62024CC0471
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 11 September 2025 (
1
)
Case C‑471/24
J.J.
v
PKO BP S.A.
(Request for a preliminary ruling from the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa, Poland))
(Reference for a preliminary ruling – Unfair contract terms – Directive 93/13/EC – Variable-rate mortgage loan agreement – Contractual term providing for the determination of the interest rate on the basis of a reference index within the meaning of Regulation (EU) 2016/1011 – Critical benchmark – WIBOR reference index – Requirement of transparency)
1.
The present request for a preliminary ruling concerns the compatibility of contractual terms providing for a variable interest rate based on the Warsaw Interbank Offered Rate (WIBOR) reference index in mortgage loan agreements with Directive 93/13/EEC. (
2
) The request has been made in proceedings between J.J., a consumer, and PKO BP S.A. (‘PKO’), a bank established in Poland, concerning (i) the reimbursement of part of the sums paid by that consumer to that bank under a variable-rate mortgage loan agreement; and (ii) the unenforceability or invalidity of a term in that agreement relating to the determination of the interest rate.
2.
The novelty of the present case consists in the fact that the mortgage loan agreement uses a critical benchmark under Regulation (EU) 2016/1011, (
3
) namely, the WIBOR index. In mortgages subscribed since 2013, WIBOR is used as a reference in 98.5% of all loans to households in Poland. It is clear that the present case is of particular importance for the Polish mortgage sector, especially in so far as that sector relies on WIBOR. (
4
)
I. Legal framework
3.
For the purposes of the present Opinion, it suffices to refer to the Ustawa z dnia 23 marca 2017 r. o kredycie hipotecznym oraz o nadzorze nad pośrednikami kredytu hipotecznego i agentami (Law of 23 March 2017 on mortgage credit and the supervision of mortgage credit intermediaries and agents), (
5
) Article 29(1) and (2) of which provides as follows:
‘1.   The mortgage loan agreement shall set out the factors listed in Article 69(2) of the Ustawa z dnia 29 sierpnia 1997 r. – Prawo bankowe [ (
6
)] and:
…
(8) the method and terms for fixing the interest rate on whose basis the amount of capital and interest payments are calculated;
…
2.   If the parties have not agreed on a fixed interest rate for a mortgage loan, the method for fixing the interest rate referred to in paragraph 1(8) shall be determined as the value of the reference index and the amount of the margin fixed in the mortgage loan agreement.’
II. The facts giving rise to the dispute in the main proceedings and the questions referred for a preliminary ruling
4.
As is apparent from the order for reference, on 18 June 2019, the applicant in the main proceedings, J.J., who is a consumer, contacted PKO with a view to obtaining a mortgage loan in the amount of 400000 zlotys (PLN) (approximately EUR 96700). On that occasion, he was informed, inter alia, of the risks associated with variable-rate loans in general. He received no information on how the applicable specific reference index operates.
5.
On 1 August 2019, the parties to the main proceedings concluded a mortgage loan agreement for a total amount of PLN 413 436.69 (approximately EUR 100000) intended for the purchase of a dwelling, the term of which is 20 years (‘the agreement at issue’). That loan was subject to a variable interest rate, calculated on the basis of the WIBOR 6M index, which was 1.79% on the date the agreement was entered into, plus a fixed margin of 1.85%, the applicable variable rate being adjusted in line with changes in that index on a half-yearly basis (‘the contractual term at issue’).
6.
In the general terms and conditions of the agreement at issue, the WIBOR 6M index is described as the reference index for deposits in zlotys for six months on the Polish interbank market, the value of which is determined in accordance with the rules relating, inter alia, to WIBOR, and published on the information site of the ‘administrator’ of that index, (
7
) GPW Benchmark S.A. The special conditions of the agreement at issue state that PKO informed the borrower of the risk associated with variable interest rates, which, in the event of an increase in the reference index, result in an increase in the amount of interest payable, and therefore in the monthly instalments. The general terms and conditions also contain information in that regard.
7.
Subsequently, the parties to the main proceedings concluded an addendum to the agreement at issue setting out the detailed rules applicable in the event of a substantial amendment to the WIBOR 6M index, or if the publication of the WIBOR 6M index were to cease. After unsuccessfully raising a complaint regarding the legality of the contractual term at issue with PKO, J.J. brought an action against that bank.
8.
The Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa, Poland), which is the referring court, states that, according to the submissions of J.J., PKO did not provide reliable, intelligible and complete information concerning the risk associated with a variable interest rate and the method for determining the WIBOR 6M index. He claims that that is so in particular as regards the influence that banks, including PKO, may exercise over the determination of that index, irrespective of the actual economic conditions prevailing on the interbank market and the economic reality, thus securing for themselves a ‘hidden margin’. He argues that, instead, terms relating to variable interest rates should solely relate to objective indicators, over which the parties cannot have any influence. J.J. takes the view that, as a result, PKO has the possibility of influencing the level of his interest obligation and considers that the bank transferred the entire rate risk to him as the consumer. J.J. also claims that PKO did not provide him with information on the substance of the WIBOR 6M index, with the result that he was not in a position to assess the economic consequences of his commitments.
9.
PKO contests J.J.’s claims concerning the disconnection between the WIBOR 6M index and the actual transactions it is used in, the ability of banks to manipulate that index and the existence of an anticompetitive agreement between them to fix WIBOR values. It submits, in essence, that J.J. was properly informed of the risks associated with the conclusion of a variable-rate mortgage loan agreement.
10.
The referring court considers that, although the name of the reference index is not expressly referred to in the Law on mortgage credit, there is no doubt, having regard, in particular, to Regulation (EU) 2016/1368, (
8
) that it is the critical benchmark WIBOR which is to be understood as ‘the reference index’ in Article 29(2) of that law. It is in that context that the referring court seeks clarification of the extent of a lender’s obligation to inform the consumer, with a view to ascertaining whether a lender must include the following information: (a) how the reference index is determined; (b) what factors influence its value; (c) possible transparency issues with the index; (
9
) (d) the banks’ discretion in providing the relevant data; (e) the criteria banks use to compile that data; (f) the fact that the lender itself provides the data; and (g) how the lender internally collates and processes that data.
11.
