Judgment;Summary — ECLI:EU:C:2025:460
Date: 2025-06-19
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-396/24 – 1 
Case C-396/24 [Lubreczlik] i 
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: 
6 June 2024 
Referring court: 
Sąd Okręgowy w Krakowie (Poland) 
Date of the decision to refer: 
22 April 2024 
Initiator of the proceedings before the referring court: 
PU 
QS 
mBank S.A. (proceedings against BL and CY) 
Defendant: 
mBank S.A. 
BL 
CY 
  
Subject matter of the main proceedings 
Unfair contractual terms – Invalidity of a contract – Defence of set-off – Defence 
of performance by the consumer – Expiry of the limitation period for restitution 
claims – Claim for the payment of a monetary amount in reimbursement of sums 
wrongly paid in connection with the cancellation of a mortgage loan agreement. 
 
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. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
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Subject matter and legal basis of the request 
Interpretation of EU law, in particular Article 7(1) of Council Directive 
93/13/EEC; Article 267 TFEU. 
Questions referred for a preliminary ruling 
(a) Does Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29) 
preclude national case-law according to which the consumer is 
obliged, in the event that an unfair term is found in a contract, in 
particular a loan agreement concluded with a consumer, and this 
results in the cancellation of the contract, or in particular the 
cancellation of the loan agreement, to reimburse the seller or supplier 
for the entire nominal amount of the loan received from the seller or 
supplier in performance of the cancelled contract, irrespective of the 
value of the repayments made by the consumer in performance of this 
contract and irrespective of the actual amount remaining to be repaid, 
while the seller or supplier is entitled to demand from the consumer the 
reimbursement of the entire nominal amount of the loan paid out to the 
consumer in performance of the cancelled contract, irrespective of the 
value of the repayments made by the consumer in performance of the 
contract and irrespective of the actual amount remaining to be repaid? 
(b) Does Article 7(1) of Council Directive 93/13/EEC […] preclude 
national case-law according to which the national court, when 
adjudicating on a case relating to the reimbursement of sums paid by a 
seller or supplier to a consumer in performance of a cancelled loan 
agreement, is obliged to award the seller or supplier the entire amount 
paid out by the latter to the consumer in performance of the cancelled 
loan agreement, irrespective of whether the consumer remains indebted 
to the seller or supplier and irrespective of the value of the payments 
made by the consumer to the seller or supplier in performance of the 
cancelled loan agreement? 
(c) Does Article 7(1) of Council Directive 93/13/EEC […] preclude 
provisions of national law according to which the national court, in the 
event that it grants the consumer’s claim in a case brought by the seller 
or supplier, has an ex officio obligation to direct that the judgment 
awarding the claim be made immediately enforceable? 
Provisions of Community law referred to 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Article 7(1) 
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Provisions of national law referred to 
Act of 23 April 1964 – Civil Code (Journal of Laws No 16, Item 93, with later 
amendments): Article 60 (form of the declaration of intent); Article 61(1), (2) 
(time of submission of the declaration of intent). 
Article 405 (unjust enrichment) 
‘Anyone who, without legal grounds, has gained a financial benefit at the expense 
of another person shall be obliged to hand over the benefit in kind and, if this is 
not possible, to reimburse its value.’ 
Article 410 (definition of undue performance); Article 455 (deadline for 
performance); Article 498 (definition of set-off and the associated prerequisites). 
Article 499 (arrangements for set-off) 
‘A set-off shall be effected by one party making a declaration to the other party. 
The declaration shall have retroactive effect from the time when the set-off 
became possible.’ 
Article 500 (arrangements for selecting a place of performance); Article 501 
(deferral of the performance of an obligation by the court or a creditor); 
Article 502 (prerequisites for the set-off of time-barred claims); Article 503 
(application of provisions concerning the crediting of payments for set-off 
purposes); Article 504 (set-off of attached claims); Article 505 (exclusion of set-
off – list). 
Act of 17 November 1964 – Code of Civil Procedure (Journal of Laws 2023, Item 
1550 with later amendments): Article 91 (scope of authorisation to represent a 
party before the court); Article 98(1) (costs of the proceedings); Article 100 
(mutual waiver or proportionate allocation of the costs of the proceedings); 
Article 101 (reimbursement of the defendant’s costs despite the acceptance of the 
claim); Article 102 (application of the principle of equity when awarding costs); 
Article 103(1) (reimbursement, by a party or intervener, of the costs caused by the 
latter as a result of fraudulent or wrongful proceedings); Article 132(1) (mutual 
service between professional representatives); Article 133(3) (service of process 
and judgments). 
Article 203 1 (defence of set-off) 
‘(1) The defence of set-off may only be asserted on the basis of a claim: 
1) by the defendant on grounds arising under the same legal relationship as the 
claim lodged by the claimant, unless the claim is indisputable or confirmed by a 
final and binding ruling of a court or a ruling of an arbitration court, a settlement 
concluded before a court or an arbitration court or a settlement concluded before a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
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mediator and confirmed by a court, or made plausible by means of a document 
confirming that it has been granted by the claimant; 
2) for reimbursement of a payment due to one of the joint and several debtors by 
the remaining co-debtors. 
(2) The defence of set-off may be asserted by the defendant at the latest when 
entering into a dispute on the merits, or within two weeks of the date on which his 
or her claim became due. 
(3) The defence of set-off may only be asserted in a procedural document. The 
provisions concerning statements of claims shall apply mutatis mutandis to this 
document, with the exception of the provisions concerning charges.’ 
Article 320 
‘In particularly justified cases, the court may direct that the award be divided into 
instalments and, in cases involving the handover of immoveable property or the 
vacation of premises, set a date which is appropriate for making the payment.’ 
