Month: May 2025

A legal question has been submitted to the Supreme Court: “Is it valid and permissible under Article 483 § 1 of the Civil Code to stipulate a contractual penalty in the form of a specified percentage of the contractual remuneration for each day of delay, without setting a final date for calculating the penalty or a maximum amount?” The Regional Court in Łódź, handling case file no. III CZP 16/21, concluded that existing Supreme Court jurisprudence on the matter is inconsistent.

Case law

The definition of a contractual penalty is provided in Article 483 § 1 of the Civil Code, which states that it may be agreed in a contract that compensation for damage resulting from non-performance or improper performance of a non-monetary obligation will be made by payment of a specified sum. The Regional Court in Łódź questioned the validity of a contractual penalty clause expressed as a percentage of the contractual remuneration for each day of delay without specifying a final date for calculating the penalty or its maximum amount.

The adjudicating panel cited, among others, a judgment from 22 October 2015, in which the Supreme Court ruled that failure to specify a final date for calculating contractual penalties or their maximum amount leads to the debtor being indefinitely burdened with this obligation, essentially creating an eternal, open-ended obligation (case no. IV CSK 687/14).

According to this view, the contract must include clauses that define a maximum penalty amount. An opposing position does not require a maximum penalty to be stipulated in the contract for non-performance or improper performance of an obligation.

Method of specifying the sum payable

The rule under Article 483 § 1 of the Civil Code requires the contractual penalty to be expressed as a monetary sum payable in the event of non-performance or improper performance of a non-monetary obligation. This requirement is considered fulfilled when the parties specify the amount in advance or indicate the basis for its determination in the contract. On the other hand, another judgment cited by the Regional Court – from 28 June 2017 – states that although the Civil Code requires the penalty sum to be expressed at the time of stipulating the clause, there is no obligation to state an exact amount. The parties may define the penalty indirectly by indicating criteria allowing the calculation of the amount the debtor will be required to pay the creditor (e.g. a percentage share).

The Regional Court also referenced the Supreme Court ruling of 3 October 2019, case no. I CSK 280/18, which held that if the parties do not expressly state the penalty amount in the contract, they must provide a calculation metric such that only an arithmetic operation is required in the future (once the conditions for applying the penalty are met), without the need to determine the basis from which the penalty amount is to be derived. Otherwise, the contractual provision will be invalid as contrary to Article 483 § 1 of the Civil Code. The Court also noted doctrinal views that a contractual penalty may be expressed as a specific amount or as a fraction of the principal obligation.

A ruling on this issue is of great importance as it may definitively determine the manner in which contractual penalties can be stipulated in contracts, as well as affect the validity of existing penalty clauses.

Centres for Handling Relief Applications (CUL) are being launched across the country. These Centres will process applications for relief related to contribution arrears, unduly received benefits, and enforcement relief. This solution aims to ensure greater standardisation in decisions concerning relief cases. At the same time, it will not change the way clients submit applications to ZUS – relief and remission advisers will continue to provide assistance in this area.

Relief applications submitted to ZUS from 1 June are randomly assigned for handling to one of ten Centres established in ZUS branches in Bydgoszcz, Gorzów Wlkp., Legnica, Wałbrzych, Rybnik, Rzeszów, Zabrze, and the I and II Branches in Łódź and Wrocław.

Advantages of the simplified procedure

“The aim of establishing the Centres is to improve the quality of services provided and to ensure consistency in decisions taken by ZUS. Decentralising the substantive handling of these cases enables automatic and random allocation of applications to individual Centres. This will ensure even greater standardisation of decisions,” explains ZUS Vice President Paweł Jaroszek.

When submitting applications for relief, clients may seek assistance from relief and remission advisers.

“Our clients can still submit applications for relief at any ZUS branch where relief and remission advisers are appointed to assist clients. The advisers’ tasks include supporting applicants during the application compilation process and assisting with the completion of declarations necessary for application review,” says Paweł Jaroszek.

Relief granted by ZUS in the form of an instalment plan provides a convenient way to repay debts. From the day following the submission of the application, no late-payment interest is charged on the amounts covered by the relief. In the case of contribution arrears, a deferral fee is charged during this period, amounting to 50% of the interest rate for late payment applicable on the date the agreement is concluded. Entering into an instalment plan allows the applicant, among other things, to continue business activity.

