Polemics: This claim is simplified and misleads. The general spokeswoman clearly distinguished two issues: Contractual clauses referring to WIBOR and The WIBOR designation methodology itself. While clauses can be examined in the light of Directive 93/13 (whether they are transparent or do not lead to imbalances), the indicator methodology is not subject to assessment of civil courts.
In points 69–71 of the opinion, it was clearly indicated that Control of reference indicators, such as WIBOR, belongs only to the system created by the BMR regulation (2016/1011). This regulation provides, among others The complaint mechanism and supervision, and its goal is to ensure reliability and correctness of determining indicators. The admission that civil courts examine WIBOR methodology would undermine the coherence of EU law and lead to jurisprudence. This means that the borrower's process line, based on an attack on WIBOR as an indicator, is deprived of legal grounds.
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Polemics: The mere fact that WIBOR is the most commonly used indicator in credit agreements does not mean its defect or the inability to choose another indicator. The spokeswoman emphasized (the conclusion to the first question of a preliminary ruling – ed.) Only the conditions reflecting the absolutely applicable provisions are excluded from control. In Polish law, there is no provision ordering the use of WIBOR, which confirms that the clause referring to WIBOR can be examined. The universality of use is therefore due to market practice and KNF supervisionnot from statutory coercion. This does not prove dishonesty, but shows that banks used a recognized and supervised market indicator.
3. Argument: “Banks were limited to informing about the WIBOR + margin
Polemics: Information obligations of the lenders result from art. 4 para. 2 of Directive 93/13 and were directly indicated in the opinion, these are: indicator name, administrator name, information on financial consequences. This is a standard of transparency.
There is no obligation to explain the detailed methodology for determining the indicator – This function is performed by the Administrator in accordance with BMR. The bank may indicate to the consumer where it will find detailed information (e.g. the WSE website Benchmark), and thus fulfills the obligation. Experiences show that banks have been transferred for years to the risk of variable interest rate in accordance with the KNF recommendations. Claiming that “WIBOR + margin” is not enough, omits the fact that The law did not require any more.
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Polemics: In point 57, the spokeswoman stated clearly that the requirement of transparency does not mean the obligation to transfer the full method of determining the indicator. Directive 93/13 should be interpreted in connection with the BMR Regulation. This regulation imposes the obligation to publish methodological principles on the administrator, not to banks. The lender must provide information in an objective and reliable manner so that the consumer knows what indicator is used, who manages it and what the general consequences of its variability are. Information can be provided indirectlywhich the CJEU found permissible. This means that the lack of a detailed methodology in the contract is not a violation of the law.
5. Argument: “The consumer should get simulations and full explanations”
Polemics: A spokeswoman (points 56–58) talks about the obligation to provide information “sufficiently precise and accurate”so that the average consumer can estimate the total cost of the loan. However, this does not mean the need to transfer simulations or long -term forecasts. Directive 93/13 and BMR Regulation do not impose such an obligation. Simulations would be an additional educational element, but they do not result from the law. It was enough to provide information about the variable interest rate, indicate risk factors and state that the interest rate will change depending on WIBOR.
6. Argument: “WIBOR is bank estimates (98.27 percent); consumers were misled”
Polemics: This claim applies to the indicator methodology, and this – as it has already been said – is not subject to the control of civil courts. In points 69–71. Opinions, it was indicated that the assessment of the correctness of the determination of WIBOR belongs to the supervisory authorities and the administrator under BMR. If the consumer believes that the indicator is not reliable, he should lodge a complaint in BMR mode. Directive 93/13 does not give civil courts the right to analyze whether the indicator was based on transactions or on quotas.
7. Argument: “Banks could influence WIBOR (” Hidden margin “)”
Polemics: This allegation also applies to the methodology of determining the indicator. The spokeswoman excluded the possibility of his examination by national courts. BMR provides for reliability control mechanisms, including the administrator's duties and KNF and ESMA supervision. The statements about manipulation of the indicator are irrelevant in a civil process – they should be directed to supervisory authorities.
8. Argument: “Banks did not perform information obligations”
Polemics: This is a general accusation. The opinion of the spokeswoman specifies the scope of duties precisely: indicator name, administrator, economic consequences. Information can be transmitted indirectly. Banks fulfilled these obligations, warning customers with a variable rate risk (according to KNF recommendations).
9. Argument: “Lack of transparency = dishonest clause”
Polemics: A spokeswoman (item 67) explained that the lack of transparency is not enough to recognize the clause as abusive. This is only the first stage of the analysis. Then the court must assess whether there has been a “significant imbalance”. To this end, it is necessary to examine, among others: whether the consumer was informed about the risk or whether he has conscious consent, what were the market rates and what provisions of national law would apply in the absence of a contract.
10. Argument: “WIBOR introduces an imbalance”
Polemics: In point 63. Opinions indicated that the National Court should compare the rate resulting from the clause with statutory and market interest. In Poland, art. 359 § 2 of the Civil Code provides interest = NBP reference rate + 3.5 percent. The WIBOR + margin formula is structurally corresponding to this solution. This shows that the WIBOR clause does not differ from the statutory standard and it is difficult to consider it dishonest.
11. Argument: “This is the second franc wave – mass wins”
Polemics: The comparison to franc loans is irrelevant. In franc matters, the problem was the unilateral freedom of the bank in determining the currency exchange rate. WIBOR is a reference indicator regulated and supervised by EU law. A spokeswoman (points 69–71) excluded the possibility of questioning WIBOR methodology in civil processes. This means that the situation of PLN loans is completely different than franc.
12. Argument: “The courts will correct the contracts: annul or leave the margin”
Polemics: The spokeswoman did not answer the fourth question about the effects of abusiveness (item 76), considering them unnecessary.
13. Argument: “Most contracts before 2017 do not meet the requirements”
Polemics: This is an argument without grounds. The requirements resulting from BMR are in force since 2018. They cannot be used back. Older contracts should be assessed according to the law at the time of their conclusion. WIBOR was widely used and recognized before BMR. At that time, the standard of information on the risk of interest rates also evolved. So the accusation that banks violated the regulations that have not yet been in force is a gross abuse.
14. Argument: “Opinion is a breakthrough and consumer victory”
Polemics: The opinion gives consumers a tool for testing transparency, but at the same time limits the possibility of questioning the indicator itself. Indicates that the bank's responsibilities are strictly defined and can also be implemented indirectly. Lack of transparency does not mean automatic abusiveness. The effects of a possible statement of abusiveness were left to national courts. This is not a “breakthrough”, but A balanced interpretation protecting consumers and the financial market stability.
15. Argument: “Opinion opens the way to phrases, annulments, go to the margin”
Polemics: The opinion does not prejudge any scenario – determines the assessment criteria. The final decision belongs to national courts, which must analyze each case individually. A spokeswoman did not comment on this.
16. Argument: “Banks should use transparent indicators based on transactions”
Polemics: The spokeswoman did not set such a requirement. Directive 93/13 and BMR do not impose an obligation to change the indicator to another. WIBOR is a legal and supervised reference indicator. Banks must only ensure the transparency of the clauses, and the indicator methodology is the responsibility of the administrator and supervisory authorities.
17. Argument: “Consumers are in the winning position today”
Polemics: This is an overinterpretation of the opinion of the CJEU spokeswoman. Consumers have gained a tool for testing transparency, but it still applies: ban on examining WIBOR methodology in civil mattersstrictly defined information obligations of banks, a full assessment requirement covering balance and good faith. This means that matters will be settled individually – there is no automation and there is no mass consumer win.