Article 333(1)(2) 
‘The court shall have an ex officio obligation, when handing down a judgment, to 
direct that the judgment be made immediately enforceable if: […] 
2) it awards a claim accepted by the defendant.’ 
Article 334(1) ‘The court may make the immediate enforceability of the judgment 
conditional upon the claimant lodging an appropriate security.’ 
Article 334(2) and (3): 
‘(2) The security may also involve halting the handover to the claimant of assets 
collected from the defendant or sums of money following their recovery, or 
halting the sale of seized moveable property. 
(3) The sale or appropriation of seized immoveable property shall be suspended 
on an ex officio basis until the judgment has become final.’ 
Article 335(1) (inadmissibility of the immediate enforceability of a judgment); 
Article 351 (supplementary judgment); Article 692 (jurisdiction of the court to 
rule on matters relating to the inclusion of the object of performance in a court 
deposit); Article 776 (concept of an enforcement order); Article 777(1)(1) 
(enforcement orders); Article 848 (effect of seizures of moveable property); 
Article 924(1) (entry on the land register regarding the initiation of enforcement 
proceedings); Article 930 (disposal of immoveable property following its seizure); 
Article 938 (responsibility of the manager of seized immoveable property). 
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Succinct presentation of the facts of the case 
The main proceedings consist of two joined cases covering three claims, one of 
which is a counter-claim. With regard to the claim brought by PU and QS against 
mBank S.A., headquartered in Warsaw (counter-claim brought by mBank against 
PU and QS), in 2006 the claimants concluded with BRE Bank S.A., the successor 
of which is mBank S.A., a ‘Multiplan’ mortgage loan agreement for natural 
persons, indexed to the exchange rate of the Swiss franc, for the purpose of 
constructing and acquiring a residential property and refinancing the borrowers’ 
own contribution to the purchase of this property. Prior to the conclusion of the 
agreement, they signed a ‘Loan and mortgage declaration’ containing a 
description of the risks involved in taking out loans indexed to a foreign currency 
(the Swiss franc). The sum that was paid out as a loan (disbursed in five tranches 
of PLN 360 000 in total) amounted to CHF 148 711.16 denominated in the index-
linked currency (Swiss francs) on 15 September 2006, based on the buy rate 
appearing in BRE Bank S.A.’s exchange rate table. It was clarified in the 
agreement that this sum was for information purposes only and did not constitute 
a commitment on the part of the bank, and that the value of the loan denominated 
in the foreign currency on the date when the loan was disbursed might differ from 
the value specified in the agreement (Section 1(3A)). The agreement was 
concluded on the basis of a standard agreement drawn up by the bank. The terms 
of the agreement – with the exception of the interest rate for the loan – were not 
individually negotiated. The loan was to be repaid in equal monthly instalments 
made up of principal and interest. The amount of each loan instalment indexed to 
the agreed foreign currency (Swiss francs) was given in that currency, whereas the 
repayments were made in Polish złotys following their conversion on the basis of 
the sell rate for Swiss francs based on BRE Bank S.A.’s foreign exchange table on 
the repayment date (Section 24(2)). Up until 15 May 2023, the claimants had paid 
PLN 362 801.12 and CHF 65.91 to the claimant (including fees and insurance 
premiums). The ‘Rules and regulations on the granting of Multiplan mortgage 
loans to natural persons’, according to which the index-linked loan was granted in 
Polish złotys and simultaneously converted into the borrower’s chosen currency, 
formed an integral part of the agreement (Section 1(3)). 
In the claim brought by PU and QS against mBank S.A., the claimants moved for 
a finding that Agreement No 00407858/2006, which had been concluded between 
the parties in relation to a ‘Multiplan’ mortgage loan for natural persons indexed 
to the exchange rate of the Swiss franc, together with the annexes thereto, was 
cancelled in its entirety with ex tunc effect. They furthermore moved for an order 
requiring that the defendant pay them an amount totalling PLN 362 801.12 and 
CHF 65.91 plus default interest at the statutory rate on the aforementioned 
amounts, in reimbursement of the sums wrongfully paid over the period from the 
date when the agreement was concluded until 15 May 2023, as a result of the 
granting of the request to cancel the agreement. In the alternative, the claimants 
moved for a finding that the individual provisions of the agreement and the rules 
and regulations were ineffective. In the statement of defence dated 24 January 
2024, the defendant, mBank S.A., moved for the claim to be dismissed in its 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
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entirety. The defendant brought a counter-claim in which it contested the defence 
of invalidity (ineffectiveness) of the loan agreement and moved for the joint and 
several payment by the claimants (counter-defendants) of an amount of 
PLN 360 000.03 plus default interest at the statutory rate charged from the day 
following the date on which the counter-defendants were served with a copy of 
the statement of counter-claim until the date of the payment. 
