Wednesday, 9 May 2018

AG Opinion on Profi Credit Polska: barriers to appeal against payment order contravene UCTD

On the 26th April 2018, the AG Kokott's opinion on case C176/17 Profi Credit Polska S.A. w Bielsku Białej v Mariusz Wawrzosek was issued. The AG Kokott is of the opinion that the Polish procedure does contravene the Consumer credit directive as there are significant obstacles in place for the consumer to be able to exercise his rights, leaving him in a disadvantageous position.

It has been well established in the case law that national courts should examine whether terms are unfair ex officio. This case asks whether the same is true when the court examines a bill of exchange arising out of a consumer credit contract.

In Poland it is a widespread practice to issue bills of exchange by the creditor against the consumer, for securing the debt out of a consumer credit agreement. The polish civil procedure code, Kodeks postępowania cywilnego (hereafter: KPC) has a fast track procedure in place for the issue of such bills of exchange where the court is limited to examining solely the formal requirements applicable to the bill of exchange, without examining the relationship underlying it. The question referred was whether this procedure is compatible with the consumer credit directive.

There are two stages in the procedure, in the first stage the consumer credit agreement is not examined by the court, yet it can be examined in the second stage following an objection of the defendant/debtor. The facts of the case were that Mariusz Wawrzosek signed a credit agreement with the bank Profi Credit Polska S.A.. That agreement contained a standard term that the debtor would issue a blank bill of exchange to secure the claim of the bank from the credit agreement. As the debtor failed to repay his debt the bank filled out the bill of exchange with the amount of 3.268,38 PLN and used the bill of exchange as a basis for issuing a payment order against the debtor. 

AG Kokott argues that the relationship should be viewed as a whole, meaning both stages (para 28).The previous directive on consumer credit included a provision on bills of exchange. The current directive does not include such an article, meaning that it is up to the member states to decide whether to regulate bills of exchange in relation to consumer credit agreements. Still the referring court asked whether the polish law contravenes art.22(1) of Directive 2008/48/EC (Consumer Credit Directive, hereafter: CCD)

According to the opinion, as the CCD does not harmonise law on bills of exchange, there is no violation of art.22(1) CCD. Art17(1) is not relevant to the case, as it refers to the instance when the claim has been transferred to a third party; while in this case the relationship remained between the bank and the debtor. Therefore, the CCD does not preclude the provisions of Polish law in question.

Is the same true in the case of Directive 93/13/EC (Unfair Contract Terms Directive, hereafter: UCTD)? AG Kokott differentiated the facts of this case from that of Finanmadrid EFC and Aziz. The bill of exchange forms the basis for the issue of a payment order. Unlike Finanmadrid EFC, the payment order covers only the bill of exchange, meaning that the debtor is able to turn against the creditor at a later stage requesting that a contract term is found unfair (para 66). Also the AG clarified that unlike Aziz, in this case there is not the chance of eviction from the family home, meaning that having only one chance to appeal against the payment order is compliant with the UCTD, especially if the consumer can further raise compensation claims or claims based on unjust enrichment and raise issues of unfairness in such proceedings (para 70-71).

Finally, AG Kokott pointed out the issues that to her opinion render the procedure of the appeal of the consumer against the payment order contrary to the UCTD. The AG argues that the fact that the appeal is possible only at the second stage of the procedure is not problematic as the law does not protect the consumer from complete inertia (para 73). The two week deadline for exercising the appeal is also not problematic in itself. (para 79) What is problematic is that in this appeal the debtor is required to put forward all the reasons for the appeal, submit all the relevant evidence as well as pay all the court expenses. 

The procedure should not be such as to discourage the consumer from appealing to the court (para 77). AG Kokott finds that the requirement for the consumer to prepay  ¾ of the court expenses when filing an appeal, as opposed to ¼ of the expenses for the applicant, is particularly grave and able to discourage the consumer from appealing to justice (para 80).

This is a carefully measured opinion where AG Kokott is conscious of the principle of subsidiarity yet willing to defend the rights of European consumers where that is necessary.

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