C-246/25

Provisional text JUDGMENT OF THE COURT (Sixth Chamber) 30 April 2026 (*) ( Reference for a preliminary ruling – Unfair terms in consumer contracts – Directive 93/13/EEC – Effects of a finding that a term is unfair – Addendum to a mortgage loan agreement – Consequences of the nullity of that addendum on the validity of that contract – Principles of effectiveness and proportionality – Deterrent effect – Conditions for the continued existence of the contract – Obligations of the national court ) In Case C‑246/25 [Hańczynek], (i) REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), made by decision of 31 March 2025, received at the Court on 1 April 2025, in the proceedings AS v BNP Paribas Bank Polska S.A., THE COURT (Sixth Chamber), composed of I. Ziemele (Rapporteur), President of the Chamber, S. Gervasoni and M. Bošnjak, Judges, Advocate General: T. Ćapeta, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of: –        AS, by K. Pilawska and A. Zorski, adwokaci, –        BNP Paribas Bank Polska S.A., by T. Spyra, P. Węc, radcowie prawni, and D. Wróbel, adwokat, –        the Polish Government, by B. Majczyna, acting as Agent, –        the European Commission, by P. Kienapfel and A. Szmytkowska, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following Judgment 1        The request for a preliminary ruling concerns the interpretation of Article 6(1) and 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) and of the principles of effectiveness and proportionality. 2        This request has been made in proceedings between AS and BNP Paribas Bank Polska S.A. (‘BNP Paribas’) concerning the consequences of the unfairness of certain terms of an addendum to a mortgage loan agreement concluded between AS and the predecessor in title to BNP Paribas.  Legal context  Directive 93/13 3        The twenty-fourth recital of Directive 93/13 states: ‘Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts’. 4        Article 6(1) of that directive 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.’ 5        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 6        Under Article 58(1) of the ustawa – Kodeks cywilny (Law establishing the Civil Code), of 23 April 1964 (Dz. U., No 16, item 93), in the version applicable to the dispute in the main proceedings (‘the Civil Code’): ‘A legal transaction which is contrary to the law or intended to circumvent the law shall be null and void, unless the relevant provision provides otherwise, in particular that provision provides that the invalid terms of the legal transaction are to be substituted by relevant provisions of law.’ 7        Article 3851 of the Civil Code provides: ‘1.      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 good practice and grossly infringes his or her interests (unlawful terms). This provision shall not apply to terms setting out the principal obligations of the parties, including price or remuneration, so long as they are worded clearly. 2.      If a contractual term is not binding on the consumer pursuant to paragraph 1, the contract shall otherwise continue to be binding on the parties.’ 8        Article 3852 of the Civil Code provides: ‘The compliance of contractual terms with good practice shall be assessed according to the state of affairs existing at the time of conclusion of the contract, taking into account its content, the circumstances in which it was concluded and also other contracts connected with the contract which contains the provisions being assessed.’ 9        Under Article 506(1) of the Civil Code, where, in order to cancel an obligation, the debtor undertakes, with the creditor’s consent, to fulfil another obligation, or the same obligation, but on another legal basis, the previous obligation is to be extinguished.  The dispute in the main proceedings and the question referred for a preliminary ruling 10      On 3 January 2007, AS concluded with BNP Paribas’s predecessor in title a mortgage loan agreement in the amount of 415 144.09 Polish zlotys (PLN) (approximately EUR 97 000), intended to finance the construction of immovable property, for a period until 20 December 2021. The interest rate was fixed in that agreement at 4.7%, on the basis of the reference rate WIBOR 3M (Warsaw Interbank Offered Rate 3-month), plus the margin of the bank concerned. 11      On 20 February 2008, the parties to that agreement signed an addendum to that agreement, pursuant to which the amount of the loan to be repaid was increased to PLN 465 144.09 (approximately EUR 108 700). 12      On 20 March 2008, those parties signed a second addendum to that contract (‘the second addendum’). Pursuant to Article 1(1) of the second addendum, the amount of the loan to be repaid was converted into Swiss francs (CHF). Article 2 of the second addendum stated that the interest rate of that loan was to be determined on the basis of the Libor 6M benchmark (London Interbank Offered Rate 6-month), plus the margin of the bank concerned. Under Article 3(1) of the second addendum, that loan was repayable in PLN, the monthly repayment instalments being calculated by applying the selling rate of that currency in force in that bank on the date of repayment of the monthly instalment concerned. In addition, Article 3(2) of the second addendum stipulated that the interest, costs and commissions were to be calculated in the loan currency and were to be repaid in PLN in accordance with the selling rate of that currency in force at that bank on the date of that repayment. Article 3(5) of the second addendum stated that the borrower had been informed that he was bearing the foreign exchange risk. Lastly, Article 5 of the second addendum set a new due date for the same loan as 20 December 2026. 