The President of the Office of Competition and Consumer Protection has issued a relevant opinion. In the view of the Competition authority, the contracts for mortgage loans indexed to CHF contained prohibited clauses.

The President of the Office of Competition and Consumer Protection issued yet another relevant opinion, this one related to the proceedings against Millennium bank. The proceedings were brought before the Regional Court in Warsaw by a borrower, who demands the reimbursement of the amounts charged to cover the differences between the buy price and sell price of the Swiss franc.

In the view of the Competition Authority, the provisions pertaining to the rules for the determination of the loan amount and the amounts of payments based on currency exchange rate 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 by a court of law, this could lead to the entire contract being declared 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. However, the Competition Authority takes the view that a judgement declaring the invalidity of a contract should only be made where the consumer fully accepts this solution.

The relevant opinion of the President of the Competition Authority pertains to the case no. XXIV C 19116 – dispute between the consumer and Millennium bank. 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.

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.

Additional information for the media:

Press Office of the Competition Authority
Pl. Powstańców Warszawy 1, 00-950 Warszawa
Phone: 695 902 088
E-mail: biuroprasowe@uokik.gov.pl

Twitter: @UOKiKgovPL