In those circumstances, the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘[(1)]
Must Article 1(2) of [Directive 93/13] be interpreted as permitting examination of contractual [terms] concerning a variable interest rate based on the WIBOR reference index?
[(2)]
If the answer to the first question is in the affirmative, must Article 4(2) of [Directive 93/13] be interpreted as permitting examination of contractual [terms] concerning a variable interest rate based on [WIBOR]?
[(3)]
If the answers to the first and second questions are in the affirmative, must Article 3(1) of [Directive 93/13] be interpreted as meaning that a contractual [term] concerning a variable interest rate based on [WIBOR] may be regarded as contrary to the requirement of good faith and causing a significant imbalance in the parties’ rights and obligations under the [agreement], to the detriment of the consumer, on account of the failure duly to inform the consumer of his or her exposure to the risk of a variable interest rate, in particular the failure to indicate how the reference index, which forms the basis for determining the variable interest rate, is determined and what uncertainties are associated with its non-transparency and the uneven distribution of that risk between the parties to the [agreement]?
[(4)]
If the answers to the previous questions are in the affirmative, must Article 6(1) of [Directive 93/13], in conjunction with Article 3(1) and (2), second [subparagraph], and Article 2 thereof, be interpreted as meaning that, if a contractual [term] concerning a variable interest rate based on the WIBOR reference index is found to be unfair, there can be continued operation of [an agreement] in which the interest rate on the amount of the loan capital will be based on a second component determining the interest rate included in the [agreement], that is to say[,] the bank’s fixed margin, which will change the interest rate on the loan from variable to fixed?’
12.
Written observations were submitted by J.J., PKO and the Czech, Polish and Portuguese Governments, as well as the European Commission. On 11 June 2025, all of those parties, except the Czech Government, presented oral argument at a hearing before the Court.
III. Assessment
13.
In keeping with a request from the Court, the present Opinion only addresses the first, second and third questions referred.
14.
As a preliminary remark, it should be made clear that, as was confirmed at the hearing, J.J. does not seek to dispute the compatibility of WIBOR with national or EU legislation (that is, Regulation 2016/1011) as such. He does not call into question the methodology for determining the value of that index, nor does he dispute, in principle, the use of WIBOR in variable-rate loan agreements. Rather, J.J. argues that the fact that WIBOR is recognised as a critical benchmark does not allow PKO to ignore the consumer’s right to receive accurate, comprehensive and reliable information on the cost of a mortgage.
A.
Introduction
15.
By way of introduction, it is appropriate to explain the concept of ‘benchmark’ (or, as used in the present Opinion, ‘reference index’) according to Regulation 2016/1011. Article 3(1)(3) of that regulation defines a ‘benchmark’ as ‘any index by reference to which the amount payable under a financial instrument or a financial contract, or the value of a financial instrument, is determined’. It follows from Article 34(1)(a) and (6)(b) of Regulation 2016/1011 that the authorisation for the administration of reference indices such as WIBOR is granted by an administrative decision of a competent authority – in Poland, the Komisja Nadzoru Finansowego (KNF) (the Financial Supervision Authority) – after it has examined the compliance of the reference index concerned with the requirements of that regulation. (
10
) Subject to verification by the referring court, it appears that the purpose of the Financial Supervision Authority’s decision is to establish that the process of provision of the WIBOR index by the WIBOR administrator (including the WIBOR Regulations (
11
)) complies with the requirements of EU law.
16.
In particular, the methodology used for determining WIBOR reference rates (
12
) establishes, in essence, that ‘reference rates’ are reference interest rates at which selected banks are willing to deposit or borrow funds among themselves for defined periods of time. Those reference rates are set by the administrator (GPW Benchmark) based on ‘committed quotes’ provided by participating banks during a process called ‘fixing’. (
13
) At least six bank quotes are required to establish a rate. Detailed rules on quotes, participant selection criteria and their obligations are outlined in the ‘Code of Conduct’ available on the GPW Benchmark’s website. (
14
) Fixing takes place on each business day. Reference rates are determined for the following ‘deposit time periods’: ‘1 business day – overnight (O/N)’, ‘1 business day – tomorrow/next (T/N)’, ‘1 week (SW)’, ‘2 weeks (2W)’, ‘1 month (1M)’, ‘3 months (3M)’, ‘6 months (6M)’ – the deposit time period at issue in the dispute in the main proceedings, ‘9 months (9M)’ and ‘1 year (1Y)’. (
15
) As a rule, the data for WIBOR’s calculation must involve actual transactions, but if such data are not available or adequate, verifiable non-transactional data may be used instead (that is to say, quotes or ‘offer rates’). (
16
) WIBOR is determined using an averaging method based on the number of quotes submitted by the participating banks. (
17
) Finally, WIBOR rates are published on every business day and are publicly available. (
18
)
B.
First question referred: is Directive 93/13 applicable?
17.
By its first question, the referring court asks, in essence, whether Article 1(2) of Directive 93/13 must be interpreted as excluding from the scope of that directive a contractual term contained in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides that the interest rate applicable to that agreement is composed of a reference index (in the present case, WIBOR) and of the bank’s fixed margin.
18.
The referring court asks about the very applicability of Directive 93/13, given (i) its observations regarding the applicable provision of national law (
19
) and (ii) the fact that Article 1(2) of Directive 93/13 excludes from its scope of application, inter alia, ‘the contractual terms which reflect mandatory statutory or regulatory provisions’.
19.
The Court’s case-law makes clear that the above exclusion must be interpreted strictly. (
20
) For that exclusion to be applicable, two conditions must be met: the contractual term must reflect a statutory or regulatory provision, and that provision must be mandatory. In order to establish whether those conditions are met, the Court has held that it is for the national court to determine whether the contractual term concerned reflects mandatory provisions of national law that apply between the parties to the agreement independently of their choice or provisions that are supplementary in nature and therefore apply by default, that is to say, in the absence of other arrangements established by the parties. (
21
)
20.
According to the case-law, a contractual term can only be considered to ‘reflect’ a mandatory statutory or regulatory provision (and thus fall outside the scope of Directive 93/13) where it may be regarded as expressing in concrete terms the same legal rule as that envisaged in that mandatory provision. (
22
)
21.