13      The parties to the mortgage loan agreement at issue in the main proceedings concluded a third addendum to that agreement, on 13 February 2015, under which AS was granted the right to pay the monthly repayment instalments directly in Swiss francs. 14      After having repaid PLN 350 088.07 and CHF 83 920.95 (approximately EUR 171 800 in total), AS brought an action on 25 November 2022 before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), which is the referring court, seeking a declaration that the indexation terms stipulated in the second addendum were void and, in the alternative, inter alia, a declaration that the mortgage loan agreement at issue in the main proceedings was void in its entirety. 15      The referring court considers that the terms in Articles 1 and 3 of the second addendum are unfair, within the meaning of Article 3(1) of Directive 93/13, in so far as they place the exchange rate risk entirely on the borrower. Moreover, it states that the second addendum cannot continue in existence without those terms. 16      That court notes that, according to the case-law of the Sąd Najwyższy (Supreme Court, Poland), the nullity of an addendum to a mortgage loan agreement has the effect of restoring the initial terms of that agreement which were amended by that addendum, without the validity of that agreement being called into question. 17      Accordingly, a declaration of nullity of the addendum alone resulting from the unfair nature of its terms would be sufficient to achieve the objective of consumer protection, as set out in Article 6(1) of Directive 93/13, since the consumer concerned would no longer bound by those terms. In any event, the nullity of the agreement in its entirety as a consequence of that finding would be disproportionate to the attainment of that objective. 18      Nevertheless, the referring court notes the risks entailed by the restoration of the terms of the initial mortgage loan agreement as regards the deterrent effect that the removal of unfair terms should have on the conduct of sellers or suppliers. On the one hand, a seller or supplier would not be penalised for the use of unfair terms, since that seller or supplier may even, in certain circumstances, benefit from the substitution of the unfair terms by the terms of the initial agreement. On the other hand, the nullity of the mortgage loan agreement in its entirety would have favourable economic consequences for the consumer concerned, in particular where the credit provider’s claim is time-barred. 19      In that regard, the referring court asks, however, whether a finding that the mortgage loan agreement is void may be justified where it is based only on a quantitative economic evaluation of the advantages which the consumer concerned derives from that nullity. 20      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 Articles 6(1) and 7(1) of [Directive 93/13], as well as the principles of effectiveness and proportionality, be interpreted as precluding a judicial interpretation of national legislation according to which, if it is found that an [addendum] to a contract contains unfair terms resulting in the [nullity] of that [addendum], the [addendum] is deemed never to have been concluded, and the [mortgage loan agreement] is deemed to have been in force from the beginning in its unaltered version?’  Consideration of the question referred 21      By its question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 and the principles of effectiveness and proportionality must be interpreted as precluding national case-law according to which a finding that an addendum to a mortgage loan agreement concluded between a seller or supplier and a consumer is void on account of the presence of unfair terms has the effect of restoring the initial terms of that agreement which that addendum was intended to replace.  Admissibility 22      BNP Paribas submits that the question referred is inadmissible given that the outcome of the dispute in the main proceedings depends solely on the application of provisions of Polish law. 23      In that regard, it is not for the Court, in the context of the procedure provided for in Article 267 TFEU, to interpret and apply national law, that being exclusively for the referring court (judgment of 26 October 2023, EDP – Energias de Portugal and Others, C‑331/21, EU:C:2023:812, paragraph 40 and the case-law cited). 24      Nevertheless, the procedure provided for in that article is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the dispute before them (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44 and the case-law cited). 25      However, while the first part of Article 6(1) of Directive 93/13 provides that Member States are to lay down that unfair terms are not to be binding on the consumer, ‘as provided for under their national law’, the regulation by national law of the protection guaranteed to consumers by that directive may not alter the scope and, therefore, the substance of that protection (judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 47 and the case-law cited). 