Another advantage of debt repayment in instalments is the suspension of enforcement actions undertaken by ZUS and the possibility for the entrepreneur to obtain a certificate of no arrears in contribution payments. The condition for granting an instalment arrangement is submitting an application to ZUS and providing the documents necessary to assess the applicant’s financial situation. The required documents are determined individually, depending on the type of liability, business activity, and form of taxation.

According to ZUS, applications will be assessed by CUL employees who will not have contact with the applicant, which is intended to ensure objective decisions and reduce the risk of potential abuse.

When can applications be submitted?

The launch of the first 10 Centres for Handling Relief Applications is scheduled to begin in the second quarter of 2021.

More information is available on the Social Insurance Institution’s website: https://www.zus.pl/

The government has submitted a draft act amending certain acts in order to eliminate administrative and legal barriers affecting the functioning of citizens and entrepreneurs – the so-called “legal shield”. The amendment includes, among other things, a modification of the Employee Pension Programme (PPE) Act.

The objective of all measures proposed in the draft is to reduce unnecessary and excessive regulatory burdens, generating time and cost savings for both citizens and entrepreneurs. As a result, administrative procedures will become faster and more efficient, which will also improve the effectiveness of public administration and generate savings on its part. The implemented measures (including the digitalisation of procedures) are expected to provide a positive stimulus for businesses and citizens, significantly impacting quality of life and business operations.

Employee Pension Programmes in the Pandemic Era

The amendment introduces changes regarding the possibility of suspending the calculation and payment of basic contributions, temporarily reducing their amount, or suspending their funding.

If justified by the financial situation, the employer may continue to be exempt from the obligation to pay the basic contribution at the rate specified in the company agreement. This may involve a unilateral suspension of the basic contribution or a unilateral reduction in its amount, provided that an agreement is reached with employee representatives regarding the suspension of calculating and paying basic contributions, or the temporary reduction of their amount, by defining the rule for calculating the basic contribution during the period of such limitation.

Within 7 days from the date of exemption from the obligation to pay the basic contribution at the rate specified in the company agreement, the employer is required to notify the supervisory authority, providing:

1) information about the unilateral suspension of calculating and paying basic contributions, specifying the date of the suspension and the period for which it applies, along with the agreement on the suspension of calculating and paying contributions, stating the date it was concluded, the effective date, and the duration – in the case of unilateral suspension;

2) information about the unilateral reduction of the amount of the basic contribution, specifying the date of implementation, the applicable period, and the amount of the basic contribution during that time, along with the agreement on the reduction, stating the date it was concluded, the effective date, the period for which it applies, and the amount of the contribution during that period – in the case of a unilateral reduction.

Exemptions from the obligation to pay the basic contribution at the level specified in the company agreement apply from the dates indicated in the agreement, taking into account statutory provisions defining the maximum periods for suspension or reduction.

Other changes

The above-mentioned changes are not the full extent of the improvements proposed by the legislator as part of the upcoming legal shield for entrepreneurs. The amendment also includes:

• Expanded possibility of not transferring contributions to PPE;
• digitalisation of procedures;
• cautious introduction of single-instance proceedings;
• broad application of silent procedure and simplified proceedings;
• extension of deadlines for fulfilling selected regulatory obligations by citizens, entrepreneurs, and authorities due to the COVID-19 pandemic;
• other types of procedural and administrative improvements.

Further elements of the legal shield are to be introduced on a quarterly basis. Four amendment packages are planned, and if not all the proposed regulations can be implemented within this timeframe, the process will be extended by additional quarters. The delay in implementing changes is intended to allow citizens and institutions adequate time to adapt to the new regulations.

On 24 June, the Sejm passed an act amending the Act on the Social Insurance System and certain other acts. The draft was submitted in May this year by the Minister of Family and Social Policy.

The government aims to streamline the social insurance system. The amendment introduces, among other things, uniform solutions regarding the granting and payment of benefits, as well as improvements to the functioning of the Social Insurance Institution (ZUS). The act provides for changes concerning the rules of social insurance coverage, entitlement to benefits, service improvements, and the streamlining of contribution payers’ responsibilities and settlement processes. The new measures are intended to positively affect the coherence and quality of the insurance system.

