Two questions for Luxembourg. Old contracts with WIBOR at a crossroads
The Warsaw court asks the CJEU about WIBOR in mortgages from before 2017 and the obligations of banks. At stake is the validity of clauses in old contracts.
The District Court in Warsaw sent two preliminary questions to the Court of Justice of the EU regarding the use of WIBOR and LIBOR in loan agreements from before 2017. The case (XXVIII C 22943/22, in the CJEU: C-630/25) concerns a loan from 2007 for approx. PLN 400,000. PLN, which after the annex was converted into Swiss francs. The agreement and annex included WIBOR 3M and LIBOR 3M indicators.
Questions for the CJEU
Judge Michał Maj asks whether, before the entry into force of the BMR regulation, the bank was obliged to clearly inform the consumer who prepares the reference index (e.g. ACI Polska) and according to what principles it is determined, and that it is based on banks’ declarations and not on real transactions.
The second block of questions aims to determine whether a clause referring to an indicator determined on the basis of bank quotations, unregulated in common law and outside the supervision of state authorities, can be considered unfair within the meaning of Directive 93/13/EEC. The court points out that until the end of June 2017, ACI Polska was the administrator of WIBOR, and since then this function has been performed by GPW Benchmark SA, entered in the ESMA register of administrators in 2019 and in 2020 approved by the Polish Financial Supervision Authority to administer key indicators.
Justification
In its justification, the Warsaw court discusses the risk of manipulation with the old method of determining WIBOR, emphasizing the time- and amount-limited obligation to conclude transactions on the declared terms.
The court emphasizes that in the past, the regulations did not require disclosure of the administrator and the rules for determining the indicator, which – according to some lawyers – complicates the assessment of old contracts. However, if the CJEU allows review of such provisions, a question will arise about the criteria to be followed by national courts when assessing whether the indicator shaped the consumer’s obligations in a manner contrary to good practices and grossly violated his interests.
