Success! Favorable ruling in the Swiss franc case concerning GE MONEY BANK (BPH

In Case I C 1139/20, the Court determined that the loan agreement was invalid due to the ineffectiveness of its main provisions and the impermissibility of replacing them with others.

The court emphasized that it is not possible to partially maintain the agreement by removing abusive clauses from it. According to the court, “all provisions concerning the method of conversion by the Bank are abusive and must be removed in their entirety.”

The above shows that the Bank’s argument regarding the separation of only the abusive part of § 17 of the Agreement, concerning the application of the margin, does not deserve approval. It should be recalled that § 17 stipulates that the purchase (sale) rate is determined as the average exchange rate of the National Bank of Poland minus (plus) the Bank’s purchase (sale) margin.

The court also did not allow, referring, inter alia, to the CJEU judgment in Dziubak (C-260/18)[1], the possibility of replacing gaps in the agreement with others and applying the average exchange rate of the National Bank of Poland in order to save the agreement. According to the Court, there is no dispositive provision in the Polish legal system that would allow for such a measure.

The court acknowledged that the consumer’s claim based on unfairness is not time-limited, i.e. it is not subject to a limitation period.

The judgment is not final.

Huge CONGRATULATIONS are due to Mateusz Kołodziejak, who successfully assists clients with Swiss franc loans in disputes with banks at our Law Firm – Well done!

[1] Judgment of the Court of Justice of 3 October 2019, C-260/18, KAMIL DZIUBAK AND JUSTYNA DZIUBAK v RAIFFEISEN BANK INTERNATIONAL AG, OPERATING IN POLAND AS A BRANCH UNDER THE NAME RAIFFEISEN BANK INTERNATIONAL AG BRANCH IN POLAND, FORMERLY RAIFFEISEN BANK POLSKA SA, LEX No. 2723333.