Key changes

• An obligation was introduced for contribution payers and insured persons to provide ZUS with the data necessary to determine entitlements and the amount of benefits under sickness insurance;
• The issue of so-called “June pensions” (lack of quarterly indexation and consequently lower benefits for those retiring in June) was resolved. Pensions will be calculated as in May, if this proves more beneficial for the insured person;
• Changes were made concerning payments for new beneficiaries who acquire entitlements from 1 January 2022. It introduces the principle that cash payments (via a postal operator) and bank transfers will be treated equally, without preference for either method;
• A provision was introduced allowing applications for a disability pension if the incapacity arose during periods of receiving care benefits for which no insurance contributions were required, or no later than within 18 months from the end of such periods;
• New rules were introduced for combining periods of incapacity to work into a single sickness benefit period (including both uninterrupted periods and those with breaks no longer than 60 days, regardless of whether the incapacity was caused by the same or a different reason);
• The period during which sickness benefit can be collected after insurance coverage ends was shortened to 91 days;
• A five-year limitation was introduced for submitting corrections to insurance declarations from the date the contributions became due;
• The rules on the frequency of submitting applications for the re-determination of benefit amounts by retired persons continuing employment were standardised;
• An obligation was introduced for all contribution payers to register on the Electronic Services Platform (PUE) from 1 January 2023;
• ZUS was granted the ability to cancel, defer or grant instalment relief for civil law receivables;
• Procedures for granting entitlement to the parental supplementary benefit were simplified;
• ZUS will gain access to the electronic central register of work permits for foreigners.

The Sejm rejected opposition amendments that would have enabled the recalculation of June pensions under the new rules for individuals who acquired pension entitlements in June between 2009 and 2019. However, the length of the sickness benefit period during the insurance period will remain unchanged – it will still generally amount to 182 days (270 days in the case of incapacity during pregnancy or due to tuberculosis). The period of receiving sickness benefit after the end of insurance coverage will, however, be shortened – it has been established that it may not exceed 91 days.

The amendment also introduces an obligation for all contribution payers to register on the Electronic Services Platform (PUE) from 1 January 2023.

The new solutions will enter into force 14 days after their publication in the Journal of Laws, with the exception of certain provisions which will take effect on different dates.

The Ministry of Development, Labour and Technology has prepared a draft amendment to the Labour Code and the Act on Upbringing in Sobriety and Counteracting Alcoholism regarding the testing of employee sobriety. The regulations also cover substances that act similarly to alcohol, such as designer drugs and other psychoactive substances.

Current legal status

Currently, the issue of testing employee sobriety raises many controversies. Employers are not authorised to carry out independent or random checks for the presence of alcohol or other substances in the body. As a result, they often have to resort to calling the police.

According to the Ministry’s explanatory memorandum, the inability to verify an employee’s psychophysical condition – in relation to certain groups of employees – may pose a threat to the health and life of the employee under the influence of such substances or agents, as well as their co-workers and third parties. In some cases, it may also risk damage to the employer’s property.

New control procedures:

According to the statement issued by the Ministry of Development and Technology, the changes will include:

• the establishment of legal grounds allowing the employer to introduce – due to a legally defined purpose – random checks of employee sobriety or for the presence of substances acting similarly to alcohol in their bodies (these purposes will be: the need to ensure the protection of life and health of employees or others, or the protection of the employer’s property);
• the establishment of rules for carrying out tests, particularly rules for processing by the employer of information indicating the presence of alcohol or a substance acting similarly to alcohol in the employee’s body, including e.g. the length of time such information may be stored;
• the obligation for the employer to identify the groups of employees subject to such testing and to inform them of its implementation at least 2 weeks in advance;
• concerning the employer’s obligation to prevent the employee from performing work:
  • maintaining the current regulation in cases of justified suspicion that an employee has arrived at work under the influence of alcohol or has consumed alcohol during working hours,
  • introducing a regulation obligating the employer to take the same action in cases of justified suspicion that an employee has arrived at work under the influence of a substance acting similarly to alcohol or has used such a substance during working hours,
  • introducing a regulation obligating the employer to act when a preventive sobriety test detects the presence of alcohol in the employee’s body or a preventive test for the presence of a substance acting similarly to alcohol detects such a substance in the employee’s body;
• regulating the procedure for conducting tests to determine the presence of alcohol or substances acting similarly to alcohol in the employee’s body by an authorised body responsible for public order protection;
• introducing the possibility of applying the above solutions accordingly to employers engaging individuals under contracts other than employment contracts, as well as self-employed individuals;
• supplementing the list of grounds in Article 108 § 2 of the Labour Code justifying the imposition of a warning, reprimand or financial penalty on an employee to include cases where an employee arrives at work under the influence of a substance acting similarly to alcohol or uses such a substance during working hours.

