A significant view on the case – the Financial Ombudsman and the President of Office of Competition and Consumer Protection standing on the side of the debtors

Recently both the President of Office of Competition and Consumer Protection (“UOKiK) as well as the Financial Ombudsman became interested in Swiss Franc loans.

Financial Ombudsman’s position

The Financial Ombudsman has been actively involved in protecting debtors’ rights that have concluded credit agreements in Polish Zloty valorised/indexed in Swiss Francs since publishing a report in June 2016 titled: “A legal analysis of the chosen provisions of the agreement applied by the banks in the indexed credit agreements to a foreign currency or denominated in the foreign currency concluded with the consumers”.

One of the forms of support provided by the Financial Ombudsman, besides taking official stands, is submitting the so-called substantial view on cases pending before the courts of general jurisdiction.

The legal basis for such actions taken by the Financial Ombudsman is art. 28 of the Act of September 5, 2015 concerning the complaints handling procedure by financial service providers and Financial Ombudsman in relation to art.63 of the Code of Civil Procedure.

A motion to the Financial Ombudsman for presenting a significant view on the case may be requested by a party to the proceedings by presenting basic information regarding the dispute and submitting documents such as statement of claim, reply to a statement of claim and other documents that may be required for case analysis such as text of the agreement.

The subject of analysis by the Financial Ombudsman is the question of admissibility of valorisation clauses in the credit agreements in the light of Polish law. The Ombudsman takes a stand that agreements regarding credits valorised with the indexed Swiss Franc exchange rate include number of provisions that are prohibited clauses and should be eliminated from turnover but also takes a step further, stating that valorisation clauses are against the law and void on the grounds of art.58 § 1 of the Civil Code.

Stand taken by the President of the Office of Competition and Consumer Protection

The President of UOKiK has also decided to support “Swiss Franc loaners” under the ongoing proceedings by means of right granted to him on 17 April 2016.

According to art. 31d of the Protection of Competition and Consumers Act of 16 February 2016 the President of the Office may present to the court the significant view on the cases regarding competition and consumer protection.

The President of UOKiK has presented so far three significant views on the cases regarding prohibited contractual provisions specifying prerequisites concerning change of interest rates in the mortgage agreements that are valorised by the CHF exchange rate.

Text of the contentious provision:

“The change of the interest rate of the credit may occur in the case of change of reference rate determined for a given currency and change of financial parameters of the monetary and capital market in the country (or countries affiliated in the European Union) of which the currency is a basis for valorisation.”

In the President’s of UOKiK view, the questioned provision does not bind the consumers ex lege and ex tunc because it is abusive. UOKiK stated also that for the clause to be considered as prohibited it does not matter whether consumers have suffered damage. The manner in which the provision is carried out is not important since abusive clauses should not be binding on the consumers from the very beginning. In UOKiK’s opinion no other provision may replace it.

At the same time, the elimination of that provision from the agreement deprives that agreement of its significant contractual provision (that would make it possible to determine the compensation) constituted by the art. 69 of the Bank Law. As a consequence the President of UOKiK calls for consideration whether there are any prerequisites to consider credit agreements as invalid on the basis of art. 58 of the Civil Code.

Taking into account that proceedings in which significant views on the case have been presented are still ongoing, it will soon turn out, whether the courts value the opinion of authorities appointed to defend consumer rights.