62022CO0424_INF
Order of the Court (Ninth Chamber) of 8 May 2024 –Santander Bank Polska
(Case C‑424/22)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Questions the answer to which may be clearly deduced from the Court’s existing case-law – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Articles 6(1) and 7(1) – Effects of a declaration that a term is unfair – Mortgage loan agreement indexed to a foreign currency, containing unfair terms concerning the valuation and the rate of exchange – Nullity of that agreement – Restitutory effects – Right of retention)
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Finding that a term is unfair – Scope – Mortgage loan agreement – Cancellation of the agreement – Reliance on a right of retention by the banking institution – National case-law making the repayment of sums owed by the institution conditional on the consumer’s offer to repay or guarantee repayment of all the sums loaned – Not permissible – Existence of repayments already made in performance of the contract – Irrelevant
(Council Directive 93/13, Arts 6(1) and 7(1))
(see paragraphs 34, 37, 38, operative part)
Operative part
Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,
must be interpreted as meaning that they preclude a judicial interpretation of national law according to which, in the context of the cancellation of a mortgage loan agreement concluded with a consumer by a banking institution, by reason of some unfair terms in that contract, the reliance, by that institution, on a right of retention means that the possibility for that consumer to obtain the payment of amounts which that institution is ordered to pay as a result of the restitutory effects of the declaration that those terms were unfair is conditional on the concomitant offer of that consumer to repay or guarantee the repayment of all the sums that he or she received from that institution under that contract, irrespective of the repayments already made in performance of that contract.