The President of the Office of Competition and Consumer Protection has issued his seventh relevant opinion, supporting the contention of the borrower that the mortgage loan agreement contained prohibited terms.

The President of the Office of Competition and Consumer Protection has issued his seventh relevant opinion in the mBank case. The case pertains to the dispute between mBank and a consumer who had taken out a mortgage loan indexed to the Swiss Franc. The customer demanded the reimbursement of loan overpayment which, in the customer’s view, occurred as a result the presence of prohibited contract terms in the loan agreement, pertaining to the indexation of loan amount and payments.

The analysis of the terms and conditions of the contract has led us to the conclusion that the provisions challenged by the claimant may be considered both illegal and detrimental to the consumer. The provisions in question pertain to the method of the determination of the buy and sell rates for the Swiss Franc on the basis of which both the loan amount and the amounts of individual capital and interest payments are calculated – says Marek Niechciał, President of the Office of Competition and Consumer Protection.

In the view of the Competition Authority, the impugned terms and conditions must be considered unlawful due to the fact that they place the consumer at a disadvantage vis-à-vis the bank. This disparity between the parties has an impact on the amount of payments, for it is the bank which determines the buy and sell rates for the Swiss Franc in its exchange rate table which are then used for the purposes of calculating both the loan amount and the amounts of capital and interest payments. The consumer, on the other hand, has no influence whatsoever on the exchange rate indexation and does not even know the criteria applied by the bank during its decision-making process.

In the view of the President of the Office of Competition and Consumer Protection, where the impugned provisions of the contract concluded with the bank are considered to be abusive, this could lead to the entire contract being deemed invalid. The reason for this is because the contractual terms which are detrimental to the consumer are considered void ab initio, i.e. from the moment of conclusion of the contract. Furthermore, there is no way in which the provisions of applicable laws could be applied in lieu of the terms and conditions in question. An important point is that a judgement declaring the invalidity of a contract should only be made where the consumer fully accepts this solution.

The relevant opinion pertains to the case no. XXVII Ca 3477/16 – dispute between the consumer and mBank. The President of the Office of Competition and Consumer Protection may issue a relevant opinion in all cases pertaining to consumer rights protection, not just in cases which concern financial services.

Important: the legal assessment presented by the Competition Authority may not be applied to any other cases, even where such cases are ostensibly similar. In each given case, the President of the Office of Competition and Consumer Protection performs an assessment of the factual and legal circumstances of the case, the applicable case law as well as the application filed by the claimants. The relevant opinions issued so far are available online at the website of the Competition Authority: https://uokik.gov.pl/istotny_poglad_w_sprawie.php.

Relevant opinions in consumer cases – the rules

• A relevant opinion in a given case is a written opinion of the President of the Office of Competition and Consumer Protection, in which the Competition Authority presents its arguments and views which are relevant to the given dispute, based on the specific factual and legal circumstances of the case before it. For the above reason, the assessment contained in a relevant opinion may not be applied to any other cases.
• The relevant opinion is only issued with respect to a case pending before a court of law.
• It may only be issued where doing so is considered to be in the public interest.
• A relevant opinion always pertains to a dispute between a consumer and an undertaking.
• The President of the Office of Competition and Consumer Protection may present a relevant opinion at its own initiative, at the request of the consumer or undertaking or at the request of the court.

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