How Does the Unfair Contract Terms Directive Penetrate National Legal Systems? – A Case Study Based on Mortgage-Secured Loans for Housing Purposes, Indexed or Denominated in CHF in Poland

Abstract

The main aim of this article is to present the process of how the Unfair Contract Terms Directive was accepted into the Polish legal system. In order to do so, it first briefly explains, how the problem that allowed the massive testing of the Unfair Contract Terms Directive, i.e. the vast amount of consumer mortgage-secured loans for housing purposes, indexed or denominated in CHF (further: the CHF loans) came into existence in Poland. The story of the CHF loans also perfectly illustrates how the Polish legal system, which had taken a very liberal turn after 1989, struggles with the EU consumer protection concepts (which might also be representative for other countries of young democracies). It shows how the lack of adequate reactions of the governmental agencies led to burdening the judiciary system with the weight of the CHF loans problem, and how the Polish courts have not been sufficiently prepared for applying EU law. As an example, the article presents three issues that are at different stages of development when it comes to the completeness of the dogmatic construction, and which vary, when it comes to the degree of their intertwining with EU law.