ECLI:EU:C:2026:462

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OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 4 June 2026 (1)

Case C‑63/25

K. Sz.,

H. Sz.,

W. Sz.

Z. Fundusz Inwestycyjny Zamknięty, w likwidacji

(Request for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland))

( Reference for a preliminary ruling – Unfair terms in consumer contracts – Directive 93/13/EEC – Scope – Concepts of consumer and seller or supplier – Joining an investment fund – Articles of association of a closed-end investment fund )

I. Introduction

1. The present case raises a question which, it would seem, has not been directly addressed by the Court: whether Directive 93/13/EEC (2) can be applied to the legal relationship established between a closed-end investment fund (3) and the natural persons who purchase its investment certificates. It is a delicate issue: it involves determining whether the uniform protection afforded to consumers by the directive extends to a legal relationship which national law classifies as a corporate instrument – the fund’s articles of association – but which, from a functional perspective, exhibits the typical characteristics of a pre-formulated standard contract.

2. The referring court poses three questions. The first two concern the classification of the parties: the purchaser of the certificates as a ‘consumer’ and the issuing fund as a ‘seller or supplier’. However, these constitute merely the logical premiss of the third question. The latter question – whether the provisions of the articles of association constitute ‘contractual terms which have not been individually negotiated’ – appears, it would seem, to be a new issue in the Court’s case-law. This Opinion will focus on that issue.

3. I would like to state at this stage that I shall propose that the Court answer the third question in the affirmative, referring to the first two only to the extent necessary to define the scope of the reasoning.

II. Legal framework

A. Directive 93/13

4. The tenth recital of Directive 93/13 provides as follows:

‘Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; whereas those rules should apply to all contracts concluded between sellers or suppliers and consumers; whereas as a result inter alia contracts relating to employment, contracts relating to succession rights, contracts relating to rights under family law and contracts relating to the incorporation and organization of companies or partnership agreements must be excluded from this Directive’.

5. Article 1(1) of Directive 93/13 provides:

‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.’

6. Article 2(b) and (c) of Directive 93/13 provides:

‘…

(b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his [or her] trade, business or profession;

(c) “seller or supplier” means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’

7. Article 3(1) and (2) of Directive 93/13 provides:

‘1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of the contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him[, her or it].’

B. Polish law

8. Article 22¹ of the ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (4) (‘the Polish Civil Code’) provides:

‘1. A consumer is a natural person who conducts with an entrepreneur a legal transaction which has no direct link to that person’s business or professional activity.

…’

9. Article 43¹ of that Civil Code states:

‘1. An entrepreneur is a natural person, a legal person or an organisational unit as referred to in Article 33¹(1) carrying out business or professional activity in his, her or its own name.

…’.

10. Article 66, § 1, of that Code provides:

‘A declaration of intent to conclude a contract made to another party shall constitute an offer if it specifies the essential provisions of the contract.

…’

11. Article 385¹ of that Code, which transposes the principles of Directive 93/13, provides:

‘§ 1. The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on the consumer if his or her rights and obligations are set forth in a way that is contrary to good practice and grossly infringes his or her interests (unlawful terms). This provision shall not apply to terms setting forth the principal performances to be rendered by the parties, including those relating to price or remuneration, so long as they are worded clearly.

§ 2. If a term of the contract is not binding on the consumer pursuant to paragraph 1, the other terms of the contract shall otherwise continue to be binding on the parties.

§ 3. The terms of a contract which have not been individually negotiated are those over whose content the consumer had no actual influence. This refers, in particular, to contractual terms taken from a standard contract proposed to that consumer by a contracting party.

§ 4. The burden of proving that a term has been individually negotiated rests with the person relying thereon.’

12. Article 3 of the ustawa o funduszach inwestycyjnych i zarządzaniu alternatywnymi funduszami inwestycyjnymi (Law on investment funds and management of alternative investment funds; ‘the Law on Investment Funds’) (5) provides:

‘1. An investment fund is a legal person whose sole business is to invest the funds raised by offering its units or investment certificates in the securities, money market instruments and other property rights laid down herein.

…

3. An investment fund conducts its operations with particular regard to the interests of participants of the fund, observing the investment risk mitigation rules laid down herein.

