I did not indicate a specific date. I used the phrase on social media: “the older the contract, the worse the documentation.” It is not necessarily about 2018, the year in which the BMR regulation came into force. In my opinion, the CJEU issued a ruling that may be favorable for both contracts concluded before and after 2018. I am not saying that it applies to all contracts, because each must be examined individually. Let us have no illusions that the provisions of any contract, regardless of the date of its conclusion, can be questioned. However, after a deeper analysis of the judgment, I can say that the CJEU did not close the gate to questioning contracts based on WIBOR, maybe even opened it a bit.
In its judgment, the CJEU devoted a lot of attention to the bank's information obligation arising from Directive 2014/17 on consumer credit agreements relating to residential immovable property. Some people already know it, but I think that now they will want to know it very thoroughly. In fact, as well as we know Directive 93/13 on unfair terms in consumer contracts.
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Why?
The CJEU clearly stated that information should be provided taking into account the standard resulting from Directive 2014/17, including via the ESIS form.
ESIS is the European Standardized Information Sheet annexed to Directive 2014/17. And ESIS is the key to winning a PLN loan case. The basic question is therefore whether banks informed past borrowers in accordance with the requirements of this form, and therefore the directive, and if they did not meet the information obligation, what is the significance of this failure.
What is the significance of the lack of information specified in Directive 2014/17 and ESIS?
If the bank failed to comply with the information obligation by introducing a provision regarding a variable interest rate, on the one hand, we are acting contrary to the requirements of good faith, and on the other hand, an action introducing an imbalance of rights and obligations to the detriment of the consumer. The consumer is paying too much and, in my opinion, it does not matter how much, because this damage is not quantified by the European legislator in any way. The borrower, however, bears unlimited risk and unlimited costs, while the interest rate payable to the bank should not fall below 0, especially where there is the so-called floor clause. I ignore other inconveniences for the consumer related to such a situation.
The banks, including Tadeusz Białek, president of the Polish Bank Association, assure that they fulfilled the information obligation in accordance with the law.
I'm not so sure. My experience shows just the opposite. For example, in 2021, one of the larger banks did not provide information in accordance with ESIS requirements. However, on the other hand, I must admit that the small cooperative bank completed all formalities, even more than that. Therefore, I believe that the battle will be over how to inform banks, and this will be decided by the CJEU. It was he who clearly suggested the direction, which, however, requires resorting to Directive 2014/17, and not only Directive 93/13. From this point of view, it does not matter when the contract was concluded. Even after June 2017, i.e. after the date of change of the administrator of the WIBOR indicator, or after 2018, we must examine what information standard has been provided. And as I mentioned, I don't think it's always been a good thing.
Does it matter how long the ESIS form has been in force?
This is a complicated topic. The directive was adopted in 2014 and entered into force this year. Member States should implement it by March 21, 2016, but the directive itself contains an exclusion that it does not apply to contracts before March 21, 2016, and to some extent even before July 1, 2018 (to the extent related to the BMR Regulation). Let us therefore assume that ESIS forms should be used at least from the end of the first quarter of 2016.
What is more important, however, is whether banks have used it properly. Because this form will also be decisive for contracts concluded after 2018. From this point of view, the clear statement of the CJEU regarding information on the methodology for determining WIBOR becomes of little importance and may turn out to be a pyrrhic victory. I would like to point out that the CJEU writes about the lack of imposing specific obligations, and not about the lack of imposing any obligations relating to methodology.
Bank lawyer's comment: Judgment of the CJEU in the WIBOR case. The main consumer argument has failed. How does a bank lawyer argue this?
Banks should take into account a 20-year perspective
What then matters and what should the borrower and his lawyers pay attention to?
The CJEU judgment means that each contract will have to be verified in terms of compliance with the bank's disclosure obligations. Full documentation and information provided by the bank, especially the ESIS form, will be crucial. There is one specific information in it. The Mortgage Loan Act, in implementing the directive, clearly states that before signing a mortgage loan agreement, the bank provides information on the ESIS form, a template of which is an annex to the Act and an annex to the directive.
What specific information?
In the case of variable rate loans, you must provide an illustrative example of the actual annual interest rate (APR) and an indicative maximum installment amount. When there is no upper limit on the interest rate and the lender does not use an external reference rate, the example must be based on the reference rate set by the competent authority – in Poland this is the NBP reference rate. It is standard in contracts that there is no maximum interest rate limit. In accordance with section 4 of section 6 of Annex 2 to Directive 2014/17, reproduced in the Mortgage Loan Act, a scenario should be presented presenting the least favorable assumptions, showing the level of installments at the highest loan interest rate over the last 20 years. If the bank did not do this, it did not meet the information obligation, which the CJEU emphasizes in the judgment of February 12, 2026 in case C-471/24.
