Subject substance of the appeal
The applicant decided to bring an action before the ultimate Court in order to interpret the provisions of serious uncertainty or to make disagreements in the case-law of the courts, under Article 3989 § 1 point 2 of the KPC. In this regard, the applicant considered the grounds for the cassation action in Article 3851 Paragraphs 1 and 2 of the KC to the degree that they relate to the effects of recognising the contractual provisions as an abusive anticipation of replacing specified provisions with dispositive provisions. In addition, he argued in the complaint that there was an crucial legal issue in the case (within the meaning of Article 398)9 § 1 point 1 of the KPC) in view of the request to find whether it is not possible to estimation the amount which the credit agreement will supply in the future. per se the ambiguity of that contractual provision and, consequently, whether specified a provision should be subject to an abuse test.
Position of the ultimate Court
The ultimate Court, in deciding not to accept a cassation action to be examined, was motivated by the fact that its subject substance was already in fact explained, since both the SN and the Court of Justice of the European Union had already interpreted it. In the message of reasons for the judgement in question, the jurisprudence of the NS and the Court are cited as referring to clauses that form the indexation mechanism, reserved in a contract of gold credit indexed to a abroad currency (denomised in abroad currency). The dominant view of the case-law is that the contractual provisions falling within the concept of ‘the main object of the process’ within the meaning of Article 4(2) of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L 1993 No 95, p. 29) are the basic benefits which, under the contract, specify the basic benefits and characterise the contract. These include, inter alia, ‘currency hazard clauses’, which entail the burden on the borrower-consumer to the hazard of exchange rate changes and the associated hazard of expanding the cost of credit. Therefore, the valuation clauses not explicitly and precisely defined in the credit agreement are examined by the rule of Article 3851 § 1 KC, since the provisions of the contract or general terms of the contract (e.g. the Rules of Procedure) laying down both the rules for converting the amount of credit granted into gold in the payment of the debt and the instalments paid into abroad currency, allowing the bank to freely form the exchange rate of the abroad currency, are unlawful contractual terms.
In the further part of the message of reasons, the NS cited that the judicature predominates the view that if the elimination of the abusive clause leads to specified a formation of contractual regulation that the rights and obligations of the parties cannot be reproduced, the parties cannot be presumed to stay bound by the contract. It is so essential for the Court of First Instance to measure whether it is possible to keep the remaining scope and, if the contract is not upheld after it has been excluded from the abusive clauses, it would entail its annulment.
The ultimate Court besides pointed out that it is not possible to replace the LIBOR interest rate in the event of the elimination of the abuzz conversion clauses in the CHF indexed credit as a gold debt at that rate by replacing it with WIBOR. Similarly, it is not possible to change unfair terms of contracts by referring to the exchange rate of currencies applied by the NBP or by supplementing the abuzz clauses with the standards contained in the provisions of another laws, including Article 358(2) of the KC.
Comment
The message of reasons for this ruling can indeed be regarded as a compendium of cognition and a signpost showing the current jurisprudence of the NS and the Court of Justice of the European Union relating to the abuzzability of clauses that form the indexation mechanics in a gold credit indexed to a abroad currency (denomination in abroad currency).
In fact, the explanatory memorandum addresses 3 issues shaped by the case-law line, which lead to the presumption that:
- The valuation clauses unclear and imprecise in the credit agreement which let the bank to freely find the abroad currency rate on payment and repayment of the credit shall be assessed under Article 385.1 § 1 KC as prohibited contractual terms;
- where the elimination of the abusing provisions of the credit agreement leads to its inability to continue, this shall consequence in its annulment;
- it is not possible to replace the rate eliminated as an abusive interest rate by replacing it with: another rate, recourse to the exchange rate of currencies applied by the NBP, or addition of provisions not permitted by standards encoded by another laws.
Therefore, there is simply a request for a simple, clear and verifiable determination of how the exchange rate is to be determined by the bank in the conclusion of indexed and denominated loans contracts, in view of the risks entailing designation of the abuzzability of the contractual terms, in the absence of compliance with the above conditions (cf. judgement of the General Court of 4.4.2019, III CSK 159/17, Legalis). The free course of abroad currency by the bank leaves area for its arbitrary action (full or limited), burdening the borrower with an unforeseeable risk, which besides entails a distortion of the equivalence of the parties (cf. judgement of the SN of 3.2.2022, II CSKP 459/22, Legalis, or judgement of the SN of 13.5.2022, II CSKP 293/22, Legalis).
In turn, the inability to replace an abusive provision involves the fact that a contractual condition found to be unfair must, in principle, be regarded as never existing, so that it does not have effects on the consumer. The decision should so find the effect of restoring the legal and factual situation of the consumer in which it would be in the absence of that condition. However, this must not lead to a change in the content of unfair contractual terms. The nullity of the contract may be removed by virtue of its abusive nature and shall indicate whether, in connection with the removal, the contract remains valid due to the another contractual provisions in force which have not been annulled. However, the court may not interfere with the content of the provisions not permitted by their amendment either by fixing a different rate or by referring to another legal standards contained in the laws. It is besides excluded that the contractual gaps arising from the elimination of specified a provision (cf. judgement of SN of 4.4.2019, III CSK 159/17, Legalis, judgement of the TS of 21.12.2016, C-154/15, Legalis; judgement of the SN of 9.5.2019, I CSK 242/18, Legalis).
Therefore, despite the fact that the ruling refers to the refusal to accept a cassation action for the examination, it should be considered as a valuable contribution to the judicature. It is besides appropriate to grant the sN’s position presented in the message of reasons, as the subject substance of the action afraid issues already dealt with in the case law of the Court of Justice and the ultimate Court. mention to the request to interpret government which raises serious doubts or creates disagreements in the case law of the courts, as set out in Article 3989 § 1 point 2 of the KPC, occurs erstwhile a provision of law (or their team) even though it raises serious doubts, has not been interpreted, or a disunited explanation causes clearly identified by the applicant differences in judicature in relation to identical or akin facts (cf. the order of the SN of 10.10.2025, I CSK 2553/24, Legalis). In constructing the complaint, the complainant should so mention to a peculiar novelty or to an issue which has not yet been the subject of the SN's consideration and raises doubts as to the explanation or the existence of a case-law in question.
Order of the ultimate Court of 5.11.2025, I CSK 1037/25, Legalis
