Is a breakthrough for borrowers? This judgment can change everything

Last week before the Court of Justice of the European Union (the CJEU) there was a hearing regarding housing loans in PLN, based on variable interest rates with the WIBOR rate (reference number C-471/24), initiated based on the questions of preliminary ruling by the District Court in Częstochowa in connection with the dispute of the borrower with the Bank PKO BP.

WIBOR before the CJEU – what is the dispute about?

During the hearing, the bank’s representatives argued that the provisions regarding WIBOR should not be subject to the Court’s assessment. The rule of Poland and Portugal indicated that the BMR regulation provided an adequate balance of the interests of the parties, including consumers, and the European Commission warned that the possible control of these provisions could undermine the entire method of determining reference indicators in the EU. It was also noted that the EU mortgage directive does not impose the obligation to provide technical details to the determination of indicators to consumers. The judgment of the CJEU will not be issued until next year, after presenting the opinion of the Ombudsman, and its effects may affect millions of borrowers in Poland.

– The WIBOR case in the CJEU has already caused a wave of comments. However, it seems that the accents of each page are based on a different point of heaviness. Governments, bank and European Commission are of the opinion that the location of WIBOR as a key reference indicator excludes its examination in terms of abusiveness. In turn, the consumer’s representative focuses on the information provided – notes Agnieszka Sobczyk, a legal advisor at the K&L Legal Granat I partner law office in an interview with “Wprost”.

WIBOR indicator and information obligation of banks

The expert points out that the judgment of the CJEU in case C-300/23 emphasizes the importance of information obligations of lenders towards consumers, which weakens banks’ arguments in the dispute about WIBOR.

-Considering the C-300/23 judgment, it is impossible to divide the position of consumer opponents-it is agreed to pay attention to several issues arising from the Polish legal order. First, art. 10 of the Mortgage Credit Act and the supervision of mortgage -loans and agents indicates that the lender, mortgage broker and agent are obliged to provide the consumer at any time, on a permanent carrier or in electronic form, precise and understandable general information regarding the mortgage contract, including at least the names of reference indicators and their administrators, and information about potential consequences for the consumer. Secondly, in art. 32 above of the Act, it was indicated that the reference indicators are to be understandable, available, objective and possible to verify the mortgage agreement by the parties, i.e. the consumer. Also, historical data on reference indicators should be stored by lenders, credit intermediaries and agents at least for the period of the mortgage agreement.

Comprehension of the WIBOR indicator

The expert emphasizes that the presence of WIBOR in the EU regulation does not release banks from the obligation to comply with national regulations regarding the transparency and informing the consumer.

– Therefore, it is impossible to assume that the mere plane of WIBOR in the regulation does not mean the exemption of the lender from obligations arising from the BMR regulation other than the regulation. The intelligibility of the indicator required by the Polish law requires precision in the information provided and extensive duties. This is all the more important because WIBOR in the light of Polish law does not constitute a disposable provision within the meaning of Directive 93. You can apply other interest rates – notes Sobczyk.

WIBOR indicator and the issue of interest

The expert indicates that, apart from the mortgage Act, there are clear rules regarding interest rates in contracts.

– Moreover, in other contracts not covered by the regulation of the Mortgage Act, if the contract does not specify interest, the mechanism of art. 359 §2 of the Civil Code, i.e. statutory interest in an amount equal to the sum of the reference rate of the National Bank of Poland and 3.5 percentage points – says the lawyer.

As she notes, although the case evokes a lot of emotions, its result is still not a foregone conclusion.