The Office for Competition and Consumer Protection has been issuing significant views on franchise holders since August this year. How much has changed since then? Did UOKiK’s interventions bring positive results? In today’s article, we look at all the views of the President of the Office and check how they have benefited those who have loans in Swiss franc.
Since the amendment to the Act on competition and consumer protection entered into force, the President of UOKiK has been able to express significant views on matters related to competition and consumer protection. “An important view on this matter is the position in which the Office may share its knowledge with the court and support it in resolving a dispute.” – UOKiK
Variable interest rate
On August 25, 2016, the first view was published, in which it was assessed that the contract provision specifying the conditions for changing the interest rate is completely prohibited and may result in the invalidity of the entire contract. This view has been published in a case that has been going on since 2010 and includes 1247 borrowers.
even filed a class action in which they sought damages in connection with the use of a forbidden provision – by one of the leading Polish banks – which in too general and imprecise manner specified the reasons for the change in interest rate. The application of this solution by the bank prevented the borrower from verifying the legitimacy of changes in interest rates.
Any buy and sell value
The second view concerned the clauses which imprecisely indicated the premises for changing the interest rate and the method of determining the amount of the mortgage loan indexed to the Swiss franc and principal and interest installments: “The amount of monthly liabilities is determined in Swiss franc, however, they are repaid in the Polish currency – however, after earlier conversion according to the CHF rate set by the bank.
The two challenged provisions gave the bank the ability to freely determine the purchase and sale value of the Swiss franc, on the basis of which the loan amount and the amount of principal and interest installments were adjusted accordingly. The entrepreneur did not indicate which criteria he used to determine these courses. ” UOKiK agreed with the view of borrowers and decided that these provisions were not allowed.
Consumers were not able to verify the criteria that were adopted by the entrepreneur and predict when and to what extent the loan installment would be increased because of the fact that the bank granted itself the right to unilaterally determine the ratio affecting the amount of services provided by parties.
Imprecise clauses, so not allowed
In the third significant view, UOKiK disagreed with the court’s position:
“In its opinion, the Office shared the view of the reasons that the clause entitles the bank to make an arbitrary decision on changing interest rates, and consumers cannot verify the legitimacy of such action. Premises are indicated by the bank too general, there is no information as to when the changes may be introduced and how they will affect the interest rate, “said President of UOKiK Marek Niechciuk.
The Authority also considered that for the classification of the clause to be illegal it does not matter whether consumers have suffered damage so far. How the order is implemented does not matter, because the abusive clause should not apply to customers from the very beginning.
In the opinion of UOKiK, it cannot be replaced by another provision. Because, according to the banking law, interest rate change conditions are an important element of the contract, and this may mean that the entire contract is invalid. The case is currently pending before the court of second instance.