The draft concerning Swiss franc cases. The Commissioner for Human Rights has doubts

Ombudsman Marcin Wiącek has expressed concerns regarding the initiative to handle Swiss franc cases in the courts. He raised questions about whether the proposed modifications might not infringe upon the rights and freedoms of consumers who have entered into credit agreements.

„The Ombudsman has presented the Ministry of Justice with a rationale for the introduction of the suggested legal measures due to constitutional uncertainties highlighted in the opinion. However, if his viewpoint is not supported, he urged that utmost care be taken when formulating these regulations to guarantee a high standard of consumer rights protection for those who have entered into credit agreements denominated or indexed to the Swiss franc,” reported the Office of the Ombudsman on Monday regarding Wiącek’s submitted opinion.

Project on Swiss franc cases: Insights from the Human Rights Commissioner

The proposed legislation regarding specific measures for the adjudication of cases involving Swiss franc loans was presented for consultation and review at the beginning of February this year. As stated in the justification for the proposal, it is „a response to the current situation where – due to a significant influx of cases related to credit agreements denominated or indexed to Swiss francs entered into by consumers – the waiting times for cases to be addressed by district courts and appellate courts have notably increased.”

„The objective of the initiative is to provide courts with tools that will assist in alleviating the congestion caused by the rapid influx of Swiss franc loan cases,” the Ministry of Justice underscored in this context.

Nevertheless, as assessed by Wiącek in the submitted opinion, ” the proposed measures have sparked debate regarding whether their implementation might compromise the rights and freedoms of consumers who have entered into loan agreements .”

The Human Rights Commissioner noted that the legislation would apply exclusively to claims related to credit agreements made with consumers that are denominated or indexed to the Swiss franc. This would imply that loans tied to other currencies and other types of loan agreements would not fall under the legislation’s purview.

” Creating distinctions among borrowers based on whether their loan agreement is associated with the Swiss franc exchange rate or the rates of other currencies, as well as excluding agreements tied to the CHF rate from the Act’s scope, appears to be unwarranted and raises questions regarding the Act’s alignment with the constitutional principle of equality . These agreements are founded on the same flawed models, contain identical indexation or denomination mechanisms, with the sole difference being the currency,” assessed the Ombudsman.

„Sometimes even two years or longer”

The draft also proposed that the borrower’s obligation to repay installments be suspended automatically from the moment the lawsuit is served to the bank – until the proceedings reach a final conclusion.

” In practice, the service of a lawsuit often occurs several or even many months after it has been filed . In the courts of Warsaw, it is common to wait a year, and sometimes even two years or more, for the lawsuit to be served. Consumers will have to endure this waiting period before the lawsuit is served on the bank, and they will simultaneously be unable to utilize any other means to halt the payment of loan installments,” Wiącek remarked, referencing this proposal.

Further provisions of the bill address the expanded ability for courts to handle Swiss franc loan cases in closed sessions, the option to hear witnesses remotely, and the possibility of questioning parties through written testimony. „A judgment from the court of first instance that grants a monetary benefit to the consumer becomes enforceable upon its announcement, and if rendered in a closed session – upon delivery to the defendant,” states another of the proposed provisions.

According to the Ombudsman, issuing judgments in closed sessions, without hearing the involved parties, „raises issues concerning its adherence to the principle of open proceedings.” ” The enforceability of judgments will not enhance the situation for the consumer , who should safeguard the funds awarded under a non-final judgment in case of an unfavorable final decision to mitigate the associated risks,” Wiącek also noted.

The bill further stipulates fiscal incentives for parties who choose to withdraw, such as an appeal in these cases within six months of the act coming into effect. In this scenario, the party would be eligible for a refund of half of the fee. A re-evaluation (known as a pre-trial) of cassation appeals in Swiss franc cases accepted by the Supreme Court before the unification of case law concerning these loans is also set to be introduced.

The Ombudsman’s Concerns

The Human Rights Commissioner also conveyed his reservations regarding these matters. He believes that the proposed fiscal benefits would result in „significant savings for banks, as, in the case of entrepreneurs, court fees can reach up to 5% of the value of the disputed subject or the appeal.” ” This raises concerns about whether this regulation contradicts the principle of social justice ,” he added.

The Ombudsman also pointed out that „over the past decade, a consistent line of case law has developed, but this does not imply that in every instance the consumer has received a ruling aligned with a pro-consumer interpretation.” „In this context, conducting another pre-trial when the cassation appeal has been accepted for consideration may result in depriving the consumer of a fair ruling , as only the Supreme Court could rectify or amend the errors in the judgments of common courts,” the Ombudsman opines.

Aneta Wiewiórowska-Domagalska, the representative of the head of the Ministry of Justice, who addressed these issues in Monday’s „Rzeczpospolita,” stated that over 200 responses had been received from various entities during the consultations on this project, and they are currently under evaluation. She emphasized that the law being prepared is not intended exclusively for Swiss franc borrowers or banks. – This legislation is for society as a whole. This is our foundational principle. The law must offer legal remedies that are effective, proportionate, and deterrent – this is a standard that stems from EU law, including the case law of the CJEU – she emphasized.

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