Constitutional work to defend the consumer in the registrar proceedings

Description of facts

The territory Court ordered the suspect by order of payment in the registrar proceedings The President. to pay the plaintiff – the company D. PLN 500 with contractual interest of 9% per day since 14.11.2005 and PLN 15 for the costs of the trial within 2 weeks of the transportation of the order or lodged an objection within that period.

The lawyer General has lodged an emergency complaint against a valid order for payment, challenging him in full. He alleged to the Court of First Instance that the provisions of the debt agreement, which were in the interest of a loan, were not valid, were in breach of the rule of contractual freedom and were contrary to the principles of social coexistence. It was besides crucial not to take account of the consumer nature of the case and not to examine by the Court of First Instance the ex officio possibly unfair nature of the contract resulting from the obligation, where the interest on the debt was set at a level prohibited by law.

SN position

The ultimate Court annulled the contested order for payment in its entirety and referred the case to the territory Court for review.

In the opinion of the SN, there is simply a legitimate allegation of infringement of Article 76 of the Constitution of the Republic of Poland – a provision laying down basic constitutional guarantees regarding consumer protection in relations with the entrepreneur. The work to guarantee adequate consumer protection is simply a constitutional value. Universal courts should take this value into account in the application and explanation of the law. Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L 95, p. 29) on unfair terms in consumer contracts is of peculiar importance for consumer protection. It imposes on associate States obligation to guarantee effective measures to prevent unfair terms in consumer contracts.

The word ‘consumer’ utilized in Article 76 of the Constitution of the Republic of Poland is autonomous and may not be limited to denotations designated by Article 22¹ KC. As stressed by the Constitutional Court in 1 of its judgments, the standard of Article 76 of the Constitution of the Republic of Poland provides protection for "all entities, in peculiar individuals" with a weaker position towards a professional entity. By contrast, in accordance with Article 22¹ KC is considered to be a consumer by a natural individual carrying out a legal activity not straight related to his business or profession. Similarly, Article 2(b) of Directive 93/13/EEC provides that ‘consumer’ means any natural individual who, in agreements covered by the Directive, acts for purposes not related to trade, business or profession. In both cases, It follows from the content of the application and from the debt agreement attached to it that it has not been concluded in connection with the conduct of an economical or professional activity by a natural person, and therefore, in the opinion of the ultimate Court, there is no uncertainty that the suspect is entitled to the position of a consumer in constitutional terms.

According to the ultimate Court, in the case of an order for payment issued in the registrar proceedings, where the suspect is simply a consumer, the action of the court should not be limited to the assessment of the claim in respect of its factual basis (in the absence of uncertainty as to the circumstances cited by the plaintiff), or to the apparent unwarranted. Therefore, the above should be considered inappropriate modus operandi, which is that the court only after objecting to the order for payment has re-examined the case by examining the defendant’s mandatory allegations against the application. specified action is contrary to the constitutional rule of consumer protection and EU guarantees.

Equalisation of the position of the parties to the consumer contract

It should besides be recalled that the ultimate Court considered that the procedural rules limiting the consumer’s ability to benefit from the protection under Community law, allowing the examination of the consumer’s content of the basic relation only in the event of an objection, would not accomplish the nonsubjective of consumer law, which is to make the consumer’s position more realistic. For this reason, it should be assumed that, besides in the reproving procedure (in the present case, the debt agreement), in order to guarantee appropriate protection to the consumer, the court is obliged to examine whether the provisions agreed between the parties are of an unfair nature. In view of the above, the ultimate Court considers that the way in which the territory Court acted did not guarantee that the nonsubjective of protecting consumers in a weaker position than the entrepreneur was achieved. The SR violated the rule of consumer protection by omitting the fact that the suspect is present in the case as a consumer, but besides by failing to supply the suspect with adequate protection.

In the context of an infringement of Article 353¹ The ultimate Court held that the plea in law cannot be broken down. In the absence of opposition by the defendant, the court did not examine the debt agreement in the context of its validity. Consequently, Article 58 KC could not be applied. This fact causes the ultimate Court to be incapable to measure the accuracy of the indicated infringement and thus cannot find whether it is of a gross nature. This claim is combined with the belief that the possible application of Article 58 KC is subject to the assessment of the lawfulness of contractual clauses affecting the form of the claimant’s claim which belongs to the court meriti.

The alleged infringement of Article 499(1) of the KPC in the above-mentioned Article 498(2) of the KPC in the assessment of the SN proved justified. Article 499(1) of the KPC, as it stood on the date of the judgement under appeal, provided that a payment order could not be issued if, according to the application, the claim was manifestly unfounded. It should be recalled at this point that, according to the established case-law line, manifestly there is no right to request a circumstantial benefit from the suspect on the basis of the facts cited, and that the action is in uncertainty contrary to the only possible explanation of material law and cannot so be taken into account.

In the present case, there was no basis for the territory Court to consider that the claim sought by the claimant was suitable for the result of the review proceedings — there was an obstacle to the manifest unwarranted claim. The content of the suit shows that the reason was a contractual interest of 9% per day, erstwhile the amount of the debt was PLN 500. The reservation of a contractual interest of this amount provides that it amounted to 3285% per year. In view of the above, it must be concluded that they were against the law and that the order for payment in the review procedure could not be issued.

In view of the circumstantial nature of the emergency check, it should be stressed that the intent of the final phase of the review is to show that the nature and degree of the irregularities committed in the issuing of the contested judgement justifies the withdrawal from protection of the seriousness of the substance judged by amending or repealing the contested order. The rule of the stableness of final judgments, on the 1 hand, and the rule of the trust of the citizen in the State, on the another hand, is simply a substance of importance. The ultimate Court must so make a choice which, in the light of the established circumstances, deserves priority. The ultimate Court's assessment is clear in this respect. There has been, of course, an unfair order for payment and thus a clear violation of the rule of the citizen's trust in the State and the legal safety of the individual.

Comment