Once the proposed changes enter into force, employers – meeting the statutory conditions – will be able to independently check whether an employee is sober when reporting for work and whether their body contains substances acting similarly to alcohol.

Importantly, the proposed provisions allow the employer to test for the presence of alcohol or substances acting similarly to alcohol in the employee’s body, not their content or concentration.

Sobriety tests or tests for the presence of substances acting similarly to alcohol will also be carried out by the police, at the request of either the employer or an employee prevented from working.

At the same time, appropriate safeguards will be ensured to protect the rights of employees subject to such checks.

The regulations may also be applied to individuals working under legal arrangements other than employment contracts. The same applies to self-employed persons.

The draft does not include a definition of substances acting similarly to alcohol, nor does it refer to other legislation in this regard. It can be presumed that the Ministry will supplement the draft with a definition, a list of substances, or a reference to the relevant provisions of the Act on Counteracting Drug Addiction.

Controversies

In addition to the lack of clarity resulting from the absence of a definition of “substances acting similarly to alcohol”, Polish employers also point out the lack of regulation concerning the tools to be used by employers for conducting sobriety tests. Breathalysers available on the market vary in measurement accuracy, which the amendment does not take into account.

Another issue relates to the obligation to retain information about alcohol consumption in the employee’s personal files, in exceptional cases for longer than 6 months. According to some employers, this manner of fulfilling the information obligation constitutes unnecessary formalism and exposes them to additional costs.

The draft is currently undergoing public consultation. The provisions are intended to enter into force 14 days after their publication.

Link to the draft amendment: https://legislacja.rcl.gov.pl/projekt/12347305

The introduction of new identity cards featuring fingerprints and the holder’s signature stems from the need to align Polish regulations with Regulation (EU) 2019/1157 of the European Parliament and of the Council of 20 June 2019. This includes, among other things, the harmonisation of national laws in this area. However, the deadline for implementing the amendments has been extended. Originally, the Sejm had planned to introduce the new form of documents from 2 August. Currently, the exact date is not yet known and will be specified in due course.

Services without leaving home

A statement by the Secretary of State for Digital Affairs in the Chancellery of the Prime Minister has been published on the government’s website regarding this matter.

– “Everything we do has one aim: we want Poles to be able to handle as many official matters as possible without leaving home. We are working to make our e-services simple and intuitive. All this so that even those taking their first steps online can use them” – said Minister Janusz Cieszyński.

– “All currently available e-services can be found on the GOV.pl portal. Soon, new ones will appear, including those many Poles have been waiting for. All of this is thanks to the regulations adopted by the Council of Ministers on Tuesday,” he added.

What will change?

After these changes are implemented, individuals who own property (and wish to register residence online) will no longer need to prove ownership. Verification will take place automatically, without the involvement of an official processing the application. This will make the whole process even faster and more convenient.

Another change is a new e-service – the ability to download a certificate from the PESEL register containing a full or partial extract of our data and our children’s data. Once the new regulations come into force, obtaining such a certificate will be possible immediately.

The regulation will also introduce two digital-format fingerprints into the ID card, except for ID cards of persons under 12 years of age and those from whom fingerprints cannot be taken. The fingerprints will be collected at the office. In addition, the ID card will also include the holder’s signature, with a few exceptions, including for persons under 12. The visual layer of the ID will also change.

An identity card issued to a person under the age of 12 will be valid for 5 years from the date of issue. An identity card issued to a person who has reached the age of 12 will be valid for 10 years from the date of issue.

Following the changes, it will not be necessary to replace existing documents. The amendment provides that ID cards issued before the changes will remain valid for the period for which they were issued, but not later than 3 August 2031.