With regard to the claim brought by mBank S.A. against BL and CY, in 2007 the 
bank had concluded a mortgage loan agreement with the defendants that was 
indexed to the exchange rate of the Swiss franc, and granted the defendants a loan 
of PLN 493 770 that was indexed to a foreign currency (the Swiss franc) (Section 
1(1) and (2)). The loan amount was CHF 217 807.67 denominated in the index-
linked currency at the end of 3 March 2007, based on the buy rate appearing in 
BRE Bank S.A.’s exchange rate table. It was clarified in the agreement that this 
sum was for information purposes only and did not constitute a commitment on 
the part of the bank, and that the value of the loan denominated in the foreign 
currency on the date when the loan was disbursed might differ from the value 
specified in Section 1(3A) of the agreement. The term of the loan was set as 
240 months, or in other words until 20 September 2027 (Section 1(3)). The loan 
was to be repaid in equal instalments made up of principal and interest, which 
were to be repaid in Polish złotys following their conversion on the basis of the 
sell rate for Swiss francs based on BRE Bank S.A.’s exchange rate table in the 
version applicable on the repayment date. The ‘Rules and regulations on the 
granting of Multiplan mortgage loans to natural persons’ (Section 25(1)) formed 
an integral part of the agreement. The agreement between the parties was 
concluded on the basis of a standard agreement drawn up by the bank, and the 
terms of the agreement were not negotiated individually. The claimant paid out 
loan funds to the defendants amounting to PLN 493 770.02. The defendants repaid 
PLN 1 052 843.95 in total, having made an early repayment of the entire loan on 
26 April 2016. In November 2020, they brought before the Sąd Okręgowy w 
Krakowie (Regional Court in Kraków) a claim for payment against mBank S.A., 
in which they sought to be awarded, jointly and severally, PLN 571 740.41 plus 
default interest at the statutory rate. In a judgment dated 16 May 2022, the Sąd 
Okręgowy w Krakowie (Regional Court in Kraków) ordered mBank S.A., 
headquartered in Warsaw, to pay PLN 571 740.41 in total to the borrowers, plus 
default interest at the statutory rate. In a letter dated 15 August 2023, the claimant 
called upon the defendants to pay an amount of PLN 493 770.02. 
On 24 November 2023, mBank S.A. brought an action against the defendants, 
seeking the joint and several payment by them of PLN 493 770.02 plus default 
interest at the statutory rate. Although the agreement had been performed by the 
parties for many years, the defendants had initiated proceedings with a view to 
being awarded the payments made in performance thereof. In a judgment dated 
16 May 2022 handed down in other proceedings, the court had awarded the 
borrowers PLN 571 740.41 plus default interest at the statutory rate. In their 
statement of defence, the defendants moved for the claim to be dismissed in its 
entirety as unfounded, given the non-existence of both claims, and in the 
LUBRECZLIK 
 
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alternative for the claim to be dismissed in its entirety given the expiry of the 
limitation period. The defendants asserted that in performance of the loan 
agreement they had repaid to the claimant PLN 1 065 510.40, including 
PLN 838 875.33 in repayments of the principal, meaning that the principal had 
been repaid in full, as confirmed by the claimant. 
Essential arguments of the parties in the main proceedings 
In support of their demands in the claim against mBank S.A., the claimants PU 
and QS asserted that the loan agreement concluded with the defendant was 
vitiated and contained unfair terms, the removal of which would bring about the 
cancellation of the agreement in its entirety. The terms of the agreement had not 
been negotiated individually by the claimants, since they imposed rights and 
obligations on the latter that were contrary to the principles of morality and that 
grossly infringed the interests of the consumer. At the same time, there was no 
possibility of replacing the vitiated terms with others. Moreover, the cancellation 
of the agreement resulted from an infringement of the principle of freedom of 
contract and of the rules of social conduct. In a statement of defence, the 
defendant moved for the claim to be dismissed in its entirety, and brought a 
counter-claim in which it contested the defence of invalidity (ineffectiveness) of 
the loan agreement and asserted that the agreement contested by the claimants was 
a valid and effective obligation, since it did not infringe the existing provisions of 
law (including banking law), the nature of the legal relationship, the rules of social 
conduct or also the principles of morality. The agreement did not contain any 
unfair terms, since its provisions had been negotiated individually and did not 
infringe the interests of the consumer. The bank also asserted that while 
concluding the agreement it had duly fulfilled its obligations to provide 
information, since it had provided the borrowers with the necessary details 
regarding the foreign currency risk associated with the loan agreement. The 
claimants had accepted this risk by deliberately deciding to conclude an 
agreement of this kind due to the economic benefits it delivered at the time. The 
defendant (the bank) stressed the point that the foreign currency exchange rate 
tables it had used as a basis for the conversions reflected market reality and were 
objective in nature. In a response (lodged on 27 February 2024) to the statement 
of defence together with the statement of defence against the counter-claim, the 
claimants (counter-defendants) upheld their position on the case and addressed the 
statements by the defendant (counter-claimant). They moved for the counter-claim 
to be dismissed in its entirety given that it was premature and given the absence of 
any basis for bringing a counter-claim. In a letter dated 27 February 2024, they 
stated that they had submitted a set-off notice to the defendant (the counter-
claimant). Should the defence of set-off be granted, they moved for a finding that 
the loan agreement was cancelled and for the defendant to be ordered, in total, to 
pay default interest at the statutory rate on PLN 360 000.03, charged from the date 
on which the defendant was served with a copy of the claim until the date on 
which this amount was effectively set off against the defendant’s claim, and also 
for an award of the remaining amount of the principal claim, i.e. PLN 2 801.09 
and CHF 65.91 plus default interest at the statutory rate on these amounts from the 
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date on which the defendant was served with the claim until the date of payment. 
At a hearing on 6 March 2024, the claimants’ authorised representative pleaded 
that the claimants had not submitted a set-off notice, and hence withdrew the 
defence of set-off. 
