Statement by Frankovich on the deduction of the claim and its consequences

Facts

2006 ML (consumer) concluded with mBank S.A. credit agreement indexed to CHF. In 2017, the Council adopted Decision (CFSP) 2017/849. ML directed to mBank the request for a settlement example and requested reimbursement of the amounts which it considered to have paid unduly due to unfair terms contained in that agreement. In December 2021. mBank filed with the territory Court in Warsaw (referring court) a suit in which he demands judgement from ML repayment of the debt capital, plus statutory interest for delay. In consequence ML she applied for dismissal of the action and raised a plea of limitation of the claim. Regardless, she made a message about the hit-and-run.

The referring court considered that the agreement in question contained unfair terms and could not proceed to apply without them. Therefore, that agreement should be declared invalid and the parties are obliged to repay each another the benefits they have fulfilled on its basis. Furthermore, the court found that, in accordance with Article 118 KC, a three-year limitation period applicable to the claim mBank expired on 31.12.2020. Consequently, on the date of the action, or 16.12.2021, the claim mBank it was a statute of limitations and the court is obliged to dismiss the action. However, according to Polish case law, the lodging of a message of deduction in accordance with Article 499 KC includes in itself a waiver of a limitation charge within the meaning of Article 117(2) KC. According to the referring court, specified a position leads to the conclusion that the lodging of a message of deduction, even within the framework of the defence, is equivalent to a waiver of the limitation charge. Consequently, the referring court had doubts as to the compatibility of specified Polish case law with Article 7(1) of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L L 95, 29).

TS Position

In the present case, the Court held that the anticipation of making usage of a limitation charge from refraining from making any message of deduction is in fact to limitation of the anticipation for the consumer to exercise the procedural power provided for in Polish legislation, namely the right to prosecute a common claim resulting from the designation of the credit agreement in question as invalid. specified a regulation may, as part of an action brought by an entrepreneur against the consumer, constitute an obstacle that may prevent the consumer from exercising his procedural rights effectively or discourage him from doing so in breach of TS case law.

Moreover, the TS considered that the Polish jurisprudence could besides undermine the discouraging effect, which Article 6(1), in conjunction with Article 7(1) of Directive 93/13/EEC, is intended to give emergence to unfair conditions if it is recognised that contracts concluded between consumers and traders ( TS of 14.12.2023), Getin Noble Bank, C-28/22, Legalis, paragraph 74). According to the TS, the Polish jurisprudence appears to have led to the fact that an entrepreneur may recover a expired claim on the grounds that the consumer, who claims the limitation, has benefited from a procedural measurement granted to him by national law, namely the lodging of a message of deduction. That case law may so be deprive the mechanics introduced by Directive 93/13/EEC of effectiveness to prevent unfair terms from being applied in contractual relations between traders and consumers as it results neutralise the legal effects of the cancellation of the contract and allows the entrepreneur to benefit from his own unlawful conductwhich is the basis for this annulment.

The Court found that it cannot be presumed that a limitation plea cannot be waived solely on the basis of national caselawthat a procedural action, specified as a message of deduction, constitutes an implied intention to waive that plea, without checking whether the consumer has expressed his will freely and consciously. According to the TS, the same explanation applies all the more in a situation specified as that in the main proceedings in which the consumer, in the context of a parallel another procedural action, clearly expressed his opposition to the limitation.

The Polish Government stressed that Article 7(1) of Directive 93/13/EEC and the rule of effectiveness require that the consumer be able to effectively exercise the rights conferred on him by that Directive, but that the exercise of a peculiar procedural right cannot be automatically identified as an implied waiver of another. The Court held that the national jurisprudence which derives the implicit waiver of the limitation charge from simply making a message of deduction without checking the consumer’s will, infringes that requirement. This assessment does not undermine the fact that ML was represented by a lawyer who, on account of his role, should know the Polish jurisprudence in question, since this does not in rule affect the protection afforded to consumers by Directive 93/13/EEC ( TS judgement of 11.3.2020, Lintner, C-511/17, Legalis, paragraph 40).

The Court stressed that the rule of explanation of national law in accordance with Union law requires national courts to do everything within their competence, taking into account all the provisions of national law and utilizing the national explanation method recognised in order to guarantee the full effectiveness of the directive in question and to address its objectives. The request to make specified an explanation compatible includes in peculiar obligation to changewhere appropriate, by national courts of settled caselaw where it is based on an explanation of national law which cannot be reconciled with the objectives of the Directive. According to the TS, the national court cannot so validly conclude that it cannot interpret a provision of national law in accordance with Union law simply due to the fact that it has been consistently interpreted that provision in a way contrary to Union law.

In the present case, the TS indicated that the referring court must be satisfiedthat the provisions of national law cannot be interpreted in specified a way as to prevent the consumer from making an effective mention to a limitation charge relating to a claim against which the bank relies, or dissuades him from making specified an accusation on the grounds that the consumer made a message of deduction. It is so up to that court if essential withdrawal from the Polish jurisprudence at issue, if it does not appear to comply with Article 7(1) of Directive 93/13/EEC.

The Court held that Article 7(1) of Directive 93/13/EEC, in view of the rule of effectiveness, must be interpreted as precluding national jurisprudence, in the context of the uncovering that a mortgage credit agreement concluded between a consumer and a bank is invalid in its entirety, since that agreement contains a unfair condition without which that contract cannot proceed to apply, that it precludes national jurisprudence, according to which the submission by that consumer of a message of deduction of his claim against the bank’s claim entails an implicit renunciation of a limitation on a claim against that bank.

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