Frankowicz" was refused reopening his case, ending with a payment order of several million PLN - despite the landmark judgment of the TEU on the Dziubaków State. The courts considered that there was no ‘legal basis’ for this.
The reopening of proceedings following the judgment of the TEU is admissible because it results from the Constitution and from EU law," emphasises the RPO.
The refusal to renew for this reason is therefore unconstitutional and the Supreme Administrative Court already considers the judgments of the TEU as a basis for the resumption of judicial and administrative matters.
The Ombudsman joined the proceedings before the Constitutional Court on a constitutional complaint (reference no. SK 46/22). He stated that:
- Article 4011 k.p.c., in so far as it does not provide for the possibility of reopening proceedings as a result of a judgment of the Court of Justice of the European Union (hereinafter referred for a preliminary ruling on the same legal relationship), is incompatible with the Article 45(1) in relation to: Article 77(2), Article 2, Article 32(1), Article 9, Article 87(1) and Article 91(2) Constitution of the Republic of Poland.
History of the case
The complainant concluded with the bank two CHF-indexed mortgage credit agreements: amount 1,250,000 PLN. and in amount 3,200,000 PLN. Bail bonds have been established as collateral.
In 2013 the bank applied to the applicant for a payment order for the amount 9,942,000 PLN. The District Court will take into account the suit and issue a payment order in the order procedure. The complainant did not press charges against the order for payment.
In 2020 The applicant, in turn, brought an action for reopening proceedings in connection with the decision of the TEU 3 October 2019 on Dziubak C-260/18. As the basis for the resumption indicated Article 4011 k.p.c.
The District Court dismisses the action on grounds that it is not based on a statutory basis, since in the request for a reopening of proceedings under the judgment of the CJEU it is not covered by the standard Article 4011 The Court of Appeal upheld this decision. indicated that Article 4011 k.p.c.
provides for the possibility of reopening proceedings only if the Constitutional Court decides. The appellant’s appeal was rejected as inadmissible.
Justification for the plea of non-compliance with the Constitution
European Union legislation and the case law of the European Union are part of the Polish legal system. Since Poland's accession to the EU, Polish courts have been bound by the provisions of the founding treaties and acts adopted by the EU institutions (including directives) and the case law of the EU Court.
In the signaling order with 7 August 2009 (reference no. S 5/09) concerning Article 4011 k.p.c. TK signalled doubts about the construction Article 401(2) k.p.c.
to the extent that it does not provide for the reopening of proceedings as a result of the Court's finding that the ETPC has infringed the Convention for the Protection of Human Rights and Fundamental Freedoms.
The CCI indicated that it is necessary to regulate the resumption of proceedings against Article 9 The Constitution - according to which Poland is obliged to comply with its binding international law - and differences in the case law as to the admissibility of reopening national proceedings in connection with the EU decision.
Although the civil procedure does not regulate the expressis verbis process of reopening proceedings based on the judgment of the TEU, the admissibility of reopening proceedings on this basis should be derived from the Constitution and from the principles of equivalence, effectiveness, loyalty and priority of EU law (Article 4(3) TEU). And the role of the CCC rulings in the national legal system is comparable to that of the CJEU rulings for individual national procedures.
The EU principle of equivalence requires that all national rules relating to legal protection measures be applied equally to measures based on infringements of Union law and similar measures based on infringements of internal law. The obligation to interpret pro-EU also refers to national procedural rules governing the status of final national decisions.
Article 4011 k.p.c., in so far as it does not provide for a resumption of proceedings on the basis of a TEU judgment based on a preliminary ruling on the same legal relationship, infringes Article 45(1) The Constitution - by depriving the parties of the proceedings of protection on a judicial basis.
If Article 45(1) The Constitution guarantees the right to a court in a "positive" way. Article 77(2) expresses its negative aspect. It prohibits the provision of rules closing the judicial course of the investigation of violated constitutional freedoms and rights.
The case law also indicates that Article 45(1) and Article 77(2) The Constitutions are related - Article 77(2) is a means of protection against interference in the personal right to court.
This link is also expressed in the fact that the exclusion of the judicial protection of violated freedoms and rights is always a deprivation of the individual's right to a fair and open examination of the case without undue delay by the competent, independent, impartial and independent.
The principle of citizens' trust in the state and the law it lays down means that the individual has the right to expect the power to be readable, transparent, to respect the system principles guaranteeing the protection of human rights.
In the opinion of the RPO, the interpretation of the provisions on resumption of proceedings should be based on reasonable and systemic considerations. Giving priority to formal requirements can create a significant obstacle to citizens' rights and, above all, consumers who are subject to special protection in EU law. The current judicial practice on consumer case-recognition indicates a low level of ensuring the effectiveness of EU law and protecting the weaker side of the legal relationship.
