• Today CJEU has issued a judgment whereunder a court may find a contractual provision unfair only because it is identical to the provision entered in the register of abusive clauses.
• A contractual provision may not be deemed unfair towards a part of the consumers who have concluded the agreement and fair towards other ones.
• A bank is also obliged to inform all borrowers of some material characteristics of the agreement as well as risks related to it even if a consumer has relevant knowledge in the scope of agreement conclusion.

On the list of cases of the Court of Justice of the European Union, the motion no. TSUE C-139/22 for issuance of a judgment under the preliminary mode in connection with the question posed by the District Court for Warsaw - Śródmieścia has been heard today. In this Warsaw court, the proceedings are pending for the reimbursement of the unduly charged CHF-indexed mortgage loan instalments. In view of the fact that the court has applied to CJEU for a resolution whether on the basis of the EU laws it may be concluded that the wording of an untailored contractual provision is unfair if an identical provision has already been the object of the proceedings and has been entered in the register of abusive clauses. The Court has confirmed such an option. Such a judgment may contribute to acceleration of the pending court proceedings.

The CJEU has additionally referred to the issue of upholding unfair contractual provisions such as conversion clauses in mortgage loan agreements referring to foreign currencies if other provisions of the agreement in question provide for an opportunity to perform the agreement by a consumer with no reference to the challenged clauses.

At this point the judgment clearly indicates that the unfair contractual provision may not be upheld only because a consumer may perform the agreement in some other way under some other (non-abusive) contractual terms and conditions of the agreement.

Another issue pertains to the informational obligation imposed on an entrepreneur. In the case heard, one of the borrowers was a bank employee and was educated in finance while the other did not have such knowledge - thus a question arose on how key information on material risks and features of the agreement should be communicated by the bank. In its judgment, the CJEU has confirmed that the obligation to provide information with the use of simple and understandable language about the risk and features of the agreement pertains to each consumer regardless of their status of knowledge (including a bank employee) while a contractual provision may not be deemed unfair towards a part of consumers who have concluded the agreement and fair towards others.

What is the register of abusive clauses?

The Register of Abusive Clauses can be found at UOKIK website. Prior to the amendment to the Act on Competition and Consumer Protection, that is, before 17 September 2017, the Court of Competition and Consumer Protection used to decide on entering a clause in the register. Currently, President of UOKiK, by issuing his decision, may find a clause abusive and may prohibit to use it in agreements with consumers. In such a case, the clause will not be binding for the entrepreneur who has applied it and for all the consumers who have made an agreement with them.

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