• On 25^th March, the Supreme Court in full composition is to issue a ruling on legal issues related to loans denominated in foreign currencies.
• The decision on two issues will be of paramount importance: the possibility of claiming remuneration for the use of principal and the statute of limitations for the bank's claims in the event of cancellation of the agreement.
• We expect a resolution favourable to consumers which will dispel the doubts arising when settling agreements containing prohibited contractual provisions - Tomasz Chróstny, the President of UOKiK, says.

On 25^th March, the Supreme Court in full composition of its Civil Chamber is to issue a decision on six legal issues concerning loans denominated and indexed in foreign currencies. The Supreme Court will deal with discrepancies in the settlement of contracts containing prohibited contractual terms. “Both borrowers and financial institutions are waiting for this decision. We sincerely believe that not only will it dispel the doubts that arise when settling agreements containing prohibited contractual provisions, but will also encourage banks to offer consumers targeted solutions that will be accepted and welcomed by them,” Tomasz Chróstny, the President of UOKiK, says. 

The Supreme Court will address the following questions:

1. May the prohibited provision determining the method of calculating the currency exchange rate be replaced by another method of determining the exchange rate resulting from legal provisions or customs?
2. May the agreement bind the parties if it is not possible to determine the foreign currency exchange rate in the indexed loan agreement?
3. May the agreement bind the parties if it is not possible to determine the foreign currency exchange rate in the currency-denominated loan agreement?
4. Where a loan agreement is void or ineffective, do separate claims for undue benefit arise for each of the parties (theory of two condictions) or does there arise only one claim equal to the difference in the benefits provided to that party whose total benefit was higher (theory of balance)?
5. Should the agreement be declared null and void by the court due to the prohibited clauses contained therein, does the statute of limitations on the bank's claim for repayment of the amounts disbursed under the loan commence to run from the time of the disbursement thereof?
6. Does the bank have the right to demand remuneration from the consumer for the use of principal when the agreement has been terminated as a result of the bank's application of prohibited clauses?

It is worth recalling that the Court of Justice of the EU - Case C-260/18 (Dziubak) has already addressed the issue of the effects of the use of prohibited contractual clauses (Question No 1, 2, 3). According to the CJEU, the national court should examine ex officio whether the agreement contains prohibited provisions and then assess whether it may be executed without such a provision. Should it find that possible - then the agreement is still in effect, albeit without the contested provisions. The provisions deemed prohibited shall not bind the consumer from the moment of including them in the agreement. However, if the national court decides that the agreement may not be valid without the provisions found to be abusive, and the court cannot replace them with another provision, the agreement - upon the consumer's consent - may be declared null and void and the parties shall settle their accounts with each other. Following the CJEU ruling, borrowers are increasingly referring their cases to the courts. However, the Court has not resolved all the issues, which resulted in non-uniform jurisprudence of Polish common courts. Now the Supreme Court is expected to clarify key uncertainties.

“Already now, some 90 percent of Swiss-franc cases brought to the courts have been settled in favour of the consumers. This should encourage banks to seriously reflect on changing the way they have behaved so far. Resolving disputes in court is becoming increasingly expensive for everyone, involving expensive legal aid and the time it takes to get a final decision in court. We are all aware of this. We expect the Supreme Court ruling to become another stimulus for borrowers to refer cases to courts. If banks want to avoid this situation and the consequences of unfavourable court decisions, increased by possible interest and costs of proceedings, they should present consumers with realistic and beneficial proposals for amicable resolution of cases,” Tomasz Chróstny, the President of UOKiK, stresses.

“For many years, the banking sector has not shown an open approach in this regard. The proposals for a statutory solution to the problem of foreign currency loans were rejected by the banking sector. The decision of the Supreme Court may be the last moment for banks to propose solutions acceptable by Swiss franc loan borrowers and to present a viable alternative to the court proceedings. Such a solution should be presented to the consumer fairly and comprehensively, taking into account all its aspects and, of course, its effects, including those of financial nature. Approaching Swiss franc loan borrowers with a viable and worthwhile proposal that avoids the costly court path is what many consumers have been waiting for for a long time. I count on responsible and reasonable attitude,” both on the part of banks and their associating organizations – Tomasz Chróstny, the President of UOKiK, adds.

Consumer support:

Tel. 801 440 220 or 22 290 89 16 – consumer helpline
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Consumer advocates – in your town or district

Additional information for the media:

UOKiK Press Office
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