Yesterday, on 29 April 2021, the Court of Justice of the European Union issued a judgment in case C‑19/20. This judgment was a consequence of questions asked by the District Court in Gdańsk regarding Swiss franc cases (order of 30 December 2019 – file reference XV C 458/18), which included questions on the following issues:
- Is the court obliged to determine the unfairness of a contractual provision if it has been amended by an annex?
- Can the court sever a contractual provision that is partly an unlawful clause and leave the part that is lawful?
- Could the adoption of the anti-spread law result in the court not being obliged to determine the unfair nature of a contractual provision?
- Will banks be able to pursue claims against borrowers for non-contractual use of capital?
- Before making a decision to invalidate a contract, does the court have to inform the consumer about the consequences of such a decision if he is represented by a lawyer and from when should the invalidity be calculated?
This judgment – contrary to expectations – did not bring a breakthrough, nor did it put the final touches on the i. Although the CJEU commented on several issues and confirmed previous rulings, it did not address the two most important issues, namely the issue of the limitation period and settlement between the Parties, including in particular the remuneration for the Banks for any non-contractual use of capital by Swiss franc borrowers.
The CJEU stated, among other things, that:
- despite concluding an annex to the loan agreement, the Court may examine the unfair nature of the indexation clause;
- it is not possible to delete the margin entry and leave the NBP exchange rate;
- After eliminating the unfair contractual provision, the court has no possibility of supplementing the contract;
- the anti-spread law does not change much in the context of the invalidity of the contract;
- The court is obliged to inform the consumer about the possible consequences resulting from the invalidation of the credit agreement, even though he is represented by a professional attorney.
Today, we are eagerly awaiting the Supreme Court's Resolution, which will – hopefully – dispel all doubts regarding Swiss franc issues.
