Judgment;Summary — ECLI:EU:C:2023:992
Date: 2023-12-14
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

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: 
12 January 2022 
Referring court:  
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
19 November 2021 
Applicants:  
TL 
WE 
Defendant:  
Getin Noble Bank S.A. 
  
Subject matter of the main proceedings 
The action for payment concerns the return of amounts paid by the applicants to 
the bank under a mortgage loan agreement that was subsequently declared invalid. 
The plea of retention raised by the defendant, which is based on claims against the 
borrowers for the repayment of amounts disbursed to them, enables the bank to 
withhold performance until the applicants either offer to repay the amounts 
received or provide security for the repayment of those amounts. The 
effectiveness of the plea of retention depends on the assessment of whether the 
bank’s claim for repayment is time-barred. 
Subject matter and legal basis of the request 
Interpretation of Articles 6(1) and 7(1) of Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts (‘Directive 93/13’) (OJ 1993 L 95, p. 29). 
EN 
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Questions referred for a preliminary ruling 
1. Must Articles 6(1) and 7(1) of Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts (OJ 1993 L 95, p. 29) be construed as 
precluding an interpretation of national law which, in the case where a 
contract is no longer capable of continuing in existence following the 
elimination of abusive clauses, makes the start of the limitation period for 
the claims of the seller or supplier for restitution conditional on the 
occurrence of any of the following events: 
(a) the consumer making a claim or raising a plea against the seller or supplier 
on the grounds that contractual clauses are abusive, or a court, acting of its 
own motion, advising that contractual clauses may be declared abusive; or 
(b) the consumer stating that he or she has been given comprehensive 
information on the effects (legal consequences) of the contract being no 
longer capable of continuing in existence, including information on the 
possible claims of the seller or supplier for restitution and the extent of those 
claims; or 
(c) the consumer’s knowledge (awareness) of the effects (legal consequences) 
of the contract being no longer capable of continuing in existence being 
established during court proceedings, or the court advising the consumer of 
such consequences; or 
(d) the final court judgment resolving the dispute between the seller or supplier 
and the consumer being delivered? 
2. Must Articles 6(1) and 7(1) of Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts be construed as precluding an 
interpretation of national law which, in the case where a contract is no 
longer capable of continuing in existence following the elimination of 
abusive clauses, places no obligation on the seller or supplier against whom 
a consumer has brought a claim related to the presence of abusive clauses in 
the contract to take steps of its own motion to establish whether the 
consumer is aware of the consequences of abusive clauses being eliminated 
or of the contract being no longer capable of continuing in existence? 
3. Must Articles 6(1) and 7(1) of Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts be construed as precluding an 
interpretation of national law which, in the case where a contract is no 
longer capable of continuing in existence following the elimination of 
abusive clauses, provides that the limitation period for the consumer’s 
claims for restitution starts to run before the limitation period for the claims 
of the seller or supplier for restitution? 
4. Must Article 7(1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts be construed as precluding an interpretation of national 
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law which, in the case where a contract is no longer capable of continuing in 
existence following the elimination of abusive clauses, entitles the seller or 
supplier to make the repayment of the amounts received from the consumer 
conditional on the consumer at the same time offering to repay the amounts 
received from the seller or supplier or providing security for the repayment 
of those amounts, whereby the amount to be paid by the consumer does not 
include the sums which have become time-barred? 
5. Must Article 7(1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts be construed as precluding an interpretation of national 
law which, in the case where a contract is no longer capable of continuing in 
existence following the elimination of abusive clauses, does not entitle the 
consumer in whole or in part to interest for late payment in respect of the 
period from the receipt by the seller or supplier of the demand for restitution 
in the event that the seller or supplier exercises the right referred to in 
Question 4? 
Provisions of EU law and case-law relied on 
Articles 6(1), 7(1) of Directive 93/13; judgment of the Court of Justice of 29 April 
2021 in Case C-19/20 (Bank BPH) 
Provisions of national law relied on 
Article 117 of the Ustawa z dnia 23 kwietnia 1964 roku Kodeks cywilny (Law 
of 23 April 1964 – Civil Code, consolidated text: Dziennik Ustaw (Journal of 
Laws) of 2020, item 1740, ‘the CC’) 
1. Subject to the exceptions provided for by statute, property-related claims 
shall be subject to limitation. 
2. Following the expiry of the limitation period, a person against whom a 
claim is pursued may avoid the duty to satisfy it, unless he or she waives the right 
to use the defence of limitation. However, waiving the defence of limitation before 
the expiry of the limitation period shall be invalid. 
21 Once the limitation period has expired, a claim against a consumer cannot 
be asserted. 
