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Case Details

Case Details
National ID T XVII Amc 47/01
Member State Poland
Common Name Head of the Office for the Protection of Competition and Consumers, Defendant – Powszechna Kasa
Decision type Other
Decision date 30/09/2002
Court Sąd Antymonopolowy (Others)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, ANNEX I, 1.

1. Charges imposed by a Bank for unjustified customer complaints are not ‘the main rights and obligations of the parties’ for the purpose of the exclusion in Article 385.1 of the Civil Code. Because according to Article 110 of Banking Law of 29 August 1997 (Dziennik Ustaw of 2002, No. 72, poz. 665) the bank can, but does not have to, impose charges for various banking activities – and thus these charges are optional – they cannot be treated as the main rights and obligations of the parties which are never optional
2. A charge of 20 PLN present in the list of standard contractual clauses and payable in cases of unjustified complaints with regard to bank account statements or credit cards statements is a prohibited contractual clause.
3. A clause present in the list of standard contractual clauses which reads that, in cases where the customer specified that he would be collecting his correspondence from a bank branch, the correspondence uncollected for 30 days is deemed delivered, is prohibited.
The claimant brought proceedings against the Bank, seeking a declaration that some standard clauses used by the Bank were prohibited. The clauses concerned: 1. charges imposed on customers making complaints regarding their bank accounts or their credit cards, as well as 2. delivery of correspondence (such as bank statements or bank notices) to customers. First of all, the clauses stated that if a complaint made by the customer was rejected or only partly accepted, the customer would be obliged to pay 20 PLN as well as the amount of the rejected claim and the costs of its investigation. The Bank in fact ceased using the clause imposing a 20 PLN penalty approximately one month before the claim was brought. Further, another clause read that, in cases where the customer specified that he would be collecting his correspondence from a bank branch, the correspondence uncollected for 30 days is deemed delivered.
The claimant maintained that charging customers for unjustified complaints should not take place. Complaints and requesting explanations constitute the customers’ rights according to the contract with the Bank. The Court partly agreed with this argument.


According to Article 385.1 of the Civil Code, a clause which has not been individually negotiated should not bind the consumer if it shapes his rights and obligations in a manner contrary to good faith, significantly infringing his interests. Such a clause is a ‘prohibited contractual clause’. The Article also excludes its application to ‘the main rights and obligations of the parties’ if these were phrased unambiguously. The Court considered whether the clauses in question were in fact not individually negotiated. Article 385.1 para 3 stipulates that a clause is not individually negotiated if the consumer did not have any true influence upon its content. The Court held that the clients of the Bank (who were consumers – the Court, referring to Article 384 of the Civil Code of 1964 stressed that they concluded the contracts for purposes not related to economic activity) did not have any influence upon the content of the rules regulating the use of their accounts and credit cards, and the list of charges, which were incorporated into their contracts.

Further, the Court held that the charges were optional for the Bank to impose (according to Article 110 of the Banking Law of 1997) – and thus could not constitute ‘the main rights and obligations of the parties’ for the purposes of Article 385.1.

The fact that the Bank ceased the use of certain clauses one month before the claim was brought could not prevent the Court from delivering the judgement. According to Article 479.39 of the Code of Civil Procedure, a claim may be brought within six months from the time when the defendant ceased using the clauses.

The claimant maintained that the clauses used by the Bank came under Article 385.3 para 9 (one of the examples on the list of possible prohibited clauses – right of the non-consumer party to unilaterally interpret any term of the contract). However, according to the court an interpretation of a complaint is normally a unilateral activity of the Bank and it does not concern the contract between the Bank and the customer. If the customer feels that the interpretation of the complaint is wrong – he may bring the case to court for final interpretation. Thus, the court held, Article 385.3 para 9 does not apply here. The Bank did, nevertheless, stress that because according to Article 728 para 2 of the Civil Code of 1964 the customers of a bank were obliged to check their bank statements and notify the bank of any inconsistencies within 14 days, the Bank should not penalise the customers for unjustified complaints because it would mean obtaining an unfair benefit abusing the economically weaker position of the customers. Thus, the court held that a charge of 20 PLN for unjustified complaints was indeed a prohibited clause.

It appears, however, that the Head of the Office for the Protection of Competition and Consumers did not manage to prove that charging the customer the amount of the rejected claim and the costs of the investigation of the complaint was a prohibited contractual clause – the court held that these were not prohibited clauses.

The Court held that the clause present in the list of standard contractual clauses which reads that, in cases where the customer specified that he would be collecting his correspondence from a bank branch, the correspondence uncollected for 30 days is deemed delivered, is prohibited. If such a clause was to stand, according to the Court, the Bank could treat an amendment of standard clauses (which it has an obligation to deliver to the customer on the basis of Article 384 and 384.1 of the Civil Code) as delivered in spite of lack of actual delivery. This, the Court held, would be unacceptable.
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