The summoning by the Civil Chamber of the Supreme Court of five institutions to take positions on Swiss Franc cases has surprised many lawyers.
Questions arise: what might such a selection of addressees suggest about the final content of the resolution? After approximately four hours of a closed session, which is nothing unusual, the judges decided to consult the Polish Ombudsman, the Financial Ombudsman, the National Bank of Poland, the Polish Financial Supervision Authority, and even the Ombudsman for Children before issuing a resolution on six questions posed by the first President of the Supreme Court, Małgorzata Manowska, which are crucial in disputes over Swiss Franc loans.
OLD WITH NEW JUDGES
After the session, Aleksander Stępkowski, judge and spokesman for the Supreme Court, said that the entire bench of the Supreme Court’s Civil Chamber had taken the decision in view of the social and economic importance of the issues submitted for its consideration.
Media suggestions that the old judges would not sit at the same table with the new ones (against the backdrop of a dispute over the latter’s status) and that Tuesday’s postponement of the hearing would “cover up” alleged motions to exclude the new judges did not materialise.
There is, however, a legitimate question as to whether such a selection of addressees might suggest the final content of the resolution.
‘It is surprising that before deciding an issue of civil law, the Supreme Court needs an opinion from institutions not appointed to interpret it, such as the NBP or the FSA, or so distant from the issue of loans as the Ombudsman for Children. And it does not address the Office of Competition and Consumer Protection,’ states attorney Marcin Szymański.
He adds that postponing the resolution, which has been delayed several times, deprives it of its practical significance. Apart from this, many questions, such as the possibility of using unfair terms in a contract, have long been answered by the CJEU: this is only permissible with the consumer’s consent.
‘The pro-EU and pro-consumer litigation stance of the Polish Ombudsman and the Financial Ombudsman is commonly known. On the other hand, clients of financial institutions perceive the position of the FSA as too conservative. In turn, the statements of the President of the NBP indicate acceptance of the thesis that banks are entitled to remuneration for the use of capital in the event of the invalidity of the contract, although not to the extent indicated by the banks. The position of the Ombudsman for Children is the biggest puzzle, but he should share the views of the Financial Ombudsman and Polish Ombudsman,’ assesses Mariusz Korpalski, attorney at law.
‘I believe that the position taken primarily by the Polish Financial Supervision Authority (KNF) and the National Bank of Poland (NBP) will allow the Supreme Court to issue a resolution addressing the interests not only of borrowers but of all stakeholders in the Polish banking system. It is worth remembering that the aim of Directive 93/13 is to restore the contractual balance between the parties and not to grant special benefits to consumers. The CJEU drew attention to this issue in its verdict issued on 29 April – assesses Wojciech Wandzel, attorney-at-law, representing banks in Swiss Franc cases.
However, the views of these bodies are not binding on the Supreme Court.
GAINING TIME?
Anna Wolna-Sroka, attorney at law at Czabański law firm, believes that the Supreme Court wanted to gain time. It is probably waiting for the written substantiation of the resolution of the seven judges of the Supreme Court of 7 May 2021. (III CZP 6/21). It addressed the two questions now being dealt with by the full chamber (the question of the statute of limitations on claims and the separate claims of the Swiss Franc credit holder and the bank), and the full bench of the Civil Chamber may amend the resolution of the seven.
Let us recall that in the oral substantiation of the resolution, Judge Roman Trzaskowski emphasised that the written substantiation will be of crucial importance due to the complexity of the legal issues of Swiss Franc loans.
The institutions addressed have 30 days to present their positions, after which the date of the Chamber’s next session will be set.
File ref. no.: III CZP 11/21
38,000 disputes over Swiss Franc credits are currently in the courts
420,000 Swiss Franc credit agreements still bind around 700,000 Swiss Franc credit holders
Edited by: Marek Domagalski
Origionally published in: Rzeczpospolita, 13.05.2021