In mBank S.A.’s claim against BL and CY, the bank asserted that by bringing the 
claim it intended to settle the disputes between the parties which had arisen in 
connection with the defence of cancellation of the agreement, and which it had not 
been possible to settle on the basis of the defendants’ previous claim. The bank’s 
claim was a claim for restitution relating to the requirement for the parties to 
reimburse the payments made to each other under the loan agreement that may be 
subject to cancellation. The claimant’s claims were not however restricted to 
reimbursement of the sums of money paid in performance of the agreement in 
their nominal amount, since the bank was requesting index-linking of its 
payments. For their part, the defendants …No claim therefore existed for 
repayment of the loan principal, and the same was true in relation to the claim for 
the index-linking of the amount of principal paid out. In their opinion, the loan 
agreement was however subject to cancellation on the basis of Article 58(1) and 
(2) of the Civil Code since it was contrary to the provisions of law, the nature of 
an obligation and the rules of social conduct (Article 3531 of the Civil Code), and 
given the acknowledgement of the inadmissible nature of the provisions of the 
agreement relating to the principal performance by the parties (Article 3851(1) of 
the Civil Code in connection with Article 69 of the Act on Banking Law). As 
regards the defence of limitation in relation to the bank’s claims, the defendants 
stated that the three-year period of limitation for claims connected with the pursuit 
of a business activity had started to run when the loan was repaid, i.e. back in 
2016. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
1 As a result of the cancellation of the loan agreement concluded with the consumer, 
the payments made to the borrowers by the seller or supplier and the payments 
made to the seller or supplier by the borrowers in performance of the cancelled 
agreement are wrongful payments pursuant to Article 410(2) of the Civil Code, 
since they were made in performance of an invalid obligation and, as such, are 
subject to reimbursement as a pecuniary benefit obtained unduly at the expense of 
the payer (Article 405 of the Civil Code). In accordance with the national case-law 
shaped by the rulings handed down by the Supreme Court in cases III CZP 11/20 
(resolution of 16 February 2021) and III CZP 6/21 (resolution of 7 May 2021), if a 
loan agreement cannot continue in existence without the ineffective provision, the 
consumer and the lender have separate and independent claims for reimbursement 
of the payments made in performance of the agreement. It is therefore irrelevant 
whether and to what extent the parties remain indebted to each other, since either 
of the parties can request reimbursement of all payments made, irrespective of the 
amount of the other party’s obligation and irrespective of the amount of 
repayments already made. The repayments made by the consumer in performance 
LUBRECZLIK 
 
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of the cancelled loan agreement do not therefore lead to a waiver of the existing 
obligation on the basis of unjust enrichment. 
2 Certain aspects of the above legal opinions outlined by the Supreme Court had 
already been contested as incorrect in the Court’s judgments in cases C-140/22 
and C-28/22. In the first of these cases, the Court found that Article 6(1) and 
Article 7(1) must be interpreted as meaning that in the context of the cancellation, 
in its entirety, of a mortgage loan agreement concluded with a consumer by a 
banking institution on the ground that that agreement contains an unfair term 
without which it cannot continue in existence they preclude the judicial 
interpretation of national law according to which the exercise of the rights which 
that consumer draws from that directive is conditional on the lodging, by that 
consumer, before a court, of a declaration by which he or she states, first, not to 
consent to that unfair term remaining effective, secondly, to be aware of the fact 
that the nullity of that term entails the cancellation of that agreement and, 
moreover, of the consequences of that cancellation and, thirdly, to consent to the 
cancellation of that agreement. In turn, the Court found the following in the 
judgment handed down on 14 December 2023 in C-28/22: 
(a) Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the 
principle of effectiveness, must be interpreted as precluding a judicial 
interpretation of national law according to which, following the cancellation of a 
mortgage loan agreement concluded with a consumer by a seller or supplier, on 
account of unfair terms contained in that agreement, the limitation period for the 
claims of that seller or supplier stemming from the nullity of that agreement starts 
to run only as from the date on which the agreement becomes definitively 
unenforceable, whereas the limitation period for the claims of that consumer 
stemming from the nullity of that agreement begins to run as from the day on 
which the consumer became aware, or should reasonably have become aware, of 
the unfair nature of the term entailing such nullity; 
(b) Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the 
principle of effectiveness, must be interpreted as precluding a judicial 
interpretation of national law according to which, where a mortgage loan 
agreement concluded with a consumer by a seller or supplier is no longer capable 
of continuing in existence after the unfair terms in that agreement have been 
removed, that seller or supplier may rely on a right of retention which allows him 
or her to make the restitution of the sums which it has received from that 
consumer conditional on that consumer making an offer to repay the sums which 
he or she has himself or herself received from that seller or supplier or to provide 
a security for the repayment of those sums, where the exercise by that seller or 
supplier of that right of retention entails the loss, for that consumer, of the right to 
obtain default interest as from the expiry of the time limit set for performance by 
the seller or supplier concerned, following receipt by that seller or supplier of a 
request to repay the sums he or she had been paid in performance of that 
agreement; 
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(c) Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not 
precluding a judicial interpretation of national law according to which it is not for 
a seller or supplier who has concluded a mortgage loan agreement with a 
consumer to ascertain whether the consumer is aware of the consequences of the 
removal of the unfair terms contained in that agreement or of that agreement being 
no longer capable of continuing in existence if those terms were removed. 
3 In the opinion of the referring court, the direction of national case-law in relation 
to the rules governing mutual settlements between the parties to a cancelled loan 
agreement, as enshrined in the aforecited resolutions, is contrary to the principle 
of effective consumer protection as provided for in Article 7(1) of the directive. 
The imposition on the consumer of an obligation to reimburse the entire amount, 
irrespective of the actual repayments already made, and therefore also in the event 
that the consumer has repaid the nominal loan amount in its entirety or even paid 
sums over and above this amount, casts doubt on whether this direction of case-
law is reconcilable with the principle referred to above. The rules governing 
settlements set out in the aforecited resolutions overlook the absolutely crucial 
fact that the payment owed to the seller or supplier has in fact already been 
satisfied, albeit in part, as a result of the payments made by the consumer in 
performance of the cancelled agreement. There is therefore no rational basis for 
imposing on the consumer a further obligation to reimburse the entire sum paid 
out to him or her in performance of the cancelled agreement only because he or 
she made said payments in order to release himself or herself from the obligation 
arising on the basis of the agreement that was ultimately cancelled, and not 
therefore in order to satisfy the claims of the seller or supplier based on unjust 
enrichment, or in order to release himself or herself from the obligation arising on 
this basis. 
