Czy możliwe jest utrzymanie w mocy umowy kredytu hipotecznego odnoszącego się do waluty obcej zawierającej niedozwolone postanowienia określające mechanizm indeksacji? Kilka uwag o braku możliwości podziału abuzywnych klauzul indeksacyjnych (…)
Is it possible to maintain the validity of a mortgage loan agreement referring to a foreign currency that contains abusive provisions on the indexation mechanism? A couple of comments on the impossibility of the removal of the element of the (…)

Summary/Abstract: The purpose of this paper is to analyze the case law of the Court of Justice of the European Union and national courts on the possibility of separating out abusive clauses defining the indexation mechanism, the elimination of an isolated element of such clauses, and, as a result, the possibility of preserving the validity and applicability of the overall mortgage loan agreement referring to a foreign currency. This issue is currently among the most significant jurisprudential problems arising on the ground of court cases on mortgage loan agreements between consumer-borrowers and banks. The author aims to answer the question of whether it is possible to maintain the validity of a mortgage loan agreement referring to a foreign currency that contains prohibited indexation provisions. The analysis covers the guidelines contained in the CJEU judgment of the 29th of April 2021, in the case C-19/20 on the lack of possibility of separating and removing of the element of the indexation clause relating to the bank's margin from the mortgage agreement; provisions contained in other European case law; numerous judgments of national courts (common courts, the Supreme Court), the positions of public administration bodies (the Ombudsman, the President of the Office of Competition and Consumer Protection), as well as the arguments put forward by representatives of the doctrine. The analysis of the examined material leads to the conclusion that it is not possible to remove the unfair element of the indexation clause, and, as a result, there is a necessity to declare the whole mortgage loan agreement invalid.

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