Supreme Court's decisions in ‘loans contracted in Swiss francs cases’ still awaited

The Supreme Court has not decided in recent months, for various reasons, to issue the rulings in ‘the loans contracted in Swiss francs cases', as well as decided to cancel the already set dates of the hearings.

Firstly, the Supreme Court decided on 2 September 2021 at a closed session in the full membership of the Civil Chamber, hearing the motion of the First President of the Supreme Court to resolve legal issues relating to the subject of credits denominated and indexed in foreign currencies, pursuant to Article 267 of the Treaty on the Functioning of the European Union, to submit three preliminary questions to the Court of Justice of the European Union relating to the issue of the appointment of judges in the Republic of Poland. It should be recalled that this is a key resolution to be adopted by the full bench of the Civil Chamber (Case No. III CZP 11/21) resolving, among other things, such important issues as the consequences of holding that provisions relating to the manner in which a foreign currency exchange rate is determined constitute an unlawful contractual term, issues relating to the statute of limitations on claims, and remuneration for use of capital.

The Supreme Court held, however, that the issuance of such an important resolution must be issued by a judges who were appointed without a doubt and, consequently, that the resolution could not be challenged in the future. The order of 2 September 2021 was passed by a majority, with eight judges filing a dissenting opinion. At the same time, and quite unusually, the judges remaining in the minority made a statement addressing the situation, expressing their regret that it had not been possible to reach a substantive resolution of the issues presented by the First President. It is worth noting that the rapporteur in this case is Professor Joanna Misztal-Konecka, the current President of the Civil Chamber of the Supreme Court, who was herself appointed as a judge of the Supreme Court in the new, dubious procedure, and is one of the signatories of the statement arguing against the legitimacy of referring the preliminary questions to the CJEU.

Regardless of the assessment of the above decision of the Supreme Court, it will result in a significant, at least one-year extension of the deadline for the resolution of the entire Civil Chamber, which was to be a key ruling for common courts across Poland passing judgments in ‘the loans contracted in Swiss francs cases’.

Secondly, the Supreme Court has also problems with issuing important rulings in loans contracted in Swiss francs cases in smaller judge panels. So, by an order dated 7 October 2021, the new President of the Civil Chamber of the Supreme Court, Prof. Joanna Misztal-Konecka, verified the rules and order of assignment in several cases in which legal issues were presented, because after verification it turned out that the cases were assigned contrary to the rules indicated in the rules of procedure of the Supreme Court, i.e. contrary to the alphabetical list of judges. In one of those cases (Case No. III CZP 54/21) an important legal issue was presented from the point of view of the loans contracted in Swiss francs cases, concerning the rules of calculating the amount of potential enrichment of the lender in the case of declaring invalid a loan agreement granted in Polish currency, indexed to a foreign currency. 

As a result of the change of assignment, SSN Krzysztof Strzelczyk became the reporting judge in Case III CZP 54/21 and the President of the Civil Chamber rescinded the orders appointing the composition of the aforementioned panel and setting the date of the hearing. The new composition of the bench and the date of the hearing will be determined after preparing the grounds for the order on submission of the legal question, which initiated Case III CZP 54/21.

Initially, Roman Trzaskowski was appointed as the rapporteur in the above-mentioned case, which gave rise to doubts that the same judge appeared as the rapporteur in the third legal question to the Supreme Court concerning loans contracted in Swiss francs matters. Moreover, there are opinions that also in the case III CZP 6/21, in which a resolution was adopted by a panel of 7 judges on 7 May 2021, the composition of the panel was also inconsistent with the Supreme Court rules (SSN Roman Trzaskowski was also the rapporteur). It is doubtful, however, whether this resolution, which is for the most part favorable to franking currency borrowers, can be challenged solely on the grounds that the composition of the panel was appointed contrary to the alphabetical list of judges.

Again, irrespective of the assessment of the reassignment to case No. III CZP 54/21, it should be noted that the adoption of the resolution in the above case will be prolonged (originally the case was referred to a hearing already on 8 November 2021), although the postponement of the resolution will probably not be as significant as in the case of the resolution of the entire Civil Chamber of the Supreme Court in case No. III CZP 11/21. Additionally, it should be stressed that the possible appointment of a judge in the above case appointed under the new procedure may raise further doubts, and the resolution issued with the participation of such a judge is likely to be challenged by the parties of the loans contracted in Swiss francs disputes.

In conclusion, the lack of key decisions by the Supreme Court does not help to unify the line of rulings by common courts in the loans contracted in Swiss francs cases, in which there are still significant discrepancies. It also contributes to the lengthiness of such proceedings, many of which have been suspended pending the resolution in Case III CZP 54/21, or above all Case III CZP 11/21. On the other hand, the legislature is not blameless as it has not and does not intend in the near future to regulate comprehensively the issues related to loans contracted in Swiss francs by introducing relevant provisions, as well as by creating a new procedure for appointing judges whose status may be questioned now and in the future, in particular at the rank of Supreme Court judge.