Facts
In 2008, the Council adopted Decision (CFSP) 2015/849. K.L. and J.L. with mBank S.A. debt agreement indexed to Swiss franc. Having considered that the agreement contained unfair conditions, both consumers requested the annulment of the credit agreement as part of an action in group proceedings brought to SO in Łódź, served on 28.9.2017. mBank.
In December 2021. mBank He brought an action against K.L. and J.L. before SO in Warsaw (referring court), demanding that, in the event that an action in group proceedings would consequence in a credit agreement being annulled, consumers be obliged to return the credit capital to him, plus statutory interest for delay. K.L. and J.L. they requested that this action be dismissed, raising, in particular, the limitation of the claim mBanku.
The referring court asked the following question for a preliminary ruling: did Article 7(1) of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L L 1993. No. 95, p. 29) and the principles of effectiveness, proportionality, legal certainty and the right to court must be interpreted as precluding the judicial explanation of national rules, according to which the period of limitation of a trader's claim against the consumer for the reimbursement of undue benefits under a contract which has become invalid due to unfair contractual terms is interrupted by the submission by the bank of a claim for payment which has been filed before the final termination of the earlier consumer's procedure for the annulment of the credit agreement?
TS Position
According to settled case law of the TS, a contractual condition found to be unfair should, in principle, be regarded as non-existent so as not to have effects on the consumer. Therefore, a judicial uncovering of the unfair nature of specified a condition should in rule consequence restoring the legal and factual situation. . . . . . . . . . . . . . . . . Bank M. (Results of declaring the agreement invalid), C-520/21, paragraph 65, Legalis. This nonsubjective should be respected proportionality a general rule of Union law which requires that the national government implementing that law does not go beyond what is essential to accomplish the nonsubjective pursued. Meanwhile, this rule of proportionality, according to the TS, would be affected if restitutio in integrum was excluded in relation to the entrepreneur. Then Repayment obligation, resulting from the annulment of a credit agreement containing unfair terms, should be reciprocal, however, the bank is not entitled to claim compensation from the consumer beyond the return on capital paid in respect of the performance of that contract and beyond the payment of statutory interest for late payment from the date of the call for payment. Furthermore, the restitution effect linked to the annulment of a credit agreement containing unfair conditions, which besides justifies the Bank’s submission of a recovery action, allows the protection of rights guaranteed by the legal order of the Union not to lead to unjustified enrichment of the consumer.
The Court recalled that The rule of equality of arms, which is the consequence of the concept of a fair trial, and whose aim is to guarantee a balance between the parties in the proceedings, entails the work to grant each organization reasonable chance to present its case under conditions which do not put it in a clearly little favourable position to the opposing party, including, in the present case, by an action for recovery by the entrepreneur, separate from the parallel procedure for the annulment of a credit agreement containing unfair terms to interrupt the limitation of his claim.
The Court pointed out that Principle of legal certainty, to which the referring court refers, aims to guarantee predictability of the situation and legal relations. The TS so considered that this rule does not preclude a provision of national law specified as Article 123(1)(1) KC, according to which the submission of a claim for a benefit ceases, in all circumstances, the limitation period for a claim for that benefit.
According to the caselaw of the TS, Procedural rules that origin besides advanced costs to the consumer, could lead to the fact that this consumer would be discouraged from taking part in proceedings to enable him to effectively defend his rights before the court before which the trader brought proceedings against him ( TS judgement of 7.4.2022), Caixabank, C-385/20, paragraph 54, Legalis). The Court pointed out that the referring court would so be subject to the application, where possible, of Polish law, including procedural provisions allowing, if necessary, suspension of proceedings in respect of an action for recovery brought by an entrepreneur pending the final result of the procedure previously initiated by consumers to search the annulment of the credit agreement.
In conclusion, the TS held that Article 7(1) of Directive 93/13 and the rule of effectiveness, taking into account the right to a court, as well as the principles of proportionality and legal certainty, should be interpreted as meaning that they do not preclude the judicial explanation of a provision of national law that requires the trader to bring an action for reimbursement of benefits under a credit agreement which is the subject of a separate procedure initiated by the consumer in order to declare the contract invalid due to the unfair nature of the conditions contained therein, interrupts the limitation period for that trader before the final termination of the second procedure, provided that the national court, having respect to all the provisions of national law, takes all essential measures to guarantee that the exercise of the rights which the consumer derives from Directive 93/13 is not unduly impeded or impossible.
Comment
Court of Justice in the same day of 3 judgments, in the present case and in cases Rape, C-753/24 and Falucka, C-901/24, granted the banks, in accordance with Directive 93/13, the right to take action which would consequence in their claims in cases with the francs not being subject to limitation. In order to justify its position, the TS referred in all these cases to the rule of proportionality and the request to reconstruct the legal and factual situation before the abusing credit agreement, in the event of its annulment, not only for the Frankovich but besides for the bank.
It is besides apparent from this judgement that the existing practice of banks, which has already been sued by Francowiczs, consisting in bringing a claim for reimbursement, pursuant to Article 405 in conjunction with Article 410(1) of the CCC, of credit capital, plus statutory interest for delay, resulting in the interruption of the limitation period within the meaning of Article 123(1) of the CCC, does not infringe Directive 93/13. The Court of Justice, on the basis of its position on the basis of the erstwhile case law and, first, referred, as in the judgement in the case mBank (Consumer’s Statement), C-140/22, on the ground that the work to repay, resulting from the annulment of a credit agreement containing unfair terms, should be reciprocal. Secondly, the TS pointed out that the protection of consumer rights under Directive 93/13 cannot lead to undue enrichment. Thirdly, the Court has accepted that the principles of equality of arms and legal certainty justify an action by the bank for a refund aimed at terminating the limitation period for its claim and thus the application of Article 123(1) KC. Consequently, if the creditor has brought specified an action before a final judgement on the annulment of the credit agreement on the grounds that it is not available, the court should suspend this proceedings from the bank's action, and the Frankowiczs’ claim of limitation of the claim of the bank appears to be .
The Court of Justice stressed the work of the national court to ‘consider’ the proportionality of the costs incurred in connection with the claim for reimbursement brought by the bank before the termination of the credit agreement, which would have had to be borne by the francs if they had lost the process in the course of that action.
Judgment of the TS of 16.4.2026, Jangielak, C-752/24