Article 1171 CC 
1. In exceptional cases, the court may, after weighing the interests of the 
parties, disregard the expiry of the limitation period for a claim against a 
consumer if it is justified by reasons of equity. 
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2. In exercising the authority under paragraph 1, the court should consider, in 
particular: 
(1) the length of the limitation period; 
(2) the length of time between the expiry of the limitation period and the 
assertion of the claim; 
(3) the nature of the circumstances that prevented the claimant from pursuing 
the claim, including the effect of the debtor’s conduct on the claimant’s delay in 
pursuing the claim. 
Article 118 CC 
– in the wording in force from 1 October 1990 until 28 May 2018: 
Unless a specific provision provides otherwise, the limitation period shall be 
10 years, and for claims concerning periodic payments as well as claims 
related to the conduct of business activity, it shall be 3 years. 
– in the wording in force as of 29 May 2018 pursuant to Article 1 of the Ustawa z 
dnia 13 kwietnia 2018 r. o zmianie ustawy – Kodeks cywilny oraz niektórych 
innych ustaw (Law of 13 April 2018 amending the Civil Code and certain other 
laws, Dziennik Ustaw (Journal of Laws) of 2018, item 1104): 
Unless a specific provision provides otherwise, the limitation period shall be 
six years, and for claims concerning periodic payments as well as claims 
related to the conduct of business activity, it shall be three years. However, 
the end of the limitation period shall be the last day of the calendar year 
unless the limitation period is shorter than two years. 
Article 120(1) CC 
The limitation period shall commence on the day on which the claim 
becomes due. If the enforceability of a claim depends on the adoption of a 
specific act by the rightholder, the period shall begin to run from the date on 
which the claim would have become due if the rightholder had adopted the 
act as soon as possible. 
Article 355 CC 
1. The debtor shall be obliged to show the diligence which is generally 
required in relations of a given kind (due diligence). 
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2. The debtor’s due diligence within the scope of his or her economic 
activity shall be determined while taking into account the professional 
character of that activity. 
Article 3851 CC 
1. The terms of a contract concluded with a consumer which have not 
been individually negotiated shall not be binding on the consumer if his or 
her rights and obligations are set forth in a way that is contrary to good 
practice and grossly infringes his or her interests (abusive clauses). This 
provision shall not apply to terms setting forth the principal obligations to 
be performed by the parties, including price or remuneration, so long as 
they are worded clearly. 
2. If a contractual term is not binding on the consumer pursuant to 
paragraph 1, the contract shall otherwise continue to be binding on the 
parties. 
3. The terms of a consumer contract which have not been individually 
negotiated are those over the content of which the consumer had no actual 
influence. This relates in particular to contractual terms taken from a 
standard contract proposed to a consumer by a contracting party. 
4. The burden of proving that a contractual term has been individually 
negotiated rests with the person relying thereon. 
Article 405 CC 
A person who has obtained a material benefit at the expense of another 
person with no legal basis shall be obliged to release the benefit in kind and, 
if that is not possible, to reimburse its value. 
Article 410 CC 
1. The provisions of the preceding articles shall apply in particular to 
undue performance. 
2. A performance is undue if the person who rendered it was not under 
any obligation at all or was not under any obligation towards the person to 
whom he or she rendered the performance, or if the basis for the 
performance has ceased to exist or if the intended purpose of the 
performance has not been achieved or if the transaction on which the 
obligation to render the performance was based was invalid and has not 
become valid since the performance was rendered. 
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Article 455 CC 
If the time limit for the performance has not been specified or if it does not 
result from the nature of the obligation, the performance shall be rendered 
immediately after the debtor has been called upon to render it. 
Article 481(1) CC 
If the debtor is late in making a payment, the creditor may claim interest for 
the duration of the delay even if the creditor has not suffered any damage 
and even if the delay was due to circumstances for which the debtor is not 
responsible. 
Article 496 CC 
If, as a result of withdrawal from the contract, the parties are to return their 
reciprocal performances, each of them shall have a right of retention until 
the other party either offers to return the performance received or provides 
security for the return of that performance. 
Article 497 CC 
The provision of the preceding article shall apply mutatis mutandis in the 
event of termination or invalidity of a reciprocal contract. 
Article 5 of the Law of 13 April 2018 amending the Civil Code and certain 
other laws 
1. The provisions of the Law amended in Article 1, in the wording 
amended hereby, shall apply to claims arising prior to the date of entry into 
force hereof and not yet time-barred on that date. 
… 
3. The provisions of the Law amended in Article 1, in the existing 
wording, shall apply to consumer claims arising prior to the date of entry 
into force hereof and not yet time-barred on that date the periods of 
limitation of which are stipulated in Article 118 and in Article 125(1) of the 
Law amended in Article 1. 
