1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and 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).
2 The request has been made in proceedings between TL and WE, on the one hand, and the liquidator of Getin Noble Bank S.A., formerly Getin Noble Bank S.A., on the other hand, concerning the repayment of sums paid to that bank under a mortgage loan agreement that was cancelled on the ground that it contained unfair terms.
3 The tenth recital of Directive 93/13 states: ‘Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; …’
4 Article 6(1) of that directive is worded as follows: ‘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.’
5 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.’
6 Article 117 of the ustawa - Kodeks cywilny (Law on the Civil Code) of 23 April 1964 (Dz. U. No 16, item 93), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), provides: ‘1. Subject to the exceptions provided for by law, pecuniary claims shall be subject to a limitation period. 2. Following the expiry of the limitation period, a person against whom a claim may be pursued may avoid the duty to satisfy it, unless he or she waives his or her 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, it shall no longer be possible to pursue a claim against a consumer.’
7 Article 1171 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 an action 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 duration 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 to not pursue his or her claim, including the effect of the debtor’s conduct on the creditor’s delay in pursuing his or her claim.’
8 Article 118 of that code, in the version in force until 8 July 2018, read as follows: ‘Unless a specific provision provides otherwise, the limitation period shall be 10 years, and for claims concerning periodic payments as well as for claims connected with the pursuit of a business activity, it shall be 3 years.’
9 Article 118 of that code, in the version in force since 8 July 2018, states: ‘Unless a specific provision provides otherwise, the limitation period shall be six years, and for claims concerning periodic payments as well as for claims connected with 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.’
10 Under Article 120(1) of the Civil Code: ‘The limitation period shall begin to run on the day on which the claim becomes due. Where the day on which a claim becomes due is dependent on the rightholder undertaking a specified act, the limitation period shall begin to run on the day on which the claim would have become due if the rightholder had undertaken that act at the earliest possible opportunity.’
11 Article 355 of that code is worded as follows: ‘1. The debtor must act by exercising due diligence (duty of diligence). 2. In order to define the duty of diligence in the context of an economic activity, account must be taken of the professional nature of that activity.’
12 Article 3851 of that code provides as follows: ‘1. 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 (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. 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 contract which have not been individually negotiated are those over whose content the consumer has had no actual influence. This shall refer 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 term has been negotiated individually shall lie with the person relying thereon.’
13 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.’
14 Article 410 of the Civil Code reads as follows: ‘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.’
15 Article 455 of that code provides: ‘If the time limit for performance is not specified or if it does not follow from the nature of the obligation, the performance shall be rendered in a timely manner after the debtor has been called upon to render it.’
16 Article 481(1) of that code states: ‘If a debtor is late in performing a financial obligation, the creditor may demand default interest, even if he or she has suffered no loss and even if the delay is due to circumstances for which the debtor is not responsible.’
17 Article 496 of that code provides: ‘If, following termination of the contract, the parties are required to return consideration, each of them has a right of retention until the other party offers to repay the benefit obtained or provides security for the right to restitution.’
18 Article 497 of the Civil Code is worded as follows: ‘The preceding article shall apply mutatis mutandis in the event of termination or nullity of the contract.’
19 Article 5(1), (3) and (4) of the ustawa - Kodeks cywilny oraz niektórych innych ustaw (Law amending the Civil Code and certain other laws) of 13 April 2018 (Dz. U. 2018, position 1104), provides: ‘1. The provisions [of the Civil Code], in the version of this Law, shall apply from the date of entry into force of this Law to claims arising before the date of entry into force of this Law and not yet time-barred on that date. … 3. The provisions of [the Civil Code], in the version in force up to this day, shall apply to the claims of consumers arising before the entry into force of this Law and not yet time-barred on that date, the limitation periods for which are defined in Article 118 and Article 125(1) [of the Civil Code]. 4. Claims which are time-barred against a consumer in respect of which no plea of limitation has been raised on the date of entry into force of this Law shall, from that date, be subject to the effects of the limitation period laid down in [the Civil Code], in the version of this Law.’