…’

13. Article 6(1) and (2) of the Law on Investment Funds provides:

‘1. The participants of an investment fund are natural persons, legal persons or unincorporated organisational units:

…

(2) which hold a securities account in which investment certificates registered in a collective account are recorded.

…

2. Units or investment certificates represent the property rights of participants of the fund, as laid down by statute and the investment fund’s articles of association’.

14. Article 117(1) and (3) of that law provides as follows:

‘1. The closed-end investment fund shall issue investment certificates.

…

3. Natural persons may acquire investment certificates from an investment fund referred to in Article 15(1a) if the value of the investment certificate of the first issue of that fund is not less than the equivalent in Polish zlotys of EUR 40 000.’

15. Article 139 of the Law on Investment Funds states:

‘1. A closed-end investment fund may redeem investment certificates it has issued if the fund’s articles of association so provide.

…

3. The articles of association of a closed-end investment fund should specify the prerequisites, procedure and terms for the redemption of investment certificates and the time limits for, and manner of, making announcements concerning the redemption of certificates. …

…’

III. The main proceedings and the questions referred

16. Three natural persons – a doctor and her retired parents – purchased, on the recommendation of an employee of their bank, investment certificates issued by a Polish closed-end investment fund (‘FIZ’), a collective investment undertaking with legal personality, set up and managed by an investment fund company, the operation of which is governed by the articles of association adopted by that company. The purchase took place in 2016 by the signing of standardised forms, whereby each purchaser declared that they had read and accepted the terms and conditions of issue and the fund’s articles of association. The total value of the investment on the part of each investor amounted to approximately EUR 91 000.

17. In 2019, the investors requested the full redemption of their certificates. FIZ proceeded only with partial redemptions, invoking the term in the articles of association authorising it to reduce redemption requests where the total value of the units to be redeemed exceeds 20% of the fund’s liquid assets.

18. The Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) dismissed the investors’ action, taking the view that FIZ’s articles of association do not constitute a contract and are not subject to scrutiny as to their unfairness within the meaning of Article 385¹ of the Polish Civil Code.

19. The Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland), to which the case was referred on appeal, stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

‘(1) Is a natural person – a participant in a closed-end investment fund and a purchaser of registered securities issued by that fund in the form of investment certificates, if those certificates are acquired for purposes unrelated to that person’s trade, business or profession, and the purpose of joining the fund is primarily to invest savings – a consumer within the meaning of Article 2(b) of Directive [93/13]?

(2) Is a closed-end investment fund whose sole business is to invest the funds raised by offering its investment certificates in securities, money market instruments and other property rights laid down in statutes a seller or supplier within the meaning of Article 2(c) of Directive 93/13?

(3) Is a provision of a closed-end investment fund’s articles of association laying down the fund participant’s rights and obligations, including the rules and deadlines for the redemption of investment certificates by the fund from participants, a contractual term which has not been individually negotiated within the meaning of Article 3(2) of Directive 93/13 if the participant was able to read the articles of association before joining the fund and accepted those articles of association by way of a written declaration upon taking up the investment certificates?’

IV. Analysis

20. This Opinion concerns the third question. The first two are relevant only as a premiss for the reasoning, in so far as they make it possible to examine whether the contested provision of the articles of association may constitute a term in a contract which has not been individually negotiated within the meaning of Article 3(2) of Directive 93/13.

21. I shall therefore confine myself to noting that, as far as is apparent from the file, the appellants, who are natural persons who purchased investment certificates for savings purposes unrelated to any professional activity, appear to fall within the category of consumers, and that FIZ, as a legal person offering and managing that investment product in an organised manner, acts, for the purposes of the term at issue, as a seller or supplier. In any event, it will be for the referring court to verify, in the light of all the circumstances of the case, that the conditions required by EU law have in fact been met.

A. The third question

22. The third question lies at the heart of the present case. The referring court asks, in essence, whether provisions of the articles of association of a closed-end investment fund, which define the rights and obligations of the investor – including the conditions for redeeming units – may be classified as terms of a contract which have not been ‘individually negotiated’ within the meaning of Article 3(2) of Directive 93/13.

23. There are two aspects to this question: it is necessary to determine, first, whether there is a ‘contract’ within the meaning of Directive 93/13 and, second, whether the term at issue may be regarded as ‘not individually negotiated’.

