Happy 2024 Dear Readers!
We are starting a new year of reporting with the reference to the last week’s judgment in the Polish case referred to the CJEU as Getin Noble Bank and Others (C-531/22 – not yet available in English, but accessible in other languages). This judgments continues to provide guidance on the application of the Unfair Contract Terms Directive to terms in mortgage contracts indexed in Swiss Francs. The CJEU considered two questions/issues:
1. Ex officio judicial authority to test unfairness while overseeing enforcement of a final payment order with res judicata status
To not keep you in suspense: The CJEU decided that national courts may ex officio assess unfairness in such circumstances, provided that: 1) national law did not allow for unfairness test at the moment of issuing of a payment order, or 2) if such unfairness test is only allowed if a consumer would have objected to the issued payment order, provided that there is a significant risk that a given consumer is not going to issue an objection. This risk could result from: the short time allowed for filing the objection, objection’s costs compared to the debt amount, or the lack of obligation to provide consumer with all the information necessary to determine their rights in this respect (para 61). This is, in large extent, confirming Court’s previous judgment in Leasing România judgment (C-725/19) (paras 50-51).
This is an important judgment to address some inefficiencies of the Polish civil law procedure that may limit the scope of the unfairness testing. Specifically, payment orders may be issued by Polish courts upon an electronic request by creditors, without the courts having either legal or technical access to contractual documents, on the basis of which this payment order is issued. If the debtor does not file an objection to the issued payment order within 2 weeks from its delivery, they become final with the res judicata status. This means that they may not be further questioned in enforcement proceedings (para 49). As the CJEU previously considered a 2 week timeframe too short to reasonably give a chance to consumers to file an objection (paras 54-55), this judgment clearly indicates the lack of compliance of the Polish civil procedural rules with the effective consumer protection framework against unfair contract terms. This finding is not weakened by the inertia of the consumer during previous judicial proceedings with them as a party, as the option to file an objection to the payment order is the only opportunity for the consumer to procedurally stop the enforcement proceedings, and as such the consumer needs to be given a real chance to do so (considering the timeframe, costs etc.) (para 60).
2. Recognition of an unfair character of a contract term, upon it having been entered into a register of unfair contract terms, also in subsequent judicial proceedings against a given consumer, even with a different trader involved and when the term has been differently drafted, but when it retained the same substance and led to the same consequences.
The CJEU first (paras 69-73) recalls the conditions for the validity of a register of unfair contract terms in national legal systems, which were first discussed in the Biuro case (see our comment here). Pursuant to the Court, the opportunity for national courts to compare a given contract term to a term already entered into a register after previous judicial proceedings, may lead to a more efficient and faster enforcement of the unfairness control, freeing consumers from harmful consequences of unfair terms in many contracts simultaneously (para 75). The finding of unfairness of a given term could then indeed be recognised and applied also in subsequent judicial proceedings – even with a different trader involved, and when the term has been differently drafted, but when it retained the same substance and led to the same consequences (para 78).
