• Today the CJEU has issued a judgment whereunder a consumer may not be deprived of their right to seek late payment interest.
• Moreover, it has expressed its opinion on the issue of the limitation of bank’s and consumer’s claims.

On the list of cases of the Court of Justice of the European Union, the motion in the next Polish case no. C-28/22 Getin Noble Bank for issuance of a judgement under the preliminary mode in connection with the question posed by the District Court for Warsaw - Śródmieście has been heard today.

The District Court for Warsaw-Śródmieście asked the CJEU to resolve the following five issues:

• when the period of limitation of entrepreneur’s restitution claims starts to run in the event of cancellation of a mortgage loan agreement as a result of incorporation of some prohibited clauses;
• whether an entrepreneur towards whom a consumer has lodged claims relying on unfair nature of the agreement should verify if the consumer is aware of the consequences of elimination the abusive clauses from the agreement or incapacity of continued application of the agreement;
• whether the period of limitation of a consumer’s restitution claim may start to run before the start of a period of limitation of an analogous claim lodged by the entrepreneur;
• whether the entrepreneur is entitled to condition the refund of the benefits received from the consumer on a simultaneous offering, by the consumer, of the refund of benefits received from the entrepreneur or a security for such a refund;
• whether interpretation in line with the domestic laws is admissible whereunder consumers are not entitled in full or in part to the late payment interest for the period starting on the day of receiving, by the entrepreneur, of a call for the refund of benefits if they conditioned the refund of the consumer’s claim on the refund of their claim.

- I am satisfied with another judgment where the CJEU supports consumers.  In today’s judgment, the Court has confirmed that a bank may not condition the refund of the instalments paid by the consumer on a simultaneous refund of capital by them. On top of that, the period of limitation of the borrower’s claims may not start earlier than the period of the bank’s claims - says Tomasz Chróstny, President of the UOKiK.

The start of the limitation period

The CJEU has explained that domestic laws and their interpretation may not prevent consumers from pursuing their rights under the Directive 93/13/EEC on unfair terms. The limitation terms stipulated for entrepreneurs on the one hand and the different limitation terms stipulated for consumers created an asymmetry of legal measures which may infringe the effectiveness of consumer protection. This may encourage even more to temporise if the consumer has lodged their claim.

- The CJEU has confirmed that a bank may not unpunishedly extend the procedure for seeking claims by the consumer counting on an opportunity that the consumer’s claim becomes limited, and the bank’s claim remains to be due - adds President of UOKiK, Tomasz Chróstny.

The CJEU is of the opinion that not only does the asymmetry infringes the rule of effectiveness but also challenges the discouraging result which the Directive links with finding the contractual terms abusive.

Obligation to verify the consumer’s knowledge of consequences of elimination of the unfair condition.

The CJEU has reminded that an entrepreneur is not obligated to verify whether a consumer is aware of the consequences of elimination of the unfair terms included in the agreement or not. Additionally, the current jurisprudence of the CJEU has proven that the obligation to inform the consumer of those consequences had been vested onto a court.

Making the refund of the consumer’s benefits conditional on a simultaneous refund of the entrepreneur’s benefits

The CJEU has drawn the attention to the fact that the payment, by the bank, of the benefit sought by the consumer because of the agreement cancellation may not condition on a satisfaction of the analogous benefit by the consumer if this would deprive them of the interest for a delay in full or in part. The CJEU is of the opinion that this is not allowed.

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