In response to the First President of the Supreme Court’s inquiry, the Financial Ombudsman presented his position concerning the directions of resolving legal issues presented by the Civil Chamber of the Supreme Court in cases related to loans indexed and denominated to foreign currency.
“Our position is congruent with the Financial Ombudsman’s views presented hitherto and adds further arguments arising from the latest case-law and legal scholarship,” explains dr hab. Mariusz Golecki, university professor and the Financial Ombudsman. “We consulted with a range of civil and consumer law communities and specialists in preparing our response for the Supreme Court. I would like to assure you that my office will continue to support consumers unreservedly, using all legally available instruments in all types of cases.”
In his position, the Financial Ombudsman recalled the CJEU’s extensive case-law on the protection of borrowers who concluded loan agreements on the basis of models containing unlawful provisions prepared by banks, and the primary aim of introducing EU law provisions on consumer protection. Furthermore, the Financial Ombudsman highlighted that, as a general rule, it is possible to fill a gap in a loan agreement after an unlawful provision is removed by a default rule, but the Financial Ombudsman does not find in Polish law any such a rule that would be applicable in cases of indexed and denominated loans.
The Financial Ombudsman emphasised that if it is impossible to establish a binding exchange rate in an indexed or denominated loan agreement, the agreement may remain in force only if the borrower, who is a consumer, consciously and voluntarily agrees to the continuation of unfair provisions concerning the establishment of such a rate. Moreover, the Financial Ombudsman pointed out that an agreement can be determined invalid for reasons other than the inclusion of unlawful provisions in its content.
The Financial Ombudsman also pointed to the Supreme Court resolution III CZP 6/21, adopted at the request of the Financial Ombudsman, according to which, in the case of invalidity or ineffectiveness of a loan agreement, the so-called theory of two condictions applies. According to this theory, both parties to the agreement have separate claims for the return of gained benefits.
The Financial Ombudsman resolved, in accordance with the case-law of the Supreme Court, that the statute of limitations on the bank’s claim for a refund of amounts paid out under a loan starts to run the moment the loan agreement becomes permanently ineffective. Permanent ineffectiveness occurs in case of a lack of conscious and voluntary consent to an unlawful provision expressed in the consumer’s first statement to the bank, questioning the validity of the agreement or indicating the abusive nature of its provisions.
The Financial Ombudsman clearly addressed the issue of lenders demanding remuneration for the use of funds made available to borrowers by the bank, i.e. the so-called remuneration for capital. In the Ombudsman’s view, such demands are contrary to EU law, i.e. Directive 93/13, and have no basis in national law. Adopting a different position would result in a situation where a bank that uses unlawful provisions would obtain an advantage at the expense of the consumer, instead of suffering the negative consequences of using such provisions.
The Financial Ombudsman expressed similar opinion in a request for a preliminary ruling in a pending case brought by a bank against a consumer. The Financial Ombudsman adopted a position that in consequence of the invalidity of a legal transaction (an agreement for a loan indexed or denominated to foreign currency), the parties are obliged to return their mutual benefits; however, the demand by the bank which is a party to such an agreement, for remuneration for the consumer’s use of the capital obtained under the invalid loan agreement is contrary to both EU law, in particular Directive 93/13, and Polish law.