20 On 7 September 2007, TL and WE concluded with a bank, of which Getin Noble Bank is the legal successor, a mortgage loan agreement denominated in Polish zlotys and indexed to the Swiss franc (‘the loan agreement’).
21 Under the terms of that agreement, the amount of the loan used in Polish zlotys was converted into an amount expressed in Swiss francs. For the purposes of conversion, the bank applied the buying rate for the Swiss franc as set out in its exchange rate table (‘the conversion terms’). TL and WE were required to pay the monthly instalments in Polish zlotys in an amount equivalent to the monthly instalment expressed in Swiss francs.
22 On 27 July 2017, TL and WE lodged a complaint with Getin Noble Bank in which they claimed that the conversion terms were unfair and requested that that bank repay them the monthly instalments which they had already paid to it pursuant to those terms.
23 On 28 September 2017, TL and WE brought legal proceedings, claiming, first, that the conversion terms were unlawful and, second, that the loan agreement was null and void. In the course of the proceedings, the court seised informed TL and WE that, if those terms were held to be unlawful, that agreement would be declared invalid. The applicants in the main proceedings were also informed that, in that event, they would be required to repay the principal loan in a timely manner after having been requested to do so by the bank and that the bank could require them to pay higher amounts. At a hearing held on 12 November 2021, TL and WE confirmed their intention not to replace those terms and not to maintain that agreement in force.
24 By an interim judgment of 19 November 2021, which is not final, the loan agreement was declared void.
25 On 9 July 2021, TL and WE received a declaration from Getin Noble Bank stating that it was exercising its right to retain payments, if any, due to TL and WE until they offered to repay the amount received, that is the amount of the loan made available to them by the bank under the loan agreement, or to provide security for the repayment of that amount.
26 Getin Noble Bank raised an objection of retention which it derives from the claim for restitution which it has in respect of the applicants in the main proceedings for the purpose of recovering the funds paid to them in the context of the performance of the loan agreement. However, the enforceability of that objection depends on the question whether that action is time-barred.
27 TL and WE submit that the limitation period for Getin Noble Bank’s claims began to run on the date on which it received the complaint referred to in paragraph 22 of the present judgment, or on which it was notified of the action referred to in paragraph 23 of the present judgment. According to the applicants in the main proceedings, given that those two events took place in 2017, those claims were time-barred in the course of 2020.
28 Getin Noble Bank submits that the limitation period for its claims has not yet started to run. According to that bank, that period runs from the date on which a court delivered a final decision on the dispute concerning the enforceability of the conversion terms and the validity of the loan agreement.
29 The Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), which is the referring court, informs the Court that, according to a resolution of 7 May 2021 of the Sąd Najwyższy (Supreme Court, Poland), in the first place, an unfair term is, from the outset, rendered ineffective by operation of law and, in the second place, a consumer may, within a reasonable period of time, decide whether or not to give his or her consent to that term both in the context of legal proceedings and in the context of an out-of-court procedure, provided that he or she has been fully informed of the legal consequences that may result from the definitive unenforceability of that term, including those relating to the possible subsequent cancellation of the agreement at issue. If a duly informed consumer refuses to give his or her consent to the unfair term concerned, that term will be deprived of its legal effects.
30 According to the referring court, the effect of such an interpretation is that, from the date on which the consumer concerned decides not to give his or her consent to such a term, without which the agreement at issue cannot continue to exist, or from the date of expiry of that reasonable period of time, the agreement becomes definitively void or, if the conditions for maintaining it by applying supplementary legislation are satisfied, takes effect retroactively in the form of that legislation.
31 In that regard, the referring court considers that the application of that interpretation raises certain issues. In this respect, in addition to the fact that the consumer concerned is required to declare his or her intention to challenge the unfair terms at issue and to initiate legal proceedings, the date on which the limitation period begins to run is not clear from that interpretation. While that court considers that those time limits may be found in the general provisions of Polish law, it asks whether those provisions are compatible with Directive 93/13.
