Contents
Judgment of the Court (Third Chamber)12 February 2026note(Reference for a preliminary ruling — Unfair terms in consumer contracts — Directive 93/13/EEC — Credit agreement — Variable-rate mortgage loan agreement — Contractual term providing for the determination of the interest rate on the basis of a benchmark within the meaning of Regulation (EU) 2016/1011 — Article 1(2) of Directive 93/13 — Contractual term reflecting mandatory statutory or regulatory provisions — Article 4(2) of Directive 93/13 — Concept of definition of the main subject matter of the contract — Requirement of transparency — Article 3(1) of Directive 93/13 — Unfairness)In Case C‑471/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa, Poland), made by decision of 31 May 2024, received at the Court on 3 July 2024, in the proceedingsJ.J.vPKO BP S.A.,THE COURT (Third Chamber),composed of C. Lycourgos, President of the Chamber, O. Spineanu‑Matei (Rapporteur), S. Rodin, N. Piçarra and N. Fenger, Judges,Advocate General: L. Medina,Registrar: A. Calot Escobar,having regard to the written procedure and further to the hearing on 11 June 2025,after considering the observations submitted on behalf of:– J.J., by S. Frejowski, radca prawny, D. Rosa and A. Twardygrosz, adwokaci,– PKO BP S.A., by A. Cudna‑Wagner, radca prawny, P. Haiduk, B. Miąskiewicz and M. Romanowski, adwokaci,– the Polish Government, by B. Majczyna, E. Buczkowska and M. Kozak, acting as Agents,– the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,– the Portuguese Government, by P. Barros da Costa, A. Cunha, C. Freire, A. Morais and A. Rodrigues, acting as Agents,– the European Commission, by M. Brauhoff and P. Kienapfel, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 11 September 2025,gives the following
Judgment
1The request for a preliminary ruling concerns the interpretation of Article 1(2), Article 2, Article 3(1) and (2), Article 4(2), and Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
2The request has been made in proceedings between J.J., a consumer, and PKO BP S.A. (‘PKO’), a bank established in Poland, concerning, first, the unenforceability or nullity of the term of a mortgage loan agreement relating to the determination of the variable interest rate and, second, the reimbursement of part of the sums paid by that consumer to that bank in performance of that agreement.
Legal context
European Union law
Directive 93/13
3The thirteenth and sixteenth recitals of Directive 93/13 are worded as follows:‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the [European] Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established;…Whereas ... the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account’.
4Under Article 1(2) of that directive:‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’
5Article 3(1) of that directive provides:‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’
6Under Article 4(2) of that directive:‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplie[d] in exchange, on the other, in so far as these terms are in plain intelligible language.’
7Article 6(1) of Directive 93/13 is worded as follows:‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
Directive 2008/48
8According to Article 3(j) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66):‘For the purposes of this Directive, the following definitions shall apply:…(j) “borrowing rate” means the interest rate expressed as a fixed or variable percentage applied on an annual basis to the amount of credit drawn down’.
Directive 2014/17
9Recital 7 of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34), as amended by Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 (OJ 2016 L 171, p. 1) (‘Directive 2014/17’) provides:‘In order to create a genuine internal market with a high and equivalent level of consumer protection, this Directive lays down provisions subject to maximum harmonisation in relation to the provision of pre-contractual information through the European Standardised Information Sheet (ESIS) standardised format and the calculation [of the annual percentage rate of charge (APRC)]. …’
10Article 2 of that directive, entitled ‘Level of harmonisation’, provides:1. This Directive shall not preclude Member States from maintaining or introducing more stringent provisions in order to protect consumers, provided that such provisions are consistent with their obligations under Union law.2. Notwithstanding paragraph 1, Member States shall not maintain or introduce in their national law provisions diverging from those laid down in Article 14(2) and Annex II Part A with regard to standard pre-contractual information through a [ESIS] and Article 17(1) to (5), (7) and (8) and Annex I with regard to a common, consistent [EU] standard for the calculation of the annual percentage rate of charge (APRC).’
11Article 13 of that directive, entitled ‘General information’, provides in paragraph 1 thereof:‘Member States shall ensure that clear and comprehensible general information about credit agreements is made available by creditors or, where applicable, by tied credit intermediaries or their appointed representatives at all times on paper or on another durable medium or in electronic form …Such general information shall include at least the following:…(ea) where contracts that reference a benchmark as defined in point (3) of Article 3(1) of Regulation (EU) 2016/1011 … are available, the names of the benchmarks and of their administrators and the potential implications on the consumer;…’
12Article 14 of that directive, headed ‘Pre-contractual information’, provides:1. Member States shall ensure that the creditor and, where applicable, the credit intermediary or appointed representative, provides the consumer with the personalised information needed to compare the credits available on the market, assess their implications and make an informed decision on whether to conclude a credit agreement:…2. The personalised information referred to in paragraph 1, on paper or on another durable medium, shall be provided by means of the ESIS, as set out in Annex II.’
13Article 17 of Directive 2014/17, headed ‘Calculation of the APRC’, provides, in paragraph 6:‘Where the credit agreement allows for variations in the borrowing rate, Member States shall ensure that the consumer is informed of the possible impacts of variations on the amounts payable and on the APRC at least by means of the ESIS. This shall be done by providing the consumer with an additional APRC which illustrates the possible risks linked to a significant increase in the borrowing rate. Where the borrowing rate is not capped, this information shall be accompanied by a warning highlighting that the total cost of the credit to the consumer, shown by the APRC, may change. …’
14Annex II to that directive is entitled ‘European Standardised Information Sheet (ESIS)’. Part A thereof contains the following information:‘The text in this model shall be reproduced as such in the ESIS. Indications between square brackets shall be replaced with the corresponding information. ……The information below shall be provided in a single document. …ESIS Model…4. Interest rate and other costsThe [APRC] is the total cost of the loan expressed as an annual percentage. The APRC is provided to help you to compare different offers.…(Where applicable) This APRC is calculated using assumptions regarding the interest rate.(Where applicable) Because [part of] your loan is a variable interest rate loan, the actual APRC could be different from this APRC if the interest rate for your loan changes. For example, if the interest rate rose to [scenario as described in Part B], the APRC could increase to [insert illustrative APRC corresponding to the scenario].…6. Amount of each instalment…(Where applicable) The interest rate on [part of] this loan can change. This means the amount of your instalments could increase or decrease. For example, if the interest rate rose to [scenario as described in Part B] your payments could increase to [insert instalment amount corresponding to the scenario].…’
15Part B of Annex II to that directive is entitled ‘Instructions to complete the ESIS’. Point 6 of Section 3 and point 2 of Section 4 of that part are worded as follows:‘Section “3. Main features of the loan”…(6) This section shall explain whether the borrowing rate is fixed or variable and, where applicable, the periods during which it will remain fixed; the frequency of subsequent revisions and the existence of limits to the borrowing rate variability, such as caps or floors.The formula used to revise the borrowing rate and its different components (e.g. reference rate, interest rate spread) shall be explained. The creditor shall indicate, e.g. by means of a web address, where further information on the indices or rates used in the formula can be found, e.g. Euribor or central bank reference rate.…Section “4. Interest rate” and other costs…(2) The borrowing rate shall be mentioned as a percentage value. Where the borrowing rate is variable and based on a reference rate the creditor may indicate the borrowing rate by stating a reference rate and a percentage value of creditor’s spread. The creditor shall however indicate the value of the reference rate valid on the day of issuing the ESIS.Where the borrowing rate is variable the information shall include: (a) the assumptions used to calculate the APRC; (b) where relevant, the applicable caps and floors and (c) a warning that the variability could affect the actual level of the APRC. In order to attract the consumer’s attention the font size used for the warning shall be bigger and shall figure prominently in the main body of the ESIS. The warning shall be accompanied by an illustrative example on the APRC. … Where there is no cap the example shall illustrate the APRC at the highest borrowing rate in at least the last 20 years, or where the underlying data for the calculation of the borrowing rate is available for a period of less than 20 years the longest period for which such data is available, based on the highest value of any external reference rate used in calculating the borrowing rate where applicable …’
Regulation 2016/1011
