Subject substance of the action
The applicant lodged an appeal with the ultimate Court against the judgement of the Court of Appeal in Gdańsk on 14.12.2023. The bank raised a number of allegations in the complaint, including:
- incorrect application of Article 3531 KC and Article 69(1) and (2) of Law 29.8.1997. – Bank law (i.e. OJ of 2026 item 38; hereinafter: PrBank) in conjunction with Art. 58 KC and the acceptance that the credit agreement, before the possible elimination of its provisions considered to be abusive, is contrary to mandatory law;
- the misstatement that the abroad exchange agreement of the investor's residential debt is invalid;
- the determination that the contract is simply a denominated credit agreement, erstwhile the content, intent and consistent intent of the parties to the contract indicate that it was a abroad currency debt which was to be paid and repaid in abroad currency (CHF) and the agreement did not contain a denomination mechanism, and only by decision of the borrower the debt was paid and was repaid in Polish zlotys, although it could be paid in CHF.
In addition, the complainant pointed out in the content of the complaint that there was an crucial legal issue in the case, which led to divergent legal assessments in the case-law, inter alia, that, in a situation where an additional mechanics for the execution of contract-related operations is of an additional nature to the optional currency exchange service agreement, based on the exchange rate tables of the bank, an optional nature could be established, in general, for individual checks to be carried out in the light of the impunity of those provisions by applying the government of the legal standards contained in Article 385.1 Paragraphs 1 and 2 of the KC, Article 3852 KC, in conjunction with Article 6(1) of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L 95, 29). The applicant besides considered crucial legal issues in consequence to the question of the nature of the judgement of the Court of First Instance as regards the effects of the abrogation of the credit agreement in question (constitutional or declaratory) in relation to monetary claims for reimbursement of undue benefits and, consequently, erstwhile an work arises to settle the parties as a consequence of the annulment of the existing credit agreement of both the bank and the borrower, erstwhile they become due and whether the liability of undue benefits may arise before the Court of First Instance has declared that there is no legal relation resulting from the credit agreement.
Position of the ultimate Court
In this ruling, the ultimate Court pointed out that the issues relating to the absolution of contracts and their consequences had already been the subject of its consideration on respective occasions. He besides pointed out that the contractual provisions laying down the rules for the conversion of the amount of credit granted to gold in the payment of the debt and the instalments paid into abroad currency give the bank the anticipation to freely form the abroad currency rate and as specified constitute an abusive clause. Abusiveness in turn may lead to the agreement being declared invalid. The consumer can then grant informed and free consent to this provision and thus reconstruct its effectiveness retroactively.
The NS besides stated in the judgement under consideration that it is unacceptable to replace the eliminated provisions of the abusive agreement by another mechanisms for calculating the amount of capital-interest instalments. On the another hand, if it is not possible to establish a binding abroad currency exchange rate in an indexed or denominated credit agreement, the contract besides does not bind to the rest. However, the consumer may make a message that he is not willing to confirm the prohibited provision. As of this moment, the limitation period for the trader's claim for reimbursement of benefits provided under a non-binding credit agreement begins. In addition, this message determines the liability of the consumer’s claims for reimbursement of benefits which he himself has fulfilled and thus the anticipation to claim interest for delay. The message does not require any peculiar form of action for its effectiveness, and may be expressed by any conduct of that individual who reveals his will sufficiently.
Comment
It is appropriate to agree with the position of the ultimate Court, as the allegations raised by the applicant have already been the subject of consideration of both the Court of Justice of the European Union and the ultimate Court. On issues relating to the abuzzness of the provisions of the agreements in question, the judicatura presents an established and uniform position. The ultimate Court rightly stressed that the current case law predominates the view that the provisions of a gold debt agreement indexed to a abroad currency specify the borrower's main benefit. specified provisions shall be considered to be those elements of the contract which designate the essential benefits of the parties and those which give the contract its character, in peculiar by charging the consumer with the hazard of a change in the exchange rate and thus the hazard of an increase in credit costs.
The index clauses find the amount of the benefit, specify the nature of the contract and transfer the hazard to the consumer. Therefore, they cannot be given a side-by-side character as they actually affect the provision of the main borrower.
![The anatomy of paralysis. 5 axes of the crisis that is destroying the Constitutional Tribunal [ANALYSIS]](https://i.gremicdn.pl/image/free/45ffccb785a34e9a5415ab20fc717cb4/?t=crop:4464:1951:nowe:0:512,resize:fill:600:300,enlarge:1)
