How do banks change the terms and conditions of consumer contracts? Is it sufficient to notify the consumer of the proposed changes using the bank’s electronic banking system? The proceedings initiated by the President of the Office of Competition and Consumer Protection are intended to clarify these issues. The Competition Authority is conducting proceedings against 18 banks

The President of the Office of Competition and Consumer Protection is conducting proceedings against 18 banks in order to verify the procedures for the notification of clients on the amendment of contracts for financial services. Towards the end of 2015, proceedings were initiated against 6 banks (Credit Agricole Bank Poland, Alior Bank, Bank Millennium, BZ WBK, ING Bank Śląski and Pekao), followed by proceedings against further 12 banks instigated between August and December 2016 (Bank BGŻ BNP Paribas, Bank Handlowy, Bank Ochrony Środowiska, Bank BPH, Deutsche Bank Poland, Euro Bank, Getin Noble Bank, Idea Bank, mBank, PKO BP, Plus Bank, Raiffeisen Bank Poland).

The accusations of the Office of Competition and Consumer Protection pertain to the following issues:

1.    the notification of consumers of changes made to contractual arrangements using internal electronic banking systems*.

Under the provisions of applicable laws, the bank is under an obligation to provide such information using a durable medium. The term “durable medium” shall encompass both letters sent in a traditional or electronic form, information recorded on a USB drive as well as e-mails, provided that they contain all the necessary data. In the view of the Competition Authority, the internal systems used by banks do not, in their current form, meet the definition of “durable medium”. One of the reasons for this is that the systems in question are fully controlled by banks, which means that the consumer has no guarantee that the contents thereof are not modified by the bank in any way. Furthermore, financial institutions deny access to the information in question following the expiry or termination of the relevant contract and force the consumer to make an actual effort to check whether information on any changes has been released through the bank’s system.* The above complaint applies to all banks apart from Bank Handlowy.

2.    introduction of changes to the terms and conditions of consumer contracts without indicating the legal basis thereof or the circumstances which brought about such changes.

The absence of this data makes it impossible for the consumer to determine whether the changes introduced by the bank remain in compliance with the provisions of applicable laws and the contract itself, including the contents of the amendment clause included in such contract.

The proceedings conducted against the undertakings in question may result in a finding that they applied practices that violate collective consumer interests; the undertakings may also face fines in the maximum amount equivalent to 10% of the given bank’s turnover. An order to remedy the consequences of the infringement may also be made, one of the forms of such remedy being the payment of public compensation. 

On January 25, 2017, the Court of Justice of the European Union expressed its view on internal electronic banking systems. In its judgement, the CJEU stated that such systems may meet the definition of “durable medium” provided that, inter alia, the consumer is alerted that a message from the bank awaits in the online mailbox. This message may not be unilaterally modified by the bank. Furthermore, it is necessary that the consumer is given access to the message in question and that he or she has the opportunity to open such message at an appropriate time.

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