1. The existence of a contract within the meaning of Directive 93/13 and the incorporation of terms of the articles of association

24. Directive 93/13 applies to ‘all contracts’ concluded between sellers or suppliers and consumers. (6) That directive is a general directive for consumer protection, intended to apply in all sectors of economic activity. (7) The discretion thus intended by the legislature entails, as a corollary, that exclusions from the scope of Directive 93/13 be interpreted restrictively, in order to safeguard its useful effect. (8)

25. FIZ’s articles of association, in so far as they contain provisions relating to the nature and purpose of the fund, the name and registered office of the management company, how the fund is represented and the principles of its investment policy, have features which could justify linking them to ‘contracts relating to the incorporation and organization of companies’ which, according to the tenth recital of Directive 93/13, justify their exclusion from the scope of that directive.

26. However, in the case at issue, as the referring court observes, FIZ’s articles of association play a dual role. They are, simultaneously, the instrument of incorporation of the legal person and the instrument defining the property rights of the investors: conditions and procedures for the redemption of certificates, limits on the reduction of requests and rules for calculating liquid assets. The provisions relating to that second aspect display, from a functional point of view, features similar to those of contractual terms governing the content of a bilateral relationship.

27. To date, the Court has not ruled on the scope of the exclusion provided for in the tenth recital of Directive 93/13. Useful interpretative guidance can, however, be drawn from the judgment in Verein für Konsumenteninformation, (9) relating to the scope of the Rome I Regulation. (10) On that occasion, the Court distinguished between transactions governed by company law and the contracts underlying those transactions, ruling out that the mere fact that there is a link between a contract and questions governed by the law of companies has the effect of excluding it from the scope of that regulation.

28. That approach is not isolated. In the judgment in E. Friz, (11) the Court had already included in the consumer protection legislation – in that case, Directive 85/577/EEC (12) – the legal relationship arising from a natural person’s entry into a real property fund established in the form of a partnership, where the principal purpose of joining was not to become a member of the partnership but to make a financial investment. The Court has thus established the principle – of general application – that the corporate form of the vehicle does not, in itself, preclude the applicability of consumer protection to the underlying contractual relationship. The same functional approach, based on moving beyond formal classifications in favour of a substantive assessment of the relationship, underpins the Court’s case-law on the concept of a ‘seller or supplier’. (13)

29. I therefore consider that the principle set out in the judgment in Verein für Konsumenteninformation may be transposed to Directive 93/13. The rationale behind the exclusion provided for in the tenth recital of Directive 93/13 is to exclude from consumer protection the aspects strictly constituting the corporate entity, and not the contractual relationships arising from them.

30. The need for a restrictive interpretation also appears to be confirmed in the Court’s case-law on the other situation provided for in Article 1(2) of Directive 93/13. (14) In the judgment in Gómez del Moral Guasch, (15) the Court clarified that that exclusion presupposes that the term reproduces a provision of national law intended to apply between the parties independently of their choice; by contrast, where national legislation merely establishes a general framework and leaves the seller or supplier a margin of discretion as to the specific content of the term, it does not reflect mandatory or supplementary legislation, but expresses an independent decision by the seller or supplier. In that case, the exclusion does not apply.

31. In any event – and this is the decisive point – even if the articles of association of FIZ, in so far as they concern its formation, fall within the exclusion provided for in the tenth recital, that would not be sufficient to exclude from the scope of Directive 93/13 the contractual relationship on which the appellants base their claim.

32. It appears from the documents in the file that a separate investment contract was entered into between FIZ and the appellants. The mechanism is clear: FIZ made a written offer for the purchase of certificates; the appellants accepted it by signing a standard form in which they stated that they had read and accepted the terms and conditions of issue and the articles of association. Through that declaration, the appellants accepted, without any possibility of negotiation, all of the provisions relating to the terms and conditions of issue and redemption of the certificates, including the term at issue.

33. It is therefore a bilateral transaction: a written offer from the seller or supplier, acceptance by signing a pre-defined form and payment of the consideration. The investment contract, having been entered into in this manner, falls, in my view, within the scope of Directive 93/13. It is not necessary to state that the articles of association, as such and in their entirety, fall within that scope: it is sufficient to note that the terms of the articles of association made binding by that contract govern its content.