With respect to a reference index, the Court has already ruled that the exclusion under Article 1(2) of Directive 93/13 does not apply if the national legislation merely sets a general framework for determining the interest rate for the loan agreement, and allows the seller or supplier a margin of discretion as regards both the choice of the reference index and the size of the fixed margin that can be added to that rate. (
23
)
22.
It follows from the order for reference that under the agreement at issue, the interest rate was based on the WIBOR 6M index in conjunction with a fixed margin of 1.85%. (
24
)
23.
The question arises whether that contractual term can be considered to reflect a mandatory provision within the meaning of the Court’s case-law (cited in point 19 of the present Opinion). Article 29(2) of the Law on mortgage credit provides that where the parties have not agreed on a fixed interest rate for a mortgage loan, the method for determining the interest rate is to be set as the value of the reference index and the amount of the margin fixed in the mortgage loan agreement. It thus establishes a general framework for setting the interest rate of a variable-rate mortgage loan agreement, in that it provides that the variable interest rate is composed of a reference index and the bank’s fixed margin, without the specific index to be applied being prescribed in that law. That provision does not appear to impose the use of the WIBOR reference index. The national legislature’s choice of general wording in order to determine the rules for the use of a variable interest rate, subject to verification by the referring court, seems to indicate that Article 29(2) of the Law on mortgage credit should be treated as a general provision leaving a certain margin of discretion to the market participants to adopt a specific index, its rate and the exact fixed margin. To that end, the contractual term at issue, which specifies that the interest rate is based on the WIBOR index and the 6M rate in conjunction with a fixed margin of 1.85%, does not appear to reproduce verbatim the content of the above national provision. Lastly, there is no EU law obligation to use a specific index. Regulation 2016/1011 itself does not impose the use of a specific index and, in particular, of the WIBOR 6M index.
24.
For those reasons and subject to verification by the referring court, Article 29(2) of the Law on mortgage credit does not appear to establish, clearly and unequivocally, the use of a specific reference index and its rate and, in particular, of the WIBOR 6M index. It does not impose on lenders the mandatory use of WIBOR in mortgage loan agreements or, moreover, of any other specific reference rate. As was also argued by the Commission at the hearing, it appears that lenders face no legal obstacles to using an index other than WIBOR and that, while WIBOR is dominant in the Polish market, it is not the only index available. Again subject to verification by the referring court, there seem to be other indices that could potentially have been used such as the Warsaw Interest Rate Overnight (WIRON) index, (
25
) the POLONIA reference index (
26
) or even any other index approved by the competent authority. Therefore, at the time of conclusion of the agreement a certain margin of discretion was available to PKO, in particular with regard to the reference index and its rate, when including in that agreement a contractual term comprising a variable interest rate.
25.
However, the referring court considers that there is no doubt that the reference index referred to in Article 29(2) of the Law on mortgage credit must be understood to be WIBOR. It further explains that up to 90% of consumer loan agreements in Poland are based on a variable rate and use WIBOR as the reference index.
26.
As mentioned above, a contractual term is excluded from the scope of Directive 93/13 if it reflects a mandatory statutory or regulatory provision. To that end, the Court has ruled that, as is apparent from the thirteenth recital of Directive 93/13, the exclusion from the scope of that directive in Article 1(2) thereof extends to provisions of national law that apply between the parties to the agreement independently of their choice. That exclusion is justified by the fact that it is legitimate to presume that the national legislature has struck a balance between all of the rights and obligations of the parties to certain contracts, a balance which the EU legislature has expressly intended to preserve. (
27
)
27.
It follows from the Court’s case-law that only a clear choice of the legislature to introduce a specific mandatory provision is capable – for the purposes of Article 1(2) of Directive 93/13 – of justifying a presumption that a balance between all the rights which EU law seeks to have protected is, in fact, preserved. The practice of professionals active on the market, even if that practice is dominant, cannot produce such effects.
28.
As explained in point 16 of the present Opinion, the reference index is established not only by selecting an index, but also by choosing the type of its reference rate. Under Regulation 2016/1011, the reference index administrator publishes or makes available, inter alia, the main elements of the methodology it uses for establishing reference indices. (
28
) Subject to verification by the referring court, according to publicly available information, the administrator of WIBOR has set out such methodology for different WIBOR reference rates, including WIBOR 1M, WIBOR 3M, WIBOR 6M and WIBOR 1Y. (
29
) Therefore, the methodology adopted by the reference index administrator, in order to implement the requirements of Regulation 2016/1011, leaves lenders a certain margin of discretion with regard to the choice of the specific reference index and/or the specific rate of the index.
29.
It follows from the foregoing considerations and, as the Czech Government has rightly noted, since the exclusion in Article 1(2) of Directive 93/13 must be interpreted strictly, it is not possible to exclude from the scope of that directive situations other than those in which the contractual term reflects a mandatory statutory or regulatory provision. (
30
) The circumstance that WIBOR is included in the list of critical benchmarks pursuant to Article 20(1) of Regulation 2016/1011 (
31
) does not in itself justify the exclusion from the scope of Directive 93/13 of the contractual term that refers to WIBOR. That inclusion is a recognition of WIBOR’s market importance (
32
) and not an expression of the legislative choice of the national legislature within the meaning of the Court’s case-law analysed above.
30.
Moreover, it follows from Article 1 of Regulation 2016/1011 and recital 6 thereof that one of the key purposes of laying down a common regulatory framework for benchmarks (reference indices) at Union level was to ensure a high level of consumer protection (‘to ensure the accuracy and integrity of indices used as benchmarks in financial … contracts’). It would run counter to that purpose if the use of such a reference index, in a situation where a lender retains a certain margin of discretion as to the choice of the specific index and the rate of such an index to be used in the contractual term at issue, were to preclude a judicial review of the potentially unfair nature of such a contractual term.
31.
In view of the above, I propose that the answer to the first question referred should be that Article 1(2) of Directive 93/13 must be interpreted as meaning that a contractual term in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides that the interest rate applicable to the loan is a variable rate based on the WIBOR 6M reference index, falls within the scope of that directive, where national legislation does not provide for the mandatory application of that index and its specific rate, irrespective of the choice of the parties to the agreement.
C.