16Regulation 2016/1011 includes, inter alia, the following recitals:(1) The pricing of many financial instruments and financial contracts depends on the accuracy and integrity of benchmarks. Serious cases of manipulation of interest rate benchmarks such as LIBOR [London Interbank Offered Rate] and EURIBOR [Euro Interbank Offered Rate], as well as allegations that energy, oil and foreign exchange benchmarks have been manipulated, demonstrate that benchmarks can be subject to conflicts of interest. The use of discretion, and weak governance regimes, increase the vulnerability of benchmarks to manipulation. Failures in, or doubts about, the accuracy and integrity of indices used as benchmarks can undermine market confidence, cause losses to consumers and investors and distort the real economy. It is therefore necessary to ensure the accuracy, robustness and integrity of benchmarks and of the benchmark determination process.…(5) Union consumer protection rules do not cover the particular issue of adequate information on benchmarks in financial contracts. As a result of consumer complaints and litigation relating to the use of benchmarks in several Member States, it is likely that divergent measures, inspired by legitimate concerns of consumer protection, would be adopted at national level, which could result in fragmentation of the internal market due to the divergent conditions of competition attached to different levels of consumer protection.(6) Therefore, in order to ensure the proper functioning of the internal market and improve the conditions of its functioning, in particular with regard to financial markets, and to ensure a high level of consumer and investor protection, it is appropriate to lay down a regulatory framework for benchmarks at Union level.…(8) The scope of this Regulation should be as broad as necessary to create a preventive regulatory framework. The provision of benchmarks involves discretion in their determination and is inherently subject to certain types of conflicts of interest, which implies the existence of opportunities and incentives to manipulate benchmarks. Such risk factors are common to all benchmarks and should be made subject to adequate governance and control requirements. The degree of risk, however, varies, and the approach adopted should therefore be tailored to the particular circumstances. Since the vulnerability and importance of a benchmark varies over time, restricting the scope by reference to indices that are currently important or vulnerable would not address the risks that any benchmark poses in the future. In particular, benchmarks that are currently not widely used could be used more in the future with the result that, in their regard, even a minor manipulation could have a significant impact.…(17) An index is calculated using a formula or some other methodology on the basis of underlying values. There exists a degree of discretion in constructing the formula, performing the necessary calculation and determining the input data which creates a risk of manipulation. Therefore, all benchmarks sharing that characteristic of discretion should be covered by this Regulation.…(22) The manipulation or unreliability of benchmarks can cause damage to investors and consumers. Therefore, this Regulation should set out a framework for retention of records by administrators and contributors as well as for providing transparency about a benchmark’s purpose and methodology which facilitates a more efficient and fairer resolution of potential claims in accordance with national or Union law.…(26) Any discretion that can be exercised in providing input data creates an opportunity to manipulate a benchmark. Where the input data is transaction-based data, there is less discretion and therefore the opportunity to manipulate the data is reduced. As a general rule, benchmark administrators should therefore use actual transaction-based input data where possible but other data can be used in those cases where the transaction data is insufficient or inappropriate to ensure the integrity and accuracy of the benchmark.…(71) Consumers are able to enter into financial contracts, in particular mortgages and consumer credit contracts, that reference a benchmark, but unequal bargaining power and the use of standard terms mean that they can have a limited choice about the benchmark used. It is therefore necessary to ensure that at least adequate information is provided by creditors or credit intermediaries to consumers. To that end, Directives 2008/48/EC and 2014/17/EU should therefore be amended accordingly.…’
17Article 1 of that regulation provides:‘This Regulation introduces a common framework to ensure the accuracy and integrity of indices used as benchmarks in financial instruments and financial contracts, or to measure the performance of investment funds in the Union. This Regulation thereby contributes to the proper functioning of the internal market while achieving a high level of consumer and investor protection.’
18Article 2(1) of that regulation provides:‘This Regulation applies to the provision of benchmarks, the contribution of input data to a benchmark and the use of a benchmark within the Union.’
19Article 3(1) of that regulation provides:‘For the purposes of this Regulation, the following definitions apply:…(10) “supervised contributor” means a supervised entity that contributes input data to an administrator located in the Union;…(17) “supervised entity” means any of the following:(a) a credit institution as defined in point 1 of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council [of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1)];…(i) a non-credit institution as defined in point (10) of Article 4 of Directive 2014/17/EU for the purposes of credit agreements as defined in point (3) of Article 4 of that Directive;…(22) “interest rate benchmark” means a benchmark which for the purposes of point (1)(b)(ii) of this paragraph is determined on the basis of the rate at which banks may lend to, or borrow from, other banks, or agents other than banks, in the money market;…’
20Title II of Regulation 2016/1011, entitled ‘Benchmark integrity and reliability’, includes Chapter 1, itself entitled ‘Governance of and control by administrators’, which includes a set of provisions governing the activity of benchmark administrators. Thus, Article 4 of that regulation lays down the requirements relating to governance and conflicts of interest, Article 5 sets out the requirements relating to the oversight function of all aspects of the provision of benchmarks, Article 6 those relating to the control framework ensuring that the provision and publication or making available of benchmarks comply with that regulation and Article 7(3) those relating to the appointment of an independent external auditor to review the administrator’s compliance with the benchmark methodology and that regulation.
21Also forming part of the rules on governance and control for benchmark administrators, Article 9 of Regulation 2016/1011, entitled ‘Complaints-handling mechanism’, provides:1. An administrator shall have in place and publish procedures for receiving, investigating and retaining records concerning complaints made, including about the administrator’s benchmark determination process.2.Such a complaints-handling mechanism shall ensure that:(a) the administrator makes available the complaints-handling policy through which complaints may be submitted on whether a specific benchmark determination is representative of market value, on a proposed change to the benchmark determination process, on an application of the methodology in relation to a specific benchmark determination, and on other decisions in relation to the benchmark determination process;…’
22In Title II of Regulation 2016/1011, Chapter 2, entitled ‘Input data, methodology and reporting of infringements’, contains Articles 11 to 14 of that regulation. Article 11, entitled ‘Input data’, provides:1.The provision of a benchmark shall be governed by the following requirements in respect of its input data:(a) the input data shall be sufficient to represent accurately and reliably the market or economic reality that the benchmark is intended to measure. The input data shall be transaction data, if available and appropriate. If transaction data is not sufficient or is not appropriate to represent accurately and reliably the market or economic reality that the benchmark is intended to measure, input data which is not transaction data may be used, including estimated prices, quotes and committed quotes, or other values;(b) the input data referred to in point (a) shall be verifiable;…(d) where a benchmark is based on input data from contributors, the administrator shall obtain, where appropriate, the input data from a reliable and representative panel or sample of contributors so as to ensure that the resulting benchmark is reliable and representative of the market or economic reality that the benchmark is intended to measure;(e) the administrator shall not use input data from a contributor if the administrator has any indication that the contributor does not adhere to the code of conduct referred to in Article 15, and in such a case shall obtain representative publicly available data.2.Administrators shall ensure that their controls in respect of input data include:…(b) a process for evaluating a contributor’s input data and for stopping the contributor from providing further input data, or applying other penalties for non-compliance against the contributor, where appropriate; and(c) a process for validating input data, including against other indicators or data, to ensure its integrity and accuracy.…’
23Under Article 12 of Regulation 2016/1011, entitled ‘Methodology’:1.An administrator shall use a methodology for determining a benchmark that:(a) is robust and reliable;(b) has clear rules identifying how and when discretion may be exercised in the determination of that benchmark;(c) is rigorous, continuous and capable of validation including, where appropriate, back-testing against available transaction data;(d) is resilient and ensures that the benchmark can be calculated in the widest set of possible circumstances, without compromising its integrity;(e) is traceable and verifiable.…3. An administrator shall have in place clear published arrangements that identify the circumstances in which the quantity or quality of input data falls below the standards necessary for the methodology to determine the benchmark accurately and reliably, and that describe whether and how the benchmark is to be calculated in such circumstances.’
24Article 13 of that regulation, entitled ‘Transparency of methodology’, provides, in paragraph 1(a) and (b):‘An administrator shall develop, operate and administer the benchmark and methodology transparently. To that end, the administrator shall publish or make available the following information:(a) the key elements of the methodology that the administrator uses for each benchmark provided and published or, when applicable, for each family of benchmarks provided and published;(b) details of the internal review and the approval of a given methodology, as well as the frequency of such review’.
