Provisional text
JUDGMENT OF THE COURT (Ninth Chamber)
16 April 2026 (*)
( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Article 7(1) – Unfair terms in consumer contracts – Effects of a term being found to be unfair – Invalidity of the loan agreement – Actions for restitution – Limitation period for the action brought by the seller or supplier – Circumstances that may justify disregarding the expiry of the limitation period – Principle of effectiveness – Principle of legal certainty – Principle of proportionality – Right of access to a court – Unjust enrichment )
In Case C‑753/24 [Rzepacz], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), made by decision of 30 October 2024, received at the Court on the same date, in the proceedings
Powszechna Kasa Oszczędności Bank Polski S.A.
v
MS and MS,
THE COURT (Ninth Chamber),
composed of M. Condinanzi, President of the Chamber, R. Frendo (Rapporteur) and A. Kornezov, Judges,
Advocate General: R. Norkus,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Powszechna Kasa Oszczędności Bank Polski S.A., by P. Haiduk, M. Romanowski and M. Woźniak, adwokaci,
–        MS and MS, by W. Budzewski and M. Chęcińska, adwokaci,
–        the Polish Government, by B. Majczyna, acting as Agent,
–        the European Commission, by P. Kienapfel and A. Stobiecka-Kuik, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) as well as the principles of effectiveness, proportionality, legal certainty and the right of access to a court.
2        The request has been made in proceedings between, on the one hand, Powszechna Kasa Oszczędności Bank Polski S.A. (‘PKO Bank’), a banking institution, and, on the other hand, MS and MS, two consumers, concerning the recovery of a debt resulting from the invalidity of a loan agreement on account of unfair terms contained therein.
Legal context
European Union law
3        Article 6(1) of Directive 93/13 provides:
‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
4        Article 7(1) of that directive provides:
‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’
Polish law
5        Under Article 58(1) of the ustawa – Kodeks cywilny (Law establishing the Civil Code) of 23 April 1964 (Dz. U. of 2024, item 1061), in the version applicable to the dispute in the main proceedings (‘the Civil Code’):
‘A legal act that is contrary to the law or intended to circumvent the law shall be null and void, unless a relevant provision provides otherwise, in particular where it provides that the invalid terms of the legal act in question are to be substituted by relevant provisions of law.’
6        Article 117(1) and (21) of that code provides:
‘1.      Subject to the exceptions provided for by statute, property-related claims shall be subject to limitation.
…
21.      Once the limitation period has expired, it shall no longer possible to pursue a claim against a consumer.’
7        Article 1171(1) and (2) of that code provides:
‘1.      In exceptional cases, the court may, after weighing up the interests of the parties, disregard the expiry of the limitation period for bringing a claim against a consumer if equity so requires.
2.      In exercising the power referred to in paragraph 1, the court shall take into account, in particular:
1.      the length of the limitation period;
2.      the length of the period between the expiry of the limitation period and the submission of the claim;
3.      the nature of the circumstances which led the creditor not to pursue his or her claim, including the effect of the debtor’s conduct on the creditor’s delay in pursuing the claim.’
8        Under Article 118 of that code:
‘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 pursuit of a business activity, it shall be three years. However, the limitation period shall expire on the last day of the calendar year, unless it is shorter than two years.’
9        Article 3851(1) of the Civil Code provides:
‘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 the accepted principles of morality and seriously infringes his or her interests (unlawful terms). This provision shall not apply to terms setting out the parties’ main obligations, including price or remuneration, so long as they are worded clearly.’
10      Article 405 of that code provides:
‘Any person who, without legal grounds, obtains an economic advantage at the expense of another person shall be required to restore that benefit in kind and, where that is not possible, to return the value thereof.’
11      According to Article 410(1) and (2) of that code:
‘1.      The provisions of the preceding articles shall apply in particular to undue performance.
2.      A performance shall be 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 legal act on which the obligation to render the performance was based was invalid and has not become valid since the performance was rendered.’
The dispute in the main proceedings and the question referred for a preliminary ruling
12      In November 2007, MS and MS entered into a loan agreement denominated in Swiss francs (CHF) with PKO Bank’s predecessor. Pursuant to that agreement,
that bank paid them the sum of 333 000 zlotys (PLN) (approximately EUR 76 000).
13      In 2017, the two consumers lodged a complaint, followed by legal proceedings, against PKO Bank, claiming that the contract was invalid on account of unfair terms contained therein. By judgment of 30 June 2023, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) declared the contract void and ordered PKO Bank to repay an amount equivalent to all the instalments paid by the consumers, together with statutory default interest, namely PLN 241 416.34 (approximately EUR 55 591).
14      On 29 December 2021, PKO Bank brought an action before the
Sąd Okręgowy w Warszawie (Regional Court, Warsaw), which is the referring court, seeking a declaration that, should the loan agreement be declared void in the context of the action brought by the consumers, which was still pending, the consumers should be ordered to repay to it the loan capital paid, together with statutory default interest.