34. I am therefore of the opinion that, even if FIZ’s articles of association, as such, do not fall within the scope of Directive 93/13, the terms relating to the conditions for the redemption of certificates must nevertheless be regarded as forming an integral part of the investment contract.

35. Those terms were incorporated into the contractual relationship by means of the declaration signed by the consumer at the time of purchase, by which the consumer accepted the content of the articles of association. This is the typical mechanism of a pre-formulated standard contract: the relationship is established by the contracting party’s acceptance of a framework drawn up unilaterally by the counterparty.

36. This interpretation, shared by the Commission and the Polish Government in their observations, is the only one in line with the rationale of Directive 93/13. A formalistic approach – excluding from the scope of that directive a (negotiated) term on the sole ground that it follows formally from the articles of association of the issuing entity – would enable a seller or supplier to easily circumvent consumer protection. It would suffice to transfer into the articles of association the provisions which are most unfavourable to the consumer and have them accepted by reference in order to remove them from scrutiny as to their unfairness. I do not consider that EU law permits such an outcome.

37. Moreover, the Court has repeatedly held that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weaker position vis-à-vis the seller or supplier, in terms of both bargaining power and level of knowledge, and that that situation leads the consumer to agree to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. It is precisely for that reason that, for the purposes of applying Directive 93/13, it is the substance of the relationship – that is to say, the actual asymmetry of knowledge and bargaining power between the parties – and not the formal classification of the legal instrument that matters. (16)

2. Absence of individual negotiation

38. In accordance with Article 3(2) of Directive 93/13, a term shall be regarded as not individually negotiated where it has been drafted in advance and the consumer has not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. A term which has not been individually negotiated is one drafted for general use. (17)

39. In the present case, the absence of individual negotiation is evident. The terms in the articles of association were drafted by the management company at the time of the creation of the fund before any contact with future investors. They are intended to govern relations with all investors: in other words, they are, by their very nature, general and standardised.

40. In that regard, it must also be noted that the term at issue forms part of a set of articles of association drawn up to govern, in a uniform manner, multiple undifferentiated relationships with investors. As these are standardised terms intended for general use, judicial scrutiny must focus on the objective structure of the term and the manner in which it is made known to and binding on the consumer. (18)

41. Added to this – and this is the decisive factor – is that, pursuant to Article 6(7)(3) of FIZ’s articles of association, (19) the investors’ meeting cannot, in principle, amend the articles of association. Investors are therefore bound by the provisions of the articles of association without any possibility of negotiating them. This is not a term that is theoretically negotiable but has not been negotiated: it is a term that is structurally non-negotiable, imposed on the consumer as a condition of accessing the contractual relationship.

42. The fact that the consumer has signed a written declaration of acceptance does not call that conclusion into question. The express acceptance of the pre-established terms is the very essence of the pre-formulated standard contract; it is in no way symptomatic of individual negotiation. And, in accordance with the third subparagraph of Article 3(2) of Directive 93/13, if the seller or supplier claims to the contrary, the burden of proof is incumbent on the seller or supplier.

3. The collective nature of the fund

43. It remains for me to address the argument, put forward by FIZ, that ensuring that the articles of association comply with Directive 93/13 risks undermining the principle of equal treatment of investors. If the term relating to the reduction of redemption requests did not bind certain investors (those classified as consumers) but did bind others, this would result – according to FIZ’s argument – in a differentiation of property rights incompatible with the nature of a collective investment undertaking.

44. I understand that concern, but it cannot, in my view, lead to the exclusion of the application of Directive 93/13, for the following reasons.

45. First, it is settled case-law (20) that Directive 93/13 seeks to ensure a high level of consumer protection and that Articles 6 and 7 of that directive require adequate and effective means to ensure that judicial protection is fully effective. It follows that systemic or organisational disadvantages, even if real, cannot constitute a prerequisite for defining the scope of Directive 93/13, since they relate rather to the next stage of determining the effects of any finding of unfairness.

