The Warsaw – Prague territory Court, based in Warsaw, referred further questions for a preliminary ruling to the TEU on a variable interest rate based on WIBOR. Commenting on our expert – Matthew Brembor, legal counsel.
The content of the questions concerns whether the provisions on the terms and conditions of the interest rate change can be considered to be understandable where the credit agreement does not specify how the WIBOR is determined and by whom, by referring only and only to a website to which the consumer does not have access for the duration of the contract.
The question on the WIBOR indicator is as follows:
1) Is Article 4(2) in fine of Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ EU L 95, 29; hereinafter: Council Directive 93/13 EEC) to be interpreted as meaning that the condition of a credit agreement concluded with the consumer before the entry into force of Regulation (EU) 2016/11 of the European Parliament and of the Council of 8 June 2016. – introducing a variable interest rate clause, which is included in the WIBOR benchmark, can be considered to be expressed as ‘a simple and understandable language’ where at the same time:
- The Bank informed the borrower that the variable interest rate was composed of a margin and a benchmark;
- The Bank has not informed the borrower how and by whom the benchmark is established or how it has developed in erstwhile years;
- The benchmark agreement refers to an external information service to which the consumer is not guaranteed access throughout the credit period and the period after the expiry of the contract erstwhile he can trust on the rights arising from the residence of unfair terms?
2. Is Article 3(1) of Council Directive 93/13/EEC to be interpreted as meaning that the condition of a credit agreement concluded with the consumer, specifying that the origin affecting the change in interest rate, is the WIBOR benchmark, which at the date of the conclusion of the credit agreement by the parties, was not governed by the law of general application but was established by a 3rd party, without organization supervision, with the lending bank having an indirect influence on the amount of that rate, causing a crucial imbalance in the rights and obligations of the parties to the contract to the detriment of the consumer?
– in case of a affirmative answer to the above questions:
3) Is Article 6(1), in conjunction with Article 7(1) of Council Directive 93/13/EEC, to be interpreted as meaning that, where a condition setting a variable interest rate is considered unfair by mention to the WIBOR benchmark, it is possible to further bind the parties to the credit agreement erstwhile accepting that it is simply a fixed interest rate debt at the level of the fixed interest rate of the bank indicated in the contract, or the consequence of a non-binding consumer considered unfair by a variable interest rate condition is the request to declare the contract invalid ex tunc?
Thus, a number of doubts have arisen around the WIBOR indicator, which will shortly be resolved by the EUSF. The dispute relates in fact to the fulfilment by the bank of information obligations regarding the construction of the indicator and its impact on credit costs. Many borrowers who have sued the banks indicate that they have not been decently and sufficiently informed of the way the WIBOR indicator works and have thus been misled by the banks that it is an independent indicator based on interbank transactions. The banks defend themselves by claiming that WIBOR is compatible with Polish and European Union law, is transparent and transparent and should so not be subject to judicial review.
In 1 of the WIBOR cases with file number C-471/21, the opinion of the Advocate General is expected for 11 September 2025.