Not only ID cards – procedural improvements to e-services

According to information from the government website, the new regulations will also introduce an e-service allowing everyone to download information on recipients of their data from the Identity Card Register and the PESEL Register. The service will allow you to check events that occurred within five years from the date of their occurrence. Importantly, only we will be able to check who receives our data or data about a child under our parental authority. No one else will have this possibility. We already have the right to request such information, and the state is obliged to provide it. However, obtaining this information is not currently automated and, despite being requested electronically, requires an official’s involvement. Once the new regulations come into force, not only will it be easier to obtain information on data recipients, but the waiting time will also be significantly reduced. The information will be provided immediately.

And who can be a recipient of our data from the Identity Card Register and the PESEL Register? This is defined by Article 4(9) of the GDPR. According to this provision, a recipient may be a natural or legal person, public authority, agency, or other body to whom the personal data are disclosed, whether or not they are a third party. That’s the theory. In practice, this includes entities such as the National Health Fund, the Social Insurance Institution, and the Polish Post, among others.

Deadlines

Information regarding the date of implementation of the technical solutions enabling the issuance of an identity card containing fingerprints will be published in the Journal of Laws and on the Public Information Bulletin website of the Minister for Digital Affairs at least 14 days before the entry into force.

The issue of the limitation period for claims arising from defective Swiss franc loan agreements raises significant controversy. The Supreme Court resolution of 7 May 2021 in case no. III CZP 6/21 aims to remove doubts related to the limitation of claims between parties to such agreements. This resolution has faced criticism. Nevertheless, it will shape the case law because it was granted the force of a legal principle. It is also worth paying attention to the recently published justification of this resolution, especially regarding the institution of limitation periods.

In the “classical” approach to limitation under civil law, the moment when a claim becomes due (i.e., the start of the limitation period) does not depend on the creditor’s knowledge of the claim’s existence. Therefore, the limitation period may expire before the creditor becomes aware of the possibility to pursue the claim – as indicated by the Supreme Court in the judgment of 16 December 2014, case no. III CSK 36/14. This reasoning aims to ensure legal certainty, to avoid situations where a creditor would seek enforcement of a claim 20 or 30 years after providing the performance, simply because only then did the creditor “gain” awareness that what was provided years earlier was undue.

Such a classical understanding of limitation becomes outdated when confronted with EU law in the area of enhanced consumer protection. Primarily, the assumption underlying increased consumer legal protection is difficult to dispute: the consumer is in a weaker position than the entrepreneur, both in terms of bargaining power (having to accept contract terms drafted by the entrepreneur) and due to information asymmetry. Precisely because of the consumer’s weaker position compared to the entrepreneur, the Court of Justice of the European Union (CJEU) stresses in the context of limitation periods the need to consider the moment the consumer became aware of the unfair nature of the contract term or the moment the consumer could reasonably be expected to become aware of it (see judgment of 9 July 2020, C-698/18 and C-699/18, SC Raiffeisen Bank SA, paras. 63–67, 75).

Referring to the above approach indicated by the CJEU, the Supreme Court, in the justification of the resolution in case no. III CZP 6/21, stated that in cases concerning Swiss franc loans, the start of the limitation period cannot be automatically linked to the moment the parties performed their contractual obligations (as would be assumed in the classical understanding of limitation).

The Supreme Court noted that the limitation period for the consumer’s restitution claims cannot begin before the consumer actually knew or, reasonably speaking, should have known about the unfair nature of the clause. In practice, interpretative difficulties may arise, especially regarding determining when the consumer could reasonably have known about the unfair nature of the clause.

