Lawyers are sceptical in their assessment of establishing special courts for holders of loans in Swiss francs. The specialisation of judges may, however, prove useful.
Marek Niechciał, President of the Office of Competition and Consumer Protection, wants to suggest the establishment of special departments in courts dealing with, among others, foreign currency loans to the Minister of Justice. They are to ensure faster resolution of Swiss franc loans cases. There is no doubt that there seems to be no end to such lawsuits. The example of Spain confirms this. There, the problem of foreign currency loans began earlier than in Poland and it takes eight years for the case to be settled in court. According to practitioners, the idea of the President of the Office of Competition and Consumer Protection will not help to prevent such a situation.
The Ministry Is Waiting for the Specifics
‘We have about half a million loans in francs, financial matters take years because of their complexity. If there was a specialised court, special departments in the courts, we would have a better chance for quick settlements’ the President of the Office of Competition and Consumer Protection argues.
Specialist courts are not a novelty in Poland. We have a dozen or so types of courts, usually organisationally separated as departments, and from time to time new ones are established, such as the e-court in Lublin. At the same time, while liquidating a separate commercial procedure – although a return to it is now being considered – the commercial departments have not been liquidated not to waste the judges’ experience.
Specialisation can also be seen in individual divisions, especially civil divisions, where the appointment of a judge to a given case is not formalised as in criminal cases. However, the Ministry of Justice is cautious in commenting on the idea.
‘The specialisation of judges deserves attention, but one has to be careful with separate departments. We assume that President Niechciał will present a concrete proposal, then we will analyse it’ – says Łukasz Piebiak, Deputy Minister of Justice.
Practitioners are not convinced of this idea.
‘The problem with the loans in Swiss Francs is the systemic consent or lack thereof to the denomination to foreign currency of a mortgage taken out by a person earning income in Polish zlotys in order to pay the price for the apartment expressed in Polish zlotys’ says Piotr Zimmerman, legal adviser. ‘An attempt at solving a problem requiring the legislator’s intervention with special departments seems somewhat absurd.’
Andrzej Michałowski, attorney-at-law, does not conceal irony.
‘Why not set up four different departments for franc loans, euro-denominated loans, for policies and one more exclusively for abusive clauses used by banks? Hopes that special courts will solve the problem are an illusion’ he says.
According to Dawid Biernat, attorney-at-law, judges’ specialisation would be a simpler and better upgrade. It would require larger departments to be created, because what kind of specialisation can one speak of if there are one or two civilists in a department.
In turn, according to Dominik Gałkowski, attorney-at-law, foreign currency loan cases do not differ in complexity from many others, what is more: they are quite standard, as loans were offered by several banks, and many legal issues have already been settled by the courts.
Organisation of the Administration of Justice (Themis)
The civil judiciary distinguishes:
Swiss Franc Loan Holders Do Not Need Separate Courts
INTERVIEW| Dominik Gałkowski, attorney-at-law, Kancelaria Kubas Kos Gałkowski
The President of the Office of Competition and Consumer Protection suggests establishing special court divisions handling foreign currency loans. How do you assess this idea?
‘Cases concerning foreign currency loans, and in fact only selected aspects of these loans, are of a strictly civil nature and, contrary to appearances, do not differ in complexity from many other cases that take place in civil or commercial divisions. Equally complicated are, for example, cases concerning currency options or policies, to remain in the sphere of activity of financial institutions. It can even be said that they are simpler cases because the number of banks offering foreign currency loans was limited and the model documentation on the basis of which the loan agreements were concluded is repetitive.’
‘Has this translated into court practice in any way?’
‘The judicial practice to-date has developed a number of guidelines for both parties to these disputes, as to the existing problems of claims that give rise to a chance of success and the lines of defence against other claims. Moreover, already at this point in time, a number of clauses have been effectively challenged in the framework of an abstract control performed by the Competition and Consumer Protection Court.’
‘Perhaps these cases could be examined faster by specialised divisions and judges?’
‘The Foreign Currency Credit Divisions would be a special judicial structure for the resolution of several dozen typical contractual provisions in the scale of the country, which do not in any way stand out from the multitude of other civil cases, including those concerning banking transactions. Special divisions could also constitute a violation of fundamental constitutional principles, as one group of citizens would be specifically treated by the legislator by affording priority treatment to its cases in relation to those of other citizens. The question must arise as to whether other cases are not equally important or even more important, or whether they do not concern even more important matters. Apart from, the difficult time in solving the problems of foreign currency loans from the perspective of the courts is already behind us, in recent years a rich case-law has been established and the new divisions would benefit from the same judicial output.
‘The President of the Office of Competition and Consumer Protection indicates that the military are a smaller group than Swiss franc loan holders and yet they have separate courts.’
‘The reference to the existence of military courts is not convincing, either. In this case, there is a substantial need for this, resulting from special regulations covering the military on the basis of subjective qualification (military part of the Criminal Code). And if we already refer to this type of courts, it seems more rational to postulate the liquidation of this type of courts and entrusting them with the competence of common courts rather than to invoke them, for example, in order to build special types of civil courts.’
Edited by: Marek Domagalski
The text originally published in: Rzeczpospolita, 29 March 2017