The judgment of the Court of Justice of the European Union of 22 January 2026 in Herchoski (C-902/24) addresses a set of recurring and sensitive issues concerning the consequences of the nullity of consumer credit agreements containing unfair terms, in particular mortgage loans indexed to foreign currencies. Beyond the specific point of short deadlines for restitution, the judgment clarifies some aspects of EU consumer law, while leaving others only partially resolved.

1. Set-off between restitution claims following the nullity of the contract

The Court confirms that EU law does not, in principle, preclude national rules allowing the set-off of reciprocal restitution claims arising from the nullity of a consumer credit agreement (paras 59–66, 85). In particular, it distinguishes set-off from mechanisms such as a right of retention previously found incompatible with Directive 93/13, stressing that set-off, as understood under Polish law, produces effects equivalent to reciprocal payments and does not, as such, deprive the consumer of default interest (paras 63–66).

At the same time, the Court recalls that the bank may not obtain any remuneration for the use of the capital beyond reimbursement of the principal and statutory default interest, in line with its earlier case-law (para. 73).

2. Set-off invoked in the alternative by the seller or supplier

The Court accepts that a bank may raise a plea of set-off in the alternative, while maintaining as its principal argument that the contract is valid (paras 70–72, 85). This conclusion is grounded in both the right to effective judicial protection and the principle of equality of arms, which also apply to sellers or suppliers in consumer disputes.

However, the Court draws a crucial limit: as long as the bank continues to argue that the contract is valid, its restitution claim cannot be regarded as due. Any formal notice served on the consumer before the judicial declaration of nullity must therefore be considered ineffective, in particular for the purposes of default interest (para. 74).

3. Short deadlines for restitution of the loan capital

The issue of short deadlines imposed on consumers for the restitution of the loan capital is the point at which the judgment is at its most cautious, and, arguably, most problematic. The Court acknowledges that the duration of the payment period is governed by national law, but insists that, in light of all the circumstances, it must not be such as to deter or prevent consumers from exercising the rights conferred by Directive 93/13 (para. 75).

However, the Court refrains from articulating any substantive criteria for assessing when a deadline becomes dissuasive. It does not indicate whether a period such as the 14-day deadline at issue in the main proceedings is, in itself, incompatible with EU law, nor does it expressly engage with the economic reality of mortgage credit. In most cases, the loan capital has been irreversibly used to acquire the property, making its immediate restitution not merely difficult, but potentially impossible. The risk faced by consumers is therefore not limited to procedural inconvenience, but extends to default, insolvency, or loss of the home.

Rather than confronting this structural constraint directly, the Court links the assessment of the deadline to the duty of the national court to inform the consumer, in an objective and comprehensive manner, of the legal consequences of nullity before it takes effect (paras 67 and 75). This approach places considerable weight on information and individual choice, assuming that a fully informed consumer can meaningfully decide whether to invoke nullity.

From a consumer law perspective, this assumption is open to serious doubt. Even perfect information does not neutralise structural economic asymmetry. Where the consumer lacks any realistic capacity to repay the capital within a short time frame, the choice between invoking nullity and maintaining a contract containing unfair terms may be largely illusory. By treating the problem primarily as one of information rather than of economic feasibility, the Court effectively shifts the burden of managing this tension onto national courts, without providing clear guidance on how to resolve it.

4. Centrality of the informed intention of the consumer

The judgment reiterates that the protection afforded by Directive 93/13 ultimately depends on the consumer’s intention. If, after being duly informed by the national court of the consequences of removing the unfair terms, the consumer does not oppose the declaration of nullity, the resulting restitution mechanisms, including set-off, are not contrary to EU law (paras 67–69).

This emphasis reinforces the role of information and consent, but also raises questions as to the extent to which consumer choice can be regarded as genuinely free in situations of structural economic constraint.

5. Allocation of costs and the principle of effectiveness

As regards costs, the Court recalls that this matter falls within the procedural autonomy of the Member States, subject to the principles of equivalence and effectiveness (paras 76–77). While consumers may, in principle, bear some costs, national rules must not deter them from exercising their rights under Directive 93/13 (paras 78–79).

Importantly, the Court stresses the obligation of national courts to interpret domestic procedural rules in conformity with EU law, making use, where necessary, of corrective mechanisms that allow for a more equitable allocation of costs (paras 80–83). At the same time, it leaves room for courts to take into account possible bad faith on the part of consumers who challenge a set-off without justification (para. 84).

6. Overall assessment

The Herchoski judgment does not signal a reversal of the Court’s consumer-protective case-law, but rather a phase of consolidation and restraint. The Court confirms that set-off mechanisms and procedural defences available under national law are not, in themselves, incompatible with Directive 93/13, while insisting on safeguards relating to the timing of restitution claims, the absence of remuneration for capital, and the need to avoid dissuasive effects.

At the same time, several crucial issues, most notably the practical impact of short restitution deadlines and the limits of consumer autonomy in contexts of economic constraint, are left unresolved and largely entrusted to national courts. The effectiveness of consumer protection in this area will therefore continue to depend, to a significant extent, on how those courts operationalise the principles laid down by the Court of Justice.

7. Policy implications

From a policy perspective, the Herchoski judgment highlights the growing tension between traditional restitutionary logic and the objectives of EU consumer protection in long-term credit relationships. If the effectiveness of the rights conferred by Directive 93/13 is to be preserved, legislators and courts alike may need to reflect on whether immediate restitution of the loan capital, following the nullity of a mortgage credit agreement, should remain the default solution. Possible avenues include statutory or judicially recognised mechanisms for the deferment or staged repayment of the capital, clearer rules on the moment at which restitution claims become enforceable, and a more explicit integration of consumers’ economic capacity into the assessment of dissuasive effects. Without such adjustments, there is a risk that the formal availability of consumer rights will coexist with practical barriers that prevent their meaningful exercise. The Herchoski judgment thus invites a broader reflection on how EU consumer law can reconcile legal coherence with economic reality in the context of housing finance.