46. The question referred to the Court concerns the scope of Directive 93/13: can the relationship between the fund and its investors fall within the scope of consumer protection? The systemic effects that could arise from a possible finding that a specific term of the articles of association is unfair are a separate, logically subsequent issue. A limitation of the first aspect cannot be inferred from the second: this would amount to adapting the scope of Directive 93/13 to the organisational needs of the seller or supplier, which would be incompatible with the deterrent function expressly pursued by Article 7 of Directive 93/13. Moreover, the Court has repeatedly held that the mechanism for the ‘non-binding nature’ of the unfair term provided for in Article 6(1) of Directive 93/13 is intended to restore the formal balance between the parties by replacing it with the substantive balance which the unfair term had altered and that the non-application of the term is the normal consequence, even where it affects contractual balances unilaterally established by the seller or supplier. (21)

47. Second, EU law already provides the criteria for managing the systemic consequences of non-application. According to settled case-law, the Court has clarified that where the term held to be unfair does not constitute an essential element of the contract, that contract remains binding on the parties, without the inclusion of the unfair term, and with no supplementary term being necessary. (22) The national court is not permitted – and this is the decisive aspect – to revise the content of that term or substitute it with criteria derived from general provisions, such as equity or established customs. (23) It is up to the national court, where there is an essential term which, if removed, would lead to particularly unfavourable consequences for the consumer, to substitute, in accordance with national law, that unfair term with a supplementary provision of national law – that is to say, with a default rule, which would apply in the absence of any other agreement between the parties – or, where such rules do not exist, to resort to other remedies provided for by the legal system which would restore the balance between the rights and obligations of the parties, within the limits set by the Kásler case-law. (24) The referring court therefore has a sufficiently detailed framework to modulate the consequences of the finding of unfairness, in compliance with the entirety of Polish law and, where applicable, by taking ‘all the measures necessary to protect the consumer from the particularly unfavourable consequences’ of the removal of the term, with it being prohibited to ‘change or restrict freely the content of the unfair terms’ remaining in place. (25)

48. Third, as the referring court itself points out, Polish law already provides a framework within which that balancing exercise may be carried out. Article 3(3) of the Law on Investment Funds requires the fund to conduct its operations ‘with particular regard to the interests of participants of the fund’; Article 64(1) of that Law holds the management company liable in respect of the participants for any damage caused by a failure to perform its duties. A finding that the term reducing redemption requests is potentially unfair would therefore not necessarily harm the interests of the other investors: it would be for the national court to determine the practical consequences, in the light of the applicable legislation as a whole.

49. Finally, and in my view of decisive importance, is that, in principle, excluding consumer protection for the individual investor from the outset, by invoking the collective nature of the fund, would amount to depriving the weaker party to the contract, whose property rights depend entirely on the unilateral decision of the stronger party, of the protection afforded by Directive 93/13. That result is incompatible with the rationale of the system established by Directive 93/13 and with the deterrent function assigned by Article 7 of that directive to the rules on the non-binding nature of unfair terms. FIZ’s concern about the management of inter-investor effects is legitimate, but it arises after the assessment of unfairness and cannot serve to restrict the conditions for its application beforehand.

50. Ultimately, the Court is called upon only to determine whether the term at issue may be classified as a ‘term of a contract which has not been individually negotiated’ for the purposes of Article 3(2) of Directive 93/13. For the reasons set out above, I propose that the answer be in the affirmative.

V. Conclusion

51. On the basis of all the foregoing considerations, I propose that the Court of Justice answer the third question referred for a preliminary ruling by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) as follows:

Article 3(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as meaning that:

– a provision in the articles of association of a closed-end investment fund setting out the terms and conditions for redeeming investment certificates may constitute a term of a contract which has not been individually negotiated where it is made binding on the investor by the investment contract and the investors have not been able to influence its content, even if an investor was able to acquaint him or herself with it before joining and accepted the text by means of a written declaration;

– it is for the national court to determine, in the light of all the circumstances of the case and the possible relevance of Article 1(2) of Directive 93/13, whether the term at issue merely reflects mandatory or supplementary provisions of national law.

1 Original language: Italian.

2 Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

3 The closed-end investment fund (in Polish: ‘fundusz inwestycyjny zamknięty’) (‘FIZ’) is a collective investment undertaking with independent legal personality, the holdings of which take the form of investment certificates. Unlike open-ended funds, it issues a predefined number of certificates and is not required to redeem them on request: redemption is permitted only in the cases and under the conditions as may be provided for in the fund’s articles of association. It is an instrument falling within the category of alternative investment funds covered by Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ 2011 L 174, p. 1).