It is therefore impossible to agree with the view that the procedure cannot be resumed on the basis of Article 4011 k.p.c., in the event of a decision by the EU Court.
Furthermore, the RPO considers that the lack of the possibility of reopening proceedings under civil procedure under the judgment of the TEU violates the right to a fair judicial procedure in respect of the principle of equality (Article 45(1) with regard to Article 32(1) Constitution).
According to the settled case law of the Constitutional Court of First Instance: “The constitutional principle of equality before the law... is that all legal entities (addresses of legal standards) characterized by a given essential (relevant) characteristic are to be treated equally.
Thus, according to the same measure, without distinctions of both discriminating and favouring."
According to Article 272(2a) The Law on Procedure before the Administrative Courts may be required to resume proceedings also where a decision of the TEU has been given which affects the content of the judgment given.
In the case-law of the Supreme Administrative Court for years, there has been a view that interpretative and extensive judgments of the Constitutional Tribunal may form the basis for the reopening of judicial and administrative proceedings. Similarly, the case law of the NSA has established that the basis for the resumption of judicial and administrative proceedings may be the judgment of the TEU.
Differentiating the availability of reopening of proceedings following the judgment of the TEU - depending on whether we are dealing with a civil or judicial procedure - should be considered unconstitutional. This situation is unacceptable in a democratic legal state,
The Ombudsman is aware that the requirement of fair conduct implies that its rules are adapted to the specificity of the cases in question and that procedural justice in civil proceedings is not implemented in the same way as in judicial and administrative proceedings.
However, it should be noted that in this case, there is a disparity between those who have the same relationship, i.e. those to whom final decisions have been given under civil and judicial proceedings based on an incorrect interpretation of the provisions of Union law which the CJEU has ruled.
Importance of the reopening of proceedings following the judgment of the CJEU and the consumer protection order
European Union legislation and the jurisprudence of the TEU, which are part of the Polish legal system, enrich normative content Article 76 The Constitution, which in practice translates into an increase in consumer protection standards. This protection is manifested in such a way that authorities, including courts, should protect consumers from unfair market practices.
The rulings of the TEU as a preliminary ruling form the basis for the protection of consumer rights. The national court shall remain bound by them and shall be obliged to take action to bring the regulations in force in its country into line with the requirements of Union law.
This has been confirmed by the Supreme Court, which stated that there are important arguments in favour of the recognition of the relative power of the erga omnes of interpretive judgments of the TEU, since they have outside the main matter a relative force binding on the Supreme Court.
The correct application of guidelines resulting from EU law (including the case law of the EU Court of Justice) on the basis of a constitutional complaint should be based on:
- the Court of Justice of its own motion to assess the absurability of the provisions of the credit agreement for the moment that the applicant has concluded that agreement and to obtain the legitimate consequences in the event of the finding of absolution,
- the court must inform the parties of the results of the checks carried out and allow them to comment on the continuation of the contract]
Given the consumer’s position, the court will be able to rule that
((a) the credit agreement shall continue to be binding, without any abusing indexation provisions, which shall justify a request for the Bank to reimburse all amounts collected as a result of the application of the abusing provisions, or that
(b) the contract is invalid, so that the consumer is entitled not only to a claim for reimbursement of the amounts collected from him as a result of the application of the abusive provisions, but also to all other amounts collected on the basis of the invalid contract,
- possibly the consumer will be able to declare that he wishes to use mechanisms providing protection against the particularly adverse effects of the cancellation of the contract, which is based on EU and Polish law.
In the meantime, the court has limited itself to the application of the provisions of the General Court - without taking account of the consumer nature of the legal relationship and, consequently, the consumer protection rules.
Instead of seeking to correct the imbalance in the business-consumer relationship, the court further penalises the consumer who could not take effective protection.
The lack of effective defence was primarily due to the omissions of the national court, which had to take specific measures of its own motion to protect the weaker participant in the legal relationship.
The court, despite having sufficient evidence – a credit agreement submitted by the bank – refused to examine the provisions contained therein in view of their unlawful nature. The credit agreement was concluded on a model provided by the trader, the content of which the complainant consumer had no influence and no choice in its conclusion.
By recognising that the judgment of the TEU is the basis for the reopening of the proceedings, consumers will have a real opportunity to raise final decisions in the form of a reopening complaint. Consumer protection will thus become commonplace. This is particularly important given the statutory restrictions on the possibility of other exceptional remedies. For example, an exceptional complaint cannot be brought by the consumer alone.