Second question referred: requirement of transparency of contractual terms
32.
If the Court follows my answer to the first question referred, it will be necessary to examine the referring court’s second question. By that question, the referring court asks, in essence, whether Article 4(2) of Directive 93/13 allows the assessment of the unfairness of a term contained in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides for the application to that agreement of a variable interest rate based on the WIBOR reference index.
33.
Article 4(2) of Directive 93/13 provides that the assessment of the unfair nature of contractual terms is to relate neither to the definition of the main subject matter of the agreement nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as those terms are in plain intelligible language. The referring court may therefore review the unfairness of a term which relates to the definition of the main subject matter of the agreement if that term is not plain and intelligible. (
33
)
34.
In that regard, the Court has held that Article 4(2) of Directive 93/13 lays down an exception to the mechanism for reviewing the substance of unfair terms, such as that provided for in the system of consumer protection put in place by that directive, and that that provision must therefore be strictly interpreted. (
34
) Accordingly, in order for a referring court to proceed with the assessment of the possible unfairness of a contractual term, it should be established whether that term is covered by the concept of the ‘main subject matter of the contract’ and whether the requirement of transparency (plain and intelligible language) is met.
1. Concept of the ‘main subject matter of the contract’
35.
As regards, specifically, the category of contractual terms that are covered by the concept of the ‘main subject matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, the Court has ruled that those terms must be understood as being those that lay down the essential obligations of the agreement and, as such, characterise it. By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within that concept. (
35
)
36.
It is for the referring court to examine, having regard to the nature, general scheme and stipulations of the agreement at issue as well as its legal and factual context, whether the term referred to by that court in its question constitutes an essential element of the debtor’s obligations, consisting in the repayment of the amount made available to it by the lender. (
36
) That said, it is nevertheless for the Court to elicit from Article 4(2) of Directive 93/13 the criteria applicable in that examination. (
37
)
37.
The essential obligations under a loan agreement are primarily that the lender undertakes to make available to the borrower a certain sum of money and the latter undertakes to repay that sum, usually with interest, on the scheduled payment dates. (
38
) In a mortgage loan agreement that sets a variable interest rate, the essential obligation of the borrower to repay the sum of money made available by the lender is determined by reference to that interest rate. Thus, the repayment of the loan by reference to a variable interest rate relates, in principle, directly to the very nature of the debtor’s obligation, thereby constituting an essential element of the mortgage loan agreement.
38.
The contractual term at issue provides for the mortgage loan agreement to be remunerated by interest calculated on the basis of a variable rate which is referenced on the WIBOR index. The referring court states that Article 69(2)(5) of the Banking Law of 29 August 1997 explicitly mentions that clauses concerning the interest rate and any modification thereof must form part of a loan agreement. Moreover, the Polish Government explained in its written observations that pursuant to Article 29(1)(8) of the Law on mortgage credit, a mortgage loan agreement must set out the method and terms for fixing the interest rate on whose basis the amount of capital and interest payments are calculated.
39.
Subject to verification by the referring court, the contractual term at issue can be regarded as falling within the scope of the concept of the ‘main subject matter of the contract’ and, accordingly, forms part of the essential obligations of the borrower in such an agreement.
2. Concept of ‘plain, intelligible language’ and the requirement of transparency
40.
It must nonetheless be recalled that the Court has already held that the requirement of plain and intelligible drafting applies even where a term falls within the definition of the ‘main subject matter of the contract’ within the meaning of Article 4(2) of Directive 93/13. The terms referred to in Article 4(2) escape the assessment as to whether they are unfair only in so far as the national court having jurisdiction should form the view, following a case-by-case examination, that they were drafted by the seller or supplier in plain, intelligible language (
39
) (the requirement of transparency of contractual terms).
41.
As regards the requirement of transparency of contractual terms, the Court has ruled that that requirement, which is reiterated in Article 5 of Directive 93/13, cannot be reduced merely to their being formally and grammatically intelligible. As the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, in particular as regards his or her level of knowledge, that requirement of plain and intelligible drafting of contractual terms and, therefore, the requirement of transparency laid down by that directive must be understood in a broad sense. (
40
)
42.
In the judgment in Gómez del Moral Guasch I, the Court analysed the requirement of transparency in relation to a contractual term providing, under a mortgage loan agreement, for that loan to be remunerated by interest calculated on the basis of a variable rate established by reference to an official index. The Court held that the requirement of transparency must thus be understood as requiring not only that the term in question must be formally and grammatically intelligible to the consumer, but also that an average consumer, who is reasonably well informed and reasonably observant and circumspect, is in a position to understand the specific functioning of the method used for calculating that rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term for his or her financial obligations. (
41
)
43.
Since the Court’s jurisdiction extends only to the interpretation of provisions of EU law – in the present case, in particular, Directive 93/13 – it is solely for the referring court to carry out the necessary factual verifications, in the light of all the relevant information, including the promotional material and information provided by the lender in the negotiation of the agreement at issue. Specifically, it is for the national court, when it considers all the circumstances surrounding the conclusion of the agreement, to ascertain whether, in the case concerned, all the information likely to have a bearing on the extent of his or her commitment has been communicated to the consumer, enabling the consumer to estimate in particular the total cost of the loan. (
42
)
44.
In the judgment in Gómez del Moral Guasch I, the Court found of relevance, for the purposes of that examination, the fact that the essential information relating to the calculation of the reference index applicable to the agreement in that case was easily accessible to anyone intending to take out a mortgage loan. (
43
) The Court also deemed of relevance, for the purposes of assessing the transparency of the contractual term in question in that case, the fact that, under the national legislation in force, credit institutions were required to provide consumers with data relating to past fluctuations of the relevant index. (
44
)
45.
The Court concluded that it fell on the referring court to ascertain whether, in the context of the conclusion of the agreement at issue in that case, the lending institution had actually complied with all the obligations to provide information laid down in the national legislation. (
45
)
46.
In the judgment in Kutxabank, (
46
) the Court held that information on certain contractual aspects that is necessary for prospective borrowers to understand the scope of accepting a loan agreement proposal may be derived from information not supplied directly by the lender, provided that that information is publicly available and accessible, where appropriate by means of certain indications given to the consumer for that purpose by the lender.