4. Time-barred claims against a consumer in respect of which no defence 
of limitation was raised by the date of entry into force hereof shall be subject 
as of that date to the effects of limitation stipulated in the Law amended in 
Article 1, in the wording amended hereby. 
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Succinct presentation of the facts and procedure in the main proceedings 
1 On 7 September 2007, the applicants (borrowers), acting as consumers, entered 
into a mortgage loan agreement with the bank of which the defendant is the legal 
successor. The loan was denominated in Polish zloty (PLN) and indexed to a 
foreign currency, namely the Swiss franc (CHF). The loan amount in PLN was 
converted into the amount in CHF at the buying rate set forth in the bank’s table 
of exchange rates. The amount in CHF determined in that manner formed the 
basis for determining the amount of monthly loan repayments. The interest rate on 
the loan was linked to the LIBOR (CHF) rate. The borrowers were obliged to 
make monthly repayments in PLN in an amount equal to the equivalent of the 
monthly instalment expressed in CHF at the selling rate set forth in the bank’s 
table of exchange rates as at the repayment date. 
2 By judgment of 19 November 2021, it was determined that the loan agreement 
was invalid because it was not capable of continuing in existence following the 
elimination of abusive clauses. The application of unilaterally determined 
exchange rates by the bank and the application of different buying and selling 
rates to individual settlements were deemed to be abusive clauses. 
3 In the course of the proceedings, the borrowers were advised by the court that the 
agreement might be invalid. They were also advised that in that case, they would 
be required to repay the loan principal as soon as the bank called upon them to do 
so, and that the bank could pursue claims against them for payment of higher 
amounts. The applicants maintained their position. 
4 Both in the complaint addressed directly to the defendant and in their action, the 
applicants raised arguments indicating that the agreement contained abusive 
clauses and that it was invalid. The defendant consistently maintained its position 
that the agreement did not contain abusive clauses and that the conversion clauses 
contained therein were effective and valid. For those reasons, the defendant 
refused to repay the amounts received. 
5 On 9 July 2021, letters from the bank were delivered to the applicants, stating that 
the bank had exercised its right to retain the amount, if any, due to the applicants 
until the applicants either offered to repay the amounts received in the form of the 
loan made available to them by the bank under the loan agreement or to provide 
security for their repayment. 
The essential arguments of the parties in the main proceedings 
6 The parties remain in dispute concerning the limitation period applicable to the 
bank’s claim for repayment of the amount used by the applicants as loan principal. 
7 The applicants take the view that the period of limitation applicable to the bank’s 
claim began to run when the bank received the applicants’ position stated in their 
demand for payment (complaint) challenging the validity of the agreement, or 
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when it received a copy of the statement of claim. Both events occurred in 2017, 
which means that the period of limitation for the bank’s claim expired in 2020. 
The applicants go on to argue that a challenge to the validity of a contract or its 
clauses need not be limited to court proceedings. The opposite approach would, 
they submit, be overly stringent, since it would limit the ability of consumers to 
defend their interests under Directive 93/13. 
8 Against this, the defendant argues that the limitation period for the bank’s claim 
has not yet started to run. It argues that the limitation period for that claim will 
start to run as soon as the court finally resolves the dispute concerning the 
effectiveness of contractual terms and the validity of the loan agreement. The 
defendant also disputes the assumption that the standards stipulated in the 
directive may determine the rights and obligations of the parties to the 
proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The request for a preliminary ruling is based on the assumptions arising from 
national law, according to which the presence of abusive clauses in a contract and 
their subsequent elimination results in the invalidity of that contract, which in turn 
gives rise to a claim for the return of reciprocal performances arising from the 
obligation to return an undue performance (Article 410 CC). In view of the 
invalidity of the contract, the defendant is entitled to enter a plea of retention of 
the amounts received from the applicants until the latter either offer to repay the 
amount used or to secure the claim for its repayment, provided that the bank’s 
claim is not time-barred at the time the plea is entered. 
10 Following the resolution of 7 May 2021 of the Sąd Najwyższy (Supreme Court, 
Poland), Ref. No III CZP 6/21, the referring court instructed the parties that 
Article 3851 CC, which implements Directive 93/13, including in particular 
Article 6 thereof, should be understood as meaning that an abusive clause has no 
effect from the outset (ab initio) and by operation of law (ipso jure), which the 
court is obliged to consider of its own motion. However, a consumer who is aware 
of the abusive nature of a clause may object to the refusal to apply it by 
consenting to that clause. This will be effective only if the consumer has received 
exhaustive information on the legal consequences that the definitive 
ineffectiveness (invalidity) of the clause in question may entail. The consumer 
should also be informed that he or she may consent to the clause within a 
reasonable time and that he or she has the option to express a binding opinion as 
to whether the consequences of the definitive ineffectiveness (invalidity) of the 
contract would be particularly disadvantageous to him or her. A refusal to consent 
will render the abusive clause definitively ineffective (invalid). If the loan 
agreement is not capable of continuing in existence without such a clause, the 
consumer and the lender have separate claims for the return of the respective 
amounts paid thereunder. 
