The President of the Office of Competition and Consumer Protection has presented four further reasoned opinions in the present case. The opinions in question pertain to the dispute between mBank and consumers who had taken out mortgage loans indexed to the Swiss franc.

The President of UOKiK has presented four further reasoned opinions. Two of them were issued in connection with the proceedings pending before the Regional Court in Łódź, while the others pertain to the proceedings before the Regional Court in Warsaw. Consumers have challenged a number of clauses pertaining to the determination of the grounds for interest rate change (Łódź, case no. III Ca 775/16 and III Ca 1588/16), the indexation of loan amount and loan payments (Łódź, case no. III Ca 775/16; Warsaw, case no. II C 340/16) as well as the low down payment insurance (Warsaw, case no. II C 340/16 and I C 318/16). As a consequence, the consumers have filed applications with UOKiK. The Competition Authority has examined the impugned provisions and found the following violations:

Clauses specifying the grounds for interest rate change:

• according to the wording of these clauses, interest rate change may take place in certain situations, which makes it possible for the bank to make arbitrary decisions in this regard,
• the clauses in question contain an excessively vague description of the factors having an impact on loan interest rate change,
•  the clauses in question fail to specify the degree in which such factors shall have an impact on interest rate increase or decrease,
• the clauses in question fail to specify the time frame in which the bank shall be entitled to change the interest rates.

Indexation clauses:

•  among other things, these clauses make it impossible for the consumers to find out about the basis on which mBank determines the indexation rate.

Low down payment insurance clauses:

• 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,
•  the provisions in question impose the duty to bear the cost on the consumer, although the wording of the said provisions does not make it clear who shall in fact be the beneficiary under the insurance policy,
• the provisions in question fail to provide the borrowers with information on the possible risk that the insurer may claim the repayment of the damages paid to the bank,
• the provisions in question contain no statements as to the actual costs of insurance, the manner in which the borrower is supposed to bear such costs or what the borrower is actually paying for.

The Competition Authority held that the clauses challenged by the consumers are both unlawful and inconsistent with acceptable practices.

In the view of the President of UOKiK, where the impugned provisions pertaining to indexation and interest rate changes are considered to be abusive by a court of law, this could lead to the entire contract being declared invalid. 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 reasoned opinions of the President of the Competition Authority pertain to cases no. III Ca 775/16, III Ca 1588/16, II C 340/16 and I C 318/16 – disputes between the consumers and mBank. The President of UOKiK may issue a reasoned opinion in all cases pertaining to consumer rights protection – not just in cases which concern financial services – where doing so is in the public interest.

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 UOKiK 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 reasoned opinions issued so far are available online on the website of the Competition Authority: https://uokik.gov.pl/istotny_poglad_w_sprawie.php.

Reasoned opinions in consumer cases – the rules

• A reasoned opinion in a given case is a written opinion of the President of UOKiK in which it 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 reasoned opinion may not be applied to any other cases.
• A reasoned 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 reasoned opinion always pertains to a dispute between a consumer and an undertaking.
• The President of UOKiK may present a reasoned opinion at his own initiative, at the request of the consumer or undertaking, or at the request of the court.

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