POLAND Trends and Developments Contributed by: Marcin Olechowski, Wojciech Iwański, Tytus Brzezicki and Piotr Orłowski, Sołtysiński Kawecki & Szlęzak
So-called free credit sanction Recently, there has been a growing number of lawsuits against banks alleging violations of the Act of 12 May 2011 on consumer credit (the “Consumer Credit Act”, or CCA) and therefore exercising the so-called free credit sanction. The sanction means that after making the appropri - ate statement, the consumer is obliged to return the loan without interest and other costs owed to the creditor (bank). In addition, the consumer may demand from the creditor the return of all amounts collected for interest and other credit costs (such as commissions). In Poland, a strict system of sanctions has been introduced, which differs from the solutions of other countries. Although it is supposed to pro - tect consumers, the current legislation may lead to abuse, and the sanction of free credit is some - times used by specialised companies that mas - sively acquire consumer claims at a lower price and then sue banks. The number of court cases based on this sanction is growing dramatically and, according to the Polish Bank Association ( Związek Banków Polskich ), there are currently about 10,000 cases of this type in the courts in 2024. The sanction of free credit was introduced to Polish law to implement Article 23 of Directive 2008/48/EC, obliging EU member states to establish sanctions for violations of the provi - sions implementing Directive 2008/48/EC. These sanctions should be effective, proportionate and dissuasive. The current shape of the free credit sanction is questionable in terms of the principle of proportionality. The CCA does not introduce any criteria for limiting the scope of the sanction depending on the severity of the violation. Any violation of the provisions set forth in Article 45 of the CCA may lead to depriving the creditor of the entire profit from the loan.
There are noticeable examples in case law of refusal to apply the sanction in cases where failures are minor, citing the rule of proportional - ity or alleging an attempt to abuse the law. This does not always happen, however – owing to the lack of clear criteria in the law, which leads to considerable legal uncertainty. In this context, a number of Polish courts have submitted prelimi - nary questions to the ECJ on whether the current form of the sanction complies with EU law. The answer to the questions may reduce the current legal uncertainty. Notwithstanding the foregoing, the banking sector is calling for legislative changes to target sanctions legislation. In July 2024, the Polish Bank Association approached the government with proposed changes to reduce abuses. The proposals include, among other things, limiting the catalogue of information obligations whose violation results in the sanction of free loans. Sale of Velobank SA On 1 August 2024, the Bank Guarantee Fund (BGF) finalised the sale of 100% of VeloBank SA shares to Promontoria Holding 418 BV from the Cerberus group with the participation of Euro - pean Bank for Reconstruction and Development (EBRD) and the International Finance Corpora - tion (IFC) (part of the World Bank Group) funds. The sale concluded a nearly two-year resolution process of Getin Noble Bank SA (GNB) and ful - fils Poland’s obligations to the EC. The resolution began on 30 September 2022, when BGF transferred part of GNB’s operations to VeloBank SA, protecting all GNB’s depositors and their PLN38.1 billion in deposits. This pro - cess was closely monitored by the EC, which approved the sale under the rules of permitted state aid. Following the transaction, VeloBank SA will no longer operate as a bridge institution
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