Disagreeing with a ruling handed down by a regional court, Poland’s consumer protection Authority again presents its viewpoint material to a case in a case against mBank. UOKiK maintains that contract clauses that too vaguely indicate the grounds for changing interest rates on credit are prohibited

Poland’s amended act on competition and consumer protection gave Poland’s Office of Competition and Consumer Protection (UOKiK) the ability to present a court with a standpoint material to a case. Such opinions allow the Authority to share its knowledge and assist the courts in dispute settlement.

UOKiK has now presented its viewpoint for the third time. In the present case, consumers in a dispute with mbank filed the request for the Authority’s position. The mortgage holders questioned clauses found in agreements for credit pegged to the swiss franc which they consider abusive, and in 2013 sued the bank. In 2015, the court of first instance (one of Poland’s regional courts) ruled that the clause was not abusive. In its justification it stated that consumers failed to show that they had been harmed by the changes made to the interest rate. The consumers appealed the ruling in the court of second instance (the District Court in Warsaw), which is now considering the case.

UOKiK disagreed with the 2015 ruling. UOKiK President Marek Niechciał said of the case, „In the viewpoint UOKiK presented, it shared the plaintiff’s opinion that the clause entitles the bank to arbitrarily decide changes to the interest rate, while consumers cannot verify whether the changes are justified. The criteria the bank provided are too general, and there is no information provided about when changes can be made and how they will affect the interest rate”.

Further opposing the court’s reasoning, the Authority e also stated that whether consumers have suffered damage is not material/relevant to the legality of the clause. Nor does how the provisions are executed matter, because the abusive clause should never apply to customers to begin with. The Authority maintains that the provision cannot be replaced by another because, under banking law, the criteria for changes in interest rates are an important element of an agreement, and changing them may render the entire contract invalid.

In practice, if there are forbidden provisions in a contract, the enterprise cannot cite them. Its only recourse is to propose an alternative solution in a contract annex, which the consumer is not bound to accept. Only the court hearing the case may introduce a new provision to replace the prohibited clause as a means to settling the case. In the case of the contracts with mbank, however, it is not possible, on the basis of existing provisions, to replace the clause with another, because applicable regulations do not exist. This led UOKiK to indicate in its standpoint that the credit agreement can be regarded as invalid.

The standpoint material to a case is:

• the written position of UOKiK. It presents the Office’s arguments and point of view relevant to a given conflict, based on the particular factual and legal state of affairs. The assessment presented in the standpoint therefore cannot be used as a benchmark for other cases
• issued only in cases ongoing before the court
• provided  if it is in the public interest
• Provided in disputes between consumers and enterprise
• Presented on UOKiK’s own initiative, at the request of consumers, an enterprise or the behest of the court.

In all of the cases it sees, UOKiK assesses the facts and the law, the case law involved, and, in the case against mBank, the request made by the plaintiffs. The other two times UOKiK has provided its standpoint also involved disputes between consumers and mbank. Both concerned criteria for changing interest rates, while one also involved clauses on the basis of which the amount of credit was changed.

Additional information for the media

Press Office, UOKiK
Pl. Powstańców Warszawy 1, 00-950 Warsaw
Phone.: +48 22 827 28 92, +48 22 55 60 314, +48 22 55 60 430
E-mail: [SCODE]Yml1cm9wcmFzb3dlQHVva2lrLmdvdi5wbA==[ECODE]

Twitter: @UOKiKgovPL