GETIN NOBLE BANK 
 
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11 The penalty related to the inclusion of abusive clauses in the agreement is to have 
such an effect that as of the date of refusal to consent to a clause without which 
the loan agreement cannot remain binding, or as of the date on which the time 
limit to consent to that clause passes, the state of suspension (that is to say, the 
state of suspended ineffectiveness in which the agreement does not produce legal 
effects) ceases, and the agreement either becomes definitively ineffective (invalid) 
or takes effect retroactively (ex tunc) in a form that includes the replacement 
clause. However, the referring court recognises the dangers inherent in such a 
penalty, which arise from the fact that the consumer is in fact required to submit a 
declaration of intent to challenge the abusive clauses, and that declaration is 
subject to a number of formal requirements. In particular, there are doubts as to 
the consequences of that approach for the determination of the start of the 
limitation period of the claims of the seller or supplier and the due date of those 
claims, including the determination as to whether the debtor is late in making 
payments, which is the basis for the obligation to pay statutory interest for late 
payment. 
12 In view of the failure to regulate those issues with relevant provisions, the court 
sees the need to adopt an interpretation of generally applicable laws which would 
reflect the objectives of Directive 93/13, including, in particular, the need to 
interpret its provisions in terms of their impact on the scope of the parties’ 
settlements in the event that an agreement containing unfair contractual terms is 
not capable of continuing in existence.  
13 It also appears necessary to clarify the scope of the requirement, resulting from the 
judgment of the Court of Justice of 29 April 2021 in Case C-19/20, to inform the 
consumer about the possible claims for restitution resulting from the 
ineffectiveness of unfair contractual terms. In particular, it should be clarified 
whether the assumption that such information must be provided may affect the 
scope of the parties’ rights and obligations with respect to claims for restitution. In 
particular, the referring court takes note that the Court of Justice has already made 
it clear that the full effectiveness of the protection provided for by the directive 
requires that the national court which has found of its own motion that a term is 
unfair should be able to establish all the consequences of that finding, without 
waiting for the consumer, who has been fully informed of his or her rights, to 
submit a statement requesting that that term be declared invalid (judgment of 
21 December 2016 in Joined Cases C-154/15, C-307/15 and C-308/15, 
paragraph 59 and the case-law cited). 
14 Moreover, it would appear that all the consequences of a finding of unfairness of a 
term should also mean providing the consumer with effective claims for 
restitution. 
15 As regards Question 1 (point I.1), its purpose is to determine whether the 
wording of the provisions of Directive 93/13 has any effect on the interpretation 
of the provisions of national law concerning the time-barring of claims, 
principally claims for restitution arising where a loan agreement is invalid. 
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16 A claim for the return of an undue payment becomes due when it is not satisfied 
immediately after the demand, addressed to the debtor, stipulating a deadline for 
the return. If the enforceability of a claim depends on the adoption of a specific act 
by the rightholder, the limitation period begins to run from the date on which the 
claim would have become due if the rightholder had adopted the act as soon as 
possible. 
17 Assuming that the limitation period for the claim of the seller or supplier for the 
return of undue payment may start only after the agreement has become definitely 
ineffective, it is pointed out that, as long as the agreement remains suspended, the 
seller or supplier cannot demand that the payments agreed therein be made. Nor 
can the seller or supplier claim the return of an undue payment that has been 
made, since the decision as to whether the clause and the agreement are binding 
lies, in principle, in the hands of the consumer. Since the seller or supplier cannot 
make such a demand and thus make its claims for restitution due, there is no 
question of the limitation period beginning to run. The situation changes only if 
the consumer consents to the abusive clause or refuses to consent to it. 
18 The limitation period for the consumer’s claims for restitution cannot begin to run 
until the consumer has become aware (or should reasonably have become aware) 
of the abusive nature of the relevant clause. Only then can the consumer call upon 
the seller or supplier to return the payment (Article 455 CC), that it to say, take the 
action referred to in Article 120(1) CC. 
