Supreme Court: before the next clash in Swiss Franc cases

7 May 2021

On Friday, 7 May, a seven-member panel of the Supreme Court’s Civil Chamber is to answer questions from the Financial Ombudsman regarding the rules for resolving Swiss Franc disputes.

The scope of the questions which are to be addressed by the entire Civil Chamber of the Supreme Court on 11 May is indeed narrower than those asked by the First Chairwoman of the Supreme Court. Still, this hearing could be an essential prelude to it.

According to lawyers involved in Swiss Franc cases, the most crucial question is that of the Financial Ombudsman as to whether the contract is invalid from the outset or whether it only falls through once the judgment declaring it invalid has become final.

“This question is vital in view of the controversy over the beginning of the period of limitation of claims of both the consumer and the bank when the agreement is invalid,” points out Mariusz Korpalski. “On the margin of the resolution no. III CZP 11/20, the Supreme Court indicated that the moment of receiving a complaint from a consumer is decisive for the beginning of the bank’s claims period of limitation. If the Supreme Court held that the agreement falls through only when the judgment is issued, the moment of the complaint would probably be irrelevant. As far as the consumer’s entitlements are concerned, the Court of Justice of the EU has recently indicated three times that the moment from which the consumer had a real opportunity to contest the agreement and was therefore aware of their claims is decisive, although this moment was not specified. And this can now happen.

“The Supreme Court’s answer may not only be important for resolving doubts as to whether the so-called balance or two-condictiones theory should be applied (the Supreme Court already ruled on this issue in its resolution of 16 February 2021, III CZP 11/20, in favour of the two-condictiones theory) but may also have a significant bearing on the problem of when to calculate the start of the limitation period for the parties’ claims,” points out Wojciech Wandzel, partner at the Kubas Kos Gałkowski law firm.

Marcin Szymański, attorney at law, points out that in a recent judgment of 29 April 2021 (C19/20 Bank BPH), the CJEU stated that Directive 93/13 on unfair terms in consumer contracts requires national courts to declare ex officio that unfair terms in contracts concluded with consumers are not binding on the consumer (are ineffective) by virtue of the law.

It is thus national law that determines the further consequences of the invalidity of such provisions. Therefore, it is a matter of national law whether a finding that a term in a contract is abusive renders the contract legally void from the time of conclusion (ab initio) or whether it is subject to constitutive nullity with retroactive effect (ex tunc).

Although it may be very relevant, the significance of a resolution of the seven judges is not as meaningful as a resolution of the entire Chamber if such a resolution is nevertheless adopted.


File ref. no.: III CZP 6/21


Edited by: Marek Domagalski

Text originally published in: Rzeczpospolita, 7 May 2021