Yet 26 November 2021 Polish Confederation Lewiatan, citing the position of the Government Legislative Centre, she warned that the provisions of the draft law amending certain laws to counter usury (Project No UD286) may require notification to the European Commission[1].
According to the Government Legislative Centre’s reference, "the bill’s proposal has not changed to justify the withdrawal from notification". As the Republic of Poland points out[2] in the justification of the project, it shall contain only a short statement that the draft act is not subject to the notification procedure.
Day 30 November 2021 The government adopted a draft law amending certain laws to counter usury (Project No UD286). According to the communication on the Chancellery of the President of the Council of Ministers, the aim of the project is to eliminate irregularities in the amount of non-bank loans. The project is intended to include the introduction of regulations concerning:
- 1) limits on non-interest costs for consumer credit and cash loans;
- 2) the definition of legal extra-interest costs for the provision of cash;
- 3) the use of cash lending collateral;
- 4) supervision by the Financial Supervision Commission of credit institutions for the provision of consumer credit.
The project basically provides for a six-month period of vacatio legis.
It should be noted that unjustified withdrawal from the notification procedure to the draft anti-liability law could have serious consequences for trading participants, including those whose project rules are essentially intended to protect
Possible consequences of no notification
The obligation to notify the provisions of national law currently lays down provisions Directive 2015/1535 European Parliament and Council dated 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and rules on information society services, Official Journal of the European Union L, No.
241 to 17 September 2015 (earlier Directive 98/34 dated 22 June 1998).
The obligation concerns technical provisions which Article 1(1) point (f) directives from 9 September 2015 define as technical specifications and other requirements or rules on services, including the relevant administrative provisions to which compliance is compulsory, de jure or de facto, in the event of the placing on the market, the provision of a service, the establishment of a service provider or the use in a Member State or a major part thereof, as well as the laws, regulations and administrative provisions of the Member States, with the exception of specified under Article 7, prohibiting the production, import, placing on the market or use of a product or prohibiting the provision or use of a service or the establishment of a service provider.
In the previous directive, the Court of Justice of the EU in its judgment 30 April 1996, issued on C-194/94 CIA Security has determined that EU legislation establishing notification obligations is clear and unambiguous and can therefore be applied directly.
In its judgment, the Court of Justice concluded that ‘the procedural failure to adopt the technical provisions in question renders those technical provisions ineffective, meaning that they cannot be relied on against individuals’. This position remains valid in the current state of the law.
In the field of national law, as an example, an infringement of the notification procedure can be identified by the lack of notification of the provisions of the Gambling Act In 2009, as stated in the judgment of the Court of Justice dated 19 July 2012 issued in joint cases C-213/11, C-214/11 and C-217/11 Fortune and others against Poland. The consequence of this infringement was temporary inability to apply Article 107 The IRS Penal Code.
It must therefore be concluded that an unjustified waiver from the notification procedure to the draft anti-liability law may, if the technical nature of the project is subsequently established, entail serious consequences for trading parties, including those who are essentially to protect the project. In the event of a dispute between the lender and the borrower, the latter will not be able to rely effectively before the court on the content of technical regulations.
[1]http://konfederacjalewiatan.pl/dla_mediow/informacje_prasowe/projekt_ustawy_antylichwiarskiej_bez_konsultacji_i_notyfikacji_ke
[2] https://www.rp.pl/finanse/art19141311-lewiatan-apeluje-o-antylichwiarskie-konsultacje
Paweł Postolko
Lawyer, graduate of Law at the Faculty of Law and Administration of the Jagiellonian University, where he then completed Postgraduate Studies in Economic and Tax Criminal Law. With Chancellery Russell Bedford related to 2021. His professional interests are economic law, taking into account criminal and economic issues. He has practical professional experience in handling court cases.