4 Law of 23 April 1964 on the Civil Code (Dz. U. of 2023, item 1610).

5 Dz. U. of 2004 No 146, Dz. U. of 2024, item 1034.

6 See judgment of 30 May 2013, Asbeek Brusse and de Man Garabito (C‑488/11, EU:C:2013:341, paragraph 29).

7 See judgment of 20 March 2025, Arce (C‑365/23, EU:C:2025:192, paragraph 44 and the case-law cited).

8 See, to that effect, judgment of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750, paragraph 52); judgment of 9 July 2020, Banca Transilvania (C‑81/19, EU:C:2020:532, paragraph 24); judgment of 6 July 2023, First Bank (C‑593/22, EU:C:2023:555, paragraph 20).

9 See judgment of 3 October 2019, Verein für Konsumenteninformation (C‑272/18, EU:C:2019:827, paragraph 37).

10 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).

11 See judgment of 15 April 2010, E. Friz (C‑215/08, EU:C:2010:186, paragraphs 25 to 29).

12 Council Directive of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31), now replaced by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

13 See, to that effect, judgment of 17 May 2018, Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen (C‑147/16, EU:C:2018:320, paragraphs 47 to 59), in which the Court classified an educational establishment as a ‘seller or supplier’ for the ancillary activity of granting a payment plan, even though its principal activity was not commercial in nature.

14 ‘The contractual terms which reflect mandatory statutory or regulatory provisions … shall not be subject to the provisions of this Directive’.

15 Judgment of 3 March 2020, Gómez del Moral Guasch (C‑125/18, EU:C:2020:138, paragraphs 31 to 37), relating to a mortgage loan term which referred to a reference index provided for by the Spanish legislation at issue: the Court ruled out the applicability of Article 1(2) of Directive 93/13, noting that that legislation did not require the use of the index, but merely governed certain requirements, leaving it to the seller or supplier to decide whether or not to adopt it. Just as the loan reference index was an index ‘authorised’ under Spanish law, but not required, so the term relating to the reduction of redemption requests is ‘authorised’ by the Polish Law on Investment Funds referred to above, but is not required: the choice of reduction mechanisms remains an independent decision made by the seller or supplier, in this case the management company, when drawing up the articles of association.

16 See judgment of 17 May 2018, Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen (C‑147/16, EU:C:2018:320, paragraph 54 and the case-law cited).

17 See, to that effect, judgments of 16 January 2014, Constructora Principado (C‑226/12, EU:C:2014:10, paragraph 18), and of 15 January 2015, Šiba (C‑537/13, EU:C:2015:14, paragraph 31).

18 See judgments of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraph 73), and of 20 September 2017, Andriciuc and Others (C‑186/16, EU:C:2017:703, paragraph 44).

19 Articles of association of the Z. Fundusz Inwestycyjny Zamknięty fund, Article 6(7)(3)(e), in the version applicable at the time of the facts in the main proceedings. The document is included in the case file.

20 See judgments of 14 March 2013, Aziz (C‑415/11, EU:C:2013:164, paragraphs 49 to 50), and of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60, paragraph 41).

21 See judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 40 and 69); judgment of 25 November 2020, Banca B. (C‑269/19, EU:C:2020:954, paragraph 31 and the case-law cited); judgment of 29 April 2021, Bank BPH (C‑19/20, EU:C:2021:341, paragraph 72 and the case-law cited).

22 See judgment of 14 June 2012, Banco Español de Crédito (C‑618/10, EU:C:2012:349, paragraphs 63 to 65); judgment of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819, paragraphs 56 to 58).

23 See judgment of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819, paragraphs 61 to 62).

24 See judgment of 30 April 2014, Kásler and Káslerné Rábai (C‑26/13, EU:C:2014:282, paragraphs 82 to 85); see also judgment of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819, paragraph 48): the national court’s power to replace the unfair term with a supplementary provision of national law is limited only to cases in which the annulment of the contract as a whole would expose the consumer to particularly unfavourable consequences.

25 See judgment of 25 November 2020, Banca B. (C‑269/19, EU:C:2020:954, paragraphs 41 to 44); judgment of 29 April 2021, Bank BPH (C‑19/20, EU:C:2021:341, paragraph 84); and judgment of 31 March 2022, Lombard Lízing (C‑472/20, EU:C:2022:242, paragraphs 54 to 56).

Opinion of Advocate General Biondi delivered on 4 June 2026.###

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