19 As regards Question 1(a) (point I.1(a)), in the light of the interpretation 
governing the limitation period for the claims of the seller or supplier which 
requires that the consumer be active in order for that period to start, doubts arise 
as to whether the effectiveness of the protection afforded to the consumer by 
Directive 93/13 is not undermined. In such a situation, a seller or supplier who 
offers to consumers contracts that contain unfair contractual terms may effectively 
be released from liability for the contents of those contracts if the consumer takes 
no action. The entire consumer protection scheme afforded by the directive is 
based on the assumption that the differences in the parties’ bargaining power and 
awareness of their rights must be eliminated. Consumers may be unaware of the 
unfairness of a contractual term or not appreciate the extent of their rights under 
Directive 93/13 (judgment of the Court of Justice of 10 June 2021, BNP Paribas 
Personal Finance SA, C-776/19 to C-782/19, paragraph 45 and the case-law 
cited). The question also arises as to whether the obligation under Article 7(1) of 
the directive to ensure that adequate and effective means exist to prevent the 
continued use of unfair terms in contracts concluded with consumers is met. 
20 It may also be questionable whether the obligation under Article 6(1) of the 
directive to ensure that unfair terms in a contract concluded with a consumer are 
not binding on the consumer under national law is met, since if it is assumed that, 
despite the inclusion of an unfair term in a contract, the seller or supplier is 
relieved of its duty to bring a claim for restitution in due time, then the consumer’s 
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situation (understood as his or her rights and obligations) is in fact affected by that 
term. 
21 On the other hand, the determination that such a term is unfair must, in principle, 
have the consequence of restoring the consumer to the legal and factual situation 
that he or she would have been in if that term had not existed. Achieving that 
effect does not require the consumer to be relieved of the obligation to repay the 
amount that he or she has unduly received. 
22 Moreover, both Article 6(1) of Directive 93/13 and Article 3851(1) CC provide 
that the unfair term (abusive clause) is only non-binding unilaterally: on the 
consumer. The seller or supplier may not unilaterally invoke the abusive nature of 
contractual clauses and bring claims against the consumer on that basis. Only the 
consumer is entitled to exercise the rights arising from the presence of abusive 
clauses in the contract. It does not appear that the intention of the application of 
the provisions meant to protect consumers is to place an obligation on the seller or 
supplier to make a claim for restitution immediately after the performance has 
been rendered (and an obligation on the consumer to return that performance). In 
that case, the consumer could be coerced by economic circumstances into 
agreeing to continue to be bound by unfair terms. 
23 Therefore, the referring court, with the exceptions listed below, does not object to 
making the commencement of the limitation period for the claims of the seller or 
supplier dependent on the time when the seller or supplier becomes aware that the 
consumer is bringing claims against it on the basis of the presence of unfair terms 
in the contract. In order finally to clarify this issue, it must be assessed whether 
the principles set out in Articles 6(1) and 7(1) of Directive 93/13 have an impact 
on the interpretation of national law governing claims for restitution and 
settlements between the parties, and if so, the scope of that impact. 
24 Question 1(b) and (c) (point I(1)(b) and (c)) concerns doubts about imposing 
additional requirements on the consumer relating to the need for the consumer to 
state that he or she is aware of the consequences of challenging unfair contractual 
terms. 
25 In the event that a consumer makes a claim for restitution which presupposes the 
definitive ineffectiveness (invalidity) of the entire contract, the seller or supplier 
(lender), when confronted with such a claim, may be unsure as to whether, in 
making that claim, the consumer was duly informed of the consequences of the 
abusive nature of the clause in question. This is an important issue, since it 
determines the start of the limitation period for the claims of the seller or supplier 
for restitution. 
26 The seller or supplier is not entitled to access the information obtained by the 
consumer out of court. A consumer’s claim for restitution based on the assertion 
that the loan agreement is entirely and definitively ineffective (invalid) cannot be 
regarded as tantamount to ending the state of suspended ineffectiveness of that 
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agreement if it is not accompanied by an express statement on the part of the 
consumer confirming that he or she has received exhaustive information. In the 
course of the proceedings, the court itself may remedy the absence of such a 
statement by complying with its duty to inform the customer, while the 
maintenance by the consumer of the claim for restitution – after having received 
the information in question – will be tantamount to a refusal to consent to the 
clause and (possibly) tantamount to an objection to being protected against the 
consequences of the complete and definitive ineffectiveness (invalidity) of the 
agreement. 
27 In the referring court’s view, imposing an obligation on the consumer to make 
further representations in addition to submitting claims against the seller or 
supplier, let alone a requirement that those representations be verified only in the 
course of court proceedings, may render the exercise of rights conferred on the 
consumer by Directive 93/13 practically impossible or excessively difficult. 
