Facts
In 2019. JJ (consumer) and PKO BP S.A. conclude a mortgage agreement for the acquisition of a dwelling. This debt was a variable interest rate loan, calculated on the basis of WIBOR 6M, with the variable interest rate in force being adjusted according to changes in this ratio during the half-year period. JJ He brought an action against that bank requesting that the provisions of the credit agreement, in so far as they relate to WIBOR, constitute unlawful contractual provisions and have not been bound by it since the conclusion of the contract.
The territory Court of Czestochowa has asked questions relating to, inter alia, the application of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L L 1993. No. 95, p. 29) to examine the contractual provisions on variable interest rates based on the WIBOR benchmark and to verify them in the light of the request of transparency and their ability to qualify as a unfair contractual condition.
Evaluation of the Ombudsman-General
Application of Directive 93/13/EEC
Article 1(2) of Directive 93/13/EEC excludes from its scope, inter alia, ‘contractual conditions reflecting existing laws or regulations’.
Article 29(2) of the Mortgage Credit Act of 23.3.2017 and the supervision of mortgage credit intermediaries and agents (i.e. OJ of 2025 item 720; hereinafter: The HipU Credit) provides that if the parties have not agreed on a fixed rate of interest on the mortgage loan, the method for setting the interest rate shall be defined as the benchmark value and the premium established in the mortgage agreement. The Advocate General Laila Medina stated that this provision does not appear to impose an work to usage the WIBOR benchmark. In the assessment of the RG, this provision should be considered as general provision, leaving marketplace participants any scope of freedom in the adoption of a circumstantial indicator, its rate and the exact fixed margin. Therefore, the disputed contractual condition, which states that the interest rate is based on the WIBOR rate and the 6M rate and the fixed margin of 1.85 %, does not appear to reflect virtually the content of the above national provision. Consequently, the RG considered that Article 29(2) The HipU debt does not appear to establish clearly and unequivocally the application of a circumstantial benchmark and its rateand in peculiar WIBOR 6M.
According to RG, the fact that the WIBOR indicator is included in the list of key benchmarks referred to in Article 20(1) of Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8.6.2016 on indices utilized as benchmarks in financial instruments and financial agreements or to measurement the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 2016, 171, p. 1) does not in itself justify the exclusion from the scope of Directive 93/13/EEC of the contractual condition which refers to the WIBOR indicator.
The RG considered that the answer to the first question should read: Article 1(2) of Directive 93/13/EEC must be interpreted as meaning that the contractual condition included in the mortgage agreement between the consumer and the trader, which provides that the interest rate applicable to the debt is simply a variable interest rate based on the WIBOR 6M benchmark, falls within the scope of that Directive, where national rules do not supply for the mandatory application of this indicator and its circumstantial rate, regardless of the choice made by the parties to the contract.
Transparency requirement
Subject to verification by the referring court, the RG rightly accepted that the disputed contractual condition could be regarded as falling within the scope of the word ‘main subject substance of the contract’and thus forms part of the borrower's basic benefit in specified a contract.
The referring court points out that the contract in question contained information on the entity that sets the benchmark and on the basis on which that benchmark is set, the time limit for the deposit for that indicator, and the method for determining interest on the basis of that indicator. However, that court raised doubts as to whether it should besides be clarified how WIBOR is established and what factors affect its change due to the fact that J. J. alleged that he had not been given an explanation as to the rules for setting the WIBOR rate.
According to RG, the analysis of Regulation 2016/1011/EU shows that the transparency request provided for in Directive 93/13/EEC, as interpreted in that Regulation, does not oblige the creditor to supply more detailed information straight on the methodology for determining the benchmark than required by that Regulation. The general information on the methodology utilized is contained in Regulation 2016/1011/EU and details must be published or made publically available by the administrator
According to the RG, the answer to the second question for a preliminary ruling should read: Article 4(2) of Directive 93/13/EEC must be interpreted as allowing for the assessment of the unfair nature of the condition included in the mortgage agreement between the consumer and the entrepreneur, which provides for the application of the variable interest rate based on the WIBOR 6M benchmark to that contract, if this condition is not formulated in a simple and understandable language (transparency requirement). To meet this requirement, an entrepreneur must inform the consumer in a sufficiently precise and precise manner of the name of the benchmark utilized and the name of its administrator, and of the possible consequences for the consumer resulting from the usage of that benchmark, in order to enable it to estimation in peculiar the full cost of the loan. The manner in which the creditor provides this information, either straight or indirectly, must consequence in that information fully disclosed the method utilized and the main elements causing fluctuations in the rate of the indicator and did not give a distorted image of the nature of the indicator.
Unfair nature of the contractual condition
RG concluded that national courts in civilian matters specified as the dispute in question cannot test the method the determination of specified indicators on the basis of that Directive, since specified examination goes beyond the scope of Directive 93/13/EEC.
According to the RG, the answer to the 3rd question should read: Article 3(1) of Directive 93/13/EEC must be interpreted as meaning that it obliges the national court to measure whether the contractual condition relating to a variable interest rate based on the WIBOR benchmark — contrary to the request of good faith – causes a crucial imbalance the contractual rights and obligations of the parties to the detriment of the consumer. In doing so, the national court must, in an overall assessment of the unfair nature of the contractual condition, verify whether the creditor, treating the consumer in a fair and equitable manner, he could reasonably presume that the consumer would accept specified a condition by negotiating individual contracts. To this end, it should be checked whether the consumer gave informed consent to the risk resulting from the application of the disputed contractual condition upon receipt of complete and accurate information. However, this assessment cannot mention to the WIBOR indicator as specified or to the method of determining it.
Comment
This opinion of the RG, as well as an earlier proceeding before the Court, raises much more interest not only among parties to proceedings and lawyers. In addition, the explanation of the opinion of the RG presented in peculiar in the media area is "very diverse". Of course, a detailed analysis of the RG opinion is outside the scope of this comment, but mostly speaking, this position is not groundbreaking, following the current TS jurisprudence line on the abuzzability of the provisions of the variable interest rate credit agreement based on the benchmark (see Article 385)1 KC) and contains undoubtedly a more favourable explanation for the borrower. In the majority of this opinion, therefore, the arguments drawn from the present case-law of the TS have been reiterated by ‘rounding’ them with indications that it is for the national court to carry out a detailed assessment using, of course, the criteria of the EU case-law.
In examining the position in this opinion, it is besides appropriate to rise the "certain disunity" between the factual and legal situation of the mention for a preliminary ruling on this substance and the 1 presented at the proceeding and the RG’s commentary opinion, which besides affects the content of that opinion.
It should besides be pointed out that, according to the Court’s request, which appears to be symptomatic, the RG did not mention to the 4th question for a preliminary ruling on the consequences of the unfair designation of the contractual variable interest rate provision under the WIBOR benchmark.
Opinion of the Advocate General of 11.9.2025, PKO BP (Key benchmark), C-471/24Legalis.
