On November 18, 2021, the CJEU issued a ruling in the case C-212/20, favorable to creditors.
The CJEU found that:
1) Article 5 of Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in consumer contracts should be interpreted as meaning that the wording of a clause in a credit agreement concluded between a creditor and a consumer, fixing the purchase and sale price of a foreign currency, to which credit is indexed, should, on the basis of clear and understandable criteria, enable a properly informed, reasonably attentive and rational consumer to understand how to determine the foreign exchange rate used to calculate the amount of the credit installments, in such a way that the consumer can at any time independently determine the exchange rate used by the creditor.
2) Articles 5 and 6 of Directive 93/13 must be interpreted as precluding a national court which has found that a term of a contract concluded between a creditor and a consumer is unfair within the meaning of Art. 3 sec. 1 of that directive, he interpreted that condition in order to mitigate its unfairness, even if such an interpretation would correspond to the common will of the parties.
The CJEU has unequivocally ruled that the indexation provisions contained in the loan agreement must specify an understandable and objective method of determining the exchange rate. The point is for a properly informed, attentive and rational consumer to understand the method of determining the foreign currency exchange rate used to calculate installments, used by the bank at any time and independently.
Moreover, the CJEU ruled that the national court, which found that a contract term concluded with a consumer was unfair, cannot interpret it in order to mitigate its unfair character, even if such an interpretation would correspond to the common will of the consumer and the bank.
Thus, the CJEU agreed not only to the position of franchise holders, but also to the Ombudsman, the government and the European Commission that the possible acceptance of the argumentation of the court asking the question would exclude the possibility of providing Polish consumers with effective protection, leading to the erosion of the application of consumer law in Poland.
More on the CJEU judgment – https://curia.europa.eu/juris/document/document_print.jsf?docid=249501&text=&dir=&doclang=PL&part=1&occ=first&mode=lst&pageIndex=0&cid=206665
