Provisional text
JUDGMENT OF THE COURT (Ninth Chamber)
16 April 2026 (*)
( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Article 7(1) – Unfair terms in consumer contracts – Effects of a term being found to be unfair – Invalidity of the contract – Actions for restitution – Limitation period for the action brought by the seller or supplier – Interruption of the limitation period – Acknowledgement by a consumer of his or her debt owed to a credit institution – Principle of effectiveness – Principle of legal certainty – Principle of proportionality – Right of access to a court – Unjust enrichment )
In Case C‑901/24 [Falucka], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), made by decision of 16 December 2024, received at the Court on 22 December 2024, in the proceedings
mBank S.A.
v
TK,
DJ and JJ,
THE COURT (Ninth Chamber),
composed of M. Condinanzi, President of the Chamber, R. Frendo (Rapporteur) and A. Kornezov, Judges,
Advocate General: R. Norkus,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– mBank S.A., by A. Cudna-Wagner, radca prawny, and B. Miąskiewicz, adwokat,
– TK, and DJ and JJ, by P. Wójcik, radca prawny,
– the Polish Government, by B. Majczyna, acting as Agent,
– the Portuguese Government, by A. Pimenta and A. Rodrigues, acting as Agents,
– the European Commission, by P. Kienapfel and A. Stobiecka-Kuik, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), as well as the principles of effectiveness, proportionality, legal certainty and the right of access to a court.
2 The request has been made in proceedings between, on the one hand, mBank S.A., a banking institution, and, on the other hand, TK, and DJ and JJ, three consumers, concerning recovery of a debt resulting from the invalidity of a mortgage loan agreement on account of unfair terms contained therein.
Legal context
European Union law
3 Article 6(1) of Directive 93/13 provides:
‘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.’
4 Article 7(1) of that directive provides:
‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’
Polish law
5 Article 58(1) of the ustawa – Kodeks cywilny (Law establishing the Civil Code) of 23 April 1964 (Dz. U. of 2024, item 1061), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), provides:
‘A legal act that is contrary to the law or intended to circumvent the law shall be null and void, unless a relevant provision provides otherwise, in particular where it provides that the invalid terms of the legal act in question are to be substituted by relevant provisions of law.’
6 Article 117(1) and (21) of that code provides:
‘1. Subject to the exceptions provided for by statute, property-related claims shall be subject to limitation.
…
21. Once the limitation period has expired, it shall no longer be possible to pursue a claim against a consumer.’
7 Under Article 1171(1) and (2) of that code:
‘1. In exceptional cases, the court may, after weighing up the interests of the parties, disregard the expiry of the limitation period for bringing a claim against a consumer if equity so requires.
2. In exercising the power referred to in paragraph 1, the court shall take into account, in particular:
1. the length of the limitation period;
2. the length of the period between the expiry of the limitation period and the submission of the claim;
3. the nature of the circumstances which led the creditor not to pursue his or her claim, including the effect of the debtor’s conduct on the creditor’s delay in pursuing the claim.’
8 Article 118 of that code provides:
‘Unless a specific provision provides otherwise, the limitation period shall be six years, and for claims concerning periodic payments, as well as claims related to the pursuit of a business activity, it shall be three years. However, the limitation period shall expire on the last day of the calendar year, unless it is shorter than two years.’
9 Article 120(1) of the Civil Code provides:
‘The limitation period shall begin to run on the day on which the claim becomes due. Where the claim becoming due is dependent on the right holder undertaking a specified act, the limitation period shall begin to run on the day on which the claim would have become due if the right holder had undertaken that act at the earliest possible opportunity.’
10 Under Article 123(1)(1) and (2) of that code:
‘The limitation period shall be interrupted:
1. by any act before a court of law or another body appointed to try cases or to enforce claims of a given kind or before an arbitration court, which is undertaken directly to pursue, to establish, to satisfy or to secure a claim;
2. when the person against whom there is a claim acknowledges that claim.’
11 Article 124(1) of that code provides:
‘Each interruption shall start time running afresh.’
12 Article 3851(1) of that code provides:
‘The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on the consumer if his or her rights and obligations are set forth in a way that is contrary to the accepted principles of morality and seriously infringes his or her interests (unlawful terms). This provision shall not apply to terms setting out the parties’ main obligations, including price or remuneration, so long as they are worded clearly.’
