I.W. and R.W. v Bank BPH S.A. and Rzecznik Praw Obywatelskich.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:341
• Date: 29 April 2021
• Docket Number: C-19/20
• Celex Number: 62020CJ0019
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

29 April 2021 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Effects of a finding that a term is unfair – Mortgage loan agreement denominated in a foreign currency – Determination of the exchange rate between currencies – Novation agreement – Deterrent effect – Obligations of the national court – Article 6(1), and Article 7(1))

In Case C‑19/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Gdańsku XV Wydział Cywilny (Regional Court, Gdańsk, XV Civil Division, Poland), made by decision of 30 December 2019, received at the Court on 16 January 2020, in the proceedings

I.W.,

R.W.

v

Bank BPH S.A.,

Third party:

Rzecznik Praw Obywatelskich,

THE COURT (Seventh Chamber),

composed of A. Kumin, President of the Chamber, P. G. Xuereb and I. Ziemele (Rapporteur), Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– I.W. and R.W., by B. Garlacz, radca prawny,

– Bank BPH S.A., by A. Sienkiewicz, B. Krużewski, and A. Prokop, adwokaci, and by P. Bogdanowicz, radca prawny,

– Rzecznik Praw Obywatelskich, by M. Taborowski,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Spanish Government, by S. Centeno Huerta and L. Aguilera Ruiz, acting as Agents,

– the Portuguese Government, by L. Inez Fernandes, T. Paixão, M. Queiroz Ribeiro, A. Rodrigues and P. Barros da Costa, acting as Agents,

– the European Commission, by N. Ruiz García and M. Siekierzyńska, 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 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), in particular Articles 6 and 7 thereof.

2 The request has been made in proceedings between I.W. and R.W. and Bank BPH S.A. concerning the consequences of the unfairness of certain terms of a mortgage loan agreement concluded between those parties.

Legal context

European Union law

3 Under Article 2(a) of Directive 93/13, the concept of ‘unfair terms’ must be understood as ‘the terms of a contract as defined in Article 3’.

4 Article 3(1) of Directive 93/13 states:

‘A contractual term which has not been individually negotiated shall 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 contract, to the detriment of the consumer.’

5 Under Article 4 of Directive 93/13:

‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

6 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.’

7 Article 7(1) of Directive 93/13 states:

‘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

8 Article 58 of the Kodeks cywilny (Civil Code) is worded as follows:

‘1. A legal act contrary to the law or intended to circumvent the law shall be void, unless a relevant provision provides otherwise, in particular that the invalid provisions of the legal act are to be replaced by the relevant provisions of the law.

2. A legal act contrary to the rules of social conduct shall be void.

3 If only part of the legal act is invalid, the other parts of the act shall remain in force, unless it is apparent from the circumstances that the act would not have been performed in the absence of the invalid provisions.’

9 According to Article 120(1) of that code:

‘The limitation period shall begin on the day on which the claim becomes due. If the enforceability of a claim depends on the adoption of a specific act by the rightholder, the period shall begin to run from the date on which the claim would have become due if the rightholder had adopted the act as soon as possible.’

10 Article 353¹ of that code provides as follows:

‘Contracting parties may arrange their legal relationship at their own discretion as long as the substance or purpose of the contract is not contrary to the properties (nature) of the relationship, the law or the rules of social conduct.’

11 Article 358 of that code provides:

‘1. If the subject matter of the obligation is a sum of money expressed in a foreign currency, the debtor may render performance in Polish currency, unless the law, a judicial decision giving rise to the obligation or a legal act provides for performance of the obligation in a foreign currency.

2. The value of the foreign currency shall be calculated in accordance with the average rate determined by the National Bank of Poland on the day of the claim’s maturity, unless legislation, a court ruling or a juridical act provides otherwise.

3. In the event of late payment, the creditor may claim performance in Polish currency at the average price set by the National Bank of Poland on the day on which the payment is made.’

12 Article 385¹ of the Civil Code states as follows:

‘1. The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on the consumer if his 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 principal obligations to be performed by the parties, including price or remuneration, so long as they are worded clearly.

2. If a contractual term is not binding on the consumer pursuant to paragraph 1, the contract shall otherwise continue to be binding on the parties.

3. The terms of a consumer contract which have not been individually negotiated are those over the content of which the consumer had no actual influence. This relates in particular to contractual terms taken from a standard contract proposed to a consumer by a contracting party.

…’

13 Article 385² of that code is thus worded:

‘The compliance of contractual terms with good practice shall be assessed according to the state of affairs at the time of conclusion of the contract, taking into account its content, the circumstances in which it was concluded and also other contracts connected with the contract which contains the provisions being assessed.’

14 The ustawa o zmianie ustawy – Prawo bankowe oraz niektórych innych ustaw (Law amending the Law on banking law and certain other laws), of 29 July 2011 (Dz. U. No 165 of 2011, item 984, ‘the law of 29 July 2011’), entered into force on 26 August 2011.

15 Under Article 1(1) of the law of 29 July 2011:

‘The [ustawa – Prawo bankowe (Law on banking law), of 29 August 1997 (Dz. U. No 72 of 2002, item 665), as amended] is amended as follows:

1. in Article 69:

(a) in paragraph 2, the following paragraph 4a is inserted after paragraph 4:

“4a) in the case of a loan agreement denominated in, or indexed to, a currency other than the Polish currency, detailed rules laying down the procedures and dates for setting the currency rate on the basis of which, inter alia, the amount of the loan, its instalments and monthly repayments (capital and interest) are calculated and the currency conversion rules for disbursement or repayment of the loan [shall be specified],”;

(b) a new paragraph 3, worded as follows, is added after paragraph 2:

“3. In the case of a credit agreement denominated in, or indexed to, a currency other than Polish currency, the borrower may repay the monthly instalments (capital and interest) and make an early repayment of the entirety or part of the amount of the loan directly in that currency. In that case, the credit agreement shall also set out the opening and holding of an account for the collection of funds intended for repayment of the credit and the repayment rules by means of this account.”’

16 Article 4 of that law provides:

‘In the case of credit or money loans taken out by a borrower before the date of entry into force of this law, Article 69(2) (4a) and Article 75b of the law referred to in Article 1 [ustawa – Prawo bankowe (Law on banking law), of 29 August 1997] shall apply to credit or money loans which have not been repaid in full, in respect of the part of the loan or loan remaining to be repaid. In that regard, the bank amends the credit agreement or the loan agreement accordingly free of charge.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

17 In 2008, I.W. and R.W concluded, as consumers, a mortgage loan agreement with Bank BPH’s predecessor in law, the term of that loan being 360 months (30 years). The contract was denominated in Polish zlotys (PNL), but indexed to a foreign currency, namely the Swiss franc (CHF).

18 It is apparent from...