(iii) a national court is not allowed, after it has found that a term in a contract concluded between
a seller or supplier and a consumer is unfair, to fill gaps resulting from the removal of the
unfair term contained therein by the application of a provision of national law which cannot
be characterised as a supplementary provision. However, it is for the national court, taking
account of its domestic law as a whole, to take all the measures necessary to protect the
consumer from the particularly unfavorable consequences which annulment of the contract
might entail for him or her.
On June 8, 2023, the Court of Justice of the European Union issued a judgment in a case registered
under case number C-570/21, following preliminary questions submitted by the District Court in
Warsaw in a case against the former Getin Noble Bank S.A. In the judgment, the CJEU ruled that:
(i) provisions of Council Directive 93/13 must be interpreted as meaning that the concept of
‘consumer’, within the meaning of that provision, covers a person who has concluded a loan
contract intended for a purpose in part within and in part outside his or her trade, business
or profession, together with a joint-borrower who did not act within his or her trade, business
or profession, where the trade, business or professional purpose is so limited as not to be
predominant in the overall context of that contract;
(ii) provisions of Directive 93/13 must be interpreted as meaning that in order to determine
whether a person falls within the concept of ‘consumer’, within the meaning of that provision,
and, specifically, whether the trade, business or professional purpose of a loan contract
concluded by that person is so limited as not to be predominant in the overall context of that
contract, the referring court is required to take into consideration all the relevant
circumstances surrounding that contract, both quantitative and qualitative, such as, in
particular, the distribution of the borrowed capital between, on the one hand, a trade,
business or profession and, on the other hand, a non-professional activity and, where there
are several borrowers, the fact that only one of them is pursuing a professional purpose or
that the lender made the grant of credit intended for consumer purposes conditional on a
partial allocation of the amount borrowed to the repayment of debts connected with a trade,
business or profession.
On June 15, 2023, the Court of Justice of the European Union issued a judgment in a case registered
under case number C-287/22, following preliminary questions submitted by the District Court in
Warsaw in a case against the former Getin Noble Bank S.A. In the judgment, the CJEU ruled that
provisions of the Directive 93/13 must be interpreted as precluding national case-law according to
which a national court may dismiss an application for the grant of interim measures lodged by a
consumer seeking the suspension, pending a final decision on the invalidity of the loan agreement
concluded by that consumer on the ground that that loan agreement contains unfair terms, of the
payment of the monthly instalments due under that loan agreement, where the grant of those interim
measures is necessary to ensure the full effectiveness of that decision.
On June 15, 2023, the CJEU issued a judgment in a case registered under case number C-520/21,
following preliminary questions submitted by the District Court in Warsaw in a case against Bank
Millennium, in which indicated that Directive 93/13 does not expressly regulate the consequences of
invalidity of a contract concluded between a credit institution and a consumer after the removal of
unfair terms contained therein. The CJEU stated that:
(i) the provisions of the Directive 93/13 do not preclude a judicial interpretation of national law,
according to which the consumer has the right to demand compensation from the credit
institution beyond the reimbursement of monthly instalments and costs paid for the
performance of this contract and the payment of statutory default interest from the date of
the request for payment provided that the objectives of Directive 93/13 and the principle of
proportionality are respected;