On the 26th April
2018, the AG Kokott's opinion on case C‑176/17 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.
