Since erstwhile do you number interest – from the first call or from instruction? Lawyers' opinions depend about on whether they represent franchis or banks. In the first part of the operative part of the judgement of 15.6.2023, C-520/21, the CEU did not make clear to the Court that, after the cancellation of the contract, the bank besides had to repay interest on the unreimbursed instalments ‘from call for payment’.
Effective Call
The dispute over this phrase has a longer history. Until the announcement of the Resolution of the ultimate Court of 7.5.2021, III CZP 6/21, courts mostly ruled interest on the amounts requested by consumers from the date of the pre-judicial call for the bank to pay, as is usually the case in another cases. Following this resolution (related to the name of the Judge-Rapporteur Roman Trzaskowski), the courts began to charge interest on the consumer's declaration that he consented to the nullity of the contract, which is most frequently made after the court had instructed him of the consequences of the invalid contract, frequently at the last trial, after a year or even 2 of the application. It is easy to calculate that these interest amounts from PLN 30 to 100 thousand.
Two positions
– The judgement of the TEU of 15.6.2023 clearly indicates that interest should be counted not from the date on which the application was lodged or the date on which the consumer made a written declaration that he wanted the credit agreement to be void and understood the consequences of that annulment, but from the date on which he called for the payment of his claims before the trial. It is simply a separate question of what content the call for payment must have in order to enable interest to be charged from the date indicated therein.
In my opinion, it is adequate for the consumer to trust on the fact that due to the existence of unfair provisions in the contract he expects the credit agreement to be cancelled – says Radosław Górski, the typical of Francowicz in this noisy case.
– It is not actual that the TEU has settled the issue of interest due in its final judgment. He did not resolve this at all, due to the fact that this case belongs to national law – prof. Maciej Gutowski, the lawyer, prof. UAM, is judging.
– These interest rates are due from the date of the call for payment, but only after the consumer credit agreement learned about the consequences has been unsuccessful. surely not from an earlier date, e.g. filing a lawsuit, or even before: filing a subpoena before filing it. These are the consequences of optional ineffectiveness under Directive 93/13/EEC and the long-term case law of the TEU, the NS and the general courts. As long as the contract is not foregone, these benefits (condictive) cannot be obtained," he adds.
– In my opinion, the TEU does not respond to the fact that the bank is obliged to repay the payments to the consumer as a consequence of the payment of interest and, therefore, which call for payment can be effective - as assessed by justice Henryk Walczewski of the Frank Court.
Extending the process
"The banks will surely defend their position, the more beneficial it is for them and encourage them to extend the process without fear of paying additional interest. It is up to the Polish courts to implement the judgement of the CJEU and it is very possible that the CJEU will gotta further bend over this issue – says lawyer Marcin Szymanski representing the Frankowiczs.
Such a question is already in the TEU, asked by the same Franks justice Michael Maj as in the case (C-520/21) and advocated the application of the first interest call.
Alicja Lubinska, Legal advisor, law firm ATL Anna Błaszak
The determination of interest to the consumer from the date of the subsequent declaration that he agrees to the annulment of the contract deprives him of the right to crucial amounts for late payment. This is not justified, first of all, due to the fact that neither the rules nor the case law of the TEU supply an work to make specified a declaration. This puts the consumer in a worse position than the bank. If the bank had applied for repayment of the amounts for an invalid contract, the interest would have been due to it from an earlier date resulting from a pre-trial call for payment.
