On 16 February 2023, the Advocate General of the CJEU (“Advocate General”) issued an opinion whether, where a loan agreement concluded by a bank and a client is invalid from the outset due to the inclusion in it of unfair contractual terms, the parties, in addition to the return of the money paid in performance of the agreement (the bank – the loan principal, the client – the installments, fees, commissions and insurance premiums) and statutory interest for delay from the time of the demand for payment, may also claim any other benefits.
n the above opinion of the Advocate General, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (the „Directive”):
- client’s claims to claim other benefits – do not conflict with its provisions, with it being up to the national court to determine, in light of national law, whether clients have the right to assert such claims and, if so, to decide on their merits;
- banks’ claims to demand additional benefits from the client (so-called remuneration for the use of capital) – oppose such a judicial interpretation of domestic law that would grant banks such claims
The above opinion is not binding, and the CJEU’s judgment relating to the above area is not expected until mid-2023 at the earliest.
The PZU Group estimated a provision for legal risk related to CHF foreign currency mortgage loans in accordance with the assumptions presented in section 48.3, assuming a significant increase in the number of litigation cases in the future and the negative nature of court settlements. In calculating the provision, the PZU Group does not take into account the collection of remuneration from borrowers for the use of capital.
The PZU Group assesses that a possible sharing of the Advocate General’s position expressed in the opinion by the CJEU in its ruling may in the future affect the need to revise the assumptions related to the calculation of the provision and the PZU Group’s estimates of the expected number of lawsuits and claims (remuneration) for the borrower, which are not possible to quantify today.