J.J. v PKO BP S.A.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2026:85
• Docket Number: C-471/24
• Date: 12 February 2026

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

12 February 2026 (*)

( Reference for a preliminary ruling – Unfair terms in consumer contracts – Directive 93/13/EEC – Credit agreement – Variable-rate mortgage loan agreement – Contractual term providing for the determination of the interest rate on the basis of a benchmark within the meaning of Regulation (EU) 2016/1011 – Article 1(2) of Directive 93/13 – Contractual term reflecting mandatory statutory or regulatory provisions – Article 4(2) of Directive 93/13 – Concept of ‘definition of the main subject matter of the contract’ – Requirement of transparency – Article 3(1) of Directive 93/13 – Unfairness )

In Case C‑471/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa, Poland), made by decision of 31 May 2024, received at the Court on 3 July 2024, in the proceedings

J.J.

v

PKO BP S.A.,

THE COURT (Third Chamber),

composed of C. Lycourgos, President of the Chamber, O. Spineanu‑Matei (Rapporteur), S. Rodin, N. Piçarra and N. Fenger, Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having regard to the written procedure and further to the hearing on 11 June 2025,

after considering the observations submitted on behalf of:

– J.J., by S. Frejowski, radca prawny, D. Rosa and A. Twardygrosz, adwokaci,

– PKO BP S.A., by A. Cudna‑Wagner, radca prawny, P. Haiduk, B. Miąskiewicz and M. Romanowski, adwokaci,

– the Polish Government, by B. Majczyna, E. Buczkowska and M. Kozak, acting as Agents,

– the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

– the Portuguese Government, by P. Barros da Costa, A. Cunha, C. Freire, A. Morais and A. Rodrigues, acting as Agents,

– the European Commission, by M. Brauhoff and P. Kienapfel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 September 2025,

gives the following

Judgment

1 The request for a preliminary ruling concerns the interpretation of Article 1(2), Article 2, Article 3(1) and (2), Article 4(2), and Article 6(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 J.J., a consumer, and PKO BP S.A. (‘PKO’), a bank established in Poland, concerning, first, the unenforceability or nullity of the term of a mortgage loan agreement relating to the determination of the variable interest rate and, second, the reimbursement of part of the sums paid by that consumer to that bank in performance of that agreement.

Legal context

European Union law

Directive 93/13

3 The thirteenth and sixteenth recitals of Directive 93/13 are worded as follows:

‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the [European] Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established;

…

‘Whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account’.

4 Under Article 1(2) of that directive:

‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

5 Article 3(1) of that directive provides:

‘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.’

6 Under Article 4(2) of that directive:

‘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 supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language.’

7 Article 6(1) of Directive 93/13 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.’

Directive 2008/48

8 According to Article 3(j) 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):

‘For the purposes of this Directive, the following definitions shall apply:

…

(j) “borrowing rate” means the interest rate expressed as a fixed or variable percentage applied on an annual basis to the amount of credit drawn down’.

Directive 2014/17

9 Recital 7 of Directive 2014/17/EU 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/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34), as amended by Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 (OJ 2016 L 171, p. 1) (‘Directive 2014/17’) provides:

‘In order to create a genuine internal market with a high and equivalent level of consumer protection, this Directive lays down provisions subject to maximum harmonisation in relation to the provision of pre-contractual information through the European Standardised Information Sheet (ESIS) standardised format and the calculation [of the annual percentage rate of charge (APRC)]. …’

10 Article 2 of that directive, entitled ‘Level of harmonisation’, provides:

‘1. This Directive shall not preclude Member States from maintaining or introducing more stringent provisions in order to protect consumers, provided that such provisions are consistent with their obligations under Union law.

2. Notwithstanding paragraph 1, Member States shall not maintain or introduce in their national law provisions diverging from those laid down in Article 14(2) and Annex II Part A with regard to standard pre-contractual information through a [ESIS] and Article 17(1) to (5), (7) and (8) and Annex I with regard to a common, consistent [EU] standard for the calculation of the annual percentage rate of charge (APRC).’

11 Article 13 of that directive, entitled ‘General information’, provides in paragraph 1 thereof:

‘Member States shall ensure that clear and comprehensible general information about credit agreements is made available by creditors or, where applicable, by tied credit intermediaries or their appointed representatives at all times on paper or on another durable medium or in electronic form …

Such general information shall include at least the following:

…

(ea) where contracts that reference a benchmark as defined in point (3) of Article 3(1) of Regulation (EU) 2016/1011 … are available, the names of the benchmarks and of their administrators and the potential implications on the consumer;

…’

12 Article 14 of that directive, headed ‘Pre-contractual information’, provides:

‘1. Member States shall ensure that the creditor and, where applicable, the credit intermediary or appointed representative, provides the consumer with the personalised information needed to compare the credits available on the market, assess their implications and make an informed decision on whether to conclude a credit agreement:

…

2. The personalised information referred to in paragraph 1, on paper or on another durable medium, shall be provided by means of the ESIS, as set out in Annex II.’

13 Article 17 of Directive 2014/17, headed ‘Calculation of the APRC’, provides, in paragraph 6:

‘Where the credit agreement allows for variations in the borrowing rate, Member States shall ensure that the consumer is informed of the possible impacts of variations on the amounts payable and on the APRC at least by means of the ESIS. This shall be done by providing the consumer with an additional APRC which illustrates the possible risks linked to a significant increase in the borrowing rate. Where the borrowing rate is not capped, this information shall be accompanied by a warning highlighting that the total cost of the credit to the consumer, shown by the APRC, may change. …’

14 Annex II to that directive is entitled ‘European Standardised Information Sheet (ESIS)’. Part A thereof contains the following information:

‘The text in this model shall be reproduced as such in the ESIS. Indications between square brackets shall be replaced with the corresponding information. …

…

The information below shall be provided in a single document. …

ESIS Model

…

4. Interest rate and other costs

The [APRC] is the total cost of the loan expressed as an annual percentage. The APRC is provided to help you to compare different offers.

…

(Where applicable) This APRC is calculated using assumptions regarding the interest rate.

(Where applicable) Because [part of] your loan is a variable interest rate loan, the actual APRC could be different from this APRC if the interest rate for your loan changes. For example, if the interest rate rose to [scenario as described in Part B], the APRC could increase to [insert...