Opinion of the CJEU on September 11. Will it change the condition of the game? The borrowers are waiting for a breakthrough

The above -mentioned, recurring comparisons to the so -called Francs show where the topic of WIBOR testing and related emotions and what environments are interested in challenging this indicator came from.

The era of franc disputes is divided into two basic periods: before and after a decision on the Dziubaki state (i.e. judgment of the CJEU C-240/18 of October 3, 2019).

The judgment in the above case showed that the CJEU's decision can change the direction of national case -law by 180 degrees (in that case: initially unfavorable for borrowers).

Consumers and their proxies realized that in the upper level of the national judiciary (i.e. confusion around positions in the Supreme Court and the Constitutional Tribunal), the Court of Justice of the European Union may – and apparently wants to be the highest instance, directing national rulings. This, in turn, has already initiated a kind of “fashion” for directing from Poland to the CJEU questions of preliminary ruling, researching – increasingly reaching – the boundaries of consumer protection.

In short: each subsequent doubt in franc cases materialized as another question – a case before the CJEU, in which another (pro -consumer) ruling was issued.

Therefore, from the beginning, the concept of emotion of loan agreements based on WIBOR was based on referring this topic to the CJEU. This happened for the first time (but not the last, because the next questions are already on the run) in case C-471/24, initiated before the CJEU on the basis of the national dispute by the District Court in Częstochowa.

This case – the hearing started before the holidays on June 11 this year. – After September 11 this year. He will take on new colors after the opinion of the General spokesman of the CJEU. Opinions, which is a kind of advisory, expert, and sometimes a focusing position of the Tribunal. The judgment itself should be expected only at the beginning of 2026. Then the interest in WIBOR will probably achieve its apogee.

See also: Dispute about WIBOR. Do banks tell the whole truth? [OPINIA PRAWNIKA]

Significant differences. No grounds for questioning WIBOR

Comparisons to francs, which allowed to outline the envelope of the whole situation, but are not useful when it comes to a substantive assessment of the problem.

Here, on the WIBOR side, there are no banks using it, but there is also the European Commission and the Polish government-taking positions about the law of this indicator, its embedding directly in EU regulations, thus indicating the lack of grounds for questioning WIBOR on the basis of the Consumer Directive 93/13.

It would be contrary to the purpose of regulating BMR would be to examine its compliance with the Consumer Directive. This would lead to undermining the entire reference indicators in the European Union. Finally, the Polish mortgage Act strictly regulates the rules for determining the variable interest rate and provides a high level of consumer protection.

WIBOR without manipulation. Uniform position

WIBOR reflects the interest rate after which banks are ready (and at the same time obliged) deposits at other banks. Is calculated according to the strict rules – resulting from BMR ordinances – and this by an independent entity (GPW Benchmark SA) and under the direct supervision of the Polish Financial Supervision Authority. Banks have never been manipulated before. Hence, the position of the authorities regarding the correctness of WIBOR is uniform.

Periodically high interest rates (which is the effect of inflation in Poland) meant that attempts to move zlotys have appeared. High WIBOR (especially from mid -2022 to mid -2023, then it began to fall), which was just a correct manifestation of the variable interest rate, on the many years of the loan agreement for the loan agreement, it is to compensate for the money borrowers, i.e. the bank, to lose their value over time.

In addition to the correctness of WIBOR as a key reference indicator, there is also the thread of the correctness of the consumer informing the consumer about the specificity of the contract and risks associated with it.

Undoubtedly (because this is already due to the previous case -law of the CJEU) there are no grounds to require banks to inform customers in detail about the technical aspects of determining the indicator – these are publicly available data, and it does not seem that the construction of several hundred -page contracts, describing all possible mechanisms and reservations, should act in progress.

However, as to whether in a given facts a specific consumer was correctly instructed by the bank about the risk – is it necessary to analyze the loan agreement along with its attachments, charts, etc.? The general framework for fulfilling the information obligation has already been set out by the CJEU in previous rulings.

It is also impossible to lose sight of the fact that the game is about stability of the economy and the certainty of the law, which are based on meeting contracts and predictability of case law, especially on such a scale. Not only almost all mortgage loans granted in Poland after 2013, but also other liabilities-loans, leasings, bonds and other financial instruments with billions of values ​​are based on WIBORs.

See also: WIBOR. Do the courts do not agree with borrowers? The lawyer refutes myths [OPINIA]

Now and then. We have to wait for the judgment of the CJEU

Already now – without waiting for the tribunal's decision – Polish courts are in the vast majority to dismiss the lawsuit of zlotys. There is no final judgment that would undermine the correctness of the WIBOR indicator.

On the other hand, disproportionate publicity was acquired by individual judgments in favor of borrowers, especially the judgments of the District Court in Suwałki (reference number IC 217/24 of October 4, 2024 and IC 332/24 of January 22, 2025), which only shows how the environments interested in the movement of golden -related agreements are determined. At the same time, it requires that they were issued by the same adjudicating panel. The court pointed out, among others for the lack of information about the WIBOR determination method and the indicator administrator. This argument, however, is against the already forming case -law

and law regulating the matter in question – therefore there are no grounds for assuming that it may be precedent. Importantly, as unlawful judgments, they will be subject to instance control and it seems unlikely to keep them up.

The opinion of the Ombudsman in the same way on September 11 will revive the emotions around the subject, but he will still not prejudge anything – we will have to wait until the judgment (which can be expected at the beginning of next year) – nor will it allow the CJEU's decision, because the Tribunal of opinion will definitely take into account – but whether he will finally agree with it, this is another thing.

Author: Tomasz Leśko, legal advisor, partner at the Kochański & Partners office