47.
As regards, in particular, the accessibility of information not directly supplied by the seller or supplier, it is necessary for that seller or supplier to provide sufficiently precise and accurate information to prospective borrowers so that they can acquaint themselves with that information without taking steps that cannot reasonably be expected of an average consumer. (
47
)
48.
In the dispute in the main proceedings, the contractual term at issue makes reference to a variable interest rate which is based on the WIBOR 6M index. As already explained in point 10 of the present Opinion and, in particular, in footnote 8 hereto, WIBOR is included in the list of critical benchmarks pursuant to Article 20(1) of Regulation 2016/1011. The process of recognition of WIBOR as a critical benchmark is governed by that regulation, which, in accordance with Article 1 thereof, was adopted in order to ensure the accuracy, robustness and integrity of the relevant reference indices used in financial contracts.
49.
Regulation 2016/1011 takes into consideration the unequal bargaining power of consumers vis-à-vis lenders and the use of standard terms in mortgage and consumer loan agreements that use a reference index. Recital 71 of Regulation 2016/1011 states that in such situations consumers can have a limited choice about the reference index used. As part of the balancing effort, the EU legislature considers that it is necessary to ensure that at least adequate information is provided by lenders to consumers. To that end, Articles 56 and 57 of Regulation 2016/1011 amend Directive 2008/48/EC (
48
) and Directive 2014/17/EU (
49
) accordingly.
50.
Specifically, Regulation 2016/1011 adds a new item of information (new Article 13(1)(ea) of Directive 2014/17) that must be given to consumers prior to the conclusion of a mortgage loan agreement which uses a reference index. The general information provided by lenders when concluding such agreements must include ‘the names of the [reference indices] and of their administrators and the potential implications on the consumer’.
51.
In the case of the agreement at issue, the referring court states that that agreement included information concerning the entity which establishes the reference index and the basis on which that index is established, the deposit time period of that index and also how the interest rate is determined on the basis of that index. However, that court has doubts as to whether there should also be an explanation as to how WIBOR itself is determined and what factors influence the change in the level thereof. That question relates to the submissions made before the referring court by J.J., who complained that he was not given an explanation as to the arrangements for providing the WIBOR reference index, and as to the fact that that index is determined on the basis of data provided by the banks themselves and that the banks have a certain discretion in providing those data.
52.
In that regard, it must be pointed out that Regulation 2016/1011 governs the methodology for establishing reference indices in order to ensure their reliability and accuracy. It follows from recital 26 thereof that the EU legislature is aware of the risk of manipulation that can be exercised in providing input data. It recognises that, as a general rule, reference index administrators should be required to use transactional input data. However, other data, as set out in that regulation, can be used in cases where the transactional data is insufficient or inappropriate to ensure the integrity and accuracy of the reference index. This is reflected in Article 11 of Regulation 2016/1011, which sets out the requirements in respect of the input data for the provision of a reference index (it must, in particular, be ‘sufficient to represent accurately and reliably the market or economic reality that the benchmark is intended to measure’ and be ‘verifiable’).
53.
Recital 27 of Regulation 2016/1011 underlines the necessity to adopt a transparent methodology that ensures the reliability and accuracy of the reference index. That recital states that transparency does not mean the publication of the formula applied for the determination of a given reference index, but rather the disclosure of elements sufficient to allow stakeholders to understand how the reference index is determined and to assess its representativeness, relevance and appropriateness for its intended use. This is reflected in Article 13 of that regulation, entitled ‘Transparency of methodology’, which requires the administrator (within the meaning of Regulation 2016/1011) to publish or make available certain information listed in that article.
54.
It follows from the foregoing considerations that that information, which allows stakeholders, including consumers, to understand the methodology used for the provision of a reference index under Regulation 2016/1011, must form part of the information that the administrator is required to publish or make available. Under the common framework introduced by Regulation 2016/1011, this is the responsibility of the index administrator.
55.
Further, Regulation 2016/1011, in Articles 7, 8 and 9 thereof, provides for a complaints handling mechanism which, according to recital 23, is required ‘to enable stakeholders to notify the [reference index] administrator of complaints and ensure that the [reference index] administrator objectively evaluates the merits of any complaint’. That mechanism establishes a specific administrative avenue for stakeholders, including consumers, to initiate a complaint process in case of doubts as to the compliance of the index determination with relevant provisions of EU legislation.
56.
Where a lender proposes to consumers a mortgage loan agreement which uses a reference index, the obligation of that lender to provide information is specifically set out in Article 13(1)(ea) of Directive 2014/17. As pointed out above, the lender must inform the consumer of ‘the names of the [reference indices] and of their administrators and the potential implications on the consumer’. That information must be given to prospective borrowers in a sufficiently precise and accurate manner so that an average consumer can gain access to the relevant publicly available information and become acquainted with the main elements relating to the methodology underlying the provision of the reference index. The potential relevant implications on the consumer are those that derive from factors which are likely to have a bearing on the extent of the consumer’s commitment, including, in particular, the risk associated with fluctuations in the variable interest rate and information on the main elements that cause such fluctuations.
57.
It follows from the analysis of the reference index framework established by Regulation 2016/1011 that the requirement of transparency under Directive 93/13, read in conjunction with that regulation, does not oblige the lender to supply directly more detailed information on the methodology for determining the reference index than that which is required under Regulation 2016/1011. Indeed, general information on the methodology used can be found in Regulation 2016/1011 and specific information must be published or made publicly available by the administrator.
58.
However, as pointed out above, the fact remains that the lender must provide the consumer with the relevant information concerning the name of the reference index and of its administrator and the implications on the consumer in a precise and accurate manner. In my view, should the lender indicate only some of the elements of the underlying methodology used, with the result that that methodology and the main elements that cause the index rate to fluctuate are not fully disclosed, or gives a distorted image of the nature of the reference index, that would be contrary to the requirements of transparency and good faith under Directive 93/13.
59.