28 In its judgment of 29 April 2021 in Case C-19/20, Bank BPH, the Court of Justice 
indicated that Article 6(1) of Directive 93/13, read in conjunction with Article 47 
of the Charter of Fundamental Rights of the European Union, must be interpreted 
as meaning that it is for the national court, finding that a term in a contract 
concluded between a seller or supplier and a consumer is unfair, to inform the 
consumer, in the context of the national procedural rules, after both parties have 
been heard, of the legal consequences which annulment of the contract may entail, 
irrespective of whether the consumer is represented by a professional 
representative. That obligation appears to apply (paragraphs 92 and 93 of the 
judgment) to a situation where the court determines the existence of an unfair 
contract term and the consequences thereof when examining the matter of its own 
motion. 
29 It is also unreasonable to assume that, despite having received certain claims and 
having been made aware of the consumer’s position, the seller or supplier may 
remain passive and not take any actions before they become time-barred. 
30 In addition, the ineffectiveness of the consumer’s demand which does not meet 
the requirements set forth by the Supreme Court will also have the effect of the 
seller or supplier delaying the fulfilment of its performance until the judgment 
becomes final. This will preclude the consumer from being awarded interest for 
the period from the submission of the claim until the date on which the judgment 
becomes final. This would mean accepting a situation where the seller or supplier 
can not only reject the claims but also continue to wait for the consumer’s further 
actions without any significant adverse consequences, hoping that the latter may 
not be interested or able to initiate litigation. 
31 In the view of the referring court, that would not only make it excessively difficult 
for consumers to exercise the rights conferred by the directive, but would also to a 
significant extent eliminate the deterrent effect which the consumer protection 
scheme should have. Indeed, the seller or supplier could count on the fact that 
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some consumers, having had their demands rejected, would no longer try to 
pursue their rights, and even if the consumer demonstrated reasonable 
determination, there would be no practical consequences for the seller or supplier 
of a delay in meeting the consumer’s legitimate claims. 
32 Notwithstanding the foregoing, the adopted solution appears to run counter to the 
principle of equivalence, because a party to an agreement which has been found to 
be invalid for a reason other than as a result of the presence of unfair contractual 
terms is not expected to fulfil any requirements other than submitting a demand 
for restitution in order for the claim for restitution to become due. 
33 However, the principle of equivalence requires that the national rule at issue be 
applied without distinction, whether the infringement alleged is of EU law or 
national law, where the purpose and cause of action are similar (judgment of the 
Court of Justice in Joined Cases C-698/18 and C-699/18, paragraph 76 and the 
case-law cited). 
34 As regards Question 1(d) (point I(1)(d)), where the condition for the contract to 
be definitively non-binding is a final court judgment confirming the unfair nature 
of its terms, this appears to weaken the consumer’s position to an extent which 
jeopardises the objectives of Directive 93/13, since in that case the consumer loses 
the right to submit a declaration of intent to be bound by the abusive clauses or to 
replace them with another provision only after the dispute has been finally 
resolved. At that time, the seller or supplier becomes able to bring claims based on 
the invalidity of the contract. This affects not only the time at which the limitation 
period for the claims of the seller or supplier begins to run, but also has the effect 
of preventing the award to the consumer of interest for the period from the 
submission of his or her claim until the date on which the judgment becomes final. 
In that situation, the seller or supplier will not be interested in satisfying the 
consumer’s claims arising from the provisions implementing Directive 93/13. It 
appears that the obligation in Article 7(1) of the directive to ensure that adequate 
and effective means exist to prevent the continued use of unfair terms in contracts 
concluded with consumers will be jeopardised as a result. 
35 In addition, the obligation stipulated in Article 6(1) of the directive will be 
breached as a result of the extension until the end of the dispute of the period 
during which unfair contractual terms will actually affect consumers’ rights and 
obligations. 
36 Accepting that it is necessary for the court to deliver a final judgment would also 
appear to undermine the assumption that an unfair term must be regarded as never 
having existed rather than only being set aside by the court’s ruling, which 
assumption is fundamental to the consumer protection scheme established by 
Directive 93/13. 
37 Therefore, in the view of the referring court, Articles 6(1) and 7(1) of Directive 
93/13 must be construed as precluding an interpretation of national law which, 
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where a contract is no longer capable of continuing in existence following the 
elimination of abusive clauses, makes the start of the limitation period for the 
claims of the seller or supplier for restitution conditional not only on the consumer 
making a claim or raising a plea against the seller or supplier on the grounds that 
contractual clauses are abusive (or a court, acting of its own motion, advising that 
contractual clauses may be declared abusive), but also on the consumer making 
further representations or the consumer’s knowledge (awareness) of the effects 
(legal consequences) of the contract being no longer capable of continuing in 
existence being established during court proceedings, or the court advising the 
consumer of such consequences, and in particular on the court delivering a final 
judgment resolving the dispute between the seller or supplier and the consumer. 