25Article 14 of that regulation, entitled ‘Reporting of infringements’, provides, in paragraph 1 and the first subparagraph of paragraph 2 thereof:1. An administrator shall establish adequate systems and effective controls to ensure the integrity of input data in order to be able to identify and report to the competent authority any conduct that may involve manipulation or attempted manipulation of a benchmark, under Regulation (EU) No 596/2014 [of the European Parliament and of the Council of 16 April 2014 on market abuse (Market Abuse Regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ 2014 L 173, p. 1)].2. An administrator shall monitor input data and contributors in order to be able to notify the competent authority and provide all relevant information where the administrator suspects that, in relation to a benchmark, any conduct has taken place that may involve manipulation or attempted manipulation of the benchmark, under Regulation (EU) No 596/2014, including collusion to do so.’
26Chapter 3 of Regulation 2016/1011, which contains Articles 15 and 16, concerns the code of conduct and requirements for contributors.
27In accordance with Article 15(1) of Regulation 2016/1011, where a benchmark is based on input data from contributors, its administrator is to develop a code of conduct for each benchmark clearly specifying contributors’ responsibilities with respect to the contribution of input data and is to ensure that such code of conduct complies with that regulation. Paragraph 2 of that article states that that code is to include, at least, a clear description of the input data to be provided and the requirements necessary to ensure that input data is provided in accordance with Articles 11 and 14, policies to ensure that a contributor provides all relevant input data and the systems and controls that a contributor is required to establish. In accordance with Article 15(4) and (5), the monitoring of the code of conduct against the requirements of that regulation is to be carried out by the competent national authority.
28Article 16 of Regulation 2016/1011, entitled ‘Governance and control requirements for supervised contributors’, provides, in paragraphs 1 and 2 thereof:1.The following governance and control requirements shall apply to a supervised contributor:(a) the supervised contributor shall ensure that the provision of input data is not affected by any existing or potential conflict of interest and that, where any discretion is required, it is independently and honestly exercised based on relevant information in accordance with the code of conduct referred to in Article 15;(b) the supervised contributor shall have in place a control framework that ensures the integrity, accuracy and reliability of input data and that input data is provided in accordance with this Regulation and the code of conduct referred to in Article 15.2.A supervised contributor shall have in place effective systems and controls to ensure the integrity and reliability of all contributions of input data to the administrator, including:…(d) record-keeping, for an appropriate period of time, of communications in relation to provision of input data, of all information used to enable the contributor to make each submission, and of all existing or potential conflicts of interest including, but not limited to, the contributor’s exposure to financial instruments which use a benchmark as a reference;(e) record-keeping of internal and external audits.’
29Pursuant to Article 20(1) of Regulation (EU) 2016/1011, the Commission is empowered to adopt implementing acts to establish and review at least every two years a list of critical benchmarks.
30Title IV of that regulation is entitled ‘Transparency and consumer protection’. That title includes Article 27 of that regulation, itself entitled ‘Benchmark statement’, which provides, in paragraphs 1 and 2 thereof:1.Within two weeks of the inclusion of an administrator in the register [of administrators and benchmarks managed by the European Securities and Markets Authority (ESMA)] referred to in Article 36, the administrator shall publish, by means that ensure fair and easy access, a benchmark statement for each benchmark or, where applicable, for each family of benchmarks, that may be used in the Union in accordance with Article 29.Where that administrator begins providing a new benchmark or family of benchmarks that may be used in the Union in accordance with Article 29, the administrator shall publish, within two weeks and by means that ensure a fair and easy access, a benchmark statement for each new benchmark or, where applicable, family of benchmarks.…The benchmark statement shall:(a) clearly and unambiguously define the market or economic reality measured by the benchmark and the circumstances in which such measurement may become unreliable;(b) lay down technical specifications that clearly and unambiguously identify the elements of the calculation of the benchmark in relation to which discretion may be exercised, the criteria applicable to the exercise of such discretion and the position of the persons that can exercise discretion, and how such discretion may be subsequently evaluated;…2.A benchmark statement shall contain at least:(a) the definitions for all key terms relating to the benchmark;(b) the rationale for adopting the benchmark methodology and procedures for the review and approval of the methodology;(c) the criteria and procedures used to determine the benchmark, including a description of the input data, the priority given to different types of input data, the minimum data needed to determine a benchmark, the use of any models or methods of extrapolation and any procedure for rebalancing the constituents of a benchmark’s index;(d) the controls and rules that govern any exercise of judgement or discretion by the administrator or any contributors, to ensure consistency in the use of such judgement or discretion;…(f) the procedures for dealing with errors in input data ……’
31Article 29 of Regulation 2016/1011 provides that a supervised entity may use, inter alia, a benchmark or a combination of benchmarks in the European Union if the benchmark is provided by an administrator located in the European Union and included in the public register maintained by ESMA, referred to in Article 36 of that regulation, which contains, inter alia, the identities of the administrators authorised or registered and the competent authorities responsible for the supervision thereof.
32Title VI of Regulation 2016/1011 is entitled ‘Authorisation, registration and supervision of administrators’. Chapter 1 thereof, entitled ‘Authorisation and registration’, includes, inter alia, Articles 34 and 35 of that regulation, which provide, respectively, for an authorisation or registration system to which any natural or legal person located in the European Union intending to act as a benchmark administrator must be subject to intervention on the part of the national competent authority, and the power of that authority to withdraw or suspend such authorisation or registration.
33Chapter 3 of that regulation, entitled ‘Role of competent authorities’, contains, inter alia, Articles 41 and 42 of Regulation 2016/1011. Article 41, which is itself entitled ‘Powers of competent authorities’, provides that, in order to fulfil their duties under that regulation, those authorities are to have, at least the supervisory and investigatory powers listed in paragraph 1 of that article, which covers, inter alia, access to documents and data, the obtaining of information from any person involved in the provision of a benchmark or contributing to its definition, where necessary by summoning and questioning that person, on-site inspections or investigations at sites other than the private residences of natural persons, the seizure of documents and data at the premises of legal persons, the obtaining of records and the necessary measures to ensure that the public is properly informed about the provision of a benchmark, including by requiring the publication of corrective statements relating to past contributions to or figures of a benchmark. In accordance with Article 42 of that regulation, those powers are accompanied by the power to impose administrative sanctions and to take other administrative measures.
34Annex I to Regulation 2016/1011 clarifies or supplements certain specific provisions of that regulation as regards interest rate benchmarks, in particular as regards the accuracy and sufficiency of the input data and the controls that contributors must put in place and those to which they are subject.
Implementing Regulation 2016/1368
35On the basis of Article 20(1) of Regulation 2016/1011, the Commission adopted Commission Implementing Regulation (EU) 2016/1368 of 11 August 2016 establishing a list of critical benchmarks used in financial markets pursuant to Regulation (EU) 2016/1011 of the European Parliament and of the Council (OJ 2016 L 217, p. 1). Implementing Regulation 2016/1368 was amended by Commission Implementing Regulation (EU) 2019/482 of 22 March 2019 (OJ 2019 L 82, p. 26), which entered into force on 26 March 2019.
36The annex to Implementing Regulation 2016/1368, as amended by Regulation 2019/482, included, at the time of the facts giving rise to the dispute in the main proceedings, a list of critical benchmarks which mentioned, under number 5, the reference index ‘Warsaw Interbank Offered Rate (WIBOR)’, the administrator of which is GPW Benchmark S.A. and the location Warsaw (Poland).
Polish law
The Law on the Civil Code
37Article 3851 of the Ustawa – Kodeks cywilny (Law on the Civil Code) of 23 April 1964 (Dz. U. of 1964, No 16, item 93), in the version applicable to the dispute in the main proceedings, provides:1. The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on that consumer if his rights and obligations are set out in a way that is contrary to good practice and grossly infringes his or her interests (unlawful terms). This provision shall not apply to terms setting out the principal obligations to be performed by the parties, including price or remuneration, so long as they are worded clearly.2. If a contractual term is not binding on that consumer pursuant to paragraph 1, the contract shall otherwise continue to be binding on the parties.3. The terms of a contract which have not been individually negotiated are those contractual terms over whose content a consumer has had no actual influence. This relates in particular to contractual terms taken from a standard contract proposed to a consumer by a contracting party.4. The burden of proving that a term has been individually negotiated shall lie with the person relying thereon.’