13 Article 405 of the Civil Code provides:
‘Any person who, without legal grounds, obtains an economic advantage at the expense of another person shall be required to restore that benefit in kind and, where that is not possible, to return the value thereof.’
14 Under Article 410(1) and (2) of that code:
‘1. The provisions of the preceding articles shall apply in particular to undue performance.
2. A performance shall be undue if the person who rendered it was not under any obligation at all or was not under any obligation towards the person to whom he or she rendered the performance, or if the basis for the performance has ceased to exist or if the intended purpose of the performance has not been achieved, or if the legal act on which the obligation to render the performance was based was invalid and has not become valid since the performance was rendered.’
The dispute in the main proceedings and the question referred for a preliminary ruling
15 In 2007, mBank concluded with TK, and DJ and JJ, a mortgage loan agreement, indexed to the Swiss franc (CHF), for an amount of 1 958 800 zlotys (PLN) (approximately EUR 460 700), which was paid to TK – the contractual commitment of DJ and JJ being solely to guarantee TK’s creditworthiness for the purpose of granting the loan.
16 By an action brought before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) and notified to mBank on 15 January 2018, the three consumers sought a declaration that the loan agreement was invalid.
17 In the course of the judicial proceedings, on 9 January 2019 and 3 October 2019, TK declared before that court (i) that she was aware of the consequences of invalidation of the contract, namely repayment to the bank of the total amount of credit which she had received, (ii) that she accepted those consequences, and (iii) that she consented to the contract being declared void (‘the declarations made by TK’). By judgment of 5 November 2019, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) declared the loan agreement invalid on account of the fact that it contained unfair terms, without which it was impossible to maintain that agreement.
18 On 2 December 2022, mBank brought proceedings against TK, and DJ and JJ, before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), which is the referring court, seeking recovery of the capital amount of the credit paid to TK, together with default interest at the statutory rate.
19 On 16 December 2024, the referring court delivered a partial judgment dismissing mBank’s claim in so far as it was directed against DJ and JJ.
20 TK contends that the action should be dismissed, arguing, inter alia, that mBank’s claim is time-barred.
21 In particular, she submits that the action brought by TK, and DJ and JJ, seeking a declaration that the loan agreement was invalid had been notified to mBank on 15 January 2018 and that, under Article 118 and Article 120(1) of the Civil Code, the limitation period had begun to run from that date and had expired on 31 December 2021.
22 The referring court notes, from the outset, that the existence of mBank’s claim, in itself, is not in doubt, but that, in order to resolve the dispute in the main proceedings, it is necessary to determine whether the limitation period for that claim was validly interrupted by the declarations made by TK in the course of the proceedings brought by the three consumers.
23 In that regard, that court explains that, under Article 118 of the Civil Code, the limitation period for a seller or supplier’s claim is three years, expiring at the end of the calendar year, and that, according to a decision adopted by the Sąd Najwyższy (Supreme Court, Poland) in 2024, that period starts to run from the time the consumer first challenged the seller or supplier on the binding nature of the contractual terms, which in the present case was 15 January 2018.
24 The referring court considers that there are two possible approaches to the question whether the bank’s claim is time-barred.
25 First, it could be considered that the declarations made by TK in the proceedings brought by her, among others, constitute acknowledgement of her debt, leading to an interruption of the limitation period for that claim under Article 123(1)(2) of the Civil Code. In that case, that period would have started to run afresh on 3 October 2019 and the bank’s claim would not be time-barred, with the result that the referring court would have to uphold the action in the main proceedings.
26 The referring court adds that that acknowledgement could have led mBank to believe that TK would have honoured her debt voluntarily, thereby influencing the bank’s decision not to bring an action for payment. In those circumstances, the dismissal of its application on the ground that the claim was time-barred could constitute a limitation of mBank’s right of access to a court as well as an infringement of the principles of legal certainty and proportionality.
27 Second, that court observes that it could be considered that, by the declarations made by TK in order to obtain the decision declaring the loan agreement invalid, TK acted unintentionally to her detriment, by acknowledging her debt. Thus, the interruption of the limitation period for the bank’s claim by those statements could run counter to Article 7(1) of Directive 93/13 and the principle of effectiveness, because it would be easier for sellers or suppliers to assert their rights, owing to the interruption of the limitation period as a result of such an acknowledgement.
