Language of document :

Judgment of the Court (Ninth Chamber) of 8 September 2022 (requests for a preliminary ruling from the Sąd Rejonowy dla Warszawy – Śródmieścia w Warszawie – Poland) – E.K., S.K. v D.B.P. (C-80/21), and B.S., W.S. v M. (C-81/21), and B.S., Ł.S. v M. (C-82/21)

(Joined Cases C-80/21 to C-82/21) 1

(Request for a preliminary ruling – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 6(1) and Article 7(1) – Mortgage credit agreements – Effects of a finding that a term is unfair – Period of limitation – Principle of effectiveness)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy – Śródmieścia w Warszawie

Parties to the main proceedings

Applicants: E.K., S.K. (C 80/21), B.S., W.S. (C-81/21), B.S., Ł.S. (C-82/21)

Defendants: D.B.P. (C-80/21), M. (C-81/21), M. (C-82/21)

Operative part of the judgment

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as:

precluding national case-law according to which the national court may declare unfair not the entire term of a contract concluded between a consumer and a seller or supplier, but only those parts of it which are unfair, so that the term remains partially effective after the removal of those parts, where such removal would be tantamount to revising the content of the term by affecting its substance, which is a matter for the national court to determine.

Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as:

precluding national case-law according to which the national court may, after finding that an unfair term contained in a contract concluded between a consumer and a seller or supplier is void and does not result in the annulment of that contract as a whole, replace that term with a supplementary provision of national law.

Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as:

precluding national case-law according to which the national court may, after finding that an unfair term contained in a contract concluded between a consumer and a seller or supplier is void and that the contract as a whole is void, replace the annulled term either by interpreting the parties’ wishes in order to avoid the annulment of the contract, or by applying to the annulled unfair term a supplementary provision of national law, even though the consumer has been informed of the consequences of the annulment of that contract and has accepted them.

Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as:

precluding national case-law according to which the 10-year limitation period for a consumer’s action for the restitution of sums unduly paid to a seller or supplier in performance of an unfair term contained in a credit agreement with a duration of 30 years begins to run on the date of each performance by the consumer, even though the consumer was not in a position, at that date, to assess the unfairness of the contractual term himself or herself or was not aware of the unfairness of the term, and regardless of the fact that the contract had a repayment period, in this case 30 years, which is much longer than the statutory limitation period of 10 years.

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1 OJ C 242, 21.6.2021.