32 In addition, the referring court considers that it is necessary to clarify the full significance of the judgment of 29 April 2021, Bank BPH (C‑19/20, EU:C:2021:341). In that regard, the referring court asks the Court to clarify whether the obligation to inform a consumer of the effects of the unenforceability of the unfair terms of a contract may affect claims for restitution made after the cancellation of that contract. According to the referring court, it appears to follow from the case-law of the Court that a finding that a contractual term is unfair means not only that the consumer is not bound by that term, but also that he or she has a right to restitution, the extent of which cannot depend on additional declarations.
33 The referring court asks whether Directive 93/13 affects the rules of Polish law relating to limitation periods. In that regard, that court states that, under Polish law, first, the obligation to repay undue payments becomes due where it is not performed in a timely manner after the person liable for the payment concerned has been requested to perform that obligation and, second, where the claim becoming due is dependent on the entitled person undertaking a specified act, the limitation period begins to run from the day on which the claim would have become due had the entitled person performed that action at the earliest possible opportunity. That court states that that must be understood as meaning that the limitation period for such an action begins to run from a date which is not strictly defined, but which is determined by the passage of time as from the date on which the undue payment was made, enabling, first, the person who made that payment to request the beneficiary of that payment to repay it, second, that person to inform that beneficiary of that request and, third, that beneficiary to repay that payment ‘in a timely manner’.
34 The referring court is uncertain whether the interpretation of those rules adopted by the Sąd Najwyższy (Supreme Court) is consistent with EU law. In that regard, the referring court states that, in accordance with that interpretation, the limitation period for an action for recovery of sums unduly paid which is available to a seller or supplier on the ground that a contract is invalid due to an unfair term in that contract cannot begin to run until the contract concerned has become definitively unenforceable. That contract is in a situation of suspended unenforceability until the consumer concerned terminates it, which he or she could do at any time either by agreeing to be bound by that term or by refusing to be so bound. So far as concerns the limitation period for an action for recovery of sums unduly paid which is available to that consumer, the referring court states that that period cannot begin to run until the consumer has knowledge, or ought reasonably to have knowledge, of the unfairness of that term.
35 According to the referring court, while the start of the limitation period for an action brought by a seller or supplier for the recovery of sums unduly paid depends on the active behaviour of the consumer, the fact remains that the seller or supplier may be exonerated of all liability in respect of unfair terms included in a contract, provided that the consumer does not bring any action to challenge that contract and assert his or her rights. In that court’s view, that interpretation appears to be contrary to Directive 93/13, in so far as a seller or supplier knowing that a consumer may lose his or her claim because it is time-barred would not be deterred from introducing unfair terms in contracts and, moreover, that seller or supplier would not only be tempted to apply such terms, but also to continue to perform those contracts, taking advantage of the fact that a consumer does not necessarily have knowledge and awareness of his or her rights.
36 In addition, the referring court questions the compatibility with Directive 93/13 of the additional requirements imposed on the consumer, connected with the need for him or her to submit, in addition to clearly defined claims, a declaration that he or she is aware of the consequences of challenging the unfair contractual terms at issue. However, if a consumer makes an out-of-court request for restitution, the seller or supplier to whom such a request is addressed cannot be sure that that consumer has been duly informed of the consequences of the cancellation of the contract concerned, as required by EU law. That court appears to take the view that it follows from such a finding that the consumer is required to submit, in addition to a complaint, additional declarations and even to have that complaint verified in the context of legal proceedings.
37 In that regard, the referring court states that, in the course of legal proceedings, the absence of such a declaration may be replaced by the obligation, for the court seised, to inform the consumer concerned of those consequences being observed, and by the consumer’s claim for restitution being maintained.
38 According to that court, the finding of the Court in the judgment of 29 April 2021, Bank BPH (C‑19/20, EU:C:2021:341), according to which a national court, ruling that a term in a contract concluded by a seller or supplier with a consumer is unfair, must inform that consumer of the consequences of the cancellation of that contract, irrespective of whether that consumer is represented by a professional representative, must be reserved to facts such as those at issue in the case which gave rise to that judgment, that is when that national court examined of its own motion the validity of that contract. The referring court considers that a broad interpretation of that finding would not be consistent with the system of consumer protection, which is based on the principle that an average consumer who is reasonably well informed and reasonably observant and circumspect enjoys protection, without, however, ‘requiring a separate verification of the consumer’s knowledge in order to accept that his or her declaration has produced the intended effects’.
