Description of facts
The national proceedings afraid a mortgage credit agreement denominated in Polish zlotys and indexed to a Swiss franc which TL and EC They made a deal with the Bank. In accordance with the provisions of this agreement, the amount of credit utilized in PLN was converted to the amount expressed in Swiss francs. For conversion, the bank utilized the buy-in rate of the second currency as set out in the bank exchange rate table. TL and EC they were obliged to pay the instalments in Polish zlotys, in the amount equivalent to the instalment expressed in Swiss francs. The plaintiffs brought an action claiming that the conversion provisions were unlawful and, secondly, that the credit agreement was invalid. In the course of the proceedings, the court proceeding the case informed TL and ECthat, in the event that those provisions are found not to be permitted, that agreement shall be declared invalid. The defendants in the main proceedings were besides informed that in specified a case they would be required to repay the capital of the debt as shortly as the bank had been called upon and the bank’s claims for higher amounts could besides be raised against them. TL and EC they confirmed their willingness not to replace these contractual conditions and not to keep the contract.
SO position
By partial judgment, the credit agreement was declared invalid. The claimants were then given a message that the bank had exercised the right to hold the benefit possibly due to the plaintiffs until they had offered the bank a refund of their common benefits. The Bank raised a plea of detention resulting from a restitution claim which it has at its disposal in the main proceedings in order to recover the funds paid to them in the performance of the credit agreement.
SO so raised questions for a preliminary ruling on the reimbursement of sums paid to the bank under a mortgage credit agreement considered invalid due to the fact that it contained unfair conditions. By means of 1 of the 5 questions, the referring court sought to find whether Article 6(1) and Article 7(1) of Directive 93/13/EEC in relation to the rule of effectiveness should be interpreted as precluding the judicial explanation of national law that, where a mortgage credit agreement concluded by an entrepreneur with a consumer is no longer binding after the unfair conditions contained in that contract have been removed, that trader may trust on the right of retention to make the reimbursement of benefits received from that consumer subject to the presentation by him of an offer to reimburse the benefits which he himself received from that trader, or a warrant to reimburse those last benefits, where the exercise of that right of retention results in the consumer losing his right to get interest for hold after the expiry of the time limit imposed on the trader afraid for the performance of the contractual obligation, after he receives a call for reimbursement of benefits which he himself received in the performance of the contract.
TEU position
With respect to the possible asymmetry of the legal measures provided for in Polish law, on the 1 hand for entrepreneurs and, on the another hand, for consumers, with respect to the beginning of the limitation period for restitution claims resulting from the annulment of the contract due to unfair conditions contained therein, The Court considers that a situation where the limitation period for consumer claims resulting from the annulment of a mortgage credit agreement starts to run before the date on which the court finds that the contract is ineffective, even though that period does not expire before the consumer has become aware of its rights or has reasonably been able to find out about them, while the limitation period for the applicable claims of the trader begins to run on the date on which the court finds that the contract is ineffective, constitutes an asymmetry likely to undermine the protection of that consumer guaranteed by Directive 93/13/EEC. Furthermore, the explanation of Polish law adopted by the SN, which means that the time limit for the limitation of claims of the entrepreneur starts to run only from the date on which the judgement declaring the mortgage credit agreement in question null and void, would besides consequence in the fact that the entrepreneur would have breached the contractual obligations of that contract only from that date. Consequently, the consumer afraid could not have obtained interest for hold from the date on which he requested reimbursement of the amounts paid on the basis of unfair terms contained in the contract, in the event that his claims for restitution had not expired, which would have encouraged that entrepreneur to systematically reject specified requests.
The asymmetry of the legal measures, specified as those in the main proceedings, may so further encourage the trader, following out-of-court complaint by the consumer, to stay inactive or to extend the out-of-court phase by extending negotiations so that the limitation period for consumer claims expires, before, first, the period laid down for his own claims starts to run only from the date on which the court finds the mortgage credit contract ineffective and, second, the duration of the out-of-court phase will not affect the interest due to the consumer.
On the substance of the right of detention, the TS pointed out that the effectiveness of the protection afforded to consumers by Directive 93/13/EEC would be at hazard if these consumers, citing the rights which derive from that Directive, were at hazard of not receiving interest for delay, from the amounts which should be reimbursed to them on grounds of the nullity of specified an agreement since the expiry of the time limit imposed on the entrepreneur for the performance of the benefit. After the entrepreneur receives a call for reimbursement of these amounts. Therefore, Articles 6(1) and 7(1) of Directive 93/13/EEC, in relation to the rule of effectiveness, must be interpreted as precluding the judicial explanation of national law that, where a mortgage credit agreement concluded by a trader with a consumer can no longer stay binding after the unfair conditions contained in that contract have been removed, that trader may trust on the right of retention to make the reimbursement of benefits received from that consumer subject to an offer by him to reimburse the benefits which he himself received from the trader, or a warrant that the second benefits will be reimbursed if the exercise by the same trader of that right of detention results in the failure of the right of interest by the consumer afraid since the expiry of the time limit imposed on the entrepreneur afraid to execute the benefit after that entrepreneur receives a call for reimbursement of the benefits paid to him by that contract.
Comment
The issue requiring the TEU to be resolved was that banks were in the process of seeking the annulment of the credit agreement due to the existence of an abusing clause, the right of detention which resulted in the failure to pay the consumer the claims resulting from the favourable judgement until the consumer offered the common benefit. In practice, this would mean the consumer losing by-products (interest). The EUSC decided that specified the explanation of national law, resulting in the failure of interest for late payment until the amount of capital is reimbursed, is incompatible with Union law and the rule of effectiveness. As regards the limitation period, the explanation which considers that the limitation period for the claims of the bank is the beginning of the limitation period, the date on which the judgement recognising the validity of consumer claims is valid is not equivalent to the legal protection granted to consumers and traders. The date of commencement of the limitation period should be determined by calling on the bank to pay.