28 In the event that the Court considers that the declarations made by TK did not interrupt the limitation period, according to the referring court, it would still be necessary to examine whether those statements may be regarded as conduct of the debtor which influenced the creditor’s delay in pursuing its claim, which would justify, under Article 1171(2)(3) of the Civil Code, disregarding the expiry of the limitation period for mBank’s claim.
29 In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 7(1) of Council Directive [93/13] and the principles of effectiveness, proportionality, legal certainty and the right to a legal remedy be interpreted as precluding a judicial interpretation of national legislation according to which:
– the limitation period for a claim brought by a seller or supplier against a consumer for the recovery of sums unduly paid under a contract which has become invalid as a result of the fact that it contains unfair contract terms is interrupted by the submission, by the consumer, of a declaration stating that he or she is aware that the invalidation of the contract will impose on him or her an obligation to return the sums received from the seller or supplier under the invalid contract,
– the submission of such a declaration by a consumer may justify a decision to disregard the expiry of a limitation period for a claim which the seller or supplier is entitled to bring against the consumer?’
Consideration of the question referred
30 By the first part of the question, the referring court asks, in essence, whether Article 7(1) of Directive 93/13 and the principle of effectiveness, having regard to the right of access to a court and the principles of proportionality and legal certainty, must be interpreted as precluding a judicial interpretation of national legislation according to which the limitation period for a seller or supplier’s claim is interrupted by a declaration, made by a consumer in the context of a preliminary procedure relating to a request for invalidation of a loan agreement containing unfair terms, that that consumer is aware that, as a result of that invalidation, he or she would be required to repay the sums which he or she had received from the seller or supplier.
31 Article 7(1) of Directive 93/13 requires the Member States to ensure that, in their national legal systems, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.
32 In the absence of EU rules on the matter, it is for the national legal order of each Member State to establish, in accordance with the principle of procedural autonomy, procedural rules for actions intended to safeguard the rights that individuals derive from EU law, provided, however, that those rules are no less favourable than the rules governing similar domestic actions (the principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness) (judgment of 22 April 2021, Profi Credit Slovakia, C‑485/19, EU:C:2021:313, paragraph 52 and the case-law cited).
33 It should be borne in mind, in the first place, that according to settled case-law, a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he or she would have been in if that term had not existed by, inter alia, creating a right to restitution of advantages wrongly obtained, to the consumer’s detriment, by the seller or supplier on the basis of that unfair term (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 65 and the case-law cited). This is the case also where the unfair nature of one or more terms in a contract concluded between a consumer and a seller or supplier results not only in the nullity of those terms, but also in the invalidity of the contract in its entirety (see, to that effect, judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 66 and the case-law cited).
34 That objective of restoring the consumer’s legal and factual situation to what it would have been in the absence of the unfair term must be pursued in a manner that complies with the principle of proportionality, a general principle of EU law, which requires that the national legislation implementing that law must not go beyond what is necessary to attain the objective pursued (judgment of 23 November 2023, Provident Polska, C‑321/22, EU:C:2023:911, paragraph 85).
35 That principle of proportionality would be infringed if restitutio in integrum were to be excluded in respect of the seller or supplier. Accordingly, the obligation to restore the parties to their original position, following the invalidation of a loan agreement containing unfair terms, must be mutual; the bank may not, however, seek compensation from the consumer going beyond reimbursement of the capital paid in respect of the performance of that agreement together with the payment of default interest at the statutory rate from the date on which notice is served (see, to that effect, judgment of 7 December 2023, mBank (Consumer declaration), C‑140/22, EU:C:2023:965, paragraph 62).
36 Furthermore, the restitutory effect attached to the invalidation of a loan agreement containing unfair terms, which also justifies the bank’s action for restitution, ensures that the protection of the rights guaranteed by the legal order of the European Union does not entail the unjust enrichment of the consumer (see, by analogy, judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 94).
37 In that context, it should be noted, in the second place, that the interruption of the limitation period for the seller or supplier’s claim for restitution on account of the consumer’s acknowledgement of his or her debt does not, in principle, interfere with the exercise, by that consumer, of his or her right to restitution of advantages wrongly obtained by that seller or supplier on the basis of unfair terms, which moreover contributes to restoring the legal and factual situation which that consumer would have been in in the absence of those terms.