39 Furthermore, the effect of the interpretation adopted by the Sąd Najwyższy (Supreme Court) is also that a seller or supplier will have failed to perform his or her obligation only on the date on which the judgment declaring the contract invalid due to its unfair terms has become final, which excludes the right of the consumer concerned to payment of interest for the period running as from the date on which the claim for reimbursement is made up to the date on which that judgment becomes final. Contrary to Directive 93/13, that is an incentive for sellers or suppliers systematically to reject such claims by relying on the fact that, first, certain consumers will refrain from asserting their rights before a court and, second, even if some consumers were to bring legal proceedings, the sellers or suppliers concerned will not be exposed to the practical consequences of late payment.
40 The referring court also asks whether making the definitive non-binding nature of a contract conditional upon the court making a final ruling on the dispute relating to the unfairness of the terms of that contract would not lead to a significant weakening of the position of the consumer concerned, which may jeopardise the attainment of the objectives of Directive 93/13.
41 Assuming that Directive 93/13 does not preclude the consequences of the nullity of a contract from arising only after the consumer concerned has made a declaration that he or she has been fully informed of the effects of that nullity, the referring court asks whether that directive requires a seller or supplier to whom a request for restitution is addressed to ascertain, on its own motion, whether the consumer concerned is aware of those effects.
42 In that regard, that court states that, under Polish law, the start of the limitation period for a seller or supplier’s claims arising from the unenforceability of a contract depends on the point in time at which that seller or supplier could have requested the consumer concerned to return the sums at issue. In its view, if it is accepted that the unilateral unenforceability of unfair contract terms precludes such a request, the question arises as to whether it is for the seller or supplier to verify the effectiveness of the request to perform addressed to him or her by the consumer, in particular by providing the latter with explanations relating to reciprocal rights and obligations in the event of the cancellation of the contract.
43 In the event that it is permissible to make the start of the limitation period for a seller or supplier’s claims linked to the unenforceability of a contract dependent on any event subsequent to the receipt, by that seller or supplier, of a claim for restitution from the consumer concerned or on any other challenge to the enforceability or the lawfulness of the contractual terms at issue, that court raises the question of the compatibility of such an approach with Directive 93/13, in view of the fact that, under Polish law, that period does not begin to run until a contract has been definitively cancelled.
44 In addition, the referring court asks whether a situation in which a consumer’s claims for restitution against a seller or supplier are time-barred - irrespective of whether the claims for restitution of the seller or supplier concerned are time-barred - complies with Directive 93/13, given that that could result in those claims being time-barred before that seller or supplier invokes his or her right of retention in respect of all the sums which he or she provided to that consumer. In that case, the partial restitution by the seller or supplier of the payments made by the consumer is conditional on the offer of restitution, by that consumer, of all the sums which have been provided to him or her by that seller or supplier.
45 That court is uncertain whether it is compatible with Directive 93/13 to accept that a seller or supplier is in default not from the moment when he or she is requested to repay the undue payments, but only from the point at which it is established that the consumer concerned has knowledge of the effects of the nullity of the contract at issue and waives his or her protection against those effects. Such an interpretation would result in a consumer being deprived of his or her right to default interest for a period which, in view of the length of legal proceedings, could extend to several years.
46 The referring court informs the Court of Justice that, according to an interpretation of Polish law generally accepted by the Polish courts, the exercise by a debtor of his or her right of retention results in the delay in performance being treated as having come to an end. The fact that the debtor is in default is a precondition of the obligation to pay default interest. Accordingly, that interpretation is based on the principle that the debtor concerned is prepared to perform his or her obligations, but that he or she has an enforceable right against his or her creditor, relieving him or her of the obligation to render that performance in a timely manner.