38 By Question 2 (point I.2), the referring court asks whether, in a situation where 
the seller or supplier must be aware that clauses in the contract concluded with the 
consumer are abusive or where the consumer has brought a claim against the 
seller or supplier, the seller or supplier is released from taking steps to establish 
whether it is necessary to call upon the consumer to return the performance in 
connection with the claims of the seller or supplier for restitution becoming due. 
39 If Articles 6(1) and 7(1) of the directive do not preclude the assumption that all 
the consequences of the invalidity of a contract arise only after the consumer has 
stated that he or she has received exhaustive information on the legal 
consequences, it must be clarified whether, in order for the consumer protection 
scheme to be effective, it is not necessary for the seller or supplier to take steps of 
its own motion to establish whether the consumer is aware of the possibility of the 
contract becoming invalid and the ensuing consequences. Those steps may consist 
in giving the consumer adequate instructions on the parties’ mutual rights and 
obligations in the event of the contract becoming invalid, in particular regarding 
the claims to which the consumer would then be entitled. 
40 It appears that imposing an obligation on the seller or supplier to take steps of its 
own motion to determine the effectiveness of the consumer’s statement, and 
taking the failure of the seller or supplier to do so into account when assessing 
whether its claims are time-barred, would be symmetrical to recognising that the 
start or lapse of the limitation period for the consumer’s claims depends on 
whether the consumer has had an opportunity to learn about his or her rights. Both 
parties to the contract would then have a duty to act to protect their rights, as part 
of their duty to exercise due diligence, when a reasonable assessment of the 
circumstances indicated that there was a need to do so. Any failure to do so would 
result in claims for restitution potentially becoming time-barred. Such an 
obligation should apply in particular to those sellers or suppliers whose standard 
contract terms, subsequently transferred to contracts concluded with consumers, 
have already been subject to abstract review resulting in their entry in the register 
of abusive clauses (see judgment of the Court of Justice of 21 December 2016, 
Biuro podróży Partner, C-119/15). 
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41 Accordingly, in the view of the referring court, Articles 6(1) and 7(1) of Directive 
93/13 must be construed as precluding an interpretation of national law which, in 
the context of determining the start of the limitation period, does not take into 
account the obligation of the seller or supplier to take steps of its own motion in 
order to establish whether the consumer is aware of the consequences of the 
elimination of abusive clauses from the contract or of the contract not being 
capable of continuing in existence. 
42 The answer to Question 3 (point I.3) becomes relevant if the answers to 
Questions 1 and 2 accept that the start of the limitation period for the claims of the 
seller or supplier may be made dependent on any event subsequent to the receipt 
by the seller or supplier of the consumer’s demand for restitution or any other 
challenge to the effectiveness of contractual terms or to the contract’s validity. 
43 The question of the limitation period for a consumer’s claims against a seller or 
supplier is also the subject of the request for a preliminary ruling in Case C-81/21. 
In Case C-81/21, the court has doubts about the compatibility with Articles 6(1) 
and 7(1) of Directive 93/13 of an interpretation which provides that the limitation 
period for a consumer’s claims for restitution begins when the performance in 
question is made. 
44 In view of the long, 10-year limitation period for consumer claims, there are no 
grounds for extending that time limit excessively by seeking circumstances that 
postpone its start, as long as the limitation period lapses at a point when the 
consumer has already had, or reasonably could have had, the opportunity to learn 
about the unfair nature of the contractual term, and also the opportunity to pursue 
the relevant claims. 
45 Such a position may not be valid, however, if it is assumed that the limitation 
period for the seller or supplier does not start to run not just until the consumer 
makes a claim, but until additional conditions have been met as well. 
46 It is obvious that the consumer learns, and certainly can learn, of his or her claims 
before he or she demands restitution from the seller or supplier, and even more so 
before the consumer makes a possible statement that he or she is aware of the 
consequences related to the invalidity of the contract. The disadvantages resulting 
from this state of affairs are mitigated by the different limitation periods (3 years 
for the claims of the seller or supplier versus 10 or 6 years for the consumer’s 
claims). However, it is still possible to envisage a situation in which at least some 
of the consumer’s claims will be found to be time-barred before the consumer 
decides to demand restitution from the seller or supplier or to initiate litigation. 
47 In the view of the referring court, it is therefore necessary to consider whether, if 
it is accepted that the limitation period for the claims of the seller or supplier 
begins to run upon the occurrence of one of the events described in Question 1, 
the effectiveness of consumer protection afforded by Directive 93/13 does not 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULINGC-28/22 
 
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require that the limitation period for the consumer’s claims cannot begin, or at 
least lapse, before that event occurs. 
