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Case C-140/22: Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (Poland) lodged on 25 February 2022 — SM, KM v mBank S.A.
ECLI:EU:UNKNOWN:62022CN0140
62022CN0140
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EN
Official Journal of the European Union
C 284/14
(Case C-140/22)
(2022/C 284/15)
Language of the case: Polish
Referring court
Parties to the main proceedings
Applicants: SM, KM
Defendant: mBank S.A.
Questions referred
Must Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) and the principles of effectiveness and equivalence, be interpreted as precluding a judicial interpretation of national legislation pursuant to which, in the case where a contract contains an unfair term without which it cannot be performed:
1.the contract becomes definitively ineffective (invalid) retroactively from the time of its conclusion only after the consumer has made a declaration of intent that he or she does not consent to the unfair term remaining effective, is aware of the consequences of the invalidity of the contract and consents to the contract being invalidated;
2.the limitation period for a seller or supplier’s claim for the return of undue payments under the contract begins to run only from the date on which the consumer made the declaration of intent referred to in point 1 above, even if the consumer had previously demanded payment from the seller or supplier and the seller or supplier could have been previously aware that the contract drawn up by it contained unfair terms;
3.the consumer may demand payment of statutory interest for late payment only from the date on which he or she made the declaration of intent referred to in point 1 above, even if he or she had previously demanded payment from the seller or supplier;
4.the consumer’s claim for the return of payments which he or she made under the invalid loan agreement (loan instalments, fees, commissions and insurance premiums) must be reduced by the equivalent of the interest on principal to which the bank would have been entitled if the loan agreement had been valid, whereas the bank can demand the return of the payments which it made under the same invalid loan agreement (loan principal) in full?
(1) OJ 1993 L 95, p. 29.