4 The application of this principle in practice thus means that a consumer wanting to 
benefit from the protection guaranteed under Directive 93/13 and the national 
provisions transposing this directive into national law must expect that the seller 
or supplier will be fully justified to take action against him or her by requesting 
the reimbursement of the entire amount paid out in performance of the cancelled 
agreement, irrespective of the amount of repayments made by the consumer. It is 
also apparent that if the consumer fails to make these payments voluntarily, the 
seller or supplier will be able to lodge a claim requesting the award of this amount 
plus interest and ordering the consumer to pay the costs of the proceedings. It 
should be emphasised that consumers are typically unsuccessful in cases of this 
kind, since it follows from the prevailing direction of national case-law that the 
seller or supplier may demand the reimbursement of all payments made to the 
consumer in performance of the cancelled agreement. This implies an obligation 
to reimburse the seller or supplier for all or part of the costs of the proceedings. 
5 It cannot therefore be assumed that the seller or supplier, who is after all a creditor 
to the defendants on the grounds that it has paid sums out to them in performance 
of the cancelled agreement, was not at the same time entitled to lodge a claim. It 
also cannot be assumed that the defendants, who did not make the payments in 
LUBRECZLIK 
 
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spite of the request for them to do so voluntarily, have not presented any reason to 
bring an action, which is one of the grounds for ordering that the defendants be 
reimbursed the costs of the proceedings in spite of the granting of the claim 
provided for in Article 101 of the Code of Civil Procedure. It should moreover be 
added that the application of the rules set out in the aforementioned provision is 
subject to a further condition, namely the granting of the request made in the 
claim as a first procedural step. It should therefore be noted that granting the 
request made in the suit is synonymous with granting the claim, with the result 
that the judgement is made immediately enforceable on an ex officio basis. 
6 As a result of the approach taken in the national case-law, namely that the 
payments made by the parties in performance of a cancelled agreement are settled 
on the basis of the theory of two conditions, and the payments by the parties are 
therefore independent of each other and separate, the payments made by the 
consumer in performance of the cancelled agreement are not simply credited 
against the consumer’s obligation on the grounds of unjust enrichment, and 
consumers cannot assert the defence that the payments have in fact been made in 
whole or in part in view of the repayments made during the term of the agreement. 
Each of the parties may therefore request the reimbursement of the payments 
made in full, irrespective of whether they remain indebted to the other party, and 
irrespective of their own indebtedness. The defence of payment raised by the 
consumer will therefore be ineffective, since it will not be preceded by the 
submission of an effective set-off notice. This direction of case-law has an 
unacceptable consequence, since it penalises any consumer who decides to benefit 
from the protection granted by Directive 93/13. 
7 As emphasised in national case-law, the issue of mutual settlements between 
parties to a cancelled agreement may be resolved by applying the institution of 
set-off. The submission of an effective set-off notice therefore results in the 
mutual waiver of claims in the amount of the lesser of these claims, and 
extinguishes the obligation. Nevertheless, the submission of an effective set-off 
notice or the assertion of a defence of set-off during the proceedings before the 
court is conditional on a number of prerequisites being met, as provided for in the 
provisions of the Civil Code. Firstly, the consumers must ensure that the claim 
owed to them is immediately due and payable. In order for an obligation without a 
time limit to be rendered immediately due and payable, there must have been a 
request for payment (Article 455 of the Civil Code), and this request must have 
been effectively served. Next, consumers must submit a substantive declaration 
concerning set-off of the claims owed to him or her against the claims owed to the 
seller or supplier; in order for this declaration to be effective, it must also be 
served to the party, or in other words the seller or supplier (Articles 60 and 61 of 
the Civil Code). The submission of a substantive set-off declaration to the 
authorised representative of the seller or supplier is inadmissible, since pursuant to 
Article 91 of the Code of Civil Procedure an authorised representative is not 
entitled to accept substantive declarations, in particular set-off declarations, since 
the representative has not been granted such a mandate. In the light of the above 
regulations of law, the consumer’s use of the institution of set-off and the waiver 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
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or significant reduction of his or her obligation requires that a series of 
conditions – both substantive and procedural – be met. However, the failure to 
submit an effective set-off declaration or assert an effective defence of payment or 
a procedural defence of set-off results in the granting of the claim brought by the 
seller or supplier and the handing down of a judgment awarding the claim sought 
by this latter. Once this judgment has become final or an immediate enforceability 
clause has been included in it, it may serve as the basis for enforcement 
proceedings against the consumer, since in proceedings of this kind consumer 
protection presupposes the bringing of a counter-enforcement claim by the 
consumer. As a result, a consumer who benefits from protection against unfair 
terms is involved in two sets of proceedings in principle, and in extreme cases in 
as many as four. In and of itself, the associated inconvenience deters consumers 
from taking advantage of the protection guaranteed by Directive 93/13. 
8 It should also be noted that – as a general rule – submission of a set-off 
declaration by a consumer entails the loss of interest for the period of default. This 
stems from the fact that set-off produces retroactive effects from the date when it 
became possible to submit the set-off declaration, as stipulated in Article 499(2) 
of the Civil Code. A consumer who has asserted a defence of set-off is released 
from his or her obligation but at the same time loses the default interest since the 
principal claim owed to him or her is waived, which also affects the accessory 
claims, inter alia in the form of interest. 