The Law on Mortgage Credit
38The Ustawa o kredycie hipotecznym oraz o nadzorze nad pośrednikami kredytu hipotecznego i agentami (Law on mortgage credit and supervision of mortgage intermediaries and agents) of 23 March 2017 (Dz. U. of 2017, item 819), in the version applicable to the dispute in the main proceedings (‘the Law on Mortgage Credit’), provides, in Article 10(1)(5) and (6):‘The creditor, the mortgage credit intermediary and the agent shall at any time make available to the consumer, on a durable medium or in electronic form, accurate and intelligible general information about the mortgage loan agreement, including at least the following information:…(5) for mortgage loan agreements where a benchmark is used: the names of benchmarks and of their administrators, as referred to in point 6 of Article 3(1) of Regulation [2016/1011], as well as information on the potential consequences for the consumer;(6) types of available mortgage borrowing rate, indicating whether fixed or variable or both, with a short description of the characteristics of a fixed and variable rate, including the related implications for the consumer’.
39Under Article 11(1) to (2) of that law:1. Before the mortgage loan agreement is concluded, the creditor, the mortgage credit intermediary and the agent are required to provide the consumer, on a durable medium, with the personalised information necessary to enable him or her to compare the mortgage loans available on the market, to assess the consequences of taking out those loans and to take an informed decision on the conclusion of that agreement.2. The information referred to in paragraph 1 shall be provided by the creditor, the mortgage intermediary and the agent on the mortgage information form, the model of which is set out in Annex 1 to the law.’
40According to Article 29(1) and (2) of the Law on mortgage credit:1.The mortgage loan agreement specifies the elements listed in Article 69(2) of the Law of 29 August 1997 on banking law and:…(8) the terms and conditions for determining the interest rate on the basis of which the amount of the monthly capital instalments and interest is calculated.…2. If the parties have not agreed on a fixed mortgage interest rate, the method for determining the interest rate referred to in point 8 of paragraph (1) shall be taken to mean the benchmark figure and the amount of the margin stipulated in the mortgage loan agreement.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
41As is apparent from the order for reference, on 18 June 2019, the applicant in the main proceedings contacted PKO with a view to concluding a mortgage loan agreement in the amount of 400000 zlotys (PLN) (approximately EUR 96700). On that occasion, he was informed, inter alia, of the risks associated with variable-rate loans in general. He did not receive any information as to how a benchmark (or ‘reference index’) functions in particular.
42On 1 August 2019, the parties to the main proceedings concluded a mortgage loan agreement for a total amount of PLN 413 436.69 (approximately EUR 99980) for the purchase of a residential property for a term of 20 years (‘the loan agreement at issue in the main proceedings’). That loan was accompanied by a variable interest rate, the value of which was calculated on the basis, first, of the WIBOR 6M benchmark, which is part of the family of WIBOR benchmarks, which is an interest rate benchmark, within the meaning of Article 3(1)(22) of Regulation 2016/1011, the value of which was set at 1.79% on the date of conclusion of that agreement, and, second, of a fixed margin of 1.85%, the applicable rate being adjusted to reflect changes in that index on a six-monthly basis.
43In the general terms and conditions of the loan agreement at issue in the main proceedings, the WIBOR 6M benchmark is described as the six-month benchmark for placing deposits in zlotys on the Polish interbank market, the value of which is determined in accordance with the rules relating, inter alia, to the WIBOR benchmark, and which is published on the information site of the administrator of those benchmarks, GPW Benchmark.
44The special terms and conditions of that agreement state that PKO informed the borrower of the risk associated with the application of a variable interest rate, resulting in an increase in the amount of interest, and therefore in the monthly instalments, in the event of an increase in the benchmark. The general terms and conditions also contain information in this regard.
45After unsuccessfully contesting the legality of the contractual provisions relating to the variable interest rate with PKO, the applicant in the main proceedings brought an action against that bank on 18 September 2023 before the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa, Poland), which is the referring court.
46By that action, he seeks, primarily, first, a declaration that the term of the loan agreement at issue in the main proceedings relating to the variable interest rate is unfair in so far as it refers to the WIBOR 6M benchmark and, therefore, that, to that extent, that term is not binding on him or, in any event, is void, and, second, payment of the sum of PLN 10 828.93 (approximately EUR 2620), together with default interest.
47The referring court states that, according to the applicant in the main proceedings, PKO did not provide reliable, intelligible and complete information concerning the risk associated with the application of a variable interest rate and the mechanism for determining the WIBOR 6M benchmark, in particular as regards the influence that the banks providing the input data which was used to set that benchmark, including PKO, could exert on the determination of the successive values of that index, aside from the economic conditions prevailing on the national interbank market and economic reality. The applicant in the main proceedings claims that the banks thus afford themselves a ‘hidden margin’, whereas terms relating to a variable interest rate should relate to objective indices over which the parties to the credit agreements cannot exercise any influence. As a result, according to the applicant, PKO is in a position to influence the level of the borrower’s interest obligation and, in addition, transferred to the borrower the entire risk relating to variation in the rate.
48The applicant in the main proceedings also claims that PKO did not provide him with information on the substance of the WIBOR 6M benchmark, with the result that he was not in a position to assess the economic consequences of his commitment.
49As regards the consequences of the alleged invalidity of the reference to that index, the applicant in the main proceedings submits that the relevant term of the loan agreement at issue in the main proceedings must, in so far as it contains such a reference, be regarded as an independent term and could therefore be removed without undermining the substance of that agreement, leaving in existence, as an interest rate, only the fixed margin stipulated in favour of the bank.
50PKO maintains that the WIBOR 6M benchmark is disconnected from actual transactions and that it is not possible for banks contributing to that index to manipulate it, or to conclude an agreement between themselves to determine its successive values.
51PKO submits that the applicant in the main proceedings was correctly informed of the risks associated with the conclusion of a variable rate loan agreement and maintains that the interest rate provided for in the loan agreement at issue in the main proceedings was significantly lower than the statutory interest rate, and well below the maximum interest rate set out in the Civil Code, in the version applicable in the main proceedings.
52The referring court notes that the dispute raised by the applicant in the main proceedings concerns the potential unfairness of the use of the WIBOR 6M benchmark in terms relating to the application of a variable interest rate in a mortgage loan agreement. It notes that that is a critical benchmark within the meaning of Article 20(1) of Regulation 2016/1011.
53In the first place, the referring court raises the question whether it is even possible to examine a term relating to the application of a variable interest rate in a mortgage loan agreement concluded in Poland in the light of Directive 93/13, taking into account Article 1(2) thereof.
54It notes that the method for determining the interest rate provided for in the loan agreement at issue in the main proceedings corresponds to Article 29(2) of the Law on Mortgage Credit, which provides that, if the interest rate is not fixed, the determination of the interest rate is to be understood as denoting the value of the benchmark and the amount of the margin stipulated. Therefore, where a variable interest rate is applied, the law imposes an obligation to use a benchmark. It could also be relevant that, where that index is a critical benchmark governed by Regulation 2016/1011, as in the present case, consumer protection is considerably enhanced compared to the use of another type of index.
55In the second place, in the event that it is possible to examine the contested term of the loan agreement at issue in the main proceedings in the light of Directive 93/13, the referring court considers that that term falls within the main subject matter of the contract, within the meaning of Article 4(2) of that directive, and, therefore, raises the question of compliance with the requirement of transparency imposed by that provision.
56In that regard, that court observes that the contested term defines the method for adjusting the interest rate and the frequency of adjustments, that the contractual benchmark is provided by an authorised administrator in accordance with Regulation 2016/1011, that that agreement contains information as to that administrator and the basis for determining that index and that the successive values of that index are easily accessible to the public.
57Nevertheless, the referring court asks whether the requirement of transparency does not require the professional creditor also to provide other information, which would enable the consumer to form an opinion as to the future development of the contractual benchmark and its consequences for his or her contractual obligations. That court indicates, among that additional information that could be required, the way in which that index is designed, the factors and circumstances which influence the determination of its value, such as inflation and unemployment rates, the existence of possible ‘concerns’ as to the transparency of its functioning, linked to the fact that the underlying data are provided by banks and do not necessarily correspond to actual transactions, the criteria used to compile those data, the manner in which they are compiled before being provided and the fact that the lender is one of those contributing banks.
58However, the referring court notes, first, that neither the Law on Mortgage Credit nor Directives 2008/48 and 2014/17 require the creditor to provide such information and, second, the data provided by PKO as contributor to the WIBOR 6M benchmark have a limited effect on that index, since it is only one of the 10 contributing banks. In addition, it seems to the referring court that the complexity or technical nature of some of that information makes it difficult to present to an average consumer, lacking economic knowledge, in an intelligible manner, so that the failure to provide such information could simply have no influence on consumers’ decision-making.
