– Today's judgment of the Court of Justice of the European Union does not meet expectations – commented Radosław Górski, legal counsel, in an interview with the business editorial office of tvn24.pl. As he explained, “the situation of consumers, of all complainants, is such that they still have a long way to go in the long court process.” – It will be much more difficult to obtain any compensation – he added. On Thursday, the CJEU issued a judgment in the case of Getin Noble Bank and Swiss franc borrowers.
Court of Justice of the European Union issued a judgment on Thursday on preliminary questions from the Provincial Administrative Court regarding the interpretation of Directive 2014/59/EU. It sets out the framework for the recovery and resolution of credit institutions and investment firms.
As Maciej Sokołowski, TVN24 correspondent in Brussels, explains, on the one hand, Getin Bank wanted to recognize that the Bank Guarantee Fund could not operate properly by performing two functions – a curator and an authority conducting restructuring and liquidation. That didn't happen The CJEU found that this is possible if the BFG proves that the functions were performed independently.
On the other hand, the BFG believed that it did not have to prove anything, because the law was clear that it performed its functions independently. This did not happen, the CJEU found that this still needed to be demonstrated.
About the CJEU judgment: it does not meet expectations
Radosław Górski, legal advisor from the Radosław Górski i Wspólnicy Law Firm, in an interview with the business editorial office of tvn24.pl explained that the questions presented to the Tribunal by the Provincial Administrative Court were of a two-fold nature. On the one hand, they concerned procedural issues, and on the other hand, they concerned issues related to the legality of the restructuring decision.
– The national court aimed to establish the requirements regarding the independence of the body such as the Bank Guarantee Fund. This is a situation in which BFG conducts restructuring and at the same time serves as a temporary administrator of a given bank. In addition, it is responsible for guaranteeing bank deposits, he explained.
He pointed out that over 8,000 complaints had been submitted to the CJEU, including those involving Swiss franc borrowers. – The complainants hoped that the CJEU would find it unacceptable for one body to perform all the above functions. This would open the way to compensation from the State Treasury. This was what was at stake – emphasized the legal advisor.
In his opinion, “today's judgment of the CJEU does not meet expectations because it did not determine the illegality of the restructuring of Getin Noble Bank, nor did it guarantee the right to compensation for Swiss franc borrowers.”
– At the same time, however, he did not close this path, because he indicated that only the national court should assess in specific cases whether a violation of the law had occurred – he recalled.
“They have a long road ahead of them in a long court process.”
As Radosław Górski added, the CJEU judgment also states that the burden of proof to prove that BFG operates in accordance with the law will rest with the authority that conducts the restructuring, i.e. BFG.
As he stressed, the CJEU said that where a national resolution authority performs several functions, EU law provides that the decision-making of that authority should be protected from any internal influences unrelated to that task.
Moreover, the CJEU judgment stated that EU law imposes an obligation to adopt structural arrangements in order to ensure the operational independence of the resolution authority and avoid conflicts of interest.
What will be the next steps in this matter? – The CJEU directly pointed out, which seems obvious, that individual allegations from submitted complaints cannot be downplayed and that everyone has the right to a court. Therefore, these cases should be resolved in a way that takes into account individual complaints, but on the other hand, these proceedings cannot be extended. We need to ensure that court proceedings run smoothly and that judgments in the same cases are not contradictory – replies Radosław Górski.
In its opinion, the Court gave general guidelines, but did not say how to implement them.
– A Polish judge will consider this. At the moment, the situation of consumers, of all complainants, is such that they still have a long way to go in the long court process. However, after today's judgment, it will certainly be much more difficult to obtain any compensation – noted the legal advisor.
The collapse of Getin Noble Bank
The last Friday of September 2022 turned out to be a black day for shareholders and bondholders of Getin Noble Bank. Securities worth a total of PLN 855 million were canceled as a result of the forced restructuring carried out by the Bank Guarantee Fund.
BFG then explained that without this action, in the event of the bank's bankruptcy, the losses would be even greater. In turn, according to the main shareholder of Getin Noble Bank, Leszek Czarnecki, it was “the implementation of the previously planned operation of taking over the bank for PLN 1.”
There is a third group of people – apart from bondholders and shareholders – who may potentially lose money due to compulsory restructuring. This is the so-called Swiss franc borrowers, i.e. people who have loans related to Swiss franc exchange rate contracted in Getin. Due to compulsory restructuring, they may have problems with enforcing judgments that would be passed in their favor before the courts.
Read more: “We lost everything, the money evaporated”
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