The Financial Ombudsman applied to the District Court in Warsaw for a preliminary ruling to the Court of Justice of the European Union to rule on the admissibility of a claim for the use of capital in cases related to Swiss franc loans, the Ombudsman’s office reported.
The Financial Ombudsman’s Office explained that the request for a question had been submitted in a case in which Raiffeisen Bank International AG was suing the Dziubak family for remuneration for using the capital. The Financial Ombudsman joined the case in March 2021.
Reference for a preliminary ruling
“After a detailed analysis of this case, I decided that bringing a request for a preliminary ruling to the Court of Justice of the European Union to the court is advisable from the point of view of protecting the interests of clients in the case at hand,” indicated Financial Ombudsman Mariusz Golecki.
It was added that, in the opinion of the Commissioner for Human Rights, after the court has canceled the loan agreement, due to the impossibility of performing it after removing the prohibited contractual provisions from its content or the court declaring the agreement invalid, the bank’s demand for remuneration for using the capital, as well as interest for delay , is not only contrary to the objectives of Directive 93/13 and the protection granted to the consumer on its basis, but also has no support in the provisions of national law.
“In the opinion of the Financial Ombudsman, the effect of the possible consideration of such a request by the court would create a legal and economic situation in which an entrepreneur using prohibited contractual provisions would not only have no negative effects related to their use, but would gain even greater benefit than from the performance of a contract containing prohibited provisions” – added.
According to Golecki, this would be in direct contradiction to the purpose of Directive 93/13, “completely destroying its protective nature for the consumer and dissuasive effect on the entrepreneur using prohibited contractual provisions in relation to his customer who is a consumer”.
“According to the Financial Ombudsman, the recognition that the bank is entitled to remuneration for capital would undoubtedly lead to obvious harm to the consumer’s financial interests and the bank obtaining benefits that do not find any legal basis, which would place the bank in an extremely privileged position, consisting in obtaining unauthorized profits regardless of the result of a court case brought by the borrower “- it was indicated.
The Dziubak case
In 2008, the Dziubak family took out a loan for housing purposes. The bank’s customers borrowed PLN 400 thousand. PLN, and the value of the loan was indexed to CHF. After several years of paying the installments, the borrowers filed a lawsuit against the bank for the cancellation of the loan agreement and the return of the undue benefit in the form of the sum of their installments.
When joining the case, the Financial Ombudsman informed that the bank, without waiting for a legally valid decision on the issue of nullity by the court, called on the Dziubak family to pay for the use of the capital. Then, he filed a lawsuit with the court for the payment of the nominal amount of the loan with an additional demand for its indexation by the court and the amount constituting, in the opinion of the bank, remuneration for using the capital. In total, the bank demands from the Dziubak family almost twice the amount of financing provided. In the opinion of the bank, in the event of a final court ruling on the invalidity of the contract, the Dziubak family will be unjustifiably enriched, which justifies the filing of a lawsuit.
“I have been saying for a long time that neither Polish nor EU law has a legal basis for such expectations on the part of the bank. In addition, I believe that in this case the size of the claim is to act as a deterrent to other clients from pursuing their claims” – pointed out the Ombudsman.
The case concerned a dispute between Mr and Mrs Dziubakami and a bank over a loan indexed to the Swiss franc. According to Mr and Mrs Dziubak, some of the provisions of the loan agreement they concluded are unfair (prohibited, abusive) and therefore the agreement cannot be upheld. In 2019, the Court of Justice of the European Union stated that EU law does not prevent the annulment of such agreements. After this verdict, the District Court in Warsaw canceled the Dziubaków franc loan agreement.
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