CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 31 août 2021

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He was represented before the Court by Mr   D.   Wieczorek, a lawyer practising in Cracow. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. Background to the case 3.     In 2004 banks in Poland started offering loans denominated in Swiss francs (CHF). Borrowers were offered more favourable interest rates than for loans denominated in Polish zlotys (PLN). However, following the financial crises in 2008 and in 2015, the Swiss franc surged against the Polish zloty. Consequently, borrowers found themselves facing much higher repayment amounts and a number of them instituted court proceedings seeking modification of their loan contracts. 4.     On 6 September 2007 the applicant concluded an agreement for a loan in Swiss francs with the Raiffeisen Bank Polska for the sum of CHF   290,347 ( which at that time amounted to PLN 660,000). He initially planned to use the loan to buy an apartment. However, he subsequently decided to buy a flat to be used as his business premises, to which the bank agreed. The mortgage was indexed to the Swiss franc. According to the terms of the agreement, the funds were made available in Polish zlotys but the amount due was expressed in Swiss francs based on the PLN-CHF buying rate on the day of the agreement. The monthly payments were to be calculated in Swiss francs but debited in Polish zlotys, according to the PLN-CHF selling rate at the time when the payments were due. The applicant was to bear the risk of any exchange rate fluctuations between the Polish zloty and the Swiss franc. 5.     On 4 January 2013 the bank terminated the loan agreement as the applicant had fallen behind with payments. On 20 May 2013 the applicant sent a written statement to the bank in which he asked to avoid the legal effects of a declaration of intent made by mistake ( uchylenie się od skutków prawnych oświadczenia woli złożonego pod wpływem błędu ). Civil proceedings 6.     On 1 June 2013 the applicant lodged a civil claim with the Cracow Regional Court seeking to invalidate the loan agreement. He alleged that he had been misled by the bank and that the agreement contravened the principles of community life ( zasady współżycia spolecznego ). 7.     On 24 March 2016 the Cracow Regional Court dismissed his claim. The court noted that the applicant had decided to take out a loan in a foreign currency which at that time had had more favourable conditions than a loan in the national currency. He had been informed about the fluctuations in exchange rates, yet he had chosen to sign the contract. The court observed that the situation of people who, like the applicant, had their mortgages denominated in Swiss francs and who were not able to repay them owing to increased exchange rates should be regulated by the legislature and not by the ordinary courts. The court also dismissed a request by the applicant for an expert opinion on the effective costs of the loan, finding that such information did not have to be provided by an expert. Lastly, the court held that the bank had not misled the applicant and had duly informed him about the risks involved in foreign-currency loans. 8.     The applicant appealed, alleging, in particular, that the defendant bank had not provided accurate and detailed information regarding the consequences of a loan contract in a foreign currency. He stressed that the bank should have informed him in detail of the risks involved in taking out loans denominated in Swiss francs. 9.     On 23 November 2015 the Cracow Court of Appeal dismissed his appeal, endorsing the reasons given by the first-instance court. The court noted that, while the applicant could not be regarded as an entrepreneur, the fact that he was conducting a business activity was important. The applicant had taken out a loan to buy an apartment as an investment despite being informed about the risks involved in a foreign-currency loan. Moreover, the contract provided for the possibility of restructuring the loan into a loan denominated in Polish zlotys. However, the applicant had not made any attempt to restructure the loan, even though he could have done so once he had noticed that the costs were increasing. The court further held that the provisions of the contract challenged by the applicant could not be considered to amount to unfair terms of contract ( klauzule abuzywne ). Lastly, the applicant had failed to indicate exactly which principles of community life had been breached. 10.     On 27 October 2016 the Supreme Court refused to entertain a   cassation appeal by the applicant. Its decision was served on the applicant on 15   December 2016. Relevant law and practice Domestic law 11.     Article   5 of the Civil Code relates to the so-called “principles of community life” and reads as follows: “Rights may not be exercised in a manner which contradicts their socio-economic purpose ( społeczno-gospodarcze przeznaczenie prawa ) or the principles of community life ( zasady współżycia społecznego ). Such an act or omission on the part of a person so entitled shall not be considered to constitute an exercise of that right and shall not be protected by law.” European law 12.     A detailed description of the relevant European law and practice is set out in the decision delivered by the Court in the case of Antonopoulou   v.   Greece ((dec.), no. 46505/19, §§   38 ‑ 43, 19   January 2021). 13.     The matter of loan contracts denominated in a foreign currency (namely the Swiss franc) has already been examined by the Court of Justice of the European Union (CJEU) following a request for a preliminary ruling from the Oradea Court of Appeal in the proceedings in the case of Andriciuc   and Others v. Banca Românească SA (case   C ‑ 186/16). In   a   judgment of 20 September 2017 the CJEU defined the notion of “plain   intelligible language” required for the drafting of contractual terms and indicated that the unfairness of a contractual term should be determined by reference to the time the contract at issue had been concluded. 14.     