At the hearing, J.J. submitted that he was misled into believing that the WIBOR reference index was composed of transactional data in relation to interbank lending whereas, in reality, 98.27% of the underlying data consisted of estimates (quotes) provided by the banks participating in the fixing process. (
50
) J.J. also submitted that PKO provided him with information that was contrary to the applicable legislation and economic reality. PKO firmly contested those claims. It submitted at the hearing that it gave accurate and precise information. In line with the Court’s case-law presented above, (
51
) it is for the national court, in its consideration of all the circumstances surrounding the conclusion of the agreement, to ascertain whether all the information likely to have a bearing on the extent of the consumer’s commitment has been communicated to him or her in a sufficiently precise and accurate manner so as to enable him or her to estimate in particular the total cost of the loan.
60.
It follows that the answer to the second question referred should be that Article 4(2) of Directive 93/13 must be interpreted as meaning that it allows the assessment of the unfairness of a term contained in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides for the application to that agreement of a variable interest rate based on the WIBOR 6M reference index, where that term is not drafted in plain and intelligible language (requirement of transparency). In order to comply with that requirement, the seller or supplier must inform the consumer in a sufficiently precise and accurate manner of the name of the reference index used and of that of its administrator and of the potential implications for the consumer deriving from the use of that index so as to enable him or her to estimate in particular the total cost of the loan. The manner in which the information is provided, directly or indirectly, by the lender must be such that, as a consequence, that information fully discloses the underlying methodology and the main elements that cause the fluctuation of the index rate and does not give a distorted image of the nature of the index.
D.
Third question referred: unfair nature of the contractual term at issue
61.
Given that the assessment of the requirement of transparency by the referring court may lead to a finding of a lack of transparency in relation to the contractual term at issue, the Court will have to address the third question referred. By that question, the referring court seeks, in essence, guidance as to whether a contractual term incorporating a variable interest rate based on the WIBOR reference index may be unfair, within the meaning of Article 3(1) of Directive 93/13, due to the provision by the bank of insufficient information to the consumer and the unequal distribution of the risk between the contractual parties. (
52
)
62.
According to Article 3(1) of Directive 93/13, a contractual term will be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the agreement, to the detriment of the consumer. In that regard, the Court has noted that in referring to the concepts of ‘good faith’ and ‘significant imbalance’ in the parties’ rights and obligations arising under the agreement, to the detriment of the consumer, Article 3(1) of Directive 93/13 defines in a general way the factors that render unfair a contractual term that has not been individually negotiated. (
53
)
63.
In order to ascertain whether a term causes a ‘significant imbalance’ in the parties’ rights and obligations under an agreement to the detriment of the consumer, particular account must be taken of which rules of national law would apply in the absence of an agreement by the parties in order to evaluate whether – and, as the case may be, to what extent – the agreement places that consumer in a legal situation less favourable than that provided for by the national law in force. As regards a term relating to the calculation of interest under a loan agreement, it is also relevant to compare the method of calculation of the rate laid down in that term and the actual sum resulting from that rate with the statutory interest rate and the interest rates applied on the market at the date of conclusion of the agreement at issue for a loan of a comparable sum and term to those of the loan agreement under consideration. (
54
)
64.
With regard to the question of the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the sixteenth recital of Directive 93/13, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations. (
55
)
65.
In addition, pursuant to Article 4(1) of that directive, the unfairness of a contractual term must be assessed taking into account the nature of the goods or services for which the agreement was concluded and referring, at the time of conclusion of the agreement, to all of the circumstances attending its conclusion. It follows that, in that respect, the consequences of the term under the law applicable to the agreement must also be taken into account, requiring consideration to be given to the national legal system. (
56
)
66.
In that regard, according to the case-law, the jurisdiction of the Court of Justice extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of the directive. It is therefore for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case. It is thus clear that the Court of Justice must limit itself to providing the referring court with guidance, which the latter must take into account in order to assess whether the contractual term at issue is unfair. (
57
)
67.
In the dispute in the main proceedings, the question whether a contractual term is unfair is raised in the context of the provision of allegedly insufficient or inaccurate information by the lender to the consumer and the unequal distribution of the risk between the contractual parties stemming, inter alia, therefrom. However, the mere fact that a term does not meet the requirement of transparency, which, as mentioned above, requires the provision of sufficient and accurate information to a consumer, is not, in itself, such as to render it unfair within the meaning of Article 3(1) of Directive 93/13. (
58
) In order to establish that a contractual term is unfair the referring court is required to carry out a full assessment of criteria derived from the Court’s case-law.
68.
In that connection, it should be pointed out that the doubts expressed by the referring court appear to be focused on two different issues: (i) the provision of adequate information to the consumer concerning the risk resulting from the use of the variable rate in the loan at issue; and (ii) the provision of adequate and precise information regarding the determination of the WIBOR index.
69.
However, while national courts may, in civil cases such as the dispute in the main proceedings, assess, under Directive 93/13, contractual terms based on reference indices such as WIBOR, (
59
) they may not examine the methodology for determining such indices, in so far as such an examination falls outside the scope of Directive 93/13. Moreover, as explained above, (
60
) Regulation 2016/1011 has established a specific complaints handling mechanism aimed at ensuring a dedicated administrative avenue for stakeholders, including consumers, to initiate a complaint process in case of doubts as to the compliance of the index determination with relevant provisions of national and/or EU law. As the Commission has pointed out, allowing national civil courts to review the critical benchmark determination methodology by means of an assessment of the unfairness of a contractual term under Directive 93/13 would undermine the specific management system of critical benchmarks established by the EU legislature under Regulation 2016/1011.
70.
As a consequence, in the dispute in the main proceedings, the national court’s assessment should be limited to the contractual term at issue and to all the circumstances attending the conclusion of the agreement, excluding from the scope of that assessment the matters that are related to the management system of benchmarks as established by Regulation 2016/1011.
71.
In particular, it is for the national court to verify that the seller or supplier has communicated to the consumer all the relevant information enabling him or her to assess the economic consequences of the contractual term at issue for his or her financial obligations. In doing so, it should be borne in mind that the transparent nature of a contractual term, as required under Directive 93/13, is one of the elements to be taken into account in the assessment of whether that term is unfair. (
61
)
72.
