Judgment of the Court (Ninth Chamber) of 7 December 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy — Śródmieścia w Warszawie — Poland) — SM, KM v mBank S.A.

(Case C-140/22, (1) mBank (Consumer declaration))

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Article 6(1) and Article 7(1) - Effects of a finding that a term is unfair - Mortgage loan agreement indexed to a foreign currency containing unfair terms concerning the exchange rate - Nullity of that contract - Claims for restitution - Statutory interest - Limitation period)

(C/2024/919)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie

Parties to the main proceedings

Applicants: SM, KM

Defendant: mBank S.A.

Intervening party: Rzecznik Finansowy

Operative part of the judgment

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, in the context of the cancellation, in its entirety, of a mortgage loan agreement concluded with a consumer by a banking institution on the ground that that agreement contains an unfair term without which it cannot continue in existence:

—

they preclude the judicial interpretation of national law according to which the exercise of the rights which that consumer draws from that directive is conditional on the lodging, by that consumer, before a court, of a declaration by which he or she states, first, not to consent to that unfair term remaining effective, secondly, to be aware of the fact that the nullity of that term entails the cancellation of that agreement and, moreover, of the consequences of that cancellation and, thirdly, to consent to the cancellation of that agreement;

—

they preclude the compensation sought by the consumer concerned in respect of the restitution of the sums paid by him or her in the performance of the agreement at issue being reduced by the equivalent of the interest which that banking institution would have received if that agreement had remained in force.

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(1)   OJ C 284, 25.7.2022.