Judgement of the Court of Appeals in Łódź 1st Civil Division of 9th March 2020
I ACa 80/19

1. The assumption that the mere fact that a judge incurred an obligation resulting from the credit agreement of various nature, e.g. in PLN, by definition means that they are not impartial and are obligated to recuse themselves from examining any pending case between the borrowers and the bank, leads to consequences that are contrary to the public interest and detrimental for the justice system.
2. The concept of the defendant’s liability under Article 2.3 of Act on Pursuing Claims in Group Proceedings has a specific autonomous meaning, other than in Article 318 of the Polish Code of Civil Procedure, as well as in Article 189 of CCP, which is determined by the purpose and functions of the group proceedings as specific proceedings that should ease and improve the resolving of conflicts.
3. The obligation to repay the amount of a used credit in specified repayment terms is the borrowers’ main performance. A valorization clause affects the amount of such performance. Stipulating such a clause in a contract cannot be deemed to be an action falling within the freedom of contract under Article 353(1) of Polish Civil Code, but gross exceeding the limits of that freedom.
4. The moment relevant to decide whether a particular person is a consumer is the moment of performance of the legal act.
5. The valorization or indexation clause is a main contractual provision. Unlike the currency spread clause, that clause is the essentialia negoti of the examined contracts.
6. A gross violation of the consumer’s interests should be understood as an unjustified disproportion, to the consumer’s disadvantage, between their rights and obligations in a specific contractual relationship. Acting contrary to good practices (in the scope of shaping the content of the contractual relationship) means that the second party (consumer’s contractual partner) creates such contractual clauses which harm the contractual balance between the parties to the relationship.

The Court of Appeals in Łódź 1^st Civil Division with the following ruling bench:

Presiding Judge:            Małgorzata Dzięciołowska, Court of Appeals Judge (rapporteur)

Judges:                            Dorota Ochalska-Gola, Court of Appeals Judge

 Jarosław Pawlak, Regional Court Judge (delegated)

having examined on 27^th February 2020 in Łódź at the hearing the group action filed by the Municipal Consumer Ombudsman in W. against (…) Spółka Akcyjna with its registered office in W., for the establishment of the defendant’s liability,

following the plaintiff’s appeal against the judgement of the Regional Court in Łódź of 19^th October 2018, file ref. no. I C 519/16,

decides to

1. set aside the contested judgement in points 1., 2. and 4. of the operative part of the judgement and refer the case back to the Regional Court in Łódź for reconsideration in that extent, entrusting this Court to decide on the costs of the appeal proceedings;
2. dismiss the appeal in the remaining part.