59In the third place, if, as a result of the lack of transparency of the contested term of the loan agreement at issue in the main proceedings, that term should be examined in the light of its possible unfairness, the referring court is uncertain as to the consequences of certain doubts as to the transparency of the method of determining the WIBOR 6M benchmark, doubts of which PKO should have been aware, but of which it did not inform the consumer, with the result that the use of that index in the loan agreement at issue could lead to an imbalance between the parties.
60The referring court notes, however, that, at the time that agreement was concluded, the Polish credit market was characterised by the quasi-exclusivity, on the one hand, of variable rate loans and, on the other hand, of the use of the WIBOR benchmark for those loans. Consequently, even if a consumer had wished to opt for a fixed-rate loan or had doubts concerning the functioning of the WIBOR benchmark, it is possible that he or she had no choice, even after having been duly informed of that operation, to agree to enter into a variable rate agreement linked to that index. In any event, Polish law requires the WIBOR benchmark to be used, since it has become a critical benchmark, within the meaning of Regulation 2016/1011. Furthermore, the use of other indices would be unfavourable to the consumer, given their limited transparency.
61In addition, that court is uncertain whether the offer of a variable rate loan is not, in itself, detrimental to the consumer’s interest, since the consumer would be exposed, throughout the duration of the agreement, to the risk of rising interest, with the sole protection of the statutory ceiling of the applicable interest rates.
62In the fourth and last place, should the examination of a term lead to a finding that the use of the WIBOR benchmark is unfair, the referring court is uncertain as to the consequences to be drawn from such a finding.
63That court envisages the possibility that, in the contested term of the loan agreement at issue in the main proceedings, the element relating to the reference to the WIBOR 6M benchmark may be regarded as severable, as a separate contractual obligation, with the result that that element could be declared invalid alone, which would protect the consumer from the adverse consequences of the annulment of that agreement in its entirety. In that case, the borrowing interest rate would be reduced to the fixed margin stipulated in favour of the bank.
64The referring court observes, however, that, according to most of the national case-law, such an amendment would affect the substance of such a term. It notes, in particular, that, as amended, the loan agreement at issue in the main proceedings entails significantly different prospects for the parties, in particular because the advantageous nature of a fixed-rate loan depends on the foreseeable development of interest rates at the time the agreement is concluded.
65In those circumstances, the Sąd Okręgowy w Częstochowie (Regional Court, Częstochowa) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 1(2) of [Directive 93/13] be interpreted as permitting examination of contractual clauses concerning a variable interest rate based on the WIBOR reference index?(2) If the answer to the first question is in the affirmative, must Article 4(2) of [Directive 93/13] be interpreted as permitting examination of contractual clauses concerning a variable interest rate based on the WIBOR reference index?(3) If the answers to the first and second questions are in the affirmative, must Article 3(1) of [Directive 93/13] be interpreted as meaning that a contractual clause concerning a variable interest rate based on the WIBOR reference index may be regarded as contrary to the requirement of good faith and causing a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer, on account of the failure duly to inform the consumer of his or her exposure to the risk of a variable interest rate, in particular the failure to indicate how the reference index, which forms the basis for determining the variable interest rate, is determined and what uncertainties are associated with its non-transparency and the uneven distribution of that risk between the parties to the contract?(4) If the answers to the previous questions are in the affirmative, must Article 6(1) of [Directive 93/13], in conjunction with Article 3(1) and (2), second sentence, and Article 2 of [Directive 93/13], be interpreted as meaning that, if a contractual clause concerning a variable interest rate based on the WIBOR reference index is found to be unfair, there can be continued operation of a contract in which the interest rate on the amount of the loan capital will be based on a second component determining the interest rate included in the contract, that is to say the bank’s fixed margin, which will change the interest rate on the loan from variable to fixed?’
Consideration of the questions referred
The first question
66By its first question, the referring court asks, in essence, whether Article 1(2) of Directive 93/13 must be interpreted as meaning that a term in a mortgage loan agreement stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, and a fixed margin falls within the exception provided for therein.
67That court points out in that regard, first, that the variable interest rate stipulated in the contested term of the loan agreement at issue in the main proceedings is consistent with Article 29(2) of the Law on Mortgage Credit and, second, that it must be presumed, in the light of the grant by the competent national authority of the authorisation referred to in Article 34 of Regulation 2016/1011 to the administrator of the WIBOR benchmark, a benchmark referred to in that term, that that index complies with all the provisions of that regulation applicable to critical benchmarks.
68It should be borne in mind that Article 1(2) of Directive 93/13 excludes from its substantive scope contractual terms which reflect ‘mandatory statutory or regulatory provisions’, wording which, in the light of the thirteenth recital of that directive, encompasses both provisions of national law which apply between the contracting parties independently of their choice and those which are supplementary, that is to say, which apply by default in the absence of other arrangements established between the parties (judgment of 5 May 2022, Zagrebačka banka, C‑567/20, EU:C:2022:352, paragraph 55 and the case-law cited), such terms being deemed not to contain an unfair element.
69The exception provided for in that provision is to be strictly construed (judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 54 and the case-law cited).
70As regards, in the first place, the fact that the contested term of the loan agreement at issue in the main proceedings complies with Article 29(2) of the Law on Mortgage Credit, it should be noted that that provision merely provides that, if the parties to a mortgage loan agreement have not agreed on a fixed interest rate, the method for determining the interest rate refers to the value of the benchmark and the amount of the margin stipulated in the agreement.
71It follows from paragraph 33 of the judgment of 30 May 2024, Raiffeisen Bank (C‑176/23, EU:C:2024:443), that the exclusion provided for in Article 1(2) of Directive 93/13 does not apply in a situation where legislation merely establishes a general framework for setting the interest rate applicable to such agreements, while leaving the seller or supplier a margin of discretion as regards both the choice of the reference index for that rate and the size of the fixed margin that can be added to that rate.
72Consequently, a national provision such as Article 29(2) of the Law on Mortgage Credit is not such as to hinder the application of Directive 93/13.
73In the second place, as regards the fact that the index referred to in the contested term of the loan agreement at issue in the main proceedings is a benchmark, within the meaning of Regulation 2016/1011, the methodology and, more generally, the functioning of which, must comply with all the requirements imposed by that regulation for the provision of critical benchmarks, it should be noted that, admittedly, Article 1(2) of Directive 93/13 refers in principle, as stated in the thirteenth recital of that directive, to the statutory or regulatory provisions of the Member States.
74Nevertheless, the provisions contained in acts adopted by the EU legislature in the form of regulations must be treated, in that regard, in the same way as the statutory and regulatory provisions of the Member States, in view of the effects of those regulations as laid down in the second paragraph of Article 288 TFEU, where such provisions of EU law seek, in the same way, to determine in a mandatory or supplementary manner the rights and obligations of the parties to certain contracts. The rationale for the exclusion established in Article 1(2) of Directive 93/13, previously referred to in paragraph 68 of the present judgment, namely that it is, in principle, legitimate to presume that the national legislature struck a balance between all those rights and obligations, a balance which the EU legislature intended to preserve (see, to that effect, judgment of 6 July 2023, First Bank, C‑593/22, EU:C:2023:555, paragraph 22 and the case-law cited), also applies where those rights and obligations are determined directly by the EU legislature itself.
75That said, it must be noted that, first, according to Article 1 of Regulation 2016/1011, the purpose of that regulation is to introduce a common framework to ensure the accuracy and integrity of indices used as benchmarks in, inter alia, financial contracts, with a view to contributing to the proper functioning of the internal market while achieving a high level of consumer protection. To that end, that regulation lays down a set of requirements, in particular as regards the methodology of those indices, which are applicable to their administrators and contributors. Thus, that regulation does not seek to establish a balance between the rights and obligations of the parties to financial contracts, but establishes obligations applicable to entities acting in a specific capacity, irrespective of the fact that contributors may also be users of a benchmark.
76Second, although the competent national authority granted the authorisation referred to in Article 34 of Regulation 2016/1011 to the WIBOR benchmark administrator and thus demonstrated that the rules constituting the methodology of that index complied with all the requirements imposed by that regulation, the fact remains that those rules emanate from a private entity, namely the administrator of that index, and are therefore not statutory or regulatory in nature, within the meaning of Article 1(2) of Directive 93/13.
