The President of the Office of Competition and Consumer Protection has presented four relevant opinions. The opinions in question pertain to the dispute between Millennium Bank and consumers who had taken out mortgage loans indexed to the Swiss franc.

The President of the Office of Competition and Consumer Protection has presented four further relevant opinions. The proceedings which are pending before the Warsaw courts pertain to contracts for mortgage loans indexed to the Swiss franc. The Consumers have called upon Millennium Bank to reimburse them for the fees charged on the basis of prohibited contractual terms pertaining to the indexation of loan amount and loan payments as well as low down payment insurance.

Based on the impugned indexation clauses, the bank determines the manner in which the loan amount as well as individual loan payments are calculated on the basis of the Swiss franc buy and sell rates specified in the currency exchange table. At the same time, borrowers are unable to verify the criteria applied by the bank when making decisions as to the currency exchange rates. For the above reason, in the view of the Office of Competition and Consumer Protection, provisions of this kind constitute prohibited contractual clauses. Likewise, the Competition Authority also considered the provisions pertaining to low down payment insurance as being both inconsistent with accepted practices and resulting in a gross violation of consumer interests. The provisions in question contain no information for the borrowers as to the terms and conditions of insurance, the scope thereof or the manner of calculation of the applicable fees by the relevant undertaking. As a result, the borrowers are forced to bear the costs of this arrangement despite the fact that the bank remains the sole beneficiary thereof. At the same time, consumers are unable to verify what it is that they are in fact paying for. This leads to a situation where the economic risk arising out of the provision of banking services is transferred to the bank’s clients.

In the view of the President of the Office of Competition and Consumer Protection, where the impugned provisions pertaining to the indexation of the loan amount and loan payments 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 opinions of the President of the Competition Authority pertain to cases no. I C 2218/15, I C 2450/15, III C 625/15 and III C 27/16 – disputes 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 his 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