State D. took a ‘franque’ mortgage at the bank 100,000 CHF. When after law ten years they stopped paying him back, the bank demanded 80,000 interest francs. The court agreed with the bank and issued a payment order, and when State D. objected, he rejected it. The RPO considers that the court thus violated the right to court of State D. and their rights as consumers. Since this can no longer be resolved on a normal trial basis, he submits an emergency action to the Supreme Court.
In the Ombudsman's view, the court's action in this case was opposed to the constitutional principle of social justice and led to the impossibility of defending rights before the court.
Nor did the Court of First Instance comply with the obligations arising from the protection of consumer rights: it did not examine the contract in terms of abusive clauses, and it should have done so, even if Mr D. had not requested it.
They were consumers and did not need to know the law well enough to understand the complexities of such conduct.
Court of First Instance wrongly applied the order for payment Article 3851(1) ed. Article 3851(3) Civil Code - provisions introduced in 2000 to transpose provisions into Polish law Directive 93/13 of 5 April 1993 on unfair terms in consumer contracts.
In this context, the Ombudsman recalls that in order to ensure consumer protection in Poland at the level required by this directive, courts must comply with their obligations. In particular, it is a matter of ex officio checking that there are no abuzz provisions in consumer contracts. This obligation becomes even more relevant when the court had the consumer contract documents before issuing the order for payment, as in the present case.
The RPO recalls once again that the obligation to ensure compliance with Union law derives from the general principle of priority of EU law before national law and concerns all proceedings in which the consumer is present.
And whether the case is of a consumer nature is to determine the court of its own motion, regardless of the claims of either party. The principle of the effectiveness of EU law requires that the national court, regardless of its internal rules, apply the standards resulting from consumer directives.
A court deciding a case between an entrepreneur and a consumer, when the facts of the case relate to consumer contractual patterns, should, of its own motion, review the contractual standard clauses in the event of an accident (see Supreme Court judgment of 19 April 2007, reference no.
I CSK 27/07 and the compositional resolution referred to therein: seven Supreme Court Judges of 31 March 2004, reference no. III CZP 110/03, OSNC 2004, No 9, item 133 and resolution of the Supreme Court of 13 July 2006, reference no. III SZP 3/06, OSNP 2007, No 1-2, item 35).
In this case, the court did not.
The failure of the court to take the actions required by law, resulting from the fact that State D. was consumers, leads the Ombudsman to conclude that the case has not been heard as to the substance.
The Court of First Instance was given the opportunity to review the unfair nature of the clauses at the stage of the injunction procedure, to inform the parties of the results of the checks and to allow the parties to comment on them, as it had abandoned.
In the Ombudsman’s view, the fact that the court did not, of its own motion, examine the provisions of the contract concluded by consumers with an entrepreneur in view of their unfair character must be considered as de facto depriving the party of its ability to act and defend its rights.
The consumer does not need to be aware that the court should act ex officio, nor should he be aware of what they are and whether there are abusive clauses in the case.
In this respect, the CJEU case law highlights as limited knowledge and limited access to information available to consumers (judgment of 14 June 2012, Español de Crédito, C-618/10, ECLI:EU:C:2012:349, point 54, of 13 September 2018, Profi Credit I, C-176/17, ECLI:EU:C:2018:71, point 69 and the caselaw cited therein).
This is an extremely well-established approach in the jurisprudence of the CJEU, initiated by the judgment of 27 June 2000, Oceano, in Joined Cases C-240/98 to C-244/98, ECLI:EU:C:2000:346, point 26.)