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Wednesday, September 22, 2021

Frankivichi – no decision of the Supreme Court on loans in Swiss francs. Lawyers’ comments

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The Supreme Court referred questions to the Court of Justice of the European Union regarding the procedure for selecting judges and at the same time did not make a decision on issues related to loans in Swiss francs. According to attorney Marcin Szymański from the law firm Drzewiecki and Tomaszek, it will be necessary to wait at least a year for the CJEU’s decision, and the effect will be that Polish courts will stop waiting and cases will start. – All hope now in common courts – assessed legal counsel Beata Strzyżowska in a comment for TVN24 Biznes.

According to Marcin Szymański, who is the representative of the franchisees, referring questions to the CJEU regarding judges is a necessary step, although no one is satisfied with it. – You cannot pretend that there is no problem with doubts as to the nominations of judges, since this topic keeps coming back to us. These are not unsubstantiated doubts, as shown by the jurisprudence of the CJEU and the European Court of Human Rights, said the lawyer.

“Decision stalemate” in the Supreme Court. Without a resolution on foreign currency loans, there are questions to the CJEU

Supreme Court – why there was no decision?

– We had two options here: either to pretend that the problem did not exist, and then, if the resolution was passed, its validity would be questioned by anyone who did not like its content, or the problem had to be solved now. In fact, I believe that should have been the starting point at the first meeting. We would be a few months ahead – he added.

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– The situation is now such that the franc borrowers have become a victim of all this chaos, which is a consequence of incorrectly introduced changes in the judiciary – he assessed.


In his opinion, the problem could have been avoided. – President Manowska could have directed her legal questions to a panel of seven judges. It seems that there was, however, the idea of ​​using the social importance of the problem of pseudo-franchise loans to put pressure on the so-called old judges to sit together with new judges, which they avoided all the time – said Szymański.

How long can it take to receive a response from the CJEU? – The Dziubak case awaited in the CJEU from the first quarter of 2018 to October 2019. In this case, it is unlikely that there will be less than a year, although in systemic matters the CJEU has acted quite quickly – points out Szymański.

Frankivichi – what is their situation?

In the opinion of the lawyer, however, there are positives in this situation for borrowers. – The worst option for consumers did not take place – this would be the case in the case of repeated postponements of this resolution by another 2-3 months. In such a case, the courts would be more exposed to the temptation to wait for the – in assumption – the near decision of the Supreme Court. Knowing that a resolution will not be passed in the near future, common courts should be more willing to deal with the problem on their own, without waiting for a resolution of the Supreme Court, he believes.

The lawyer for franchisees also points out that the CJEU has recently asked about the remuneration for using someone else’s capital.

– I think that it will be a very good twist of fate if the CJEU speaks on this matter faster than the Supreme Court. If this happens, the Supreme Court will have only two unanswered questions: whether the indexed loan agreement can exist without abusive conversion clauses and whether the denominated loan agreement can exist without these clauses. The others already have their answers – he said.

He added that “when it is possible to fill the gap after abusive clauses, the CJEU replied in the judgment C-260/18 – Dziubak”. He also explained that “as regards the issue of the limitation of claims in the event of the invalidity of the loan agreement, the Supreme Court expressed its opinion in the resolution of May 7 this year (III CZP 6/21)”. In turn, “the issue of the method of settling the claims of the parties to the invalid contract was settled by the Supreme Court in the resolution of February 16 this year (III CZP 11/20)”.

– It may turn out that when we wait for this resolution to be issued, it will no longer be needed – said Szymański.

Decision of the Civil Chamber of the Supreme Court of September 2, 2021 with questions to the CJEU

SN without a resolution. “All hope now in common courts”

The issue of the lack of a resolution of the Supreme Court and questions to the CJEU was also commented on Thursday by legal counsel Beata Strzyżowska representing the franchisees. – The full Supreme Court did not answer six questions put by the First President of the Supreme Court. He did not answer because the Polish Supreme Court does not even know whether it is in fact a court itself. He is looking for help at the Court of Justice of the European Union, to which he has asked three questions in which he asks about the status of judges adjudicating in the Civil Chamber. If there is fear, it is to the CJEU – she said in a commentary for TVN24 Biznes.

– All hope is now in common courts that they would not be afraid to adjudicate, that they would take into account the judgments of the CJEU and that the judgments would take into account the rights of consumers – she added.

PAP / Adam Ziemienowicz

Main photo source: Shutterstock

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