VIEW OF THE SUPREME COURT IN SWISS FRANC LOANS’S CASES

In response to the legal question presented by the Financial Ombudsman in the application of October 19, 2020, the Supreme Court consisted of seven judges, after examining the legal issue in the case III CZP 6/21 in the Civil Chamber, on May 7, 2021, adopted a resolution with the following content:

"1. An illegal contractual provision (Civil Code Art.3851 §1) is from the outset, by virtue of the law itself, ineffective in favor of the consumer, who may subsequently give informed and free consent to this provision and thus restore its effectiveness retroactively.

2. If the loan agreement cannot be binding without an ineffective provision, the consumer and the lender shall have separate claims for the reimbursement of the cash benefits provided in the performance of the agreement (Article 410 § 1 in connection with Article 405 of the Civil Code). The lender may request the return of the benefit from the moment the loan agreement becomes permanently ineffective.

3. Gives a resolution the force of a legal principle."

In the main reasons for the decision, the Court indicated that illegal contractual provisions should in principle be considered non-existent, and the amounts paid by the consumer under the contract are not due and are subject to reimbursement. The consumer may, however, voluntarily and consciously consent to the validity of these provisions, and thus it depends on his will whether the contract will be ineffective retroactively.

The court also indicated that the claims of customers and banks are separate (independent), which means that they are not automatically offset against each other. In this case, the court agreed with the theory of two conditionalities.

The Supreme Court also indicated in its resolution, in its resolution, that the limitation period for banks' claims against borrowers for the return of the capital provided does not run until the consumer learns about the illegal nature of the provisions.

The position of the court should be considered a compromise between the demands of the franc debtors and the interest of the banking sector. Consumers, as the weaker party in a dispute with financial institutions, have the opportunity to claim their rights both before the Court and by amicable settlement of the dispute. On the other hand, banks have gained the opportunity to claim the return of capital from borrowers, and even remuneration for using the capital, without fear that clients will submit an effective plea of limitation. Otherwise, given that most of the Swiss franc loans were taken out more than 10 years ago, the entire financial sector would suffer huge losses.

Both "Swiss franc borrowers" and banks were also waiting for the ruling of the entire Chamber of the Supreme Court, which had already been postponed several times. On May 11, 2021, the Supreme Court, examining the request of the First, the President of the Supreme Court of January 29, 2021, at a closed session, decided to notify the Ombudsman and Children's Ombudsman of the ongoing proceedings, and asked for these entities to take a position on the legal issues covered by the request of the First The President of the Supreme Court. Moreover, the Supreme Court decided to request that the President of the National Bank of Poland, the Polish Financial Supervision Authority and the Financial Ombudsman take such a position. These institutions have 30 days to provide their opinion. According to the statement of the spokesman, the Supreme Court made such a decision taking into account the social and economic importance of the issues presented to it for resolution.

Borrowers and their lawyers are disappointed by waiting the next few months for a decision, particularly considering that courts all over Poland waited for the resolution to be issued before issuing judgments. On the other hand, the banking sector indicates a sensible approach, as the Supreme Court considers important issues that must be consulted with other entities.

0.336s / 5948.11 kB / 218 inc