47 In the context of disputes concerning the rights derived from Directive 93/13, sellers or suppliers, such as the defendant in the main proceedings, challenge the merits of consumers’ claims and, therefore, are not willing to return the payments concerned to consumers. The referring court expresses serious doubts as to whether the Polish courts’ interpretation of the rules of Polish law on limitation periods is compatible with Directive 93/13, in so far as that interpretation would result in sellers or suppliers rejecting legitimate consumer claims and not being held liable for the unjustified use of the funds at issue and their late restitution to the consumers concerned.
48 In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must [Article] 6(1) and [Article] 7(1) of Directive [93/13] 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 [unfair terms it contains], 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 [unlawful], or a court, acting of its own motion, advising that contractual clauses may be declared [unlawful]; 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 [Article] 6(1) and [Article] 7(1) of Directive [93/13] 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 [the unlawful terms it contains], places no obligation on the seller or supplier against whom a consumer has brought a claim related to the presence of [unlawful terms] in the contract to take steps of its own motion to establish whether the consumer is aware of the consequences of [unlawful terms] being eliminated or of the contract being no longer capable of continuing in existence? (3) Must [Article] 6(1) and [Article] 7(1) of Directive [93/13] 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 [the unfair terms it contains], 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] 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 [the unlawful terms it contains], 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] 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 [the unlawful terms it contains], does not entitle the consumer in whole or in part to interest … 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 [the fourth question]?’
49 Getin Noble Bank submits that the request for a preliminary ruling seeks, in essence, to obtain the Court’s interpretation of Polish law, which it claims falls outside the Court’s jurisdiction.
50 In that regard, it should be noted that the argument made by Getin Noble Bank is based on the incorrect premiss that the exercise by the Member States of their right to define the detailed rules under which a term contained in a contract is found to be unfair and the specific legal effects of that finding fall outside the scope of EU law (see judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 66).
51 The Court has already held that the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope and, therefore, the substance of that protection and thus affect the strengthening of the effectiveness of that protection by the adoption of uniform rules of law in respect of unfair terms, which was the intention of the EU legislature, as stated in the tenth recital of Directive 93/13 (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 60 and the case-law cited).
52 In so far as the argument raised by Getin Noble Bank relates to the first question referred for a preliminary ruling and the fact that that question does not specify which of the interpretations of Polish law referred to in points (a) to (d) of that question is that adopted in the Polish legal order, it should be noted, in the first place, that, according to settled case-law, while questions on the interpretation of EU law referred by a national court in the legislative and factual context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance, the fact remains that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of that law which they need in order to rule on the disputes before them. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. As is clear from the very wording of Article 267 TFEU, the preliminary ruling sought must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (order of 7 April 2022, J.P., C‑521/20, EU:C:2022:293, paragraph 17 and the case-law cited).
53 In the second place, in the context of the procedure established by Article 267 TFEU, the Court has no jurisdiction to rule on the interpretation of provisions of national laws or regulations or on their conformity with EU law. It is settled case-law that, in a request for a preliminary ruling pursuant to Article 267 TFEU, the Court may interpret EU law only within the parameters of the jurisdiction conferred on the European Union (order of 10 January 2022, Anatecor, C‑400/21, EU:C:2022:30, paragraph 13 and the case-law cited).
54 That said, it is for the Court, if questions have been improperly formulated or go beyond the scope of the powers conferred on it by Article 267 TFEU, to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, to that effect, order of 10 January 2022, Anatecor, C‑400/21, EU:C:2022:30, paragraph 15 and the case-law cited).
55 In the present case, it is apparent from the request for a preliminary ruling, first, that the Sąd Najwyższy (Supreme Court) adopted, in its resolution of 7 May 2021, an interpretation of Polish law according to which the limitation period for professional claims arising from the invalidity of a mortgage loan agreement containing unfair terms does not begin to run until that agreement becomes definitively unenforceable or where a judgment declaring that agreement to be void becomes final.
56 Second, in the light of the referring court’s doubts as to the compatibility of that interpretation of national law with Directive 93/13 as regards the starting point of the limitation period for claims for restitution resulting from the invalidity of a contract on account of unfair terms contained therein, the referring court is not asking the Court to interpret national law itself, but sets out various possible starting points for that period and asks the Court, in essence, whether or not Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding such possibilities.