26      In the present case, the referring court asks whether the application of national case-law in the context of a dispute before it is liable to prevent the attainment of the objective of deterrence laid down by Directive 93/13 and the effectiveness of the consumer protection guaranteed by that directive. 27      Consequently, the outcome of the dispute pending before the referring court depends on the Court’s interpretation of the provisions of that directive and of the principle of effectiveness, with the result that the question referred must be declared admissible.  Substance 28      Under the first part of Article 6(1) of Directive 93/13, unfair terms used in a contract concluded between a seller or supplier and a consumer are, as provided for under the national laws of the Member States, not to be binding on the consumers. 29      In that regard, the regulation by national law of the protection guaranteed to consumers by Directive 93/13 may not alter the scope and, therefore, the substance of that protection (see, to that effect, judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 47 and the case-law cited). 30      In that connection, it is for the Member States to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’, as provided for by Article 7(1) of that directive (see, to that effect, judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 43 and the case-law cited). 31      While it is for the Member States to define, by means of their national legislation, the detailed rules under which the unfairness of a contractual term is established and the actual legal effects of that finding are produced, the fact remains that such a finding must allow the restoration of the legal and factual situation that the consumer would have been in if that unfair 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 (see, to that effect, judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 48 and the case-law cited). 32      As regards the national courts, it is for them to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (see, to that effect, judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 44 and the case-law cited). 33      It follows that 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 (judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 45 and the case-law cited). 34      It is apparent from the order for reference that, according to the case-law of the Sąd Najwyższy (Supreme Court), the nullity of the second addendum has the effect of restoring the initial terms of the mortgage loan agreement at issue in the main proceedings which were replaced by that addendum. That restoration would enable that agreement to continue in existence, whereas, according to the referring court, the nullity of that agreement in its entirety would be disproportionate in the light of the attainment of the objective of consumer protection. 35      In accordance with the case-law, where a national court considers that, pursuant to the relevant provisions of its domestic law, it is impossible for a contract to continue in existence without the unfair terms which it contains, Article 6(1) of Directive 93/13 does not in principle preclude that contract from being annulled, independently of the actual effects that result from the invalidity of that contract (judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 85 and the case-law cited). 36      In that regard, it should be recalled that the possibility that a contract may, in accordance with the rules of domestic law, be continued without the unfair terms must be determined objectively. Accordingly, the situation of one of the parties to that contract cannot be regarded as the decisive criterion determining the fate of the contract (see, to that effect, judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract), C‑630/23, EU:C:2025:302, paragraph 58 and the case-law cited). 37      In those circumstances, the continued existence of the contract cannot depend on the potential disproportionate effects of the nullity of the contract in relation to the objective of consumer protection pursued by Directive 93/13. 38      In accordance with the case-law cited in paragraph 31 of the present judgment, the effects of a finding that a term in a contract concluded between a seller or supplier and a consumer is unfair must, in any event, allow the restoration of the legal and factual situation that the consumer would have been in if that unfair term had not existed. In that regard, by requiring, on account of the unfairness of the terms of the addendum to a contract, the restoration of the initial terms of that contract which were replaced by that addendum, national case-law, such as that referred to in the order for reference, leads, in principle, to the restoration of the legal situation that the consumer would have been in if those unfair terms had not existed. 39      Nevertheless, it must be recalled that, if it were open to the national court to revise the content of unfair terms included in a contract, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. Accordingly, that power would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgment of 29 April 2021, Bank BPH, C‑19/20, EU:C:2021:341, paragraph 68 and the case-law cited). 