15      The consumers contend that that claim should be dismissed, arguing that PKO Bank’s action is time-barred, in view of the expiry of the three-year limitation period provided for in Article 118 of the Civil Code. They consider that that period runs from the date of service on PKO Bank of the complaint or of the application initiating proceedings seeking a declaration of the invalidity of the loan agreement, with the result that its claim has been time-barred since 31 December 2020 at the latest.
16      The referring court explains that there is no doubt as to the existence of PKO Bank’s claim, since the invalidity of the loan agreement entails, inter alia, an obligation on the parties to the agreement to return to each other all payments made.
17      It is uncertain, however, whether the circumstances of the dispute in the main proceedings may justify disregarding the expiry of the limitation period for PKO Bank’s claim, in accordance with the rule of equity set out in Article 1171 of the Civil Code.
18      According to that court, the very general wording of that provision, which grants the court broad discretion in deciding whether a seller or supplier’s application based on a time-barred claim may be granted, raises, first, doubts as to its compatibility with Article 7(1) of Directive 93/13, read in the light of the principles of effectiveness and legal certainty. Indeed, consumers would be left in a situation of uncertainty as to whether the seller or supplier’s claim would be regarded by the national court as time-barred or, if it were not, whether they might be ordered to pay default interest and legal costs. Consequently, those consumers might be led to refrain from exercising their rights under Directive 93/13.
19      Second, the fact of it being impossible for a seller or supplier to recover in full the capital paid under a loan agreement that is invalid on account of the fact that it contains unfair terms would cause that seller or supplier an excessive loss that is disproportionate to the objective of consumer protection, and could be regarded as an infringement of that seller or supplier’s right of access to a court, as provided for in Article 47 of the Charter of Fundamental Rights of the European Union.
20      As regards the circumstances which may be taken into consideration in order to decide whether it is appropriate to disregard the expiry of the limitation period, under Article 1171(2) of the Civil Code, the referring court states that the judicial proceedings brought by the consumers lasted several years, namely from 2017 to 2024, thus placing PKO Bank in a situation of uncertainty as to the outcome of those proceedings. In addition, until 2019, PKO Bank could have expected that the loan agreement at issue in the main proceedings would be maintained in force after the removal of the unfair term, since it was only after the judgment of the Court of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819) that the national case-law held that a term relating to exchange rate risk in a loan agreement indexed to a foreign currency defines the main purpose of the agreement, so that its removal renders the loan agreement invalid in its entirety.
21      In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Should Article 7(1) of Council Directive [93/13] and the principles of effectiveness, proportionality, legal certainty and access to justice be interpreted as meaning that they preclude national provisions which allow the domestic court, if so required by reasons of equity or the rules of social conduct, to grant a time-barred claim brought by a seller or supplier against a consumer for the recovery of sums wrongfully paid on the basis of an agreement which has become invalid because it contains unfair contractual terms?’
Consideration of the question referred
22      By its question, the referring court asks, in essence, whether Article 7(1) of Directive 93/13 and the principle of effectiveness, having regard to the right of access to a court and the principles of proportionality and legal certainty, must be interpreted as precluding a rule of national law which allows a national court, in exceptional circumstances and where equity so requires, to grant a seller or supplier’s claim for restitution, by the consumer, of payments made to the consumer under a loan agreement that is invalid on account of unfair terms contained therein, even though the limitation period for that seller or supplier’s claim for repayment of those sums has expired.
23      Article 7(1) of Directive 93/13 requires the Member States to ensure that, in their national legal systems, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.
24      In that regard, it should be borne in mind that, in accordance with settled case-law, in the absence of EU legislation on the subject, the detailed rules for implementing the consumer protection provided for by Directive 93/13 are a matter for the domestic legal order of the Member States by virtue of the principle of their procedural autonomy. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence), nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 14 December 2023, Getin Noble Bank (Limitation period for actions for restitution), C‑28/22, EU:C:2023:992, paragraph 60 and the case-law cited).
25      It is equally settled case-law that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer. Therefore, the determination by a court 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 by, inter alia, creating a right to restitution of advantages wrongly obtained, to the consumer’s detriment, by the seller or supplier on the basis of that unfair term (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 65 and the case-law cited). This is the case also where the unfair nature of one or more terms in a contract concluded between a consumer and a seller or supplier results not only in the nullity of those terms, but also in the invalidity of the contract in its entirety (see, to that effect, judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 66 and the case-law cited).
26      That objective of restoring the consumer’s legal and factual situation to what it would have been in the absence of the unfair term must be pursued in a manner that complies with the principle of proportionality, a general principle of EU law, which requires that the national legislation implementing that law must not go beyond what is necessary to attain the objective pursued (judgment of 23 November 2023, Provident Polska, C‑321/22, EU:C:2023:911, paragraph 85 and the case-law cited).
