Legal basis for the annulment of the franc agreement

Facts

2006 T.D. and S.D. with mBank S.A. a mortgage credit agreement for a period of 360 months in the amount of PLN 160.000, indexed to the Swiss franc value and granted at a variable interest rate. In 2020. T.D. and S.D. They turned to mBank to remove certain contractual provisions which they considered unfair and to assert that the credit agreement was illegal and consequently invalid. The bank rejected this request. He stated that the credit agreement was legal and did not contain unfair terms. Then T.D. and S.D. they brought to the referring court a suit in which they held that the conversion clauses and the variable interest clause contained in their credit agreement were unfair and that the agreement was contrary to the law and so invalid.

T.D. and S.D. declared in writing that they had full understood and accepted the consequences of the cancellation of the credit agreement. In addition, they were personally instructed by the Court of First Instance of the effects of annulment at the proceeding and maintained their written statement.

The referring court stressed that according to the position prevailing in the Polish jurisprudence, conversion clauses are unlawful under Article 385¹ § 1 KC. The existence of specified conditions, making it impossible to implement the contract, render it invalid in its entirety. In principle, the Polish courts consider that agreements with variable interest rates considered unfair are affected by annulment. On the another hand, there are differences between these courts as to whether specified nullity is absolute, as provided for in Article 58(1) and (3) of the CCC, or whether it results from the removal of this unfair condition in accordance with Article 385¹ § 1 KC. The referring court stressed that, in both cases, the full contract in question was invalidated with effect ex tunc, but its effects vary according to whether it has been ruled pursuant to Article 58(1) and (3) of the CCC or Article 385¹ § 1 KC. According to the Court of First Instance, a large part of the national courts, according to the case-law of the Polish ultimate Court, consider that a contractual provision contrary to mandatory law within the meaning of Article 58(1) of the CCC cannot be declared unlawful under Article 385¹ § 1 KC.

Accordingly, the referring court had doubts as to the compatibility of that case-law with Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L 95, p. 29), taking into account the consumer's right not to invoke Directive 93/13/EEC and little favourable limitation periods, both for consumers and for traders, in respect of actions based on Article 58(1) of the KC. In that regard, the Court of First Instance considered that the provisions of Directive 93/13/EEC did not prevent the absolute nullity of the contract from being ruled on under Article 58(1) of the CCC, thus excluding the application of Article 385¹ § 1 KC. However, that court considered it essential to ask the Court a question in order to examine this assessment and to find whether the consumer could be left to choose the legal basis for annulment.

TEU position

In accordance with Article 53(2) of the Rules of Procedure of the Court of Justice, where It is, of course, inappropriate to examine the case, after proceeding the Advocate General, he may at any time issue a message of reasons without further procedural action. According to the TEU, this provision should be applied to the present case.

In accordance with the Court of Justice’s common position, the questions concerning the explanation of Union law raised by the national court in the context of a legal and factual situation for which it is liable and the determination of which is not subject to the Court’s assessment benefit the presumption that they are applicable to the case. However, the procedure laid down in Article 267 TFEU is an instrument of cooperation between The Court and the national courts by which the TEU provides national courts with the elements of that right essential to resolve the disputes to be resolved. The mention for a preliminary ruling is not intended to give an advisory opinion on general or hypothetical matters, but is intended to be guided by the real request to resolve the dispute effectively.. According to Article 267 TFEU, a preliminary ruling must be necessaryin order to enable the referring court to deliver its judgement in the case before it (order of the EUSF of 7.4.2022, J. P., C-521/20, paragraph 17). Under the procedure laid down in Article 267 TFEU, the Court it is not competent to regulation on or interpret national laws or regulations or on the conformity of specified provisions with EU law. It follows from the settled caselaw of the CJEU that, in the context of a mention for a preliminary ruling under Article 267 TFEU, The Court can only interpret Union law within the limits of the powers conferred on it (the Order of the EUSF of 10.1.2022, Anatecor, C-400/21, paragraph (13).

The Court has acknowledged that, in the case of questions which have been put in an inappropriate manner or which go beyond the scope of the tasks conferred on it by Article 267 TFEU, it is up to the national court to remove from all the information submitted by the national court and, in particular, from the justification of the order for reference, elements of Union law which require explanation in the light of the subject substance of the dispute (C-400/21, paragraph 15). However, given that the mention for a preliminary ruling concerns the choice of the legal basis for the annulment of contracts in force in national law, the CJEU concluded that the mention order did not contain information allowing it to be considered that the settlement of a dispute in the main proceedings requires explanation of a provision of Union law.

As a result, the TEU ruled that it was, of course, inappropriate to answer a question asked by SR for Warsaw-Śródmieście in Warsaw.

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