The Polish legal system adopted a full appeal model. A court of second instance adjudicates on the principles of da mihi factum, dabo tibi ius and facta probantur, iura novit curia. Therefore, non-obligatory grounds [allegations] of appeal include a violation of
substantive law provisions. Pursuant to the latest case law of the Court of Justice of the European Union, which will be discussed in this publication, the aforementioned component of appeals in foreign currency loan cases turns out to be the most controversial one. The Court of Justice of the European Union in its judgment in case mBank, C-140/22, presented an interpretation of Article 6(1) in fine and Article 7(1) of Directive 93/13 not transposed to the Polish legal system contrary to the one stemming from the
May resolution of the Polish Supreme Court. Firstly, according to the Court of Justice of the European Union, a possibility for a consumer to object to the application of Directive 93/13, which is guaranteed by the well-established Luxembourg case-law, cannot
be understood as imposing on him or her, in order to assert the rights, he or she derives from that directive, the positive obligation to rely on the provisions of that directive by means of a formal declaration. Such interpretation would mean an application of the
provisions of said directive upon request, and not ex lege, as an expression of suspended unenforceability until the consumer concerned terminates it, as opposed to the absolute nullity required by EU law (ex tunc, ex lege). Secondly, Article 6(1) in fine and Article 7(1) of said directive preclude the compensation sought by the consumer concerned in respect of the restitution of the sums paid by him or her in the performance of the agreement at issue being reduced by the equivalent of the interest which that banking
institution would have received if that agreement had remained in force. A logical consequence stemming from and further clarifying the above is the judgment in the Getin Noble Bank case, C-28/22, where the Court of Justice of the European Union opposed such an absurd interpretation set out in the May resolution of the Polish Supreme Court that the application of general provisions was excluded at the expense of the consumer’s interests, according to which the limitation period for restitution claims of the bank against the consumer and vice versa begins from the moment when the consumer at the bank questioned the validity of the credit agreement, that is from a request for the refund of the amounts of the repaid loan installments, i.e. following the receipt by that seller or supplier of the request to repay those sums. Both judgments mark a return to the interpretation preceding the May resolution of the Supreme Court.