The Supreme Court also pointed out that a consumer — being aware of unfair contract terms — may waive the protection granted by the provisions on unfair contract terms, for example if the consequence of exercising this protection would be the contract’s invalidation causing adverse effects for the consumer. The Supreme Court considered this a significant factor in determining the start of the limitation period for the bank’s claims resulting from the contract’s invalidation due to unfair contract terms, i.e., claims particularly concerning the repayment of the disbursed loan amount. The Supreme Court took the position that the limitation period for the bank’s claims may begin only after the borrower-consumer makes a binding decision to waive the curing of the unfair clause and to accept the consequences of the contract’s total invalidity (and simultaneously to oppose the granting of protection against these consequences through the introduction of substitute regulations). When making such a decision, the consumer must be aware of the consequences of exercising the protection afforded by the provisions on unfair contract terms. As the Supreme Court argues — until the properly informed consumer consents to be bound by the unfair clause or refuses such consent (or a reasonable time for expressing consent expires), the loan agreement, which cannot be validly binding without this clause, remains in a state of suspended ineffectiveness, i.e., it does not produce legal effects, although it may still produce effects if the consent is given or — if certain conditions are met — if it is replaced by substitute regulation. It is clear that as long as this suspension state lasts, the lender cannot demand the performance agreed in that contract.

In other words, only a firm decision by a well-informed consumer not to waive the legal protection against unfair contract terms enables the bank to pursue claims.

Several objections can be raised to this line of reasoning.

Firstly, how can it be known that the consumer is aware of the consequences of exercising the protection granted by the provisions on unfair contract terms? Ordinary courts themselves have difficulty determining whether, if the Swiss franc loan agreement is declared invalid, its parties may claim from each other more than the return of what they provided, e.g., interest for using the capital. The District Court for Warsaw-Śródmieście, in case no. I C 1297/21, referred a question to the CJEU as to whether such additional claims may be raised by the parties. The Supreme Court has not unequivocally ruled on this either. Therefore, since the case law encounters difficulties in determining the consequences of the contract’s invalidation due to unfair contract terms, it is even less likely that the consumer can be fully aware of what exercising protection under those provisions entails.

Secondly, it is not the case that the bank must passively await the consumer’s position on whether they consent or object to being bound by the unfair clause. The bank could summon the consumer to make such a statement and thus remove the suspension preventing the bank from enforcing its claims. After all, as a professional entity, the bank should expect that in the future the consumer may contest dubious indexation clauses in the Swiss franc loan agreement.

Thirdly, the possibility to waive the protection granted by the provisions on unfair contract terms exists in the consumer’s interest. It is the consumer’s choice whether to exercise this option, bearing in mind that contract invalidation — as a consequence of exercising such protection — may be disadvantageous to the consumer. However, waiving such protection once the consumer has already filed a lawsuit against the bank is at least doubtful. Meanwhile, the possibility of waiving this legal protection has de facto served as an element of argument against consumers, enabling banks to successfully pursue claims by denying the possibility of contesting those claims on limitation grounds.

Despite the many doubts raised by the discussed Supreme Court resolution, it is worth emphasising once more that it will serve as a reference point for Swiss franc loan cases. Primarily, based on the justification of this resolution, one can note that:

1. the discussed resolution enables recognising in the consumer’s claims instalment payments which under the “classical” civil law approach would be considered time-barred. In this context, it would be necessary to determine when the consumer acquired knowledge of the unfair contract terms, or reasonably speaking, could have acquired such knowledge — and to set that moment as the start of the consumer’s limitation period. Determining this moment — as mentioned above — is not without problems. Case law will develop in this regard.
2. the discussed resolution opens the possibility for banks to effectively pursue the repayment of the capital disbursed to the consumer, because the limitation period for the bank’s claims does not begin on the date of disbursing the loan amount or its tranches, but from the moment the loan agreement became permanently ineffective, i.e., when the well-informed consumer made a binding decision to waive the curing of the unfair clause and to accept the consequences of the contract’s total invalidity (and to oppose the granting of protection against these consequences through substitute regulation). Determining when the consumer makes such a conscious decision (considering the consequences of contract invalidation) also opens the door to interpretation.

The Polish Parliament (Sejm) enacted on 24 June an amendment to the Code of Civil Procedure, which supplements consumer protection provisions, including issues related to disputes over payment orders based on promissory notes, and also expands the catalogue of unfair competition practices.

The Ministry of Justice was the author of the amendment project. The main aim of the introduced changes is the need to align the transferability of promissory notes in consumer transactions with procedural law provisions. Since an entrepreneur, when initiating court proceedings based on a promissory note issued by a consumer, will be required to attach the principal agreement securing the claim evidenced by the promissory note along with the statement of claim, without changes in substantive law, the court demanding such an agreement from a third party would at least be burdensome. According to the Ministry of Justice, enforceability of the obligations imposed both on the entrepreneur and on the court should be ensured already at the stage of creating rights and obligations arising from the promissory note.

