which the loans in Swiss franc were secured remain valid as 
securities for the applicants’ obligations in euro under the court order regarding 
restitution. 
24 The defendant stated in its written observations that the parties to the case have 
not reached an agreement on the provisions that could be applied instead of the 
provisions of the agreements at issue found to be unfair. According to the 
defendant, the agreements at issue should be found to be invalid ex nunc (from the 
entry into force of the court decision) because a credit agreement is a contract for 
continuous performance; also, a credit agreement establishes a credit relationship 
not only between the lender and the borrower, but also between the borrower and 
third parties. For example, the credit in Swiss franc was issued under the disputed 
credit agreements to certain applicants to refinance loans at other banks. If the 
credit agreements are found to be invalid ab initio (from the moment of their 
REQUEST FOR A PRELIMINARY RULING OF 12. 10. 2022 – CASE C-645/22 
 
8  
conclusion), the funds disbursed on the basis of those agreements and subsequent 
transfers made to other banks should also be cancelled. The issue of whether the 
applicants must repay the balance of the outstanding loans to the defendant should 
be decided by the court in accordance with the provisions of the Civil Code 
regarding unjust enrichment or undue acquisition of property (Article 6.237(1) of 
the Civil Code). 
The Chamber 
rules: 
IV. Arguments of the court of cassation and its position in the preliminary 
ruling procedure 
25 The Chamber harbours doubts as to the consequences of finding individual terms 
of the agreements at issue to be unfair if the consumers bring a claim in the case to 
preserve the contracts by modifying the terms of those contracts found to be 
unfair. 
26 In accordance with the case-law of the Court of Justice, under Article 6(1) of 
Directive 93/13/ECC, national courts are required to declare an unfair term 
inapplicable, while the remainder of the contract will continue to bind the parties 
if it is capable of continuing in existence without the unfair terms (see, for 
example, judgment of the CJEU of 14 June 2012 in Banco Español de Crédito, 
C-618/10, paragraph 64; judgment of the CJEU of 14 March 2019 in Dunai v 
ERSTE Bank Hungary Zrt, C-118/17, paragraph 50). If the performance of the 
contract cannot be continued without the unfair terms which it contains, the 
contract must be declared invalid in its entirety and restitution must be made 
(judgment of the CJEU of 3 October 2019 in Dziubak v Raiffeisen Bank 
International AG, C-260/18, paragraph 43). The Court of Justice has also 
emphasised that where a national court finds that an unfair term is void, 
Article 6(1) of Directive 93/13/EEC must be interpreted as precluding the national 
court from modifying that contract by revising the content of that term (judgment 
of the CJEU of 26 March 2019 in Abanca Corporación Bancaria and Bankia, 
Joined Cases C-70/17 and C-179/17, paragraph 53 and the case-law cited). 
27 On the other hand, the Court of Justice has recognised an exception to that rule, 
namely that Article 6(1) of Directive 93/13/EEC does not preclude a national 
court from replacing an unfair term with a supplementary provision or a provision 
of national law applied by mutual agreement of the parties to the contract in 
question, but such modification is nevertheless possible only if the removal of that 
unfair term would require the court to declare the contract invalid in its entirety, 
and would expose the consumer to particularly unfavourable consequences, thus 
putting him or her at a great disadvantage (to that effect, see judgment of the 
CJEU of 30 April 2014 in Kásler and Káslerné Rábai, C-26/13, paragraphs 80–
84, and judgment of the CJEU of 26 March 2019 in Abanca Corporación 
Bancaria and Bankia, Joined Cases C-70/17 and C-179/17, paragraph 64). In that 
LUMINOR BANK 
 
