Background
In September 2008, two Polish consumers, DJ and PJ, entered into a 348-month loan agreement with Santander Bank Polska S.A. (SBP) for PLN 50,000 (approximately EUR 11,500), denominated in Swiss francs. Monthly repayments were calculated in Polish zlotys using SBP’s own exchange rate table — a common feature of CHF-indexed mortgage products that Polish courts have repeatedly found to contain unfair terms. Between October 2008 and July 2022, DJ and PJ paid SBP a total of PLN 54,290.71 under the agreement.
In July 2022, the consumers sent SBP a pre-litigation complaint asserting that the agreement was void due to unfair currency conversion clauses and demanding repayment of “all principal and interest instalments” — but without specifying an exact monetary amount. The following month they filed suit before the Regional Court in Warsaw, seeking a declaration of nullity and repayment of PLN 54,290.71 together with statutory default interest running from 17 August 2022. SBP eventually raised a set-off for the PLN 50,000 loan principal it had disbursed, and in November 2024 the Warsaw court issued a partial judgment declaring the agreement void. The remaining dispute concerned only the PLN 4,290.71 balance and, critically, from which date statutory default interest should run.
The Warsaw court was uncertain whether interest began to accrue from the date the consumers served their pre-litigation complaint (which lacked a precise figure) or only from the date the bank was served with the court application (which stated the specific amount). Polish case-law and legal commentary require a demand for payment to state the specific sum in order to trigger the debtor’s obligation to pay default interest — a rule with no explicit basis in the Civil Code. The court stayed proceedings and referred the question to the CJEU, asking whether that judicial interpretation was compatible with Article 6(1) and Article 7(1) of Directive 93/13 and the EU principle of effectiveness.
The Court’s Holding
The Ninth Chamber held that Article 6(1) and Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, do not preclude the Polish judicial rule requiring a consumer’s demand for payment to specify the exact amount claimed before statutory default interest begins to run against the seller or supplier. The Court emphasised that, while the directive obliges Member States to ensure that findings of unfairness have a genuine restitutory and dissuasive effect, the detailed procedural rules for implementing that protection remain within Member States’ procedural autonomy, subject to the principles of equivalence and effectiveness.
The Court found that the specificity requirement does not make it practically impossible or excessively difficult for consumers to exercise their rights under the directive. A consumer who has made regular loan repayments to a bank is necessarily aware of those amounts and can readily verify them through bank account statements or a certificate from the bank itself — exactly what DJ and PJ obtained within one week of lodging their complaint. The requirement also serves a legitimate purpose: it enables the seller or supplier, as debtor, to ascertain the amount being claimed and assess whether it is well founded, thus respecting the rights of the defence, legal certainty, and the proper conduct of proceedings.
The Court further rejected the argument that the consumers’ legal representation was relevant to the analysis. Questions about the obligation to quantify a claim in order to trigger default interest must be resolved on a general basis, independently of the particular facts of any individual case. Accordingly, the Polish rule — though a product of judicial interpretation rather than statute — is consistent with EU consumer protection law.
Key Takeaways
- Directive 93/13 does not require that default interest on restitution claims run from the very first demand for payment: Member States may lawfully condition the accrual of interest on the consumer’s demand specifying the precise sum owed.
- The EU principle of effectiveness is not breached by a procedural rule that is reasonable and serves legitimate aims (informing the debtor of the amount claimed), provided it does not make the exercise of EU rights practically impossible or excessively difficult.
- Consumers holding CHF-indexed mortgage loans in Poland must include a specific monetary figure in their pre-litigation demand letter to maximise the period over which default interest accrues; a general demand for repayment of “all instalments” is insufficient to start the clock.
- The fact that a consumer is represented by a lawyer does not affect the substantive analysis of whether a procedural requirement is compatible with EU law — such rules are assessed on their general operation, not case-by-case circumstances.
Why It Matters
This ruling carries significant practical significance for the mass litigation arising from Swiss franc mortgage loans in Poland, where hundreds of thousands of consumers are suing banks for restitution following declarations of contractual nullity. The question of from which date default interest runs directly affects the financial exposure of Polish banks and the amount consumers can ultimately recover. By endorsing the specificity requirement, the Court permits Polish courts to deny default interest for the period between a vague pre-litigation complaint and the service of a properly quantified demand or court application — a gap that, as this case illustrates, can span several weeks and represent a meaningful sum.
More broadly, the judgment reinforces that the restitutory and dissuasive effects mandated by Directive 93/13 do not override Member States’ procedural autonomy in determining when monetary obligations become enforceable. Courts and practitioners across the EU can take from this ruling a clearer understanding of where the boundary lies between procedural rules that merely regulate the manner of claiming rights (permissible) and those that make the exercise of EU-derived rights practically impossible (impermissible).