40      The restoration of the terms of the mortgage loan agreement concerned, by which the parties had intended no longer to be bound, is capable not only of calling into question the effectiveness of the consumer protection guaranteed by Directive 93/13, but also of jeopardising the attainment of the objective, laid down in Article 7 of Directive 93/13, of deterrence in respect of the use of unfair terms by the seller or supplier, which results from the removal of those unfair terms alone. 41      On the one hand, the restoration of the initial terms of that mortgage loan agreement may have negative consequences for the consumer which result directly from the removal of the unfair terms. In the present case, the Polish Government submitted in its written observations that restoring the index applicable to the interest rate as agreed in the initial mortgage loan agreement would entail the borrower’s refunding of the amounts corresponding to the difference between the application of the index fixed in the second addendum and that fixed in the initial mortgage loan agreement for the period following the conclusion of that addendum. Furthermore, since the parties to the mortgage loan agreement at issue in the main proceedings agreed in the second addendum to amend the maturity of that loan in favour of the borrower, in particular in the form of an extension of the repayment maturity, the restoration of the maturity agreed in the initial mortgage loan agreement may also prove to be detrimental to the consumer. 42      On the other hand, there would be the risk that sellers or suppliers may not be deterred from using unfair terms if the original terms of a contract that contains terms which have been found to be unfair, which the parties intended to replace by the conclusion of an addendum, could be restored to substitute the unfair terms in the addendum. In particular, where a seller or supplier derives an advantage from such restoration of the initial terms, the deterrent effect, linked in particular to the restitution to the consumer of advantages wrongly obtained, to his or her detriment, by the seller or supplier on the basis of an unfair term is liable to be partially neutralised. 43      In any event, it is for the national court to ascertain the intention of the contracting parties when they altered the content of the mortgage loan agreement by the conclusion of an addendum. 44      Lastly, it must be recalled that Article 6(1) of Directive 93/13 aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgment of 18 December 2025, Soledil, C‑320/24, EU:C:2025:993, paragraph 23 and the case-law cited). 45      Accordingly, it is for the national court to ensure that the restoration of the original terms, replaced by an addendum which has been found to be void on account of the presence of unfair terms, makes it possible to establish such an effective balance guaranteeing the effective protection of the consumer without calling into question the attainment of the objective of deterrence pursued by Article 7(1) of Directive 93/13. 46      In the light of all the foregoing considerations, the answer to the question referred is that Article 6(1) and Article 7(1) of Directive 93/13 and the principles of effectiveness and proportionality must be interpreted as not precluding national case-law according to which a finding that an addendum to a mortgage loan agreement concluded between a seller or supplier and a consumer is void on account of the presence of unfair terms has the effect of restoring the original terms of that agreement which that addendum was intended to replace with those unfair terms, provided that due account is taken of the negative consequences for that consumer and of the advantages for that seller or supplier resulting from such restoration of those initial terms, in such a way that it is guaranteed that that restoration of those initial terms enables an effective balance to be struck between the rights and obligations of the contracting parties and, thus, the effective protection of the consumer, without the attainment of the objective of deterrence pursued by that directive being called into question.  Costs 47      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 (Sixth Chamber) hereby rules: Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principles of effectiveness and proportionality must be interpreted as not precluding national case-law according to which a finding that an addendum to a mortgage loan agreement concluded between a seller or supplier and a consumer is void on account of the presence of unfair terms has the effect of restoring the original terms of that agreement which that addendum was intended to replace with those unfair terms, provided that due account is taken of the negative consequences for that consumer and of the advantages for that seller or supplier resulting from such restoration of those initial terms, in such a way that it is guaranteed that that restoration of those initial terms enables an effective balance to be struck between the rights and obligations of the contracting parties and, thus, the effective protection of the consumer, without the attainment of the objective of deterrence pursued by that directive being called into question. [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.