An important judgment for Swiss franc owners. CJEU: The bank has the right to demand the return of capital

On Thursday, the Court of Justice of the EU answered questions submitted by the Warsaw court hearing the case regarding the invalidation of the Swiss franc loan agreement. In the opinion of the CJEU, the bank could have raised the objection of possible offsetting of the receivable for the return of the loan capital against the consumer's receivable.

The District Court in Warsaw issued a partial judgment in the case against the Santander bank in December 2024. It declared the mortgage loan agreement denominated in Swiss francs invalid. However, due to doubts as to the effects that the cancellation of the contract will have on the consumer, asked the CJEU five questions on the interpretation of the Unfair Contract Terms Directive.

The Warsaw court wondered in particular could the bank raise the objection of offsetting the receivables for the return of the loan capital during the trial as a possible objection, used in the event of if the court did not take into account the bank's position, which generally maintained during the trial that the loan agreement was valid and did not contain unfair contract terms. The court emphasized that accepting the allegation of set-off could lead to the consumer being partially charged with the costs of the proceedings.

Avoiding multiplication of processes

In response, the CJEU stated that taking into account by the national court the allegation of set-off reported by the bank is not contrary to EU law. However, he stipulated that the consumer should be informed about the consequences of declaring the contract invalid and seeks to challenge it, having knowledge of the bank's possible claims regarding the capital.

The judges of the tribunal in Luxembourg came to the conclusion that in such a situation the deduction of capital constitutes one of the ways for the bank to obtain the return of the borrowed capitalwhich the bank is entitled to after the contract is declared invalid. Withholding also allows you to avoid multiplying proceedings and the associated additional costs, which could also be borne by the consumer.

Costs must not deter the consumer

The CJEU also stipulated that when it comes to the impact of taking into account the allegation of deduction on the costs of the proceedings, the allocation of costs cannot discourage the consumer from exercising the right to go to court to declare the loan agreement invalid. As he emphasized, the court's duty will be to interpret domestic law in this spirit, taking into account all the circumstances of the case.

The answer to the questions referred for a preliminary ruling does not resolve the dispute pending before the national court. He will issue a judgment, taking into account the judgment of the CJEU.

From Brussels Magdalena Cedro (PAP)

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