In the order for reference, the referring court states that the contractual terms relating to the variable rate based on the WIBOR index may be regarded as contrary to the requirements of good faith and as creating, to the detriment of the consumer, a significant imbalance in the rights and obligations of the contractual parties, on the ground that the consumer was not duly informed of his exposure to the risk associated with a variable rate and that that risk was unequally shared between those parties. It also states that PKO, as the lender, was aware of the method for determining WIBOR and was aware of the existing doubts regarding the transparency of the determination of that rate, but that it chose not to inform the consumer thereof. According to the referring court, this can be seen as a source of imbalance between the contractual parties for all aspects relating to that agreement. (
62
)
73.
In those circumstances, it is for the referring court to examine whether the contractual term at issue is unfair, within the meaning of Article 3(1) of Directive 93/13, by carrying out a complete assessment of criteria derived from the Court’s case-law. That assessment must include, inter alia, the question whether there was a lack of clear information that could impair J.J.’s ability to understand the economic consequences of the contractual term at issue. In that context, the referring court must verify whether the failure to provide accurate and sufficient information could shift the balance in favour of the bank to the point of causing a significant imbalance in the parties’ rights and obligations under the agreement at issue, to the detriment of the consumer. The referring court must assess for those purposes whether the lender (PKO), dealing fairly and equitably with the consumer (J.J.), could reasonably assume that the consumer would have agreed to such a term in individual agreement negotiations. (
63
) To that end, it should be verified whether the consumer has given consent to the risk related to the use of the contractual term at issue after having received complete and accurate information.
74.
Moreover, the referring court must assess whether the information provided by the lender to the consumer was presented in a neutral and objective manner without leading the consumer to believe that the choice of the contractual term at issue and of WIBOR was favourable to him, when in fact it was not.
75.
It follows that the answer to the third question referred should be that Article 3(1) of Directive 93/13 must be interpreted as meaning that the national court must assess whether the contractual term concerning a variable interest rate based on the WIBOR reference index creates – contrary to the requirement of good faith – a significant imbalance between the rights and obligations of the parties arising from the agreement to the detriment of the consumer. In doing so, the national court, as part of its overall assessment of the unfairness of a contractual term, must verify whether the lender, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual agreement negotiations. To that end, it has to be verified whether a consumer has given consent to the risk deriving from the use of the contractual term at issue after having received complete and accurate information. However, that assessment cannot relate to the WIBOR index as such and to its method of determination.
IV. Conclusion
76.
In light of the foregoing considerations, I propose that the Court of Justice answer the first, second and third questions referred for a preliminary ruling by the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa, Poland) as follows:
(1)
Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as meaning that a contractual term in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides that the interest rate applicable to the loan is a variable rate based on the WIBOR 6M reference index, falls within the scope of that directive, where national legislation does not provide for the mandatory application of that index and its specific rate, irrespective of the choice of the parties to the agreement.
(2)
Article 4(2) of Directive 93/13
must be interpreted as meaning that it allows the assessment of the unfairness of a term contained in a mortgage loan agreement concluded between a consumer and a seller or supplier, which provides for the application to that agreement of a variable interest rate based on the WIBOR 6M reference index, where that term is not drafted in plain and intelligible language (requirement of transparency). In order to comply with that requirement, the seller or supplier must inform the consumer in a sufficiently precise and accurate manner of the name of the reference index used and of that of its administrator and of the potential implications for the consumer deriving from the use of that index so as to enable him or her to estimate in particular the total cost of the loan. The manner in which the information is provided, directly or indirectly, by the lender must be such that, as a consequence, that information fully discloses the underlying methodology and the main elements that cause the fluctuation of the index rate and does not give a distorted image of the nature of the index.
(3)
Article 3(1) of Directive 93/13
must be interpreted as meaning that it requires the national court to assess whether the contractual term concerning a variable interest rate based on the WIBOR reference index creates – contrary to the requirement of good faith – a significant imbalance between the rights and obligations of the parties arising from the agreement to the detriment of the consumer. In doing so, the national court, as part of its overall assessment of the unfairness of a contractual term, must verify whether the lender, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual agreement negotiations. To that end, it should be verified whether the consumer has given consent to the risk deriving from the use of the contractual term at issue after having received complete and accurate information. However, that assessment cannot relate to the WIBOR index as such and to its method of determination.
(
1
)	Original language: English.
(
2
)	Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
(
3
)	Regulation of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ 2016 L 171, p. 1).
(
4
)	See recital 10 of Commission Implementing Regulation (EU) 2019/482 of 22 March 2019 amending Commission Implementing Regulation (EU) 2016/1368 establishing a list of critical benchmarks used in financial markets pursuant to Regulation 2016/1011 (OJ 2019 L 82, p. 26).
(
5
)	Dz. U. of 2017, item 819, as amended; ‘the Law on mortgage credit’).
(
6
)	Banking Law of 29 August 1997 (Dz. U. of 2023, item 2488, as subsequently amended).
(
7
)	‘Administrator’ means a natural or legal person that has control over the provision of a reference index. See Article 3(1)(6) of Regulation 2016/1011.
(
8
)	Commission Implementing Regulation of 11 August 2016 establishing a list of critical benchmarks used in financial markets pursuant to Regulation 2016/1011 (OJ 2016 L 217, p. 1). On 22 March 2019, WIBOR was listed in Regulation 2019/482 as a critical benchmark pursuant to Article 20(1)(b) of Regulation 2016/1011.
(
9
)	It refers in that regard to the fact that the WIBOR 6M index is based on non-transactional data provided by the banks themselves, that is to say, that those banks do not conclude any actual transactions amongst themselves on the basis of that data.
(
10
)	The Financial Supervisory Authority adopted such a decision in respect of WIBOR on 16 December 2020, finding that the administrator’s process of providing WIBOR complies with the requirements of EU law.
(
11
)	See GPW Benchmark’s website, in particular the ‘Regulations for the WIBID and WIBOR Reference Rates’, Warsaw, 30 November 2017 (for the purposes of the present Opinion: ‘the WIBOR Regulations’); available at: https://gpwbenchmark.pl/pub/BENCHMARK/files/Regulations_for_WIBID_and_WIBOR_Reference_Rates.pdf.
(
12
)	WIBOR is an ‘interest rate benchmark’ within the meaning of Article 3(1)(22) and (25) of Regulation 2016/1011. The WIBID is another index used in Poland and stands for Warsaw Interbank Bid Rate. I draw on information available on GPW Benchmark’s ‘Regulations’ website.