According to information on the government’s website, the project aligns Polish law with European Union consumer protection regulations. The new solutions will enable submitting procedural documents, while preserving deadlines, at any postal operator’s branch providing universal services. The regulations regarding applications for legal aid have also been clarified.

Ex officio control

Under the current legal framework, Polish law did not provide for control of the agreement underpinning a claim directed against a consumer arising from a consumer credit agreement secured by a promissory note.

As reported by the Prime Minister’s Chancellery, the proposed changes will ease requirements in this respect and, moreover, oblige courts to verify, ex officio, the agreement on which the claims secured by a promissory note are based, with regard to unfair clauses. Thanks to these new solutions, consumers and other parties in civil proceedings will be able to enjoy a comparable level of protection of their rights throughout the EU.

Key solutions include:

• Submitting a procedural document – in the form of a registered letter – at the branch of any postal operator in Poland will be equivalent to filing it with the court. This will guarantee the delivery of sent documents to the court within an appropriate and predictable timeframe and will enable compliance with procedural deadlines.
• Changes favourable to consumers – debtors – have been introduced. If a consumer is sued on the basis of a promissory note they issued, for example to a bank, the court will be required to examine ex officio the agreement that formed the basis for issuing the promissory note with respect to unfair provisions.
• Additionally, the consumer in such a dispute will benefit from an extended deadline to raise objections (up to one month within Poland), and the court fee for the consumer’s objections will not exceed PLN 750.
• A person applying for legal aid will be able to obtain reimbursement of the costs incurred for translating documents necessary to consider the application for legal aid.

The Polish Parliament (Sejm) has adopted an amendment to the Civil Code that enables compensation for the violation of family bonds as a personal right. The bill was submitted in April this year by the President of the Republic of Poland. The amendment supplements the Civil Code with a provision particularly important for close relatives of persons in a vegetative state, for example as a result of a traffic accident or medical malpractice. It concerns granting them the right to compensation for the harm suffered due to the severance of family bonds following severe and permanent bodily injury. This solution is necessary due to the currently existing divergence in case law, including that of the Supreme Court. The amendment was adopted unanimously at the end of June.

According to the bill’s justification, the aim of this change is to establish a proper normative basis for civil liability for the harm suffered by the closest family members of the injured party, consisting in the impossibility of establishing or continuing a family relationship with the injured party because of severe and permanent bodily injury or health disorder caused to the injured party.

As stated on the Financial Ombudsman’s website, the President proposes to add Article 446[2] to the Civil Code. This provision would grant the closest family members of the injured party compensation for the harm caused by the severance of family bonds following severe and permanent bodily injury or health disorder of the injured party, as a result of which the injured party is in a vegetative state.

Case law and doctrinal opinions

“This is a very necessary initiative because it confirms that family bonds are a personal good whose violation deserves compensation. Families of seriously injured persons have been living in uncertainty for many months, which must be removed. The introduction of statutory regulation will ensure that their rights cannot be challenged, for example by insurers of perpetrators of damage resulting in the injured persons’ vegetative state,” says Dr habil. Mariusz Jerzy Golecki, Prof. of Łódź University, Financial Ombudsman.

The Ombudsman reminds that insurers gained grounds for such a position following the resolution of the Extraordinary Control and Public Affairs Chamber of the Supreme Court of 22 October 2019 (case ref. I NSNZP 2/19). It took a completely opposite position to that expressed several months earlier by the Civil Chamber of the Supreme Court. On 27 March 2018, the Civil Chamber adopted a resolution at the request of the Financial Ombudsman (III CZP 36/17) and in two other cases concerning the same issue (III CZP 69/17 and III CZP 60/17). The conclusion of all three resolutions was clear: a court may grant compensation for harm to persons closest to the injured party who, due to a tort, suffered severe and permanent health damage. On this basis, compensation could be paid, for example, from motor third-party liability insurance if the injured party was harmed in a car accident. The same principles would apply to relatives of persons injured due to medical errors, for example those made during childbirth.

