This is how the courts reacted to the Franch judgment of the CJEU. Statistics are unambiguous
The judgment of the CJEU issued on June 19 in case C-396/24 (known as Lubrecznik), regarding the manner of settling the borrower and the bank after annulment of the mortgage contract, aroused a lot of emotions. Consumers representing consumers claimed that the Tribunal was in favor of the so -called The theory of two condition, and banks' proxies claimed that the case -law was reversed and the so -called Balance theory.
Let us remind you that The theory of two conditions is two separate and independent claims that the bank and consumer have after annulment of the contract. For example: if the franc loan on the day of granting amounted to the equivalent of 100,000 PLN, and Frankowicz paid the installment worth 110 thousand until the annulment was annulled. PLN, the bank demands a refund of 100,000 PLN and gives the borrower 110 thousand zloty. This settlement model dominates, was recorded by judgments of seven judges of the Supreme Court of 7 May 2021 (III CZP 6/21) and the full composition of the Civil Chamber of April 25, 2024 (III CZP 25/22).
This is a model in which only the difference between the parties' benefits is settled. The consumer can only reach the bank only overpaid amount beyond the value of the loan capital paid. In turn, the bank may demand an additional payment only if the sum of the consumer repayments is lower than the amount of capital. In our example, the bank would return the borrower 10,000 PLN, and he doesn't give anything to the bank.
The statistics show the dominance of the theory of two condition
For now, it does not seem that the courts after the judgment of the CJEU of 19 June change their approach. According to the data of the Votum Group, shared by Business Insider Polska, it follows that Of the 373 judgments obtained by this office between June 20 and August 4 in regional courts, only in 5.9 percent. cases, the judges were in favor of the theory of the balance (22 such rulings, of which 5 fell on Wrocław and 6 in Warsaw).
Considering the courts of appeal, in this period the Votum Group obtained 384 sentences, of which 9.9 percent. it concerned the theory of balance (There are 38 cases, of which 35 fell in Wrocław, where there were a lot of such sentences before).
– In my opinion, the last judgment of the CJEU does not change the rules of the game, and such a change was suggested by banks. This is also confirmed by the judgments decorating in the Courts of Appeal, which, in my opinion, correctly interpreted the last CJEU ruling, indicating that it does not apply to consumer action. This is the proper operation of courts, whose task is to maximize consumer protection in disputes with entrepreneurs, in this case with banks – comments Wojciech Bochenek, legal advisor Wojciech Bochenek, partner at the Bochenek Ciesielski and Wspólnica office.
He adds that in his opinion a different approach of the courts would reconcile the consumer protection standard formed by the CJEU. – I can not imagine a situation in which the court, when deciding the consumer, interprets this judgment as the need to apply the balance theory, and does not take into account other tribunal decisions determining the consumer of the costs of the trial, interest, etc. in such a situation we will be dealing with the selective use of the CJEU decisions, which in no way contributes to increasing consumer protection by national courts – he argues. Loaf.
See also: “The CJEU undermined the current case -law.” The lawyer is analyzing the franc judgment [OPINIA]
– Court approach is varied. The Warsaw Court sending further questions preliminaryal, the decision of the Supreme Court of July 9, and even the statistics cited are proof that it is too early to say that the courts rejected the theory of the balance. Many judges have doubts that should be clarified-says Right Advisor Anna Cudna-Wagner, a partner at the CMS Polska office, who represents banks.
– A fuller assessment will be possible in a while, because if the court intends to issue a verdict with the balance theory, he often obliges the parties to present a full repayment history so that it is possible to settle in one proceeding. In addition, we see that the courts also postpone some proceedings, trying to encourage the parties to communicate and settle according to the balance theory. All this can shift the decision on three or four months and influence the unrepence of today's statistics, although at the moment the theory of two condition actually prevails-adds lawyer Bartosz Miąskiewicz from the CMS Polska office.
Yes, the judges after the June judgment of the CJEU assessed the method of settlement
For example, the Court of Appeal in Krakow in a judgment of July 2 (reference number I ACa 31/23) wrote that not reads the June decision of the CJEU as the need to use the balance theory, “But as the bank's obligation to settle accounts with the consumer, so as not to expose the consumer to the need to bring an action for payment”, and if he exposed the consumer to such a necessity, he should bear the consequences of delay in fulfilling the benefit.
In turn, the Court of Appeal in Szczecin in a judgment of July 17 (reference number I ACa 2031/23) assessed that The judgment of the CJEU of 19 June does not require such an interpretation of the regulation of national law (in this case Article 410 § 1 and 2 of the Civil Code) to conclude that the view expressed by the Supreme Court in the resolution of May 2021 is contrary to the directive. “The Tribunal did not undermine the legitimacy of recognizing that the consumer has the right to demand from the bank the return of all benefits he actually fulfilled. In the light of the Tribunal's statements, the consumer is not limited to the investigation from the bank of his claim. So this can do so both by deducting and by filing a lawsuit for reimbursement of all benefits. The bank should first benefit Do not expose the consumer to an unnecessary lawsuit, and may demand a return from the borrower only what he would not be able to satisfy by offsetting, “he added.
Further questions sent to the CJEU on franc settlements
It is worth recalling that at the end of July, in connection with the uncertainty arose after the judgment of the CJEU of June 19, the District Court in Warsaw sent two questions to the Tribunal in this case. In short, he asks if the balance theory is in accordance with EU law. Can something change in the case law of Polish courts in the scope of balance theory and two condition to the appearance of this judgment?
– Additional questions are rather aimed at clarifying the doubts that the banking sector tried. If any episode of franc cases may change, then cases in the bank's action. Please remember that the Court directly indicated that the bank's practice, which is contrary to the content of Directive 93/13, consisting in demand from the consumer reimbursement of the entire nominal loan amount, regardless of the repayment amount made by the consumer. In such a legal status, the courts should begin to verify cases initiated by banks and adapt the jurisprudence to the tribunal guidelines. This will certainly force banks to modify the actions and verify his procedural strategy – believes Wojciech Bochenek.
See also: Is the balance theory consistent with European Union law? This question to the CJEU will break the bank [OPINIA]
According to the lawyers of CMS Polska, the Warsaw Court issuing these questions regarding the theory of balance and two conditioning may result in the fact that some courts will abstain with issuing judgments and suspend the proceedings to issue a decision by the CJEU.
Banks pay attention to the decision of the Supreme Court of July 9 (reference number I CSK 652/25). Judge Władysław Pawlak refused to accept the cassation complaint of borrowers to examine, brought to the judgment of the Court of Appeal in Wrocław based on the balance theory. According to lawyers representing banks, the judge has left the theory of two condition in this way and confirmed that the balance theory was working both.
– So far, this is one statement of the Supreme Court in which the CJEU's judgment in the Lubreczlik case was referred. The court explicitly indicated that the balance theory works both ways, has legal, economic and social sense – says Bartosz Miąskiewicz. He adds that, according to the Supreme Court's decision, another understanding of the balance theory would violate the principle of proportionality and would be incompatible with system assumptions.
Are the hopes of banks to improve settlements by adopting the theory of balances are not vain, taking into account the resolutions of the full room and the seventh composition of the Supreme Court? – The Supreme Court is bound by the CJEU rulings, they prevail over the resolutions of the Supreme Court. The question is whether the June judgment of the CJEU Lubrecznik concerns the “bilateral” balance theory. If we think that so or if in the next CJEU ruling it is confirmed, there is no doubt that the Supreme Court, being bound by European law and the case law of the CJEU, should adapt its case law in this respect-believes Anna Cudna-Wagner.
Author: Maciej Rudke, Business Insider Polska journalist
