Background
Two Polish consumers took out a Swiss-franc-denominated mortgage loan in 2005. The bank disbursed PLN 229,685.50, while the borrowers later made repayments in both Polish zlotys and Swiss francs. They claimed that unfair terms rendered the agreement void and sought repayment of amounts paid to the bank, including default interest from the day after an unsuccessful settlement hearing.
The Warsaw Regional Court explained that Polish case law had developed two approaches to restitution after a consumer loan is invalidated. Under the “two claims theory,” each party has an independent restitution claim. Under the “balance theory,” the court offsets the parties’ claims, leaving a claim only for the party whose total payments exceed the other’s. The referring court asked whether Directive 93/13 barred ex officio set-off under the balance theory and the resulting limitation of the consumer’s interest claim.
The Court’s Holding
The Court held that Articles 6(1) and 7(1) of Directive 93/13 do not, in principle, preclude a national judicial interpretation allowing a court to set off ex officio the reciprocal restitution claims of a consumer and a bank after a mortgage loan is invalidated because of unfair terms. In that arrangement, the consumer may recover only the amount by which repayments exceed the capital advanced, plus default interest on that excess.
EU law does not require either the balance theory or the two claims theory. Member States retain procedural autonomy, subject to equivalence and effectiveness and to the requirement that the result restores the parties’ positions without unjust enrichment. A court using ex officio set-off must comply with national procedural rules, ensure the consumer receives default interest on any excess repayment, account for all relevant payments, and inform the consumer in advance of the consequences of invalidity and set-off.
Key Takeaways
- Directive 93/13 does not mandate separate restitution claims after a consumer loan is voided for unfair terms.
- Ex officio set-off is compatible with EU law in principle, if national law permits it and consumer-protection requirements are met.
- The bank cannot obtain more than the capital advanced and statutory default interest from formal notice; it cannot charge for the consumer’s use of the capital.
Why It Matters
The judgment confirms that EU consumer-protection law leaves room for national courts to use a netting approach in foreign-currency mortgage disputes. It also rejects the view that the Court’s earlier decision in Lubreczlik required either the balance theory or the two claims theory.
For litigants, the practical safeguards matter: consumers must not be deterred by costs, must be informed before invalidity and set-off take effect, and must receive interest on repayments exceeding the loan principal.