M.B. and Others v X S.A.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Docket NumberC-6/22
Celex Number62022CJ0006
Date16 March 2023

Provisional text


16 March 2023 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Articles 6 and 7 – Effects of a declaration that a term is unfair – Mortgage loan agreement indexed to a foreign currency – Continued existence of the contract without unfair terms – Consumer’s wish to have the contract declared invalid – Application of the directive after the invalidation of the contract – Powers and obligations of the national court)

In Case C‑6/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy dla Warszawy-Woli w Warszawie I Wydział Cywilny (District Court for Warszawa-Wola, First Civil Division, Warsaw, Poland), made by decision of 19 May 2021, received at the Court on 4 January 2022, in the proceedings





X S.A.,

THE COURT (Sixth Chamber),

composed of P.G. Xuereb, President of the Chamber, T. von Danwitz and I. Ziemele (Rapporteur), Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– M.B., U.B. and M.B., by J. Tomaszewska, radca prawny,

– X S.A., by Ł. Hejmej, M. Przygodzka and A. Szczęśniak, adwokaci,

– the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents,

– the European Commission, by M. Brauhoff and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following


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 brought by M.B., U.B. and M.B. against X S.A. concerning the consequences of the invalidation of a mortgage loan agreement concluded between those parties.

Legal context

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 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.’

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

5 On 4 June 2007, M.B., U.B. and M.B. concluded, as consumers, with X’s legal predecessor, a bank, a mortgage loan agreement for a duration of 360 months and in the amount of 339 881.92 Polish zlotys (PLN), indexed to a foreign currency, namely the Swiss franc (CHF).

6 Under the terms of that contract, the monthly instalments and the outstanding amount of that loan were calculated in Swiss francs and paid in Polish zlotys, according to the CHF-PLN rate of exchange applicable to each of those monthly instalments.

7 Before the referring court, the borrowers claim that the terms of that contract relating to that indexation mechanism are unfair since, in the absence of specific rules stipulated in that contract, the exchange rate used to calculate the monthly loan instalments was fixed at the bank’s discretion.

8 M.B., U.B. and M.B. requested that those terms in the loan agreement be removed and claimed that the monthly instalments had to be calculated in Polish zlotys and with an interest rate based on the LIBOR. In that regard, they stated that they accepted the invalidation of the contract by the referring court.

9 The referring court considers, first, that the terms relating to the indexation mechanism at issue should be annulled on the grounds that they are unfair. Second, since the loan agreement at issue cannot continue in existence without those terms, it is for the referring court to grant the consumers’ request for the loan agreement to be declared invalid.

10 Thus, first, the invalidation of that contract, despite the resulting adverse effects for the consumers, is inevitable.

11 The referring court observes that, according to the judgment of 7 November 2019, Kanyeba and Others (C‑349/18 to C‑351/18, EU:C:2019:936), the effects of the nullity of a contract are determined by national law alone. In the present case, it is the general provisions of contract law which apply. However, it points out that the considerations relating to consumer protection and the deterrence of sellers or suppliers with regard to the use of unfair terms, specific to Directive 93/13, are unrelated to the applicable national provisions which provide that the parties to the contract are to bear equally the losses resulting from its invalidation. The applicants in the main proceedings would therefore lose the protection which they enjoy under that directive.

12 Second, recalling that, in the judgment of 29 April 2021, Bank BPH (C‑19/20, EU:C:2021:341), the Court held that the invalidation of a contract on the basis of the use of unfair terms does not depend on the consumer’s express request to that effect, but is a matter of objective application by the national court of the criteria established under national law, the referring court asks whether it must itself establish the consequences of the invalidation of the contract on the consumer’s situation or whether it must confine itself, in that regard, to the evidence submitted to it by applicants in the main proceedings, as it is required to do under Polish procedural law.

13 Third, the referring court considers that the dispute before it is characterised by the fact that there are no relevant supplementary provisions in national law, which would necessarily lead to the invalidation of the contract and would create unfavourable effects for the consumer. Thus, whatever its decision, that court considers that one of the objectives of Directive 93/13 would not be achieved. Either it fills the gaps in the contract resulting from the nullity of the unfair terms, to the detriment of the objective of ensuring a deterrent effect for sellers or suppliers, or it declares the whole contract invalid and exposes the consumer to adverse consequences.

14 In those circumstances, the Sąd Rejonowy dla Warszawy-Woli w Warszawie I Wydział Cywilny (District Court for Warszawa-Wola, First Civil Division, Warsaw, Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must [Directive 93/13] on unfair terms in consumer contracts, in the light of its objective of protecting consumers against unfair terms in contracts with sellers or suppliers, be interpreted as meaning that, once a contract is declared invalid by a court under the rules of that directive, that directive, along with the protection of the consumer, ceases to apply and the rules governing settlement for the consumer and the seller or supplier must be sought under the national contract law governing the settlement of an invalid contract?

(2) In the light of Articles 6 and 7 of Directive [93/13], where a court finds that the contractual term in question is unlawful and that the contract is not capable of continuing in existence after that term has been removed, in the absence of an agreement by the parties to fill the gap with clauses in accordance with their wishes and in the absence of supplementary provisions (directly applicable to the contract in the absence of an agreement by the parties), must that court declare the contract invalid on the basis of the wishes of the consumer who sought that declaration, or must the court examine, of its own motion, going beyond the form of order sought by the parties, the financial situation of the consumer in order to determine whether declaring the contract invalid would expose the consumer to particularly unfavourable consequences?

(3) Must Article 6 of Directive [93/13] be interpreted as meaning that, if the court comes to the conclusion that declaring the contract invalid would be particularly unfavourable to the consumer and, despite having been encouraged to do so, the parties fail to reach an agreement on the fulfilment of the contract, the court may, taking into account the objective interest of the consumer, fill the gap in the contract, created after the unfair terms have been “removed” from it, not with rules of national law which are supplementary within the meaning of the judgment [of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819)] that is to say, rules which are directly applicable to the gap in the contract, but with specific provisions of national law which can be applied to the contract in question mutatis mutandis or by analogy and which reflect a rule of national contract law?’

Consideration of the questions referred

The first question

15 By its first question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13 must be interpreted as meaning that, in the event that a contract concluded between a consumer and a seller or supplier is declared invalid because one of its terms is unfair, it is for the Member States, by means of their national law, to make provision for the effects of that invalidation, without regard to the protection granted by that directive to consumers.

16 As a preliminary point, it should be borne in mind that, in accordance...

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