27      That principle of proportionality would be infringed if restitutio in integrum were to be excluded in respect of the seller or supplier. Accordingly, the obligation to restore the parties to their original position, following the invalidation of a loan agreement containing unfair terms, must be mutual; the bank may not, however, seek compensation from the consumer going beyond reimbursement of the capital paid in respect of the performance of that agreement together with the payment of default interest at the statutory rate from the date on which notice is served (see, to that effect, judgment of 7 December 2023, mBank (Consumer declaration), C‑140/22, EU:C:2023:965, paragraph 62 and the case-law cited).
28      Furthermore, the restitutory effect attached to the invalidation of a loan agreement containing unfair terms, which justifies the bank’s action for restitution referred to in paragraph 27 of the present judgment, ensures that the protection of the rights guaranteed by the legal order of the European Union does not entail the unjust enrichment of the consumer (see, by analogy, judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 94).
29      In the present case, the referring court notes that, first, the long duration of the proceedings brought by the consumers seeking a declaration that the loan agreement is invalid and, second, the reversal of the national case-law as regards the effect of the removal of the unfair term relating to exchange rate risk in a loan agreement indexed to a foreign currency on the validity of that agreement as a whole could give rise to an infringement of the seller or supplier’s right of access to a court and may therefore constitute, under the rule of equity set out in Article 1171 of the Civil Code, exceptional circumstances allowing it to grant PKO Bank’s claim for restitution, disregarding the expiry of the limitation period for PKO’s claim.
30      In that respect, and in the light of the case-law referred to in paragraphs 25 to 28 of the present judgment, the rule of equity set out in Article 1171 of the Civil Code, in so far as it prevents the unjust enrichment of the consumer, cannot, as such, be regarded as incompatible with EU law.
31      It is true that, a priori, the application of that rule of equity could undermine the predictability of legal situations and relationships in so far as
the debtor remains in a situation of uncertainty as to whether that seller or supplier’s claim may, despite the expiry of the limitation period for that claim, exceptionally be regarded as not being time-barred.
32      However, the principle of legal certainty cannot be interpreted as precluding a rule of national law under which it is for the national court to weigh up the interests of the parties to the proceedings in order to decide, in exceptional circumstances and where equity so requires, to disregard the expiry of the limitation period, provided that that balancing exercise is carried out on the basis of objective criteria laid down by law, which the national court is required to take into consideration, such as, in the present case, the length of the limitation period, the length of the period between the expiry of the limitation period and the submission of the claim, and the nature of the circumstances which led the creditor not to pursue his or her claim, including the effect of the debtor’s conduct on the creditor’s delay in pursuing the claim.
33      It should nevertheless be noted that the application by the competent national court of that rule of equity in the field of unfair contract terms must be exercised in accordance with the principle of effectiveness, so that the exercise of the rights conferred on the consumer by Directive 93/13 is not rendered excessively difficult or practically impossible.
34      In that regard, the Court has already held that procedural arrangements which give rise to overly high costs for the consumer could have the effect of deterring that consumer from properly defending his or her rights before the court before which proceedings have been brought by the seller or supplier (see, to that effect, judgment of 7 April 2022, Caixabank, C‑385/20, EU:C:2022:278, paragraph 54).
35      That would be the case, inter alia, where, in the context of the recovery
by the seller or supplier of a
debt for which the limitation period has nevertheless expired, the consumer is required to bear costs, such as legal costs or lawyers’ fees, to an extent which could prevent or render excessively difficult the effective exercise of the rights conferred on him or her by Directive 93/13.
36      In that respect, it is important to recall that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 27 November 2025, Gryczara, C‑746/24, EU:C:2025:925, paragraph 60).
37      In the light of all the foregoing considerations, the answer to the question referred is that Article 7(1) of Directive 93/13 and the principle of effectiveness, having regard to the right of access to a court and the principles of proportionality and legal certainty, must be interpreted as not precluding, in principle, a rule of national law which allows a national court, in exceptional circumstances and where equity so requires, to grant a seller or supplier’s claim for restitution, by the consumer, of payments made to the consumer under a loan agreement that is invalid on account of unfair terms contained therein, even though the limitation period for that seller or supplier’s claim for repayment of those sums has expired, provided that, in applying that rule, that court takes all the measures necessary to ensure that exercise of the rights conferred on the consumer by that directive is not rendered excessively difficult or practically impossible.
Costs
38      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principle of effectiveness, having regard to the right of access to a court and the principles of proportionality and legal certainty,
must be interpreted as not precluding, in principle, a rule of national law which allows a national court, in exceptional circumstances and where equity so requires, to grant a seller or supplier’s claim for restitution, by the consumer, of payments made to the consumer under a loan agreement that is invalid on account of unfair terms contained therein, even though the limitation period for that seller or supplier’s claim for repayment of those sums has expired, provided that, in applying that rule, that court takes all the measures necessary to ensure that exercise of the rights conferred on the consumer by that directive is not rendered excessively difficult or practically impossible.
[Signatures]
*      Language of the case: Polish.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.