48 The answer to Question 4 (point I.4) becomes necessary if it is accepted that 
there is no obstacle to the consumer’s claims for restitution being time-barred 
independently from the claims of the seller or supplier, including before those 
claims. 
49 If a consumer’s claim for restitution is time-barred before the seller or supplier has 
raised a retention plea covering all the amounts made available to the consumer, a 
situation arises where the consumer’s ability to receive part of the amount paid to 
the seller or supplier will depend on the consumer offering to return all the 
amounts made available by the seller or supplier. Therefore, the claims for 
restitution to which the parties are entitled will not be identical in scope. 
50 The Court of Justice has already held (paragraphs 39 and 40 of the judgment of 
10 June 2021 in Joined Cases C-776/19 to C-782/19, BNP Paribas Personal 
Finance, and the case-law cited) that Articles 6(1) and 7(1) of the directive do not 
preclude national legislation which lays down a time limit for bringing an action 
seeking to rely on the restitutory effects of a finding that a contractual term is 
unfair. The application of a limitation period to claims for restitution brought by 
consumers in order to enforce rights which they derive from Directive 93/13 is 
not, in itself, contrary to the principle of effectiveness, but its application must not 
make it in practice impossible or excessively difficult to exercise the rights 
conferred by that directive. 
51 It does not appear that the requirements outlined by the Court can be met in 
circumstances where only the consumer’s claims for restitution are time limited. 
The primary threat to the effectiveness of the rights conferred by the directive and 
the consumer’s ability to exercise them is that the limitation period for the claims 
of the seller or supplier is postponed to such an extent that, despite that period 
being much shorter, those claims will always become time-barred after the point 
at which some of the consumer’s claims may become time-barred. 
52 As regards Question 5 (point I.5), the court seeks to assess the compatibility with 
the principles of consumer protection arising from Directive 93/13 of an 
interpretation of national law which restricts the consumer’s rights in respect of 
claims for restitution by excluding the liability of the seller or supplier for any 
delay in meeting the consumer’s legitimate claims. 
53 Two issues are of concern to the court, the first arising from the fact that if it is 
assumed that the contract remains in a suspended state until any of the events 
described in Question 1, letters (b) to (d), occur, the seller or supplier will not be 
considered late in making its payments from the time it is called upon to return the 
undue performance, but only from the time when it is established that the 
consumer is aware of the consequences of the contract not being capable of 
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continuing in existence (the contract’s invalidity) and waives his or her protection 
against such consequences. 
54 An interpretation that makes the consumer’s claims becoming due conditional on 
the consumer making an appropriate statement effectively deprives the consumer 
of his or her right to interest for late payment for a period that may extend to 
several years due to the length of court proceedings. This would have the result of 
significantly undermining the effectiveness of consumer protection, while at the 
same time infringing the principle of equivalence. 
55 The second issue is related to the determination of the point in time at which a 
debtor ceases to be late in making payments upon exercising the right to retain the 
amount due to the other party until the other party offers to meet the debtor’s 
claim or to provide security for that claim. It should be noted that the debtor being 
late in making payments is the basic prerequisite for the obligation to pay interest 
for late payment. 
56 Depending on the interpretation adopted, the debtor either ceases to be late in 
making payments entirely (the plea of retention has retroactive effect) or ceases to 
be late at the time of submission of the statement that the debtor raises the plea of 
retention, in which case interest for late payment would be due to the consumer 
from the lapse of the time limit for payment by the seller or supplier after it has 
received the relevant demand until the time at which the plea of retention is 
invoked. 
57 In the context of disputes over loan agreements, such as the present case, a plea of 
retention is contingent (the seller or supplier, in principle, denies the validity of 
the consumer’s claims), as the seller or supplier is not willing to make the 
performance demanded by the consumer, and the right of retention is not the only 
reason for withholding performance. Therefore, doubts arise as to whether the 
hitherto interpretation of national law related to the consequences of a plea of 
retention being raised is compatible with the principle of the effectiveness of the 
protection afforded to consumers by Directive 93/13 and the obligation to ensure 
that adequate and effective means exist to prevent the continued use of unfair 
terms in contracts concluded with consumers (Article 7(1) of the Directive). 
58 It should therefore be assumed that Article 7(1) of Directive 93/13 must be 
construed as precluding an interpretation of national law which, in the case where 
a contract is no longer capable of continuing in existence following the 
elimination of abusive clauses, in any way limits the liability of the seller or 
supplier for delay in satisfying the consumer’s claim for restitution, which delay 
includes the entire period from the time when the consumer challenges the 
effectiveness of abusive clauses or the validity of the agreement until the time 
when the seller or supplier has demonstrated its willingness to satisfy the 
consumer’s claim.