77In the light of all the foregoing considerations, the answer to the first question is that Article 1(2) of Directive 93/13 must be interpreted as meaning that the exception provided for therein does not cover a term in a mortgage loan agreement stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, and a fixed margin, where the statutory or regulatory provisions applicable to such a term merely establish a general framework for the setting of the interest rate for such contracts, while leaving it open to the seller or supplier to determine the contractual benchmark or the fixed margin which may be added to the value of that index.
The second question
78At the outset, in should be noted that, according to Article 4(2) of Directive 93/13, the assessment of the unfair nature of the terms may relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other hand, in so far as those terms are in plain, intelligible language.
79As is apparent from the reasoning in the order for reference devoted to the second question, the referring court considers that the term in a mortgage loan agreement stipulating a variable interest rate based on a reference index and a fixed margin, such as the term at issue in the loan agreement at issue in the main proceedings, could relate to the ‘definition of the main subject matter of the contract’, within the meaning of Article 4(2), and the case-law relating to that provision, according to which that provision covers terms which lay down the essential obligations of the contract and, as such, characterise it (judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 49, and of 16 March 2023, Caixabank (Loan arrangement fees), C‑565/21, EU:C:2023:212, paragraph 17 and the case-law cited).
80Such a classification, which comes under the jurisdiction of the referring court (see, to that effect, judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 33 and the case-law cited), appears to be compatible with the case-law of the Court, which has already stated that a term setting the interest rate in a loan agreement is likely to form part of the main subject matter of that agreement (see judgment of 26 February 2015, Matei, C‑143/13, EU:C:2015:127, paragraph 62).
81Since it seems plausible to the referring court that the contested term of the loan agreement at issue in the main proceedings falls within the definition of the main subject matter of that agreement, the referring court seeks an interpretation of the terms ‘in so far as those terms are drafted in plain, intelligible language’, by which the EU legislature incorporated a requirement of transparency into Article 4(2) of Directive 93/13 (see, to that effect, judgment of 30 April 2025, Justa, C‑39/24, EU:C:2025:298, paragraphs 29 and 35 and the case-law cited). As is apparent from that provision, the unfairness of a term falling within the definition of the main subject matter of the contract may be examined only if it transpires that the contested term is not presented ‘in plain, intelligible language’ and therefore does not satisfy that requirement of transparency.
82In that regard, the referring court asks, in particular, whether the creditor must give indications as to certain elements of the methodology of the contractual benchmark, such as the fact that the input data used may correspond to non-finalised transaction offers, or to factors capable of influencing the variation of that index.
83Accordingly, it must be held that, by its second question, the referring court asks, in essence, whether Article 4(2) of Directive 93/13 must be interpreted as meaning that, where a mortgage loan agreement contains a term stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, the transparency requirement arising from that provision imposes on the creditor certain specific obligations to provide information as regards the methodology of that index.
84In that regard, it must be borne in mind that that requirement of transparency must be understood as requiring not only that the term concerned be grammatically intelligible to the consumer, but that that consumer also be in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him or her which derive from it (see, to that effect, judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 37 and the case-law cited).
85Information, before concluding a contract, on the terms of the contract and the consequences of concluding it, is of fundamental importance for a consumer. It is on the basis of that information in particular that the consumer decides whether he or she wishes to be bound by the terms previously drawn up by the seller or supplier. Consequently, since the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a position of weakness vis-à-vis the seller or supplier, in particular as regards his or her level of knowledge, the requirement of transparency must be understood in a broad sense (judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraphs 51 and 52 and the case-law cited).
86As regards, in particular, a contractual term providing, under a mortgage loan agreement, for that loan to be remunerated by interest calculated on the basis of a variable rate established, as in the case in the main proceedings, by reference to an official index, the transparency requirement must be understood as requiring, in particular, that an average consumer, who is reasonably well-informed and reasonably observant and circumspect, is in a position to understand the specific functioning of the method used for calculating that rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations (judgment of 12 December 2024, Kutxabank, C-300/23, EU:C:2024:1026, paragraph 79 and the case-law cited).
87Compliance with the requirement of transparency must be assessed in the light of all the relevant facts, including not only the terms contained in the agreement concerned, but also the promotional material and information provided by the lender in the negotiation of the agreement (judgment of 3 October 2019, Kiss and CIB Bank, C‑621/17, EU:C:2019:820, paragraph 44 and the case-law cited).
88Account should also be taken of the fact that the main elements relating to the calculation of a contractual reference index are easily accessible, on account of their publication, on condition that, in the light of the publicly available and accessible information and the information provided, as the case may be, by the lender, an average consumer, who is reasonably well informed and reasonably observant and circumspect, was in a position to understand the specific functioning of the method used for calculating the variable interest rate, in particular in so far as it involves a reference index, and thus to assess, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations (judgment of 12 December 2024, Kutxabank, C‑300/23, EU:C:2024:1026, paragraphs 80 and 82 and the case-law cited).
89Moreover, in order to assess whether a term in a loan agreement which falls within the scope of Article 4(2) of Directive 93/13 satisfies the requirement of transparency imposed by that provision, it is appropriate to take into consideration all the provisions of EU law laying down obligations relating to information for consumers which may be applicable to the agreement concerned (see, to that effect, judgment of 20 September 2018, EOS KSI Slovensko, C‑448/17, EU:C:2018:745, paragraph 62).
90In the present case, as regards a mortgage loan agreement falling within the scope of Directive 2014/17, the variable interest rate for which is based on a benchmark referred to in Regulation 2016/1011, it is necessary to take into consideration the fact that those two acts define precisely the obligations to provide information to consumers, for the purpose of their protection, as is apparent, inter alia, from recital 7 of that directive and from recitals 5, 6 and 71 of that regulation.
91Thus, Directive 2014/17 regulates creditors’ duty to provide information on a number of levels.
92First, at the stage of specific contact with a particular prospective borrower, Article 14 of Directive 2014/17 requires the creditor to provide the personalised pre-contractual information necessary for that prospective borrower to be able to compare the credits available on the market, assess their implications and take an informed decision. That information should be provided by means of the ESIS, which is a standardised information document at EU level. In accordance with Article 17(6) of that directive, in the case of variable rate credit, the consumer must be informed, at least by means of the ESIS, of the possible impacts of variations in the rate on the amounts payable and on the APRC, with an additional APRC to be communicated to him or her in order to illustrate the possible risks linked to a significant increase in the borrowing rate and that information must be accompanied by a warning highlighting that the total cost of the credit to the consumer, shown by the APRC, may change.
93It follows from Annex II to Directive 2014/17, which lists the particulars which must appear in the ESIS and their content (Part A) and contains the instructions which creditors must follow in order to complete that form (Part B), that, when a mortgage loan agreement with a variable interest rate is offered to a consumer, the specific information obligation imposed on the creditor concerns the impact on the APRC of the variability of the interest rate. In that regard, it should be noted that the amendments which the EU legislature introduced into that directive when it adopted Regulation 2016/1011 did not concern that annex. Thus, it did not provide that, for variable rate credits based on a benchmark referred to in that regulation, the ESIS is to contain specific information concerning the methodology of that benchmark or the possible causes of its variation.
94In that regard, it should be recalled that, in accordance with Article 2(2) of Directive 2014/17, the national law of the Member States may not contain provisions diverging from those laid down in Article 14(2) and Part A of Annex II to that directive with regard to standard pre-contractual information through the ESIS.
95Second, and more generally, in accordance with point (ea) of the second subparagraph of Article 13(1) of Directive 2014/17, a creditor which offers on the market the conclusion of credit agreements that reference a benchmark, within the meaning of Regulation 2016/1011, is required to provide, among the general information which it must make available on a continuing basis, ‘the names of the benchmarks [concerned] and of their administrators and the potential implications on the consumer’. As is apparent from recital 71 of Regulation 2016/1011, which inserted that provision into Directive 2014/17, by requiring that those elements be communicated, the EU legislature sought to ensure that consumers are provided with the information it considered adequate, having regard to their weak position as regards the choice of a benchmark because of unequal bargaining power and the use of standard terms.
96Furthermore, since the information which must be provided in accordance with point (ea) of the second subparagraph of Article 13(1) is general information on credit agreements which a creditor must make available on a permanent basis, the words ‘the possible impact on the consumer’ of agreements referring to a reference index, in that provision, cannot refer to more precise information than the personalised pre-contractual information described in paragraphs 92 and 93 of the present judgment. More specifically, those terms cannot refer to the methodology of the benchmark or benchmarks used by that creditor in the contracts it proposes or to the factors likely to influence the variation of those contracts.
