Legally valid ruling on unlawful nature of credit indexation according to CHF exchange rate

The proceedings before the Appeals Court in Szczecin that ended in the aforesaid ruling were instituted as a result of a bank’s appeal against the ruling of the Regional Court in Szczecin of 7th November 2014. We have already written in UCLP about the decision of the Court of first instance partially recognizing the action with respect to the bank enforcement order being void of a writ of execution.

For many “francists” the ruling is a proof that their claims against banks resulting from unlawful contractual provisions used by the banks in credits indexed according to the exchange rate of Swiss franc are fully legitimate.

First of all, the plaintiff questioned lawfulness of the provision concerning indexation of the credit granted in Polish zlotys to Swiss francs according to the purchase rate of that currency determined on the basis of its exchange rate shown in the bank’s exchange rate table of the day and hour the credit is granted as well as the provision saying that the credit instalment shall be paid in Polish zlotys after such instalment (expressed in CHF) is converted in accordance with the selling rate of Swiss franc shown in the bank’s exchange rate table valid on the day of credit repayment at 14:50 hrs.

For those who have franc credits, the stand of the Appeals Court is particularly important that some of the provisions of the agreement concluded by the plaintiff with the bank (in particular the provisions referred to above) met the conditions specified in Art. 3851 of the Civil Code because these did not concern the main obligations of the parties to the agreement, were not individually agreed and shaped the rights and obligations of a consumer in the manner contrary to decency, grossly infringing such consumer’s interests.

In the opinion of the Court, it does not raise any doubts and does not require any particular proof that the indexation clause is not one of the provisions specifying the main obligations of the parties, and only is a provision which is indirectly related to those by influencing the amount of the principal obligation.

In the opinion of the Appeals Court, the choice of the amount of credit granted in Polish zlotys and the type of credit is an element of individual arrangements. However, it is not necessarily so in case of other provisions of a credit agreement specifying obligations of the parties because the practice prevailing in the market shows that a decision about the choice of a final product means acceptance of conditions on which it is provided. Acceptance or refusal of these is not decisive in concluding the agreement. What is more, the Court found that the sole confirmation of a consumer that he/she has acquainted himself/herself with a given provision does not automatically mean that it has been individually agreed.

The Appeals Court rightly found that since the provisions concerning the conversion mechanism of credit instalments according to the bank’s exchange rate tables had been questioned by the plaintiff, the bank would have been obligated to prove that the subject of individual arrangements had also been the mechanism of creating those tables, which for obvious reasons had not been the case.

For “francists”, it is particularly important that the Appeals Court found that, considering the facts of the case, the judgment made by the Regional Court in Szczecin as to unlawful nature of the provisions of credit agreement had been accurate.

The Regional Court had grounds for finding that the abusive clause found as unlawful under the ruling of the Court of Competition and Consumer Protection of 27.12.2010, file reference number XVIII AmC 1531/09, referred to the same entrepreneur and consequently, having made its own judgment, rightly found that it was abusive also in case of the agreement questioned by the plaintiff.

  • Ruling of the Appeals Court in Szczecin of 14th May 2015, file reference number ACa 16/15

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