57 Accordingly, it cannot be accepted that the first question concerns the interpretation of Polish law and, therefore, Getin Noble Bank’s argument based on the lack of jurisdiction of the Court must be rejected.
58 It follows from the foregoing that the Court has jurisdiction to rule on the request for a preliminary ruling.
59 By its first and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a judicial interpretation of national law according to which, following the cancellation of a mortgage loan agreement concluded with a consumer by a seller or supplier, on account of unfair terms contained in that agreement, the limitation period for the claims of that seller or supplier stemming from the nullity of that agreement starts to run only as from the date on which the agreement becomes definitively unenforceable, whereas the limitation period for the claims of that consumer stemming from the nullity of that agreement begins to run as from the day on which the consumer became aware, or should reasonably have become aware, of the unfair nature of the term entailing such nullity.
60 In the first place, it should be noted that, in accordance with settled case-law, in the absence of specific 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 8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign currency), C‑80/21 to C‑82/21, EU:C:2022:646, paragraph 86 and the case-law cited).
61 In the second place, as regards the principle of effectiveness, it should be noted that each case in which the question arises as to whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed in the light of the place of that provision in the proceedings as a whole, the way in which they are conducted and their particular features, before the various national authorities. In that context, it is appropriate to take into consideration, where appropriate, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign currency), C‑80/21 to C‑82/21, EU:C:2022:646, paragraph 87 and the case-law cited).
62 In the third and final place, the Court has stated that the obligation on the Member States to ensure the effectiveness of the rights that individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement for effective judicial protection, also guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, which applies, inter alia, to the definition of detailed procedural rules relating to actions based on such rights (judgment of 8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign currency), C‑80/21 to C‑82/21, EU:C:2022:646, paragraph 88 and the case-law cited).
63 In the present case, the first and third questions concern, more specifically, the possible asymmetry of the possibilities for bringing an action provided for by Polish law for sellers or suppliers, on the one hand, and for consumers, on the other, as regards the starting point of the limitation period for claims for restitution resulting from the nullity of a contract on account of unfair terms contained in that contract.
64 In that regard, the Court held, in a case concerning the fixing of a time limit on the court’s power to set aside an unfair term, of its own motion or following a plea raised by the consumer, that the fixing of such a limit was such as to be liable to affect the effectiveness of the protection provided for in Articles 6 and 7 of Directive 93/13, in so far as, to deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time limit fixed by the national legislature before seeking enforcement of the unfair terms which they would continue to use in contracts (see, to that effect, judgment of 21 November 2002, Cofidis, C‑473/00, EU:C:2002:705, paragraph 35).
65 In the same vein, Advocate General Kokott considered, in essence, in points 63 to 67 of her Opinion in the CofidisandOPR-Finance (C‑616/18 and C‑679/18, EU:C:2019:975), concerning the interpretation of Directive 2008/48/EC 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), that different national limitation periods laid down, on the one hand, for sellers or suppliers and, on the other, for consumers, create an asymmetry of the possibilities for bringing an action which may undermine the effectiveness of the protection afforded by that directive.
66 Thus, a situation in which the limitation period for a consumer’s claims stemming from the nullity of a mortgage loan agreement begins to run before the date on which the definitive unenforceability of that agreement is established by a court, even though that period does not expire before the consumer became aware, or could reasonably have become aware, of his or her rights, whereas the limitation period laid down for the corresponding claims of the seller or supplier begins to run on the date on which that definitive unenforceability is established by a court, involves an asymmetry capable of undermining the protection of that consumer guaranteed by Directive 93/13.
67 In that regard, it should be borne in mind, first, that mortgage loan agreements are generally performed over long periods of time, so that even a limitation period of 6 or 10 years applicable to consumer claims for restitution may prove, under certain conditions, to be incompatible with the principle of effectiveness (see, to that effect, judgment of 8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign currency), C‑80/21 to C‑82/21, EU:C:2022:646, paragraph 100).