97Regulation 2016/1011, for its part, regulates the obligations to provide information imposed on benchmark administrators.
98In that regard, first, Article 13 of that regulation lays down a general obligation of transparency for those administrators, requiring them, inter alia, to publish or make available the key elements of the methodology of each benchmark or family of benchmarks which they provide and publish.
99Second, Article 27 of that regulation, with the objective of transparency and consumer protection, requires those administrators to publish, in an accessible, clear and unambiguous manner, for each benchmark or family of benchmarks, a statement which must, inter alia, define the market or economic reality measured by the benchmark and the circumstances in which such measurement may become unreliable, and indicate, by means of technical specifications, the elements of the calculation of the benchmark in relation to which discretion may be exercised, the criteria applicable to the exercise of such discretion and the position of the persons that can exercise discretion, and how such discretion may be subsequently evaluated. In addition, that statement defines all the key terms relating to the benchmark, specifies the rationale for adopting the methodology, the criteria and procedures used to determine the benchmark, including a description of the input data, the priority given to different types of input data, the minimum data needed to determine a benchmark, the use of any models or methods of extrapolation and any procedure for rebalancing the constituents of that benchmark’s index, as well as the controls and rules that govern any exercise of judgement or discretion by the administrator or any contributors, to ensure consistency in the use of such judgement or discretion.
100As the Advocate General observed, in essence, in point 54 of her Opinion, the publication of information for which the administrator of a benchmark assumes responsibility is such as to allow all stakeholders, including consumers, to understand the methodology used to provide that index.
101It therefore appears that, as regards credit agreements relating to residential immovable property, Directive 2014/17 and Regulation 2016/1011, read together, lay down precise obligations to provide information to consumers as regards, first the terms of mortgage loan agreements setting a variable interest rate referring to a benchmark covered by that regulation and, second, such benchmarks, and that those obligations are divided between the creditors and the administrators of those benchmarks. Within the framework thus established, it is for the former to provide consumers with the information that will enable them, at the same time, to assess the actual consequences of the variability of the interest rate on their obligations under the contract offered to them and to acquaint themselves with all the information that the administrator of a benchmark must make public.
102In that context, since, in the light of the case-law referred to in paragraph 89 of the present judgment, it is necessary to take into consideration all the provisions of EU law laying down obligations relating to information for consumers which may be applicable, in the present case, to a term establishing a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, compliance, by a creditor, with the requirement of transparency provided for by Directive 93/13 in the event of the conclusion of a mortgage loan agreement containing such a term must be assessed, if that term appears, as in the case in the main proceedings, in a credit agreement relating to residential immovable property, in the light of the obligations imposed on the creditor by Directive 2014/17.
103That said, where the information communicated by the creditor does not refer merely to publicly available information, such as that which Regulation 2016/1011 requires any administrator of a benchmark to make available, but describes, summarises or explains that information, those data must be accurate as compared with that information.
104In the light of all the foregoing considerations, the answer to the second question is that Article 4(2) of Directive 93/13 must be interpreted as meaning that, where a mortgage loan agreement relating to residential immovable property contains a term stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, the transparency requirement arising from that provision does not impose on the creditor certain specific obligations to provide information as regards the methodology of that benchmark. The fact that the creditor has complied with all the obligations to provide information imposed on it by Directive 2014/17 in respect of such a term and, if it has provided additional information, has not provided any information giving a distorted picture of that benchmark is such as to establish that that creditor has satisfied that requirement of transparency as regards that term.
The third question
105By its third question, the referring court asks, in essence, whether Article 3(1) of Directive 93/13 must be interpreted as meaning that, where a term in a mortgage loan agreement stipulates a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, first, the lack of information provided to the consumer as to certain specific features of the contractual benchmark, in particular the fact that its methodology provides for the use of input which does not necessarily correspond to actual transactions and the fact that the creditor is one of the banks contributing to the determination of that index, and, second, those specific features themselves are such as to render that term unfair.
106In the present case, it is apparent from the order for reference that, first, the applicant in the main proceedings calls into question the objective nature of the WIBOR 6M benchmark on the ground that its values are successively determined on the basis of input data, the vast majority of which are the result not of transactions actually carried out on the Polish interbank market, but of price offers made on that market, which confers discretion on the contributors to that benchmark.
107Second, in the light of that element of the methodology of the WIBOR 6M benchmark, the fact that PKO is one of the banks contributing to that index, providing the administrator thereof with input data which it uses to determine its successive values, allows it to influence the development of that index. In that way, by using that benchmark in order to set the variable interest rate applicable to a contract to which it is itself a party, PKO had the opportunity to influence the level of the borrower’s obligation and, therefore, to increase the revenue which it derives from that agreement. The applicant in the main proceedings submits that, in such circumstances, he is obliged to bear the entire risk associated with the variability of the interest rate, whereas the creditor benefits from a ‘hidden margin’.
108As a preliminary point, it should be noted that, in accordance with the case-law referred to in paragraph 81 of the present judgment, the answer to the third question, relating to the assessment of the possible unfairness of a term such as the contested term of the loan agreement at issue in the main proceedings, presupposes that it follows from a preliminary assessment by the referring court that the transparency requirement laid down in Article 4(2) of Directive 93/13 has not been complied with as regards that term.
109In that context, it must be pointed out that, although any failure to comply with that requirement of transparency is one of the factors to be taken into account in the assessment of the unfairness of a contractual term, it nevertheless follows from Article 4(2) of Directive 93/13 that a failure to comply with that requirement is not, in itself, such as to render that term unfair (see, to that effect, judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 66 and the case-law cited).
110That is also the case where such a failure arises from the breach of an obligation imposed on the seller or supplier on the basis of EU legislation other than Directive 93/13, as could be the case, in circumstances such as those of the case in the main proceedings, with the obligations to provide information imposed on the creditor by Directive 2014/17.
111That being so, it must be noted that Article 3(1) of Directive 93/13 provides that a contractual term which has not been individually negotiated is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
112In the assessment which it is for the national court to carry pursuant to Article 3(1) of Directive 93/13, it is for that court to assess, having regard to all the circumstances of the case, first, the possible failure to observe the requirement of good faith and, second, the possible existence of a significant imbalance to the detriment of the consumer within the meaning of that provision (judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 63 and the case-law cited).
113First, concerning the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the 16th recital of Directive 93/13, the national court must assess whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations (judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 69, and of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 64 and the case-law cited).
114Second, in order to ascertain whether a term causes a significant imbalance in the parties’ rights and obligations arising under a contract to the detriment of the consumer, particular account must be taken of which rules of national law would apply in the absence of an agreement by the parties, in order to evaluate whether and, as the case may be, to what extent, the contract places that consumer in a legal situation less favourable than that provided for by those rules (see, to that effect, judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 65 and the case-law cited).
115In line with that case-law, it must be held that, where, for a given type of contract, a contractual element is the subject of a comprehensive legal framework, a consumer cannot, in principle, be placed in an unfavourable situation as regards that element where it is determined in the contract in accordance with the requirements of such a framework. By analogy with the ratio legis of Article 1(2) of Directive 93/13, it is legitimate to presume that, by that framework, the legislature has established, as regards that element, a balance between all the rights and obligations of the parties to a contract of that type.
116It follows, moreover, from paragraph 74 of the present judgment that it is irrelevant whether such a framework is established by rules of national law or by a regulation adopted by the EU legislature.
117In the present case, the unfair nature of the contested term of the loan agreement at issue in the main proceedings, relating to the variable interest rate, is alleged on the ground that the input data used to determine the successive values of the contractual benchmark consist essentially of price offers made on the interbank market concerned, but do not correspond to actual transactions, and that those data are provided to the administrator of that benchmark by a group of banks who may themselves use that benchmark in agreements which they conclude with consumers.
118In that regard, it should be noted that, in accordance with Article 2 of Regulation 2016/1011, that regulation governs both the provision of benchmarks, by their administrators, and the provision of the input data used as the basis for those benchmarks, by their contributors, and the use of such benchmarks.
119In the first place, as regards the provision of benchmarks, Article 27 of Regulation 2016/1011 provides that the administrator of such a benchmark is required to publish a statement setting out the essential characteristics of that benchmark, as recalled in paragraph 99 of the present judgment.