Given such a glaring divergence in case law within just a few months, the Ombudsman’s initiative for a resolution should be positively assessed. It also demonstrates the importance of the act adopted by the Sejm. From now on, relatives of persons whose family bond was violated or entirely deprived have received a legal basis for claiming compensation, which will be particularly significant in numerous disputes with insurers.

More information on the Financial Ombudsman’s website: https://rf.gov.pl/2021/04/23/rodziny-powaznie-poszkodowanych-czekaja-na-nowe-regulacje/

According to many statistics available online, common courts more frequently declare loan agreements linked to CHF invalid than they apply “de-CHF-ing” of such agreements. “De-CHF-ing” means that the agreement may continue to be valid under the existing conditions (with interest based on the LIBOR rate) after removing the unlawful currency indexation clauses related to the loan amount and instalments.

The resolution of the Civil Chamber of the Supreme Court was intended to unify the case law regarding the effects of declaring abusive indexation clauses in Swiss franc loan agreements. Such a resolution has the force of legal principle and would therefore bind all common courts and the Supreme Court directly. The questions addressed to the Supreme Court concerned, among other things, the possibility of continuing performance of indexed and denominated loan agreements after eliminating the unfair indexation mechanism. Due to the lack of a response to these questions in the form of a long-awaited resolution, one can only rely on already issued rulings of the Supreme Court, which are binding in the cases in which they were issued, to determine the current position of Poland’s highest court on this matter.

At the outset, it can be signalled that the position expressed by the Supreme Court in this context is not uniform.

The Supreme Court in several rulings indicated that after removing the unlawful currency clause, the agreement may still exist, meaning that the loan in Polish zlotys is subject to interest based on the LIBOR rate. These include, among others, Supreme Court rulings of 4 April 2019, III CSK 159/17, and 27 November 2019, II CSK 483/18. The reasoning of these rulings contradicts the argument advanced by bank attorneys that a PLN loan agreement without foreign currency linkage cannot be indexed by LIBOR. According to these attorneys, the LIBOR index is legally and functionally connected to foreign currency-indexed or denominated loans, and without such a currency link, using LIBOR in the loan agreement is unprofitable for the bank; thus “de-CHF-ing” is an inadequate sanction for applying unlawful contractual provisions. Meanwhile, the Supreme Court clearly stated that — “The issue of ensuring the bank’s profitability from the loan agreement is secondary to the preventive nature of the sanction of ineffectiveness of an abusive clause (…) There is therefore no reason for the interest rate to be other than LIBOR; the sanction for the defendant for using the unfair indexation clause is essentially loan interest at a lower rate than a loan granted in zlotys without foreign currency clauses (penalty default).” — Supreme Court ruling of 27 November 2019, II CSK 483/18.

On the opposite side is the Supreme Court ruling which supports declaring Swiss franc loan agreements null and void after removing abusive clauses. In the ruling of 11 December 2019, case no. V CSK 382/18, the Supreme Court took the view that a loan agreement after elimination of unlawful provisions should be considered void. As argued by the Supreme Court in that case — “It must be accepted that eliminating the exchange rate risk characteristic for a foreign currency-indexed loan agreement, which justifies linking the interest rate to LIBOR, is tantamount to such a far-reaching transformation of the agreement that it should be regarded as a contract of a different nature and character, even if it remains only a different subtype or variant of a loan agreement. This means, in turn, that after removing such clauses, maintaining the agreement as intended by the parties is not possible, which supports its total invalidity (ineffectiveness).”

Consequently, the Supreme Court’s position is inconsistent regarding the effects of removing unlawful indexation clauses. The chronology of the above rulings suggests that the Supreme Court tends towards recognising the effect of invalidity of the loan agreement. The adoption of a resolution by the Civil Chamber of the Supreme Court would unify the Court’s stance regarding the effects of eliminating these abusive clauses. However, at present, although common courts tend to invalidate such agreements, due to the opinions expressed by the Supreme Court, “de-CHF-ing” of the agreement still has a good chance of being accepted by courts. Therefore, when bringing a case to court, one can still expect that if indexation clauses are found abusive, the outcome may be either invalidity of the agreement or “de-CHF-ing”. For this reason, it is generally recommended to formulate a primary claim regarding invalidity of the agreement and, alternatively, a secondary claim concerning “de-CHF-ing”.