68 Second, it should be noted that the consumer is entitled to assert his or her rights under Directive 93/13 both before a court and, as in the present case, by extrajudicial means, in order to be able to remedy the unfairness of a term by making a contractual amendment to it (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 49), without that right being limited by national law.
69 Thus, it is apparent from paragraph 29 of the present judgment that, according to the interpretation of Polish law adopted by the Sąd Najwyższy (Supreme Court) in its resolution of 7 May 2021, a consumer, provided that he or she is fully informed of the legal consequences of the definitive unenforceability of an unfair term, may give or refuse to give his or her consent to that term both in the context of legal proceedings and in the context of an out-of-court procedure.
70 Inasmuch as it cannot be ruled out - a matter which it is, however, for the referring court to ascertain - that, under Polish law, a consumer who lodges an extrajudicial complaint will be deemed to know the rights which he or she derives from Directive 93/13, since that complaint is accompanied by an express declaration that he or she has received full information as to the consequences of the possible invalidity of the contract concerned, the risk that the limitation period relating to a consumer’s claims stemming from the nullity of a mortgage loan agreement expires even before the limitation period laid down for the corresponding claims of the seller or supplier concerned begins to run is not eliminated.
71 Furthermore, according to the information provided by the referring court referred to in paragraph 39 of the present judgment, the interpretation of Polish law adopted by the Sąd Najwyższy (Supreme Court) in its resolution of 7 May 2021, which implies that the limitation period for claims of a seller or supplier does not begin to run until the date on which a judgment declaring the mortgage loan agreement at issue to be void becomes final, also results in that seller or supplier being in default of performance of that agreement only as from that date. Therefore, the consumer concerned, in the event that his or her claims for restitution are not time-barred, cannot obtain default interest as from the date of lodging his or her claim for reimbursement of the sums paid pursuant to the unfair terms contained in that agreement, which is an incentive, in infringement of Directive 93/13, for that seller or supplier systematically to refuse such claims.
72 Thus, an asymmetry of the possibilities for bringing an action, such as that at issue in the main proceedings, is likely to encourage the seller or supplier, following an out-of-court complaint by the consumer, to remain inactive or to prolong the extra-judicial phase by extending negotiations, so that the limitation period for the consumer’s claims expires, since, first, the limitation period laid down for his or her own claims does not begin to run until the date on which the definitive unenforceability of the mortgage loan agreement concerned is established by a court and, second, the duration of the extra-judicial phase has no impact on the interest payable to the consumer.
73 Such asymmetry is therefore liable to infringe, in the first place, the principle of effectiveness, referred to in paragraphs 60 and 61 of the present judgment, according to which the detailed rules for implementing the consumer protection laid down by Directive 93/13 must not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law.
74 In the second and final place, such an asymmetry is liable to call into question the dissuasive effect that Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) of that directive, is designed to attach to a finding of unfairness in respect of terms in contracts concluded between consumers and sellers or suppliers (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 58 and the case-law cited).
75 In the light of all of the foregoing considerations, the answer to the first and third questions is that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a judicial interpretation of national law according to which, following the cancellation of a mortgage loan agreement concluded with a consumer by a seller or supplier, on account of unfair terms contained in that agreement, the limitation period for the claims of that seller or supplier stemming from the nullity of that agreement starts to run only as from the date on which the agreement becomes definitively unenforceable, whereas the limitation period for the claims of that consumer stemming from the nullity of that agreement begins to run as from the day on which the consumer became aware, or should reasonably have become aware, of the unfair nature of the term entailing such nullity.
76 By its second question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding a judicial interpretation of national law according to which it is not for a seller or supplier who has concluded a mortgage loan agreement with a consumer to ascertain whether the consumer is aware of the consequences of the removal of the unfair terms contained in that agreement or of that agreement being no longer capable of continuing in existence if those terms were removed.
77 In the first place, it should be borne in mind that the national court hearing a dispute relating to Directive 93/13 is required to assess of its own motion whether a contractual term falling within the scope of that directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary to that end (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 52 and the case-law cited).
78 In order to guarantee the protection intended by Directive 93/13, the imbalance which exists between the consumer and the seller or supplier may be corrected by the court hearing such disputes only by positive action unconnected with the actual parties to the contract (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 53 and the case-law cited).