9 
respect, it is important to note that Article 6(1) of Directive 93/13/EEC must be 
interpreted as precluding gaps in a contract caused by the removal of the unfair 
terms contained in that contract from being filled solely on the basis of national 
provisions of a general nature which provide that the effects expressed in a legal 
transaction are to be supplemented, inter alia, by the effects arising from the 
principle of equity or from established customs, which are neither supplementary 
provisions nor provisions applicable where the parties to the contract so agree 
(judgment of the CJEU of 3 October 2019 in Dziubak v Raiffeisen Bank 
International AG, C-260/18, paragraph 62). 
28 Where the national court takes the view that the loan agreement at issue cannot, in 
accordance with contract law, legally continue to exist after the unfair terms in 
question have been removed, and where there are no supplementary provisions of 
national law or provisions applicable where the parties to the contract at issue so 
agree which may replace those terms, it must be held that, in so far as the 
consumer has not expressed his or her wish to retain the unfair clauses, and/or 
annulling the contract would expose the consumer to particularly unfavourable 
consequences, the high level of consumer protection which must be ensured under 
Directive 93/13 demands that, in order to restore the effective balance between the 
reciprocal rights and obligations of the parties, the national court must, while 
taking into account all of its national law, take all measures necessary to protect 
the consumer from the particularly unfavourable consequences which could result 
from the annulment of the loan agreement in question, notably the fact that the 
seller or supplier could immediately claim the debt from the consumer (judgment 
of the CJEU of [25] November 2020 in Banca B. SA v A. A. A., C-269/19, 
paragraph 41). 
29 […] By the decision of the Court of Appeal of Lithuania of 2 September 2021, the 
terms of the agreements at issue regarding the currency of the credit were found to 
be unfair. It is not disputed in the present case that the agreements at issue are not 
capable of continuing in existence without the terms found to be unfair. However, 
the content of the decision of the appeal court does not support the conclusion that 
the appeal court ruled on the possibility of the annulment of the agreements at 
issue, and the decision does not contain an assessment as to whether this would 
expose the applicants (consumers) to particularly unfavourable consequences. 
Although not explicitly stated in the decision, it is most likely that this choice of 
the appeal court was influenced by the claims brought by the applicants 
(consumers) in their action (the applicants did not ask the court to annul the 
agreements at issue but only asked it to modify them) and the prohibition on the 
court going beyond the claims brought in the case, laid down in Article 265(2) of 
the Code of Civil Procedure, and the prohibition on the court exceeding the limits 
of the appeal, laid down in Article 320(2) of the Code of Civil Procedure. 
30 In the light of the foregoing and in order not to deviate from the objective of 
restoring the real balance of rights and obligations of the parties to the contract, 
the court of cassation asks whether, in the case under consideration, the appeal 
court could rule on the issue of the modification of the agreements at issue at all, 
REQUEST FOR A PRELIMINARY RULING OF 12. 10. 2022 – CASE C-645/22 
 
10  
without first assessing the possibility of applying the exception specified in 
paragraph 27 of this order, that is to say, without determining whether a 
declaration of invalidity of the entirety of the agreements at issue would expose 
consumers to particularly unfavourable consequences. The answer to that question 
depends on the significance, for the court’s power to apply the exception specified 
in paragraph 27 of this order, of the claim brought by the applicants (consumers) 
in the case under consideration to preserve the contracts by modifying the unfair 
terms of those contracts. 
31 In the light of the foregoing, the Chamber finds it necessary to refer the matter to 
the Court of Justice for a preliminary ruling as to whether Article 6(1) and 
Article 7(1) of Directive 93/13/EEC can be interpreted as meaning that, where a 
consumer expresses the intention to preserve a contract by replacing an unfair 
term contained therein, a court, after finding that the contract cannot remain valid 
following the removal of the term found to be unfair, may rule on the issue of 
replacing the unfair term without first assessing the possibility of annulling the 
contract in its entirety. 
32 The European Commission has pointed out in its notice that ‘To date, the Court 
has not ruled explicitly on whether the national court has to establish the 
consumer’s interest in the nullity of the contract based exclusively on objective 
criteria or, rather, on the consumer’s preference as expressed within the 
proceedings. Nevertheless, there are good arguments for respecting the 
consumer’s preference, taking into account that the consumer may even insist, in 
court proceedings, that an unfair term is applied.’ 1 
33 In the view of the present Chamber, the grounds for considering that the answer to 
the question referred to in paragraph 31 of this order could be in the affirmative 
include, inter alia: (1) the objective pursued in connection with Directive 
93/13/EEC consisting in restoring the balance between the parties while in 
principle preserving the validity of the contract in its entirety, not in abolishing all 
contracts containing unfair terms (judgment of the CJEU of 15 March 2012 in 
Pereničová and Perenič, C-453/10, paragraph 31); (2) the objective of 
discouraging the seller or supplier from including unfair terms in contracts 
(Article 7(1) of Directive 93/13/EEC). If, in a certain situation, the court is 
required to annul the contract in its entirety, the consumer might be exposed to 
particularly unfavourable consequences, so that the dissuasive effect resulting 
from the annulment of the contract could well be jeopardised (see judgment of the 
CJEU of 30 April 2014 in Kásler and Káslerné Rábai, C-26/13, paragraph 83). 
34 The Chamber also asks whether the answer to the question referred to in 
paragraph 31 of this order depends on whether the national court has the 
 