9 It also cannot be ignored that the use of this institution is particularly 
disadvantageous for consumers who have lodged a claim against a seller or 
supplier in which they move for a finding that the contract should be cancelled on 
the grounds of unfair terms and that they should be awarded the payments they 
have made, and who themselves are defending a claim brought by the bank in the 
course of the ongoing proceedings; this was what happened in the case to which 
the present question relates, for example. The use of the institution of set-off by 
consumers in proceedings in which they are defending a claim by the counter-
defendants thus has a direct impact on the proceedings in which they act as 
claimants. The submission of an effective set-off declaration thus results in a 
waiver of the claims in the amount of the lesser of these claims, which in turn 
means that the claim for payment lodged by consumers in the proceedings 
initiated by them may become unwarranted in whole or in part depending on the 
level of the claim owed to the seller or supplier. The consumers, as claimants (in 
this instance), will be unsuccessful in their proceedings in whole or in part, since 
their claim will expire and it will be impossible for it still to be effectively 
collected in these proceedings. In a situation of this kind, where they have been 
unsuccessful in the proceedings, consumers may have to pay the costs of the 
proceedings in their entirety if they lose the case. 
10 In the opinion of the national court, it results from the Court’s case-law that the 
protection granted to the consumer on the basis of Directive 93/13 is intended to 
guarantee the re-establishment of the factual and legal situation in which the 
relevant consumer would have found himself or herself had the unfair term in 
LUBRECZLIK 
 
13 
question not been present. This protection is associated with a restitution 
obligation which is incumbent on both parties – both the seller or supplier and the 
consumer – in the event that the agreement is cancelled. Doubts are raised by the 
imposition of this obligation on the consumer in a situation where the consumer 
has reimbursed the nominal loan amount in full by making payments against the 
amount owed under the loan agreement, and also by the imposition on the 
consumer of an obligation to reimburse the sums wrongfully paid out in their 
entirety, irrespective of the payments already made by the consumer under the 
cancelled loan agreement. 
11 In so far as the national court is aware, the Court’s case-law contains no direct 
statements concerning the matter at hand, namely the rules governing settlements 
between parties in the event that an agreement is cancelled and payments have 
been received from the consumer in performance of the cancelled agreement to 
the extent of the consumer’s restitution obligation resulting from unjust 
enrichment. The Court’s previous statements relating to the restitution obligation 
have generally related to the restitution obligation incumbent upon the seller or 
supplier, and have boiled down to the issue of reimbursing the payments made by 
the consumer on the basis of the provisions of the agreement that were found to be 
unfair terms. Moreover, these rulings were handed down in circumstances where 
the agreement continued to exist and be binding on the parties in spite of the 
removal of the provisions that had been found to be unfair terms, and the seller or 
supplier was obliged to reimburse the payments made by the consumer on the 
basis of the unfair contractual terms. In these situations, the unfair terms of the 
agreement related to incidental payments (interest or fees in relation to a different 
type of charge incumbent upon the consumer), and the removal of these terms did 
not result in the agreement being overturned or the need for settlements between 
the parties in relation to the entirety of the payments made to each other. As a 
general rule, the consumer was not subject to a restitution obligation or an 
obligation to reimburse the entire nominal amount of the loan irrespective of the 
amount of repayments made. The consumer was not subject to such an obligation 
even in the event that the seller or supplier terminated the loan agreement; the 
consumer was not obliged to reimburse the entire loan amount paid out to him or 
her but only the amount of loan that remained for him or her to repay. 
12 In accordance with the cited national case-law, however, in the event of the 
cancellation of a loan agreement because it contains unfair terms regarding the 
principal performance by the parties, the consumer remains subject to an 
obligation to reimburse the entire loan amount paid out to him or her irrespective 
of the amount of payments already made by him or her in performance of the 
cancelled agreement. An analysis of the judgments handed down in cases 
C-287/22 and C-26/13, C-70/17 and C-179/17, C-125/18, C-269/19 justifies the 
conclusion that this direction of national case-law, as shaped by the resolutions of 
the Supreme Court, is contrary to the principle of consumer protection and 
infringes the principle of effectiveness. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
14  
13 In the judgment handed down on 15 June 2023 in case C-287/22, which relates to 
the granting of a preventive measure involving the suspension of loan instalment 
payments, the Court found that the granting of such a preventive measure to the 
consumer was justified by the fact that the consumer would pay monthly 
instalments of a higher amount than that actually due if the term concerned were 
to be disregarded, that the consumer had paid the bank concerned an amount 
greater than that of the sum borrowed even before he or she had initiated 
proceedings, and lastly that there was a risk that the consumer would have to 
repay to the bank concerned an amount which exceeds that which he or she has 
borrowed from that bank. It can be concluded from this judgment alone that the 
principle of effective consumer protection also precludes the imposition on the 
consumer of an obligation to reimburse payments in the event that he or she has 
repaid the amount borrowed from the bank, and that it also precludes disregarding 
the payments made by him or her in performance of the cancelled agreement 
when determining the extent of his or her restitution obligation. These 
circumstances, which pertain to the amount of payments made by the consumer in 
performance of the cancelled agreement, were referred to in the cited judgment as 
justifying the grant of any preventive measures necessary to ensure the full 
effectiveness of the forthcoming decision. It can also be concluded from this 
judgment that if the consumer lodges a claim seeking a judgment confirming the 
unfair nature of these terms, it is necessary in order to ensure the full effectiveness 
of this judgment that all settlements of payments between the parties take place 
within the framework of the same proceedings. This is not only aimed at avoiding 
the need for the consumer to initiate a further set of proceedings for 
reimbursement of the payments made by him or her, but also takes into account 
the fact that the consumer’s participation in the proceedings initiated by the seller 
or supplier with a view to reimbursement of the payments made to the consumer is 
inextricably linked with the need for the consumer to pay the costs of asserting his 
or her rights or mounting an expedient defence. In the opinion of the national 
court, an analysis of the Court’s judgments in the cases Kásler and Káslerné Rábai 
(C-26/13, 26 March 2019), Abanca Corporation Bancaria and Bankia (C-70/17 
and C-179/17, 3 March 2020) and Gómez del Moral Guasch (C-125/1825, 
25 November 2020 and C-269/19) with regard to the possibility of replacing an 
unfair term in a consumer agreement or the court’s information obligation justifies 
the conclusion that the cancellation of a loan agreement entails the imposition on 
the consumer of an obligation to reimburse the remaining loan amount rather than 
the entirety of the payments made to him or her by the seller or supplier in 
performance of the cancelled agreement. After all, the aforecited judgments state 
clearly that, ‘the consequence of such an annulment with regard to a loan contract 
would be that the outstanding balance of the loan would become due forthwith, 
which would be likely to be in excess of the consumer’s financial capacities and, 
as a result, would tend to penalise the consumer rather than the lender who, as a 
consequence, might not be dissuaded from inserting such terms in its contracts.’ 
