The President of the Office of Competition and Consumer Protection has presented a relevant opinion. The opinion pertains to the dispute between Bank BPH and consumers who had taken out mortgage loans indexed to the Swiss Franc.

The President of the Office of Competition and Consumer Protection has once again presented a relevant opinion. The proceedings pending before the District Court in Olsztyn in which the said opinion was given pertain to mortgage loan contracts whereby the mortgage loan was indexed to the Swiss Franc. The consumers demand that Bank BPH reimburse them for overpayments due to changes in interest rates and that the entire contracts be declared invalid. They rely on the alleged invalidity of the provisions included in the contracts in question by Bank BPH.

The first among the provisions which were challenged by the clients of the bank pertains to the calculation and recalculation of the mortgage loan balance, while the second and third pertain to the manner of calculation of the buy/sell rates for the Swiss Franc and the repayment of the loan in this currency. In the view of the Office of Competition and Consumer Protection, the clauses challenged by the claimants are prohibited clauses due to the fact that they lead to a situation where the bank may unilaterally determine the amounts of the charges payable. Bank BPH notifies the clients in its contracts that it shall charge its own margin, yet it does not specify the amount or manner of calculation thereof.

- The provisions of the contracts have conferred disproportionate rights upon the bank, which – even without such rights – enjoys a dominant position vis-à-vis the consumer. The provisions in question made it possible to determine criteria having an impact on the amount of loan payments on a discretionary basis. At the same time, the borrower was unable to verify the basis on which the bank margin was calculated – says Marek Niechciał, President of the Office of Competition and Consumer Protection.

In the view of the President of the Office of Competition and Consumer Protection, where the impugned provisions of the contract concluded with the bank are considered to be abusive by a court of law, this could lead to the entire contract being declared invalid. The reason for this is because the contractual terms which are detrimental to the consumer are considered void ab initio, i.e. from the moment of conclusion of the contract. Furthermore, there is no way in which the provisions of applicable laws could be applied in lieu of the terms and conditions in question. A judgement declaring the invalidity of a contract should only be made where the consumer fully accepts this solution.

The relevant opinion of the President of the Competition Authority pertains to the case no. I C 3846/15 – dispute between the consumer and the BPH bank. The President of the Office of Competition and Consumer Protection may issue a relevant opinion in all cases pertaining to consumer rights protection, not just in cases which concern financial services.

Important: the legal assessment presented by the Competition Authority may not be applied to any other cases, even where such cases are ostensibly similar. In each given case, the President of the Office of Competition and Consumer Protection performs an assessment of the factual and legal circumstances of the case, the applicable case law as well as the application filed by the claimants. The relevant opinions issued so far are available online at the website of the Competition Authority: https://uokik.gov.pl/istotny_poglad_w_sprawie.php.

Relevant opinions in consumer cases – the rules

• A relevant opinion in a given case is a written opinion of the President of the Office of Competition and Consumer Protection in which the Competition Authority presents its arguments and views which are relevant to the given dispute, based on the specific factual and legal circumstances of the case before it. For the above reason, the assessment contained in a relevant opinion may not be applied to any other cases.
• The relevant opinion is only issued with respect to a case pending before a court of law.
• It may only be issued where doing so is considered to be in the public interest.
• A relevant opinion always pertains to a dispute between a consumer and an undertaking.
• The President of the Office of Competition and Consumer Protection may present a relevant opinion at its own initiative, at the request of the consumer or undertaking, or at the request of the court.

Additional information for the media:

Press Office of the Competition Authority
Pl. Powstańców Warszawy 1, 00-950 Warszawa
Phone: 695 902 088
E-mail: biuroprasowe@uokik.gov.pl

Twitter: @UOKiKgovPL