On 3 October 2019, the ECJ issued a judgment on the question referred for a preliminary ruling by the Regional Court in Warsaw in the case brought by K. and J. Dziubak against Raiffeisen Bank International AG Poland Branch (formerly Raiffeisen Bank Polska S.A.) concerning prohibited contractual clauses (abusive clauses) in a credit agreement linked to Swiss franc (ref. C-260/18).
Among other things, the Court found that Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts does not allow a court which finds that a Swiss franc-linked credit agreement contains unfair terms to replace them in accordance with the general rules of civil law on obligations which refer to principles of equity or established customs. Such unfair terms may be considered to be terms relating to exchange rates in credit agreements which depend only on the will of the bank.
The Court also decided that a contract which has been stripped of the unfair terms it contained may be maintained in force insofar as this is compatible with national law. However, if a Polish court decides that it is not possible to maintain a contract under the law of our state, there are no obstacles to its invalidation.
What is crucial for the Polish court is that the most important indication for the ruling is the consumer’s interest in a specific case and the consequences of the judgment for the consumer, assessed in the light of circumstances existing or foreseeable at the time of the dispute with the bank, and not the conclusion of the disputed agreement.
It should be emphasised that the above views expressed by the Court are consistent with the position presented by the Law Firm so far in the cases of our Clients in disputes with banks that granted loans indexed to the Swiss franc (CHF) exchange rate. The ruling in question constitutes an additional argument, which cannot be overestimated, both in court disputes for all persons who concluded credit agreements containing prohibited clauses and in cases pending at the stage of pre-litigation negotiations. It will certainly be used in the interest of customers who have concluded credit agreements indexed to the Swiss franc (CHF) exchange rate. It is all the more valuable because litigation is the only way to stop the growing spiral of Swiss franc-linked debt towards the intransigent attitude of banks and the lack of appropriate statutory regulations, despite numerous assurances from politicians.
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