WIBOR litigation, part 1: Can the WIBOR benchmark be challenged as the basis for setting variable interest rates?
Variable interest rate loans based on the WIBOR benchmark are a major part of the Polish financial market. For years the WIBOR rate remained at a low level, but it shot up in 2022. The WIBOR 6M stood at 0.25% in January 2021, but by July 2022 it had hit a peak of 7.43%. Currently the WIBOR 6M is a little lower (5.05% as of 10 June 2025), but it has yet to retreat to its earlier low values.
WIBOR litigation, part 2: Can basing variable interest rates on WIBOR be deemed an abusive clause?
Some consumers are attempting via the Polish courts to undermine provisions in credit agreements setting variable interest rates on the basis of the WIBOR benchmark. They hope that the courts will hold these clauses to be impermissible under Civil Code Art. 3851. This would allow their credit agreement as a whole, or the specific WIBOR provisions, to be set aside. But does Polish law empower the courts to examine the alleged abusiveness of such provisions?
Court of Justice: The sanction of free credit must be proportionate
In C-472/23, Lexitor, the Court of Justice of the European Union held that the sanction of “free credit” must reflect the principle of proportionality, and need not be applied simply because of the presence of abusive provisions in the credit agreement having an impact on annual percentage rate.
Interest on capitalised costs of credit, and the sanction of free credit
Following the high-profile judgment of the Court of Justice of 13 February 2025 in C-472/23, Lexitor, the issue of the sanction of “free credit” has become more and more dynamic. In that judgment, the Court of Justice did not address the legality of charging interest on capitalised costs of credit, i.e. charging interest also on the portion of the loan drawn down but earmarked for payment of the costs of issuing the loan (e.g. commissions). This issue will be addressed by the Court of Justice in subsequent cases where Polish courts have decided to seek preliminary rulings.
