• The Advocate General of the CJEU has spoken on an important matter for consumers who have loans indexed or denominated in the Swiss franc.
• In his opinion, if the cancellation of a loan agreement has been due to unfair terms, consumers may seek claims from banks that go beyond the reimbursement of monetary consideration. Instead, banks do not have a similar right.
• We are now waiting for the final decision of the Court of Justice of the EU.

The Advocate General of the Court of Justice of the European Union has today dealt with a preliminary ruling in Case C-520/21 raised by the District Court for Warszawa - Śródmieście in August 2021. It concerns the admissibility of such interpretation of national rules according to which, in the event of finding the annulment of a loan agreement due to abusive clauses, the parties are entitled to remuneration or compensation and therefore whether claims other than reimbursement of the capital itself are admissible. In particular, the CJEU is to decide whether a bank may request remuneration, compensation, reimbursement, or indexation of the benefit, for example, because it has been temporarily deprived of the possibility to use the capital.

Today, the Advocate-General of the CJEU, Anthony Michael Collins, has given the opinion on this matter. In his view, if a loan agreement between the bank and the borrower is considered invalid from the beginning because the bank has included unfair contractual terms, the bank is not entitled to claim benefits from the consumer other than the reimbursement of the capital paid and the payment of statutory interest for the delay from the moment of the request until payment. The Advocate General, in support of his position, has stressed that an entrepreneur could not derive economic benefits from the situation created by their own unlawful conduct. Moreover, the bank would not be discouraged from using unfair terms in loan agreements concluded with consumers.

In the opinion of the Advocate General, however, in such a situation, a consumer has the right to seek claims from the bank that go beyond the reimbursement of monetary consideration. The admissibility of such claims under national law and their validity should be decided by courts. As the Advocate General has emphasised, this solution is justified by Directive 93/13, which aims to ensure a high level of consumer protection.

- I am pleased that the opinion of the CJEU Advocate General coincides with our long-standing position. We have long argued that the banks have no reason to demand remuneration for the use of capital in the event of a failure of the contract due to their fault, i.e. in connection with the application of prohibited provisions. The possibility of pursuing such claims would mean that the entrepreneur who applied abusive clauses to consumers would be allowed to obtain financial benefits. Moreover, consent to such claims would be tantamount to restoring unfair conditions resulting from the performance of an agreement containing a prohibited provision” - says Tomasz Chróstny, President of the Office of Competition and Consumer Protection.

This position on the bank's claims for remuneration for using the capital was already expressed by President of UOKiK in December 2019 following the judgment of the CJEU in Case C-260/18 (Dziubak vs Raiffeisen Bank International AG). President of UOKiK also regularly supports consumers by issuing important opinions in court cases in which he emphasises no admissibility for banks to demand remuneration for the use of the capital.

The Opinion of the Advocate General shall not constitute a final decision. It is not binding on the CJEU but it is often taken into account in the judgments.

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