Facts
Polish dispute between J.J. (consumer) a PKO BP S.A.. it afraid the annulment of the condition of the mortgage debt contract (which was concluded in 2019) concerning the determination of the variable interest rate on the basis of WIBOR 6M (hereinafter referred to as WIBOR clause) and the reimbursement of any of the amounts paid by that consumer to that bank in the performance of that contract. The territory Court in Czestochowa (Reference Court) held doubts as to the exclusion of specified a WIBOR clause in the light of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ 1993 L. No. 95, p. 29) and its compliance with the resulting transparency and publicity requirements.
TS Position
Exemption
In accordance with Article 1(2) of Directive 93/13/EEC, the terms of the agreement reflecting ‘applicable laws or regulations’. The Court held that this provision must be interpreted as meaning that The exception does not cover the condition of a mortgage agreement providing for a variable interest rate based on a benchmark within the meaning of the BMR Regulation and on a fixed margin, where the laws or regulations applicable to specified a condition establish only a general framework for determining the interest rate of specified contracts, while leaving the trader the anticipation of defining a contractual benchmark or a fixed margin that can be added to the value of that indicator.
Transparency requirement
In the present case, as regards the mortgage credit agreement falling within the scope of Directive 2014/17/EU and whose variable interest rate is based on the benchmark referred to in the BMR Regulation, the TS stressed that those 2 acts lay down precise information obligations for consumers to defend them.
First, Directive 2014/17/EU requires the creditor to supply individualised information granted before the conclusion of the contract, essential to enable that applicant to compare loans available on the market, assess their effects and make an informed decision. This information should be transmitted through ESIS.
Secondly, in accordance with Directive 2014/17/EU, a creditor offering credit agreements to a benchmark within the meaning of the BMR Regulation is required to provide, among the general information that he must make available on an ongoing basis, ‘names of mention indicators and their administrators and information on possible consequences for the consumer’. The Court considers that the expression ‘Information on possible consequences for the consumer‘the agreements relating to the benchmark may not mention to more precise information than the individualised pre-contractual information. In particular, the TS stressed that these wordings must not mention to the benchmark methodology utilized by the creditor or to factors that may affect their evolution.
On the another hand, the WMD Regulation regulates information obligations imposed on benchmark administrators. According to the TS, in respect of credit agreements relating to residential immovable property, Directive 2014/17/EU and the BMR Regulation merge by establishing detailed information obligations to consumers in relation to: firstly, to the terms of a variable interest rate mortgage agreement by mention to the benchmark referred to in that Regulation and secondly, to specified benchmarks and that those obligations are distributed between lenders and administrators of those indicators.
The Court held that Article 4(2) of Directive 93/13/EEC must be interpreted as meaning that, where a mortgage credit agreement for residential immovable property contains a condition providing for a variable interest rate based on a benchmark within the meaning of the BMR Regulation, the resulting transparency request does not impose circumstantial information obligations on the creditor with respect to the methodology of that indicator. The fact that the creditor has fulfilled all the information obligations imposed on him by Directive 2014/17/EU in respect of specified a condition and, where additional information is provided, has not provided guidance that would give a distorted image of that indicator may indicate that the creditor has met this transparency request in respect of that condition.
Absence
The Court held that Article 3(1) of Directive 93/13/EEC should be interpreted as meaning that, where the condition of a mortgage credit agreement determines a variable interest rate based on a benchmark within the meaning of the BMR Regulation:
- failure to inform the consumer of certain circumstantial characteristics of the contractual benchmark, in peculiar that the methodology of that benchmark provides for the usage of input data not necessarily corresponding to actual transactions and that the creditor is 1 of the banks providing the data to establish that benchmark;
- as well as the same circumstantial characteristics –
do not give this condition of unfair character, in so far as that rate at the time of the conclusion of the contract could be considered compatible with that Regulation.
Comment
This is the first judgement of the TS concerning the alleged WIBOR clauses in credit agreements, although, in principle, the Court’s position, in the context of its erstwhile case law, should not be a large surprise.
In consequence to the first question, the TS has rightly accepted that recourse to Article 29(2) of the HipU Credit and the BMR Regulation does not exclude the application of Directive 93/13/EEC to credit agreements containing WIBOR clauses. Consequently, the Polish court may apply to these clauses the criteria for assessing an unauthorised contractual provision resulting from Article 3851 KC.
In consequence to the second question on the assessment with the transparency request of the WIBOR clause, the TS stressed the work to carry out this assessment in the light of all applicable Union law, so not only Directive 93/13/EEC but besides the applicable Regulations of the BMR and Directive 2014/17/EU. This is simply a fundamental issue since the present case afraid an agreement which was concluded after 1.1.2018, i.e. the date from which the BMR Regulation applies. In this situation, the Court found that the 2 acts lay down precise and multilevel obligations for creditors to inform consumers. At the same time, the TS considered that the transparency request resulting from Article 4(2) of Directive 93/13/EEC does not impose circumstantial information obligations on the creditor on the methodology of that indicator. The creditor has only the work to supply personalised pre-contractual information through ESIS. The Court so considered that the expression ‘information on possible consequences for the consumer’ (Article 13(1) of Directive 2014/17/EU) should not mention to more precise information than those resulting from ESIS. Consequently, the creditor’s compliance with the transparency request of Directive 93/13/EEC in the event of the conclusion of a mortgage credit agreement containing the WIBOR clause should be assessed in the light of the obligations imposed on him by Directive 2014/17/EU.
Moreover, the TS explicitly concluded that information obligations towards consumers are distributed between lenders and administrators of these indicators.
In consequence to the 3rd question, the Court has accepted that the application of a benchmark in a mortgage agreement, specified as WIBOR, which, at the time of the conclusion of that agreement, may be regarded as complying with the BMR Regulation, in peculiar with respect to its methodology, in the light of the scrutiny provided for in that Regulation, cannot in rule result, to the detriment of the consumer, of a crucial imbalance in the rights and obligations of the parties, regardless of the fact that the creditor is 1 of the banks providing input data utilized by the admin of that benchmark to find its value.
Importantly, first, the judgement in question concerns the factual and legal situation in the explanation provided by the referring court in the mention for a preliminary ruling, which, after careful reading of the latter, may rise any doubts. Second, this judgement cannot be applied automatically to credit agreements with WIBOR concluded before 1.1.2018. In this respect, the Court will give its ruling on the questions referred by the Polish courts in 2 cases: Cedrosivic, C-586/25 and Krywiga, C-630/25.
Judgment of the TS of 12.2.2026, PKO BP (Key mention Rate), C-471/24, Legalis