14 It can therefore be assumed that in the aforecited judgments, the Court outlined a 
position (albeit to a limited extent) on the extent of the restitution obligation 
incumbent upon the consumer in the event of the cancellation of an agreement. 
LUBRECZLIK 
 
15 
Contrary to the position set out by the Supreme Court in case III CZP 6/21, this 
does not involve merely equating the effects of the cancellation of an agreement 
with the effects of the termination of a loan agreement, but also determining 
whether an obligation is incumbent upon the consumer in the event that the 
agreement is cancelled, and the extent of any such obligation. In accordance with 
the position resulting from the aforementioned rulings, the situation of a consumer 
whose agreement has been terminated and the situation of a consumer whose 
agreement has been cancelled as a result of the unfair terms it contains should 
therefore be identical as regards the obligations incumbent upon them, since both 
are obliged to reimburse the payments received from the seller or supplier in 
performance of the agreement which ceased to apply because of its termination or 
the agreement which was cancelled. In the opinion of the referring court, the 
argument that the termination of an agreement does not undermine the repayments 
made to date by the consumer in the sense that it does not make them wrongful, 
contrary to the cancellation of an agreement, is not sufficient to impose on the 
consumer, who benefits from the protection guaranteed by Directive 93/13, an 
obligation to reimburse all of the payments made to him or her by the seller or 
supplier, irrespective of the amount of repayments already made. It is illogical to 
impose on the consumer, who benefits from this protection and who has sought 
the cancellation of the agreement containing unfair terms which grossly infringe 
his or her interests, an obligation to reimburse all of the payments merely because 
the cancellation of the agreement meant that the payments made by him or her 
turned out to be wrongful. In reality, the imposition on the consumer of an 
obligation to reimburse all of the payments thus made undermines the 
effectiveness of the protection granted to him or her, since it results in the 
imposition of an enormous and completely unjustifiable burden on the consumer 
and in him or her being penalised. It should therefore be noted that it can be 
concluded from the aforecited judgments by the Court that the protection granted 
to the consumer on the basis of the provisions of Directive 93/13 must not result 
in the consumer being penalised. The consumer must expect that if the agreement 
is cancelled, he or she will be subject to a restitution obligation; nevertheless, he 
or she may reasonably expect that the extent of this obligation will be reduced to 
the amount of his or her current indebtedness, and that it will take into account the 
repayments he or she has made to date. In this context, the interpretation of the 
provisions of national law set out in the aforecited resolutions of the Supreme 
Court cannot be reconciled with the principle of effective consumer protection, 
since it results in the imposition on the consumer of a significant and completely 
unjustifiable burden. 
15 In the national court’s opinion, the very knowledge of the extent of the restitution 
obligation incumbent upon the consumer in the event of cancellation of the 
contract may have a chilling effect on the use of this protection and may 
undermine the effectiveness of Directive 93/13. This is particularly striking in 
view of the problem of denominated or indexed loans, since the consumer faces 
the dilemma of either benefiting from consumer protection, which involves the 
cancellation of the contract and, given the direction of national case-law, an 
obligation to reimburse the entire loan amount that has been paid out, or 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
16  
remaining in the same legal relationship and being subject to an unrestricted risk 
of an increase in indebtedness and instalment amounts. 
16 As regards Question (b), the referring court wishes firstly to cite the Court’s 
judgment in C-170/21, according to which Article 6(1) of Directive 93/13 must be 
interpreted as meaning that, while that provision obliges the national court, on 
receiving an application for an order for payment, to establish all the 
consequences arising under national law of a finding that a term in a consumer 
credit agreement concluded between a consumer and a seller or supplier is unfair 
in order to ensure that that consumer is not bound by it, that does not, in principle, 
oblige that court to offset ex officio the payment made on the basis of that term 
against the balance due under that agreement, subject, however, to compliance 
with the principles of equivalence and effectiveness. The main proceedings do not 
however relate to the ex officio set-off of the payments made on the basis of the 
agreement containing unfair terms, but rather to the consideration, when 
adjudicating on such claims by consumers and sellers or suppliers, of the fact that 
the claims owed to them on the basis of the provisions on unjust enrichment have 
in reality already been settled in their entirety or to a significant extent. With due 
regard for the principle of consumer protection, it is impossible to ignore the fact 
that the consumer made repayments for many years in performance of the 
cancelled agreement, in view of which the latter could reasonably expect that the 
extent of the restitution obligation would correspond to the amount of the loan that 
had not been repaid, and not therefore to the entirety of the amount paid out by the 
seller or supplier. The extent of the restitution obligation incumbent upon the 
consumer thus has a direct bearing on the questions relating to the need for the 
consumer to pay the costs of the proceedings initiated by the seller or supplier. 