1 Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms 
in consumer contracts [OJ 2019 C 323, p. 4], paragraph 4.3.2. Access via the internet: 
https://eur-lex.europa.eu/legal-
content/LT/TXT/PDF/?uri=CELEX:52019XC0927(01)&from=EN 
LUMINOR BANK 
 
11 
possibility of replacing the unfair term contained in the contract with a 
supplementary provision or a provision of national law applied by mutual 
agreement of the parties to the contract in question. In that respect, it should be 
noted that the provisions of the agreements at issue found to be unfair by the 
decision of the Court of Appeal of Lithuania of 2 September 2021 were replaced 
not with a supplementary provision or a provision of national law applied by 
mutual agreement of the parties to the contract in question, but in accordance with 
the principles of justice, reasonableness and fairness, after the court, inter alia, had 
established that the modification of the unfair term contained in the contract at the 
request of the applicants would not prevent the achievement of the objectives 
pursued by Directive 93/13/EEC (see paragraph 19 of this order). 
35 In the view of the present Chamber, the answer to the question referred to in 
paragraph 34 of this order should be in the affirmative, that is to say, if it is 
possible to replace the unfair term contained in the contract with a supplementary 
provision or a provision of national law applied by mutual agreement of the 
parties to the contract in question and, at the request of the consumer, to preserve 
the contract by replacing the unfair term contained therein, the national court can 
rule on the issue of replacing the unfair term without first ruling on the possibility 
of annulling the contract in its entirety. Where the national court does not have 
such a possibility, that is, where there is no corresponding supplementary 
provision in national law and there is no mutual agreement of the parties on the 
provision to be applied, irrespective of the consumer’s claim in the case, the court 
must rule on the annulment of the contract in its entirety, except in cases where 
the consumer expresses the intention to maintain the unfair terms. When doing so, 
the court must, inter alia, take all measures necessary to protect the consumer 
from the particularly unfavourable consequences of the annulment of the contract 
in its entirety. In the view of the present Chamber, this interpretation is supported 
by the case-law of the Court of Justice referred to in paragraphs 26–28 of this 
order. 
36 Such an interpretation in the case under consideration would mean that, in the 
absence of a supplementary provision in national law that could replace the terms 
of the agreements at issue found to be unfair and a mutual agreement between the 
parties on the provision to be applied, the intention expressed by the applicants 
(consumers) to preserve the agreements at issue by replacing the terms of those 
agreements found to be unfair cannot prevent the court before which the case is 
brought from ruling on the annulment of the agreements at issue. 
The Civil Chamber of the Supreme Court of Lithuania […] [reference to the third 
paragraph of Article 267 TFEU and provisions of national procedural law] 
r e s o l v e s: 
To refer the following questions to the Court of Justice for a preliminary ruling: 
REQUEST FOR A PRELIMINARY RULING OF 12. 10. 2022 – CASE C-645/22 
 
12  
1. Can Article 6(1) and Article 7(1) of Directive 93/13/EEC be 
interpreted as meaning that, where a consumer expresses the intention 
to preserve a contract by replacing an unfair term contained therein, a 
court, after finding that the contract cannot remain valid following the 
removal of the term found to be unfair, may rule on the issue of 
replacing the unfair term without first assessing the possibility of 
annulling the contract in its entirety? 
2. Does the answer to the first question depend on whether the national 
court has the possibility of replacing the unfair term contained in the 
contract with a supplementary provision or a provision of national law 
applied by mutual agreement of the parties to the contract in question? 
[…] 
[…] 
[procedural aspects and surnames of the judges]