Poland’s Competition Authority weighs in on dispute between consumers and  Euro Bank in a case involving mortgages taken in Swiss francs

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’s fourth standpoint

UOKiK has presented the court with its standpoint for the fourth time. Consumers who took out a mortgage indexed to the exchange rate of the Swiss franc from Euro Bank filed to involve UOKiK. The District Court in Kielce has been hearing the case since March 2016. Consumers seek to have the feasibility of the bank's writ of enforcement nullified. They cite the fact that the clauses concerning the rules for determining the exchange rate are imprecise and therefore prohibited. In accordance with the disputed clauses, Euro Bank defines the buy and sell rates of currencies in the table to which it refers consumers.

The Office analyzed the documents the plaintiffs presented and on October 12 issued its standpoint. UOKiK President Marek Niechciał said of the standpoint “We agree with the consumers’ position. The provisions are ambiguous and do not specify the criteria the bank uses to set foreign exchange rates. As a result, the consumer cannot verify how the bank valued the Swiss franc.” According to the Office, Euro Bank should not be able to freely determine exchange rates, but should use clear and transparent criteria, particularly as multi-year mortgage contracts are at issue.

The effects of an abusive clause

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 Euro Bank mortgage contracts, however, it is not possible, on the basis of existing provisions, to replace the clauses with others, because applicable regulations do not exist.

In all of the cases it sees, UOKiK assesses the facts and the law, the case law involved, and the request made by the plaintiffs. The three previous standpoints (the first, the second, the third) all involved the criteria for changing the interest rate, while the second standpoint concerned also clauses used to establish the amount of credit.

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.

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