Press release of the Financial Stability Committee concerning the use of the WIBOR benchmark

Date of publication:

Warsaw, 20 September 2024

In the face of repeated attempts at undermining the correctness of using  the WIBOR benchmark in the provisions of a credit agreement concerning the floating interest rate based on this benchmark and the related questions referred by the Regional Court in Częstochowa to the Court of Justice of the European Union (CJEU) for a preliminary ruling in May 2024, the Committee would like to present its opinion on this matter.

The Committee maintains its assessment stated in the press releases in December 2022 and March 2023 that there are no legal basis for assessing the provisions of a credit agreement concerning the floating interest rate based on the WIBOR benchmark pursuant to the provisions of Directive 93/13.[1]

WIBOR is a key benchmark in the sense of the BMR Regulation.[2] The benchmark is provided by an administrator registered by the European Securities and Markets Authority based on a decision of the Polish Financial Supervision Authority (Komisja Nadzoru Finansowego), which confirmed that all the requirements of the BMR regulation have been met with regard to the interest rate benchmarks.

At the same time, the Committee notes that the provisions of the Act on mortgage credit implementing the relevant EU Directive[3] explicitly state that if the parties did not agree on the fixed interest rate, the interest rate is to be determined with the use of a benchmark in the sense of the BMR. In the Committee’s opinion, all the conditions set in the national and European law, permitting the use of the WIBOR benchmark in agreements with clients have been met and there are no grounds for the assessment of such agreements by the CJEU or by common courts under Directive 93/13.

The Committee emphasises that any attempt at undermining the reliability of the WIBOR benchmark could lead to the materialisation of systemic risk. The benchmark is used in a considerable percentage of loans to households and enterprises, and also in many other financial products, some Treasury bonds and a vast majority of non-Treasury bonds, and finally also in the market of OTC interest rate derivatives, which are used on a great scale by domestic and foreign entities. The questioning of the legitimacy of the use of the WIBOR benchmark would not only lead to enormous financial losses, potentially threatening the stability of individual financial institutions, but could also undermine the foundations of the whole Polish financial system and call into question the principles of its functioning in the future.

The Committee deems this matter to be of utmost importance, not only for financial stability in Poland, but in the whole European Union, because the principles of construction of benchmarks in other EU Member States, whether of the *IBOR type or risk-free, and of their use in financial contracts are directly governed by the BMR.

The institutions represented in the Committee will support the efforts of the Government of the Republic of Poland to eliminate or mitigate this risk, particularly in the preparation of a position on this matter to be submitted to the CJEU.  

[1] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29, as amended).

[2] Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171, 29.6.2016, p. 1, as amended).

[3] Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.02.2014, p. 34, as amended).