What should such a scenario look like? Please give me a specific example.
As a general rule, borrowers should be informed, taking into account appropriate dates and factors, the highest values of the external reference rate over a 20-year period. For example, if someone took out a loan in 2020, the bank should present him with a scenario taking into account the year 2000 as the starting year, and if in 2024, then from 2004.
We should take the highest value of any external reference rate used to calculate the borrowing rate, or the highest value of the reference rate specified by the competent authority, or the European Banking Authority where the lender does not use an external reference rate.
What does this mean for WIBOR-based liabilities?
If we take into account the “external reference rate” used in a given contract, the question is how high WIBOR has historically been. I think it was as high as 20% at the beginning of the 21st century. At least this potential risk should be “told” to the consumer.
Theoretically (taking into account the earlier part of the statement about the external reference rate), with the highest reference rate established in accordance with the rules developed in the EBA decision (which would come into play if the lender did not use the external reference rate), it would look like the highest NBP reference rate after January 1, 1999 (this is the cut-off date resulting from European legal acts) was from August 30, 2000 until 19 percent In turn, from March 5, 2015, the NBP reference rate was 1.5, and from May 29, 2020, even 0.10. The difference is still well over 15%.
Banks did not provide such information?
I dare say that many banks did not mention it, because many customers would be very surprised. I have seen a lot of documentation where this requirement was not met. And if the bank did not present such a scenario, the borrower should receive information that the bank is unable to determine this risk and the interest rate may increase indefinitely. Only such information would constitute proper instruction on the risks associated with the transaction.
As I have already mentioned, in smaller banks, e.g. in one of the cooperative banks, the estimation of the potential risk was presented even taking into account an increase in the interest rate up to 20%. This means that it was possible to fulfill the information obligation in accordance with Directive 2014/17 and provide the consumer with information about the potential financial consequences that he may be obliged to bear.
See also: Judgment of the CJEU in the WIBOR case. Check if your credit is covered
There will be more and more lawsuits regarding WIBOR
Do I understand correctly that this means that the CJEU judgment may apply to almost everyone who has a housing loan in PLN? Even when he signed the contract in 2025?
Exactly. You just need to check whether the bank has provided all the information in accordance with ESIS. I think that now this form is the most desired document by lawyers. It is he who may determine the final outcome of the dispute over “WIBOR”, or in fact the dispute over the variable interest rate clause. WIBOR is an addition.
This means that the CJEU judgment has a second meaning.
You could say so. Simply put, the judgments of the CJEU need to be analyzed in their entirety, and not limited to the operative part. Every motif is important, every recipe mentioned, even if they are less popular than those used so far. The CJEU did not question the WIBOR methodology used in contracts concluded since 2018, but this is neither the only nor the key objection, at least from my perspective. This is certainly good news for the market, because WIBOR applies to many financial instruments. Armageddon, which many people predicted, will not happen. At the same time, however, the CJEU opened a door, or even a gate, to verify whether everything is actually OK in the contracts and whether the variable interest clause has been effectively introduced into the relationship between the borrower and the bank.
What could be the practical effect? Will bank customers go to court en masse? What outcome can they expect?
I think that the number of Vibor cases will increase, especially when further rulings of the CJEU are delivered. We will see what their final outcome will be. There can be two scenarios. The court will declare the contract invalid or state that it can continue with an interest rate based solely on the bank's margin, but without a variable element. This is not a science fiction scenario – the issue of the variable interest rate clause has been on the agenda for years, and it was also one of the arguments in franc disputes.
It may also not agree with the borrower. This was the case with Swiss franc borrowers before the CJEU judgment in the Dziubaki case and even after it.
Undoubtedly, in Swiss franc cases, it was the CJEU that set the directions and resolved subsequent doubts, most recently regarding, for example, interest or deduction. Certainly, the CJEU judgment in the WIBOR case is very interesting, and what is important is not the indicator itself, but ESIS. The judgment in question includes a reference to the Kasler case, C-26/13. This was one of the most important Swiss franc cases in the CJEU before the Dziubak ruling, a non-obvious case, because in my opinion the Dziubak case marked an unfavorable direction for consumers in Swiss francs cases in Poland. We will see what happens with C-471/24 – whether we will have to wait for another CJEU ruling or whether Polish courts will take a closer look at it.
