The President of the Office of Competition and Consumer Protection has presented yet another relevant opinion in the mBank case. The opinion in question pertains to the contract on the mPlan mortgage loan which was 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 Regional Court in Warsaw in which the said opinion was given pertain to the mPlan mortgage loan contract whereby the loan is indexed to the Swiss franc. The borrower demands the reimbursement of loan overpayment as well as of the equivalent of low down payment insurance premiums. In doing so, the borrower alleges that the loan agreement contained abusive clauses.

In the view of the Office of Competition and Consumer Protection, the clauses challenged by the claimant must indeed be considered abusive. The provisions pertaining to loan indexation are imprecise and make references to currency exchange rates which are determined unilaterally by mBank, which has failed to define the criteria applied for the purposes of determining the said exchange rate in an unambiguous manner. This allows the bank to determine both the loan amount and the amounts of individual loan payments in a discretionary manner.

The President of the Office of Competition and Consumer Protection has also identified irregularities pertaining to the refinancing of the low down payment insurance by the borrower. Low down payment insurance is a form of additional protection used by banks where the borrower fails to make a down payment on real estate at a percentage stipulated under the contract. The provisions contained in the clauses in question are also contrary to acceptable practices for the following reasons:

• the provisions in question fail to provide the borrower with any information on his or her rights and obligations arising out of the insurance contract,
• the provisions in question make it impossible for the consumer to verify whether the costs of insurance were in fact charged in the correct manner,
• the provisions in question impose the duty to bear the cost on the consumer, although the wording of the said provisions does not make it clear who shall in fact be the beneficiary under the insurance policy,
• the provisions in question fail to provide the borrowers with information on the possible risk that the insurer may claim the repayment of the damages paid to the bank,
• the insurance contract does not define the events which shall be tantamount to premature expiry of the said contract, nor does it contain any definition of the contribution which would need to be made in order for the contract to be terminated.

In the view of the President of the Office of Competition and Consumer Protection, where the impugned provisions pertaining to indexation 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. The Competition Authority takes the view that 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 489/16 – dispute between the consumer and mBank. Where doing so is considered to be in the public interest, 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.

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 his 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