79 While it is true that the Court has held that the system laid down by Directive 93/13 cannot prevent the parties to a contract from remedying the unfairness of a term which it contains by making a contractual amendment, provided that, first, the consumer’s waiver of the right to rely on unfairness is the result of his or her free and informed consent and, second, the new amending term is not itself unfair, the fact remains that both such a waiver and the unfair nature of the new amending term may be the subject of a new dispute (see, to that effect, judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraphs 49 to 51).
80 Therefore, while credit institutions are under a duty to organise their activities in a manner which complies with Directive 93/13 (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 83), the fact remains that a credit institution is not required to ascertain whether a consumer with whom it has concluded a mortgage loan agreement is aware of the consequences of the removal of the unfair terms contained in that agreement.
81 Consequently, the answer to the second question is that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding a judicial interpretation of national law according to which it is not for a seller or supplier who has concluded a mortgage loan agreement with a consumer to ascertain whether the consumer is aware of the consequences of the removal of the unfair terms contained in that agreement or of that agreement being no longer capable of continuing in existence if those terms were removed.
82 In the light of the answer given to the first and third questions, there is no need to answer the fourth question, which has been asked in the event that Directive 93/13 does not preclude a consumer’s claims for restitution from being time-barred irrespective of whether the claims of the seller or supplier are time-barred.
83 By its fifth question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a judicial interpretation of national law according to which, where a mortgage loan agreement concluded with a consumer by a seller or supplier is no longer capable of continuing in existence after the unfair terms in that agreement have been removed, that seller or supplier may rely on a right of retention which allows him or her to make the restitution of the payments which it has received from that consumer conditional on that consumer making an offer to repay the sums which he or she has himself or herself received from that seller or supplier or to provide a security for the repayment of those sums, where the exercise by that seller or supplier of that right of retention entails the loss, for that consumer, of the right to obtain default interest as from the expiry of the time limit set for performance by the seller or supplier concerned, following receipt by that seller or supplier of a request to repay the sums he or she had been paid in performance of that contract.
84 It appears to follow from the order for reference that, in accordance with a judicial interpretation of Polish law, in the event of invalidity of a contract, a default in performance by a party ceases as a result of the exercise, by that party, of the right to withhold the sums which it owes to the other party until that other party has offered to pay, or provided a security for, the sums which it must itself pay, so that, in the absence of the interpretation adopted by the Sąd Najwyższy (Supreme Court) in its resolution of 7 May 2021, default interest is payable to the consumer as from the expiry of the time limit set for performance by the seller or supplier, following receipt by that seller or supplier of a request to that effect from the consumer, up to the date on which the plea of retention was raised.
85 Given that, according to the explanations provided by the referring court, it is apparent from that resolution that the seller or supplier is not late in performing the contract until the point in time at which the mortgage loan agreement becomes definitively unenforceable, the consumer loses the right to part or all of the default interest, thus making his legal and financial position even worse.
86 The effectiveness of the protection conferred on consumers by Directive 93/13 would be jeopardised if they, when relying on the rights which they derive from that directive, were exposed to the risk of not obtaining default interest on the sums which must be repaid to them on account of the invalidity of such a contract as from the expiry of the time limit set for performance by the seller or supplier, following receipt by that seller or supplier of a request to repay those sums.
87 Therefore, the answer to the fifth question is that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a judicial interpretation of national law according to which, where a mortgage loan agreement concluded with a consumer by a seller or supplier is no longer capable of continuing in existence after the unfair terms in that agreement have been removed, that seller or supplier may rely on a right of retention which allows him or her to make the restitution of the sums which it has received from that consumer conditional on that consumer making an offer to repay the sums which he or she has himself or herself received from that seller or supplier or to provide a security for the repayment of those sums, where the exercise by that seller or supplier of that right of retention entails the loss, for that consumer, of the right to obtain default interest as from the expiry of the time limit set for performance by the seller or supplier concerned, following receipt by that seller or supplier of a request to repay the sums he or she had been paid in performance of that agreement.
88 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.