(
13
)	Article 11 of Regulation 2016/1011 sets out the requirements in respect of the input data for the provision of a reference index (see also point 52 of the present Opinion). Article 12 of that regulation sets out the requirements relating to the methodology for determining reference indices such as WIBOR.
(
14
)	Article 15 of Regulation 2016/1011 governs the code of conduct to be observed by contributors (for instance, banks), which must in particular include the policy to be followed regarding the exercise of discretion in the provision of underlying data. If significant changes to the method or definition of reference rates become necessary, the administrator conducts public consultations involving stakeholders such as rate users, relevant authorities and the Polish central bank.
(
15
)	The WIBOR Regulations, p. 9.
(
16
)	See Kosiorowski, M. and Szczęsna, A., ‘WIBOR litigation, part 1 – Can the WIBOR benchmark be challenged as the basis for setting variable interest rates?’, in principle, 12 June 2025; available at: https://codozasady.pl/en/p/wibor-litigation-part-1-can-the-wibor-benchmark-be-challenged-as-the-basis-for-setting-variable-interest-rates-.
(
17
)	The method is as follows: (i) if 10 or more quotes: average of rates after excluding the two highest and two lowest; (ii) if 8 or 9 quotes: average after excluding the highest and lowest; (iii) if 6 or 7 quotes: simple average of all quotes; and (iv) if 5 or fewer quotes: WIBOR is not set for that term.
(
18
)	Reference rates on a given business day are published on the Administrator’s website; see the WIBOR Regulations, Clause 7.1.
(
19
)	See point 10 of the present Opinion.
(
20
)	See judgment of 30 May 2024, Raiffeisen Bank (C‑176/23, EU:C:2024:443, paragraph 22 and the case-law cited).
(
21
)	Judgment of 3 March 2020, Gómez del Moral Guasch (C‑125/18, ‘the judgment in Gómez del Moral Guasch I’, EU:C:2020:138, paragraphs 31 and 32 and the case-law cited).
(
22
)	See judgment of 30 May 2024, Raiffeisen Bank (C‑176/23, EU:C:2024:443, paragraph 27 and the case-law cited).
(
23
)	Ibid., paragraph 33. See also paragraph 36 of that judgment.
(
24
)	See p. 5 of the order for reference (French-language version; hereinafter that version is simply referred to as ‘the order for reference’).
(
25
)	See Sampławski, K., ‘WIBOR pod lupą TSUE – analiza prawna pytań prejudycjalnych – pytanie nr 1.’ (WIBOR under the scrutiny of the Court of Justice – Legal analysis of the preliminary questions – Question No 1.), 11 September 2024; available at: https://www.bankowebezprawie.pl/wibor-pod-lupa-tsue-analiza-prawna-pytan-prejudycjalnych-pytanie-nr-1/.
(
26
)	As argued by J.J. in his observations before the Court.
(
27
)	Judgment of 10 June 2021, Prima banka Slovensko (C‑192/20, EU:C:2021:480, paragraph 32 and the case-law cited).
(
28
)	Article 13 of Regulation 2016/1011, entitled ‘Transparency of methodology’.
(
29
)	See point 15 of the present Opinion.
(
30
)	See point 19 of the present Opinion.
(
31
)	By way of Regulation 2019/482.
(
32
)	See recital 10 of Regulation 2019/482.
(
33
)	Judgment of 10 June 2021, BNP Paribas Personal Finance (C‑609/19, EU:C:2021:469, paragraph 27).
(
34
)	Ibid., paragraph 28.
(
35
)	Judgment of 21 March 2024, Profi Credit Bulgaria (Services ancillary to a credit agreement) (C‑714/22, EU:C:2024:263, paragraph 60).
(
36
)	Judgment of 10 June 2021, BNP Paribas Personal Finance (C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 53).
(
37
)	Ibid., paragraph 54.
(
38
)	Judgment of 21 March 2024, Profi Credit Bulgaria (Services ancillary to a credit agreement) (C‑714/22, EU:C:2024:263, paragraph 61).
(
39
)	See, to that effect, judgment of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 43).
(
40
)	The judgment in Gómez del Moral Guasch I, paragraph 50.
(
41
)	Ibid., paragraph 51.
(
42
)	Ibid., paragraph 52.
(
43
)	Ibid., paragraph 53.
(
44
)	Ibid., paragraph 54.
(
45
)	Ibid., paragraph 55.
(
46
)	Judgment of 12 December 2024, Kutxabank (C‑300/23, EU:C:2024:1026, paragraph 83).
(
47
)	See, to that effect, judgment of 12 December 2024, Kutxabank (C‑300/23, EU:C:2024:1026, paragraphs 84 and 90).
(
48
)	Directive of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).
(
49
)	Directive of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48 and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34).
(
50
)	See point 16 of the present Opinion.
(
51
)	See footnote 43 to the present Opinion.
(
52
)	See, in particular, paragraph 1 of Section 8 of the order for reference, p. 26.
(
53
)	Judgment of 26 January 2017, Banco Primus (C‑421/14, the judgment in Banco Primus, EU:C:2017:60, paragraph 58 and the case-law cited).
(
54
)	See, to that effect, judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578, paragraph 65 and the case-law cited).
(
55
)	The judgment in Banco Primus, paragraph 60 and the case-law cited.
(
56
)	Ibid., paragraph 61 and the case-law cited.
(
57
)	The judgment in Banco Primus, paragraph 57 and the case-law cited.
(
58
)	Order of 17 November 2021, Gómez del Moral Guasch (C-655/20, EU:C:2021:943, paragraph 37).
(
59
)	This is due to the answers that I propose to the first and second questions referred. It remains possible that in other Member States, due to the national legislative framework in place, similar contractual terms are in fact excluded from the scope of Directive 93/13.
(
60
)	Point 55 of the present Opinion.
(
61
)	Judgment of 13 July 2023, Banco Santander (Reference to an official index) (C‑265/22, EU:C:2023:578, paragraph 66).
(
62
)	Order for reference, page 26, paragraph 1 et seq.
(
63
)	See point 64 of the present Opinion and the case-law cited.