What does the judgment of the CJEU mean on the settlements of franchisees with banks? Lawyers explain the effects
Judgment of the CJEU of June 19 this year. In case C-396/24, he was hailed as her success as her success by each of the pseudo-branch disputes. However, as the lawyers representing consumers indicate the CJEU judgment, as usual, is not clear. We will just find out how it will be interpreted by Polish courts. However, lawyers agree that a lot will depend on the individual procedural situation. However, they indicate what will definitely happen as a result of the sentence.
See also: The key judgment of the CJEU on franc loans
Does the balance theory come back?
Bank's proxies clearly indicate that the CJEU ordered to move away from the theory of two condition. It assumes that Each claim – both the borrower and the bank – for enrichment (and after such after annulment of the contract, the money will be recognized to the client by the bank and installments repaid to the bank by the customer – ed.) should be treated separately and regardless of the second. Hence the lawsuits after annulment of the contract.
Does this mean that the balance theory is coming back, which assumes a calculation on which the dispute is a surplus? Legal advisor Damian Nartowski from the Wnlegal office representing consumers, believes that to some extent, but in full – he is not convinced.
Agnieszka Sobczyk, a legal advisor from K&L Legal, also believes that the balance theory does not necessarily return, because this would actually mean a significant change in case -law.
-In accordance with the judgment of the CJEU C-520/21, each of the parties to the dispute (and consumer and bank) may have demanded interest for delay on their receivables regardless of the behavior of the other party-explains Sobczyk, which represents consumers.
Read also: What does the CJEU judgment on franc loans mean? A large bank explains
On the other hand, consumers' proxies indicate an increase in their protection and stopping lawsuits sent by banks at the same time questioning the invalidity of the contract, i.e. as SLAPP francs define.
– It also seems to me that the C-396/24 judgment will not completely eliminate the “risk of two trials” (from a lawsuit of the Consumer of the Bank of Bank), especially looking at the fact that in 2025 claims may be barred from contracts challenged in 2022. This means that banks will have to decide whether Io should sue. So far, the settlements made by the consumer before the trial did not stop the banks from managing counterparts, hence I think that today's judgment of the CJEU, which is not unambiguous, will not stop – in the near future – matters initiated by banks. The risk of limitation of banks' claims has not been eliminated, banks will have to further calculate them. Perhaps on a larger scale, banks will make deductions or begin to accept deductions made by consumers, it is possible that the settlement proposals will be more attractive – he adds.
Banks, afraid of limitation, will rather still sue consumers.
As with the judgments of the CJEU, there is no clear answer
MEC. Agnieszka Sobczak also believes that the matter is more complex. In her opinion, today it is impossible to clearly accept the line that the courts will follow. – We will work to do again and probably … Everyone will interpret the sentence in their direction – says Sobczak. And as the court's judgment interpreted, we will just find out.
Also legal advisor Damian Nartowski, also representing borrowers, is not convinced that the CJEU has changed the current jurisprudence by 180 degrees. He points out that the CJEU devoted more space in the justification of the secondary issue of immediate enforceability when recognizing the claim, and not the basic issue of how to rule on undue benefits: a bank that made available funds and borrower who made repayments.
In his opinion, the judgment will have different significance in various procedural situations. – For some proceedings, it will not matter. In those in which the consumer does not pay payment, asking only to determine the non -existence of the contract or made a settlement before filing a lawsuit against the bank. For others, it will become an important element, especially in cases of consumer lawsuits and lawsuits against consumers. You will have to answer the questions whether and how to modify your positions. This task will apply to both banks and borrowers' proxies, taking into account the positions of common courts – explains Nartowski.
As lawyers indicate, the legal question was asked in a specific factual state.
Two cases, one judgment of the CJEU
The CJEU considered two combined matters in one preliminary question. In the first case, consumers did not demand the reimbursement of all payments, and in the second they made a deduction statement. In parallel, they charged the hit, and he was withdrawn by the proxy. It is worth explaining that when two sides of the dispute, regardless of whether it is a company or an individual, at the same time have a debt to each other, each of them can deduct their claim with the debt of the other party, as long as it is money or things of the same quality. As a result of deduction, both claims discontinue each other to the amount of lower debt.
– The fact that the entrepreneur has demanding the refund of the amount paid in the mutual lawsuit (in response to the lawsuit) to take into account the settlement is unfortunately not fully clarified by the CJEU (whether because of the offsetting or as ensuring that the entrepreneur will be discouraged from introducing such conditions in contracts offered to consumers, or as a new one in the way of settling the parties on the basis of directive 93) – explains Sobczyk.
One thing is certain. Polish courts will have a new obligation
One thing, however, is certain, as Nartowski notes. – Once again, the CJEU affects not only national substantive law, but interferes with a civil procedure. He interferes with the process because he orders to examine certain facts ex officio, checking how much to pay off the borrower if the bank demands 200,000. PLN, how much did the borrower repaid? The C-396/24 judgment shows that in the case of a bank claim against the borrower (borrower), repayments made by the borrower should take into account (without having to raise a separate charge). So, for example, the bank sucks 200,000 PLN, the consumer repaid 250 thousand zloty. The question is whether the bank should receive 200,000 PLN or nothing? The judgment shows that nothing – explains Nartowski.
The second issue, which he considers important, concerns the allegation of deduction. Currently, there is, in accordance with one of the provisions of the Code of Civil Procedure, a limitation at which time such an allegation may be filed. – In my opinion, although the CJEU did not speak about this provision, it follows that no restrictions hindering the settlement of the consumer with the entrepreneur should not be. This is important for the processes in which consumers wanting to take advantage of the deduction could not do it because they were after the deadline included in art. 203 (1) § 2 of the Code of Civil Procedure – explains Nartowski.
MEC. Sobczyk points out that the Court did not refer to the request of consumers based on the reimbursement of all funds (parallel case). – Not only that, the applause for the position on the resolution of disputes of the consumer – the entrepreneur would mean a significant weakening of consumer protection who have concluded a contract in PLN and currently question its validity due to the abusiveness of the principles of change of interest. After all, every such lawsuit to award some of the payments would be dismissed if the total amount of payments were lower than the amount paid, and this was probably not what Directive 93 and the CJEU in case -law – adds Sobczyk.
MEC. Nartowski explains this on a specific example whether the CJEU's decision will apply to consumer lawsuits against banks. – For example: the consumer suits 250,000 PLN (so much repaid), and the bank made available 200,000. zloty. So how much should a consumer receive 50,000 PLN or 250 thousand zloty? Is statutory interest for delay? – explains Nartowski. In his opinion, and that the judgment of the CJEU C-396/24 does not prejudge the answer, especially in the light of other CJEU rulings, even C-520/21, C-287/22 or C-324/23. Looking at point 1 of today's judgment and referring only to the request of an entrepreneur (bank), as well as to his justification, displaying the need to ensure a high standard of consumer protection (points 37, 39) and a deterrent effect for the entrepreneur (point 38), it seems that the CJEU sets the direction for a positive answer for consumers – says Damian Nartowski.