120Furthermore, Articles 12 and 13 of Regulation 2016/1011 lay down requirements as regards the consistency and transparency of the methodology, which must make it possible to determine the benchmark accurately and reliably.
121In addition, precise requirements concerning governance and conflicts of interest, oversight of all aspects of the provision of benchmarks, the monitoring of compliance with Regulation 2016/1011 and of compliance with the methodology are set out in Articles 4 to 7 of that regulation.
122In the second place, as regards the provision of the input data, in addition to the provisions of Article 27 of Regulation 2016/1011 relating to the rules governing the exercise of a discretionary assessment by contributors and the procedures for processing errors vitiating those data, referred to in paragraph 119 of the present judgment, that regulation establishes, in Article 11 thereof, requirements relating to representativeness, integrity, accuracy, control and validation of those data and, in Article 14 thereof, the obligation for administrators to put in place effective checks, in particular, on the integrity of the underlying data and the behaviour of contributors, in order to detect and report to the competent national authority any manipulation or attempted manipulation.
123In addition, in accordance with Article 15 of Regulation 2016/1011, the administrator of a benchmark must draw up, under the supervision of the national competent authority, a code of conduct which is binding on contributors and ensure that they comply with it on an ongoing basis. That code of conduct includes, inter alia, the requirements necessary for compliance with Articles 11 and 14 of that regulation, for the completeness of the input data and for the checks to be carried out by any contributor concerning the provision of the input data, in particular as regards the policies on the use of discretion in contributing that data and the management of conflicts of interest. In addition, Article 16 of that regulation imposes enhanced requirements on supervised contributors, within the meaning of Article 3(1)(10) thereof, in relation to conflicts of interest, discretion, integrity, accuracy and reliability of the input data and controls.
124It should also be noted that compliance with all the requirements referred to in paragraphs 119 to 123 of the present judgment is ensured by a system of prior control and supervision, the application of which is entrusted, in particular, to the competent national authorities, which have, in order to carry out their duties, the broad powers set out in Article 41 of Regulation 2016/1011, which are accompanied, under Article 42 thereof, by the power to impose administrative penalties in the event of infringement, inter alia, of the articles referred to in those paragraphs of the present judgment, or to refuse to cooperate or to comply with an investigation, inspection or request by those authorities.
125In addition, stakeholders may initiate the complaint mechanism provided for and governed by Article 9 of Regulation 2016/1011, in order to challenge, inter alia, the representativeness of the determination of a benchmark in relation to the market value.
126In the third and last place, as regards the use of benchmarks, Article 29 of Regulation 2016/1011 expressly authorises supervised entities, within the meaning of point 17 of Article 3(1) of that regulation, without excluding supervised contributors, within the meaning of point 10 of Article 3(1), to use in the European Union a benchmark provided by an administrator located in the European Union and included in the register maintained by ESMA. In addition, in the light of the nature of an interest rate benchmark, as defined in point 22 of Article 3(1), such an index must necessarily be determined on the basis of data provided by banks, which are themselves called upon to use those data in the light of the nature of their activities.
127Furthermore, in the light of the rules imposed on administrators of benchmarks as regards the reliability of those benchmarks and those administrators and contributors in order to ensure the integrity of the input data and, more generally, the reliability of the measurement of the economic reality which such an index is supposed to measure, under the supervision of the competent national authorities, it cannot be considered that a contributing bank, among others, is in a position by itself to exercise a decisive influence over the value of an interest rate benchmark, in particular if that index relates to a national market.
128Thus, it is apparent that Regulation 2016/1011 contains a set of provisions governing in detail the provision of benchmarks, the provision of the input data used to determine those indices, in particular as regards the nature of those data and their reliability, and the use of those benchmarks. It is also apparent from the preamble to that regulation and from several provisions of that regulation, in particular recitals 1, 5, 6, 8, 17, 22 and 71 thereof and Articles 1, 9 and 13 thereof, and from the provisions of Title IV thereof, that the intervention of the EU legislature sought to ensure a balance between the public interest linked to the need to be able to have such indices, in particular for the conclusion of financial contracts such as mortgage loan agreements, and the interest of consumers in having guarantees as to the integrity and transparency of those indices, having regard, in particular, to the risks of conflict of interest and manipulation liable to affect their provision.
129Consequently, the use, in a mortgage loan agreement, of a benchmark which, at the time that agreement is concluded, may be regarded as complying with the requirements of the framework established by Regulation 2016/1011, in particular as regards its methodology, in the light of the control provided for by that regulation, cannot, in principle, be, in itself, such as to create, to the detriment of the consumer, a significant imbalance in the parties’ rights and obligations, notwithstanding the fact that the creditor is one of the banks which provide the input data used by the administrator of that index to determine its successive values.
130Accordingly, in such circumstances, that creditor is not required, in addition to its obligations to provide information under Directive 2014/17, to inform the borrower that, in accordance with the methodology of the contractual benchmark, that index may be determined on the basis of input data corresponding not to actual transactions, but to price offers made on the market concerned, or that that creditor is one of the banks contributing to the determination of that index.
131As regards the assessment of the contested term of the loan agreement at issue in the main proceedings, as a whole, it should also be borne in mind that, when assessing whether a term relating to the calculation of interest relating to a credit agreement is unfair, it is relevant, in particular, to compare the method of calculation of the rate of ordinary interest laid down in that term and the actual level resulting from that rate with the methods of calculation generally used, the statutory interest rate and the interest rates applied on the market at the date of conclusion of the loan agreement concerned for a loan of a comparable sum and term to those of that loan agreement (see, to that effect, judgment of 13 July 2023, Banco Santander (Reference to an official index), C‑265/22, EU:C:2023:578, paragraph 65 and the case-law cited).
132In the present case, the considerations set out by the referring court concerning the nature and level of the interest rates generally observed on the mortgage credit market in Poland and the level of the WIBOR 6M index in the light of that of other similar indicators at the time the loan agreement at issue in the main proceedings was concluded are therefore relevant factors in the context of the assessment of the contested term of that loan agreement, considered as a whole, in the light of Article 3(1) of Directive 93/13.
133In the light of all the foregoing considerations, the answer to the third question is that Article 3(1) of Directive 93/13 must be interpreted as meaning that, where a term in a mortgage loan agreement stipulates a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, first, the lack of information on the part of the consumer concerning certain specific features of the contractual benchmark, in particular the fact that its methodology provides for the use of input data which does not necessarily correspond to actual transactions and the fact that the creditor is one of the banks contributing to the determination of that index, and, second, those specific features themselves are not such as to render that term unfair, provided that that index could be regarded as consistent with that regulation at the time of the conclusion of that contract.
The fourth question
134In its request for a preliminary ruling, the referring court stated that it does not intend to review the competent national authority’s assessment that the WIBOR benchmark complies with Regulation 2016/1011. In the light of the answer to the third question, there is no need to reply to the fourth question.
Costs
135Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Third Chamber) hereby rules:
1.Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contractsmust be interpreted as meaning that the exception provided for therein does not cover a term in a mortgage loan agreement stipulating a variable interest rate based on a benchmark, within the meaning of Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014, and a fixed margin, where the statutory or regulatory provisions applicable to such a term merely establish a general framework for the setting of the interest rate for such contracts, while leaving it open to the seller or supplier to determine the contractual benchmark or the fixed margin which may be added to the value of that index.
2.Article 4(2) of Directive 93/13must be interpreted as meaning that, where a mortgage loan agreement relating to residential immovable property contains a term stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, the transparency requirement arising from that provision does not impose on the creditor certain specific obligations to provide information as regards the methodology of that benchmark. The fact that the creditor has complied with all the obligations to provide information imposed on it by Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, as amended by Regulation 2016/1011, in respect of such a term and, if it has provided additional information, has not provided any information giving a distorted picture of that benchmark is such as to establish that that creditor has satisfied that requirement of transparency as regards that term.
3.Article 3(1) of Directive 93/13must be interpreted as meaning that, where a term in a mortgage loan agreement stipulates a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, first, the lack of information on the part of the consumer concerning certain specific features of the contractual benchmark, in particular the fact that its methodology provides for the use of input data which does not necessarily correspond to actual transactions and the fact that the creditor is one of the banks contributing to the determination of that index, and, second, those specific features themselves are not such as to render that term unfair, provided that that index could be regarded as consistent with that regulation at the time of the conclusion of that contract.
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