The opportunity for the national court to take these circumstances into account 
would furthermore allow the question of mutual settlements between the parties to 
be resolved in a single set of proceedings, which is all the more expedient since 
the matter at hand relates to claims the amount of which is known and is 
furthermore undisputed between the parties. The claims lodged by the parties on 
the grounds of unjust enrichment correspond to the amounts paid out by the seller 
or supplier to the consumer and the payments made by the consumer to the seller 
or supplier in performance of this agreement. In the opinion of the national court, 
however, the mere elimination of the previous legal basis, i.e. the agreement, and 
the need for settlement of the payments made to date on the grounds of a new 
legal basis, or in other words unjust enrichment, does not justify a restitution 
obligation with a scope as broad as that assumed in the national case-law, since 
this results in the effectiveness of consumer protection being undermined and the 
imposition of an unjustifiable burden on the consumer. 
17 As regards Question (c), it should in turn be noted that pursuant to 
Article 333(1)(2) of the Code of Civil Procedure, the court, when handing down a 
judgment, has an ex officio obligation to direct that the judgment awarding the 
claim be made immediately enforceable. The obligation to direct that the 
judgment be made immediately enforceable in the event that the claim is granted 
by the defendant is mandatory in nature, and the national court therefore has an ex 
LUBRECZLIK 
 
17 
officio obligation to include in the judgment a statement indicating its immediate 
enforceability. A statement of this kind thus constitutes an enforcement order and 
may serve as the basis for the initiation of enforcement proceedings against the 
consumer. This obligation incumbent upon the court rules out the possibility that 
the consumer may be subject to the institution provided for in Article 320 of the 
Code of Civil Procedure, namely the division into instalments of the amount 
which the consumer has been ordered to pay. 
18 In the opinion of the national court, provisions of the sort contained in 
Article 333(1)(2) of the Code of Civil Procedure undermine the effectiveness of 
the protection granted to the consumer under Directive 93/13, since they make it 
impossible to protect the consumer against the particularly unfavourable 
consequences associated with the annulment of an agreement. The consumer does 
not of course need to grant the claim, but it should nevertheless be noted that as a 
general rule the claim of the seller or supplier for reimbursement of the amounts 
paid out is well-founded, and the consumer is fully aware of this. These actions 
also improve the consumer’s situation in the proceedings, since they open up the 
possibility for the case to be treated as a particularly justified case within the 
meaning of Article 102 of the Code of Civil Procedure, and for the consumer to be 
ordered to pay only some or none of the costs of the proceedings to the successful 
seller or supplier. In turn, the division into instalments of the amount which the 
consumer has been ordered to pay allows the latter to carry out his or her 
obligation and protects him or her against the risk of an economic burden that may 
prove disproportionately difficult or even impossible for him or her to bear. 
19 Furthermore, the obligation to make a judgment immediately enforceable is 
irreconcilable with the principle of effective consumer protection, since it does not 
re-establish the factual and legal situation in which the consumer would have 
found himself or herself had the agreement not contained a term of this kind. In 
the opinion of the national court, a provision of national law of this kind and the 
direction of national case-law makes it impossible to protect a consumer against 
the particularly unfavourable consequences that he or she may suffer as a result of 
the annulment of the agreement, which is after all referred to in the Court’s 
judgments of 16 March 2023 (C-6/22) and 25 November 2020 (C-269/19). As is 
clearly indicated in the abovementioned court rulings, it is for the national court, 
taking account of its domestic law as a whole, to take all the measures necessary 
to protect the consumer from the particularly unfavourable consequences which 
annulment of the contract might entail for him or her. Furthermore, as is also 
indicated in the abovementioned court rulings, the consumer protection provided 
for on the basis of Directive 93/13 does not end with the annulment of the 
contract, since in the event that a contract concluded between a consumer and a 
seller or supplier is declared invalid because one of its terms is unfair, it is for the 
Member States, by means of their national law, to make provision for the effects 
of that invalidation, in compliance with the protection granted to the consumer by 
that directive, in particular, by ensuring the restoration of the legal and factual 
situation that he or she would have been in if that unfair term had not existed. The 
national courts act as guarantors of genuine compliance with EU law in the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-396/24 
 
18  
Member State and ensure the maximum effectiveness of this law, since they act as 
a natural forum for EU law. At the stage of applying the provisions of law, the 
national court is obliged to interpret national law, ‘as far as possible’, in such a 
way as to bring it into line with EU law in terms of the outcome provided for by 
the directive. 
20 A failure to make the judgment immediately enforceable is ruled out, since the 
aforecited provision (Article 333(1)(2) of the Code of Civil Procedure) states that 
the judgment must be made immediately enforceable on a mandatory basis. In 
turn, the immediate enforceability of a judgment can only be suspended 
(Article 334 of the Code of Civil Procedure) on a discretionary basis, since this 
Article leaves it to the discretion of the national court to make the immediate 
enforceability of the judgment (in terms of both pecuniary and non-pecuniary 
performance) conditional upon the provision by the claimant of a security or the 
identification of a means by which a security may be provided, and does not 
impose any requirement for the court to suspend the immediate enforceability of 
the judgment in view of the fact that one of the parties is a consumer; furthermore, 
making the immediate enforceability of a judgment conditional upon the provision 
to the seller or supplier by the claimant of an appropriate security, typically an 
appropriate sum of money, does not constitute any real obstacle to the later 
addition to the judgment of a clause based on the relevant enforceability. It should 
be noted that in cases of this kind, the parties are typically sellers or suppliers with 
significant financial resources and economic opportunities at their disposal; for 
this reason too, the provision of a security in the form of a sum of money, which 
will in any case be reimbursed, does not constitute an obstacle. 
21 The aforementioned effects are the normal consequences of enforcement 
proceedings; nevertheless, the unique feature of cases involving consumers is that 
all of these effects have or may have an impact on the consumer, who has in effect 
repaid the amount owed to the seller of supplier, either in its entirety or to a 
significant extent, thereby satisfying the claim owed to the seller or supplier.