Did you take out Swiss Franc mortgage? Go to court!

An interesting opinion on the CJEU ruling in the case C-260/18 was given by the Polish Banking Association (ZBP) in its yesterday’s legal assessment.

The President of ZBP Krzysztof Pietraszkiewicz convinces Swiss Franc mortgage holders that it would be unprofitable for them to apply for the cancellation of a loan agreement (or to exclude the prohibited provisions of the agreement) as they pay less for loans than Polish currency mortgage holders, after all.

In my opinion, one should assess this issue on their own.

My attention was drawn to the argument that the bank is entitled to a claim for repayment of the capital paid out and a claim for remuneration for the use of that capital. While the first part of this statement is clear, I find it difficult to agree that the bank has a legal basis for demanding remuneration for the use of the capital. It should be emphasised that in the face of the cancellation of the entire loan agreement, “bank benefits” shall no longer be considered as mutual consideration payable under the loan agreement. At the same time, the provisions on unjust enrichment, which shall apply in this case, directly imply the obligation to grant only the obtained benefit in kind or, if that is not possible, to return its value. It is difficult for me to imagine which criteria a bank could apply to determine the benefit understood as “the possibility of using” its capital, and even more so to demonstrate this benefit in a measurable manner before the Court. What is more, ZBP probably forgot that the bank also used consumer’s capital to repay the instalments constituting an undue benefit.

I understand the approach of the banks which act in their own interest and try to discourage as many people as possible from acting and asserting their rights before the court. However, the arguments put forward by the banks in this respect are at least controversial.




Mariusz Maksis, Attorney-at-law