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Tuesday, June 18, 2024

Franc loans. There is an opinion of the Advocate General of the CJEU – the President of UOKiK and the Financial Ombudsman comment

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The opinion of the Advocate General of the Court of Justice of the European Union is consistent with our long-term position – said Tomasz Chróstny, President of the Office of Competition and Consumer Protection. As he emphasized, UOKiK has long argued that “banks have no grounds to demand remuneration for the use of capital”. At the same time, the Office pointed out that the Ombudsman’s opinion is not a final decision.

In an opinion published on Thursday advocate general CJEU Anthony Michael Collins stated that after a mortgage contract is declared invalid due to unfair terms, consumers may pursue claims against banks that go beyond the reimbursement of monetary benefits. As he pointed out, banks do not have this right.

President of UOKiK: opinion convergent with our position

“I am glad that the opinion of the Advocate General of the CJEU is in line with our long-term position. We have long argued that banks have no grounds to demand remuneration for the use of capital in the event of failure of the contract through their fault, i.e. in connection with the use of prohibited provisions” – he said, quoted in the communication, Tomasz Chróstny, President of the Office of Competition and Consumer Protection.

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In his opinion, “the possibility of pursuing such claims would mean allowing for the achievement of financial benefits by the entrepreneur who used abusive clauses against consumers.” “In addition, consent to such claims would be tantamount to restoring the unfair conditions resulting from the performance of a contract containing an abusive provision” – noted Chróstny.

As recalled, such a position on the bank’s claims for remuneration for the use of capital president UOKiK expressed already in December 2019 after the judgment of the CJEU in case C-260/18 (Dziubak vs Raiffeisen Bank International AG). The President of UOKiK also regularly supports consumers by issuing important views in court cases, in which he emphasizes the inadmissibility of banks demanding remuneration for the use of capital.

At the same time, UOKiK emphasized that the opinion of the Advocate General is not a final decision. “It is not binding for the CJEU, but it is often taken into account in the judgments issued” – explained.

The Financial Ombudsman explains

In the opinion of the Financial Ombudsman, after the court annulled the loan agreement, the bank’s demand for remuneration for the use of capital, as well as interest for delay, is not only contrary to the objectives of Directive 93/13/EEC and the protection granted to the consumer on its basis, but also finds support in the provisions of national law.

“The result of the possible consideration of such a request by the bank by the court would be the creation of a legal and economic situation in which the entrepreneur using prohibited contractual provisions would not only not suffer any negative effects related to their application, but would obtain even greater benefits than from the performance of a contract containing prohibited provisions” – he assessed, Bohdan Pretkiel, financial ombudsman, was quoted in the release.

He added that as regards the customer’s claims against the bank, the cited provisions of Art. 6 sec. 1 and 7 sec. 1 interpreted in the light of art. 8 of Directive 93/13 do not preclude national provisions or their interpretation according to which the consumer is entitled to a claim for remuneration for the use of capital against the bank which used such capital. “At the same time, the assessment of whether such a claim is available to the consumer under national law and what are the limits of the possibility of pursuing such claims by the consumer should be made by the referring court on the basis of national law” – he noted.

The Polish Bank Association emphasized in the commentatthat the opinion of the Ombudsman “does not prejudge the decision and is not binding on the CJEU”. “The judgment of the CJEU may therefore be different from that proposed by the spokesman” – added.

Main photo source: Connectus Photo / Shutterstock.com



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