38 In the third place, it is apparent from the case-law that, in connection with the obligation on the national court to set aside, if necessary of its own motion, unfair terms pursuant to Article 6(1) of Directive 93/13, that court is not required to exclude the possibility that a term may be applicable if the consumer, after having been informed of it by the court, does not intend to assert its unfair or non-binding status, thus giving his or her free and informed consent to that term (see, to that effect, judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraph 53 and the case-law cited).
39 In order for the consumer to be able to give his or her free and informed consent to the exclusion of an unfair term or to its application, despite its unfair nature, it is for the national court to indicate to the parties, in the context of national procedural rules and in the light of the principle of equality in civil proceedings, objectively and exhaustively the legal consequences which the removal of the unfair term may entail (see, to that effect, judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 48). Such information is all the more important where non-application of the unfair term is liable to lead to the invalidation of the contract in its entirety, potentially exposing the consumer to claims for restitution (judgment of 16 March 2023, M.B. and Others (Effects of the invalidation of a contract), C‑6/22, EU:C:2023:216, paragraph 40).
40 In that regard, it is apparent from the order for reference that, when questioned on two occasions by the court hearing the action for invalidation of the loan agreement, TK, first, had stated that she understood and accepted that the consequence of a declaration of the invalidity of the agreement was that she had to repay mBank the amount of the loan received and, second, that she had nevertheless maintained her request.
41 In that respect, it should be noted that the information which the national court is required to give the consumer within the meaning of the case-law cited in paragraph 39 of the present judgment cannot give rise to an obligation on that court to explain in detail all the legal rules that may apply to an action for restitution brought by the seller or supplier, such as those relating to the interruption of the limitation period for the seller or supplier’s claim. Indeed, the fact of being informed of his or her obligation to repay the borrowed capital together with default interest is sufficient to enable that consumer to understand and assess the legal consequences arising from a declaration that the loan agreement is invalid on account of unfair terms contained therein, and thus to give his or her free and informed consent to such invalidation. In those circumstances, the fact that the statements made by that consumer probably had the objective of obtaining a declaration of the invalidity of that agreement and not of interrupting the limitation period for that seller or supplier’s claim is irrelevant.
42 In the fourth and last place, it should be borne in mind that the principle of legal certainty, to which the referring court also makes reference, is aimed at ensuring foreseeability of situations and legal relations (judgment of 16 October 2019, Agrárminiszter, C‑490/18, EU:C:2019:863, paragraph 35 and the case-law cited). That principle does not therefore preclude a rule of national law which provides that the limitation period applicable to the seller or supplier’s claim is interrupted by acknowledgement by the consumer of his or her debt, especially since, as the referring court notes, following such an acknowledgement, that seller or supplier could expect that consumer to pay his or her debt voluntarily and, consequently, postpone its legal action seeking recovery of its debt.
43 Such a rule is also capable of guaranteeing the seller or supplier’s right of access to a court, in so far as, following the consumer’s acknowledgement, that seller or supplier could foresee that, under national law, the limitation period applicable to its claim starts to run afresh and, if appropriate, exercise its right of access to the courts taking that period into account.
44 In the light of the foregoing considerations, the answer to the first part of the question is that Article 7(1) of Directive 93/13 and the principle of effectiveness, having regard to the right of access to a court and the principles of proportionality and legal certainty, must be interpreted as not precluding a judicial interpretation of national legislation according to which the limitation period for a seller or supplier’s claim is interrupted by a declaration, made by a consumer in the context of a preliminary procedure concerning a request for invalidation of a loan agreement containing unfair terms, that that consumer is aware that, as a result of such invalidation, he or she would be required to repay the sums which he or she had received from the seller or supplier.
45 In view of the answer given to the first part of the question, there is no need to answer the second part of that question, which is based on the premiss that the interruption of the limitation period for the claim held by the seller or supplier is incompatible with EU law.
Costs
46 Since 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.
On those grounds, the Court (Ninth Chamber) hereby rules:
Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principle of effectiveness, having regard to the right of access to a court and the principles of proportionality and legal certainty,
must be interpreted as not precluding a judicial interpretation of national legislation according to which the limitation period for a seller or supplier’s claim is interrupted by a declaration, made by a consumer in the context of a preliminary procedure concerning a request for invalidation of a loan agreement containing unfair terms, that that consumer is aware that, as a result of such invalidation, he or she would be required to repay the sums which he or she had received from the seller or supplier.
[Signatures]
* Language of the case: Polish.
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.