How do consumers’ claims regarding “liquidation fees” or redemption benefits from insurance-based investment products (polisolokaty) become time-barred?

Life insurance contracts with an insurance capital fund (commonly known as “polisolokaty”) often contain unlawful contractual provisions regarding the calculation of fees in the event of early termination of these contracts. This is confirmed by the prevailing position expressed in the case law of common courts. By way of example, it is worth noting the recent judgment of the Warsaw Court of Appeal dated 10 February 2022, case no. I ACa 826/21, which recognised as unlawful the provisions concerning the “surrender fee” charged upon termination of the contract. In that case, the contract did not define this fee, did not specify its components or the rules for its calculation, and, as emphasised, merely setting a percentage for the fee was insufficient.

This raises the question of how long claims arising from such unlawful contractual provisions can be effectively pursued. Two more specific questions arise: what is the limitation period for these claims, and from which moment should that period be counted?

The issue of the length of the limitation period for such claims was clarified in a resolution of the Supreme Court dated 10 August 2018, case no. III CZP 13/18, which indicated that the limitation period for such claims is set out in Article 118 of the Civil Code. This leads to the conclusion that the limitation period is 10 years for polisolokaty contracts terminated before 9 July 2018, and 6 years for contracts terminated on or after 9 July 2018. This resolution therefore unequivocally stated that such claims should not expire within the 3-year limitation period applicable to insurance contracts. The Supreme Court pointed out that such a benefit is closely connected with the investment part of the polisolokaty contract.

The second question was answered by the Supreme Court in its ruling of 13 January 2022, case no. III CZP 61/22, which held that the limitation period for such a claim by a consumer who is an insured or policyholder cannot begin before the consumer knew, or reasonably ought to have known, about the unlawful nature of the provision. This approach corresponds to a similar solution adopted in cases relating to loans indexed to CHF. Supporting this concept is the need to ensure the effectiveness of Directive 93/13/EEC, which requires national law not to create excessive barriers to consumers seeking restitution claims arising from the assessment of abusive clauses. The institution of limitation must therefore not be an obstacle for consumers in exercising legal protection against abusive (unlawful) contractual provisions. Consequently, the limitation period for consumer restitution claims cannot begin before the consumer actually knew or reasonably should have known about the unlawful nature of the clause, as only then can the consumer call upon the entrepreneur to refund the benefit.

In practice, each individual case will require determining the moment when the consumer actually became aware, or could reasonably be deemed to have become aware, of the abusive nature of the provisions concerning the calculation of fees in the event of termination of polisolokaty contracts, which calls for a detailed examination of the particular circumstances.