A Claim for Payment of Amounts Exceeding the Value of the Completed Contractual Obligation to be Returned Due to Invalidity of the Loan Agreement in the Light of the Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts and the Case Law of the Court of Justice of the European Union

Abstract

In view of the increasing number of consumer claims examined by common courts of law for establishment of invalidity of mortgage loan agreements denominated in or indexed to a foreign currency (most often, the Swiss franc), a question arises about the validity of the concept of allowing banks to pursue claims against consumers for a substitute of a fee, compensation, reimbursement of costs incurred, or valorisation, in connection with the use of the capital paid out to consumers after the execution of the contract that is subsequently ruled to be invalid. The authors argue that on the basis of the current jurisprudence of the Court of Justice of the European Union relating in particular to the interpretation of the Directive 93/13 and its objectives, it is admissible to rule that the bank, being the stronger party to the mortgage loan agreement, is not entitled to the above-mentioned claims. The aim of the study is to discuss the case law of the Court of Justice of the European Union in terms of justification of the above position, in relation to the expected decision on the preliminary question of the District Court for Warsaw-Śródmieście in Warsaw.