The matter of alleged unfair terms in loan agreements has also been brought before the CJEU on several occasions. In particular, in its judgment of 26 February 2015 in the case of Matei v.   SC Volksbank România SA (case   C-143/13), the CJEU held, essentially, that the types of terms in loan agreements concluded between professionals and consumers which allowed the lender, under certain conditions, to unilaterally alter the interest rate or to apply a risk charge were not covered by the exceptions prescribed in Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95/29), and therefore could be “verified” by the courts. 15.     In its judgment of 3 October 2019 in the case of Dziubak (C-260/18), the CJEU gave a preliminary ruling concerning the interpretation of certain provisions of Council Directive 93/13/EEC. The CJEU held that the directive did not preclude the annulment of a contract, whereas maintaining it without unfair terms would have altered it fundamentally, since it was not clear if the loan could continue to function without the connections to the Swiss franc that were set out in the unfair terms. However, the CJEU stressed that the unfair contract terms directive would only apply to the consumer if the consumer so wished. If the annulment of the contract as a   whole would hurt the consumer more than retaining the unfair terms, the consumer could decline this form of “protection” under the directive. Legislative initiatives concerning foreign-currency loans 16.     On 2 August 2016 the President’s bill on foreign-currency loans was submitted to Parliament. On 23 September 2016 another bill prepared by a   group of parliamentarians on restructuring loans in foreign currency was submitted to Parliament. However, no act has yet been passed by Parliament. COMPLAINTS 17.     The applicant complained under Article 6 § 1 of the Convention of the unfairness of the proceedings in his case. He stressed that the domestic courts had dismissed his claim contrary to the relevant provisions of the Civil Code and European law. He alleged that the decisions in his case had been politically motivated. 18.     In addition, he complained of a breach of his property rights in that he had had to reimburse to the bank a much higher amount that the amount he had initially borrowed. 19.     Lastly, the applicant complained under Articles 6 and 13 of the Convention that the Supreme Court had refused to entertain his cassation appeal. THE LAW Complaint under Article 6 of the Convention 20.     The applicant complained under Article 6 § 1 that the proceedings in his case had been unfair. This provision of the Convention, in so far as relevant, provides as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a   fair ... hearing ... by [a] ... tribunal ...” 21.     The Court notes at the outset that the applicant did not complain about any conflicting decisions in the case-law of the domestic courts (compare Lupeni Greek Catholic Parish and Others v. Romania [GC], no.   76943/11, 29 November 2016), but rather alleged that the decisions in the case at hand had been unfair as the domestic courts had wrongly applied Polish and European Union (EU) law. 22.     In that connection the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no.   30544/96, §   28, ECHR 1999 ‑ I). It has also already held that it is not competent to rule formally on compliance with domestic law, other international treaties or EU law (see, for example, Avotiņš v. Latvia [GC], no.   17502/07, §   100, 23   May 2016). Consequently, in the absence of any arbitrariness which would in itself raise an issue under Article 6 § 1, it is not for the Court to make a judgment as to whether the domestic courts correctly applied the relevant EU directives and the case-law of the CJEU in the applicant’s case. 23.     In the case at hand there is no indication that the domestic courts’ decisions were manifestly unfounded or arbitrary.   24.     In so far as the applicant specifically complained about the domestic court’s refusal to obtain expert evidence, the Court observes that the admissibility of evidence and the way it should be assessed on the merits are primarily matters for the national courts, whose task it is to weigh the evidence before them (see García Ruiz , cited above, § 28). 25.     The Court further observes that the applicant had the benefit of adversarial proceedings during which he was able to adduce the arguments he considered relevant to his case. He further had the opportunity to challenge effectively the arguments adduced by the opposing party. In view of these considerations the Court holds that the proceedings taken as a   whole were fair. 26.     Accordingly, this complaint is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention. Complaint under Article 1 of Protocol No. 1 to the Convention 27.     In relation to the applicant’s complaint of a breach of his property rights, the Court considers that it falls to be examined under Article   1 of Protocol No.   1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 28.     The Court reiterates that while Article 1 of Protocol No. 1 is essentially concerned with preventing unwarranted State interference with property rights, in certain situations the effective enjoyment of the rights guaranteed by that provision may entail the adoption of positive measures, even in cases involving litigation between private individuals (see   Shesti   Mai Engineering OOD and Others v. Bulgaria , no.   17854/04, §   79, 20 September 2011). In addition, under this provision of the Convention the State must ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his rights, including, where appropriate, by claiming damages in respect of any loss sustained (see Blumberga v. Latvia , no. 70930/01, § 67, 14   October 2008). 29.     Having regard to the applicant’s complaints, the Court will examine whether the domestic law afforded him adequate remedies, as required by the State’s positive obligation under Article 1 of Protocol No. 1 to the Convention (see Antonopoulou v. Greece (dec.), no. 46505/19, §   59, 19   January 2021). 30.     In that regard, the Court notes that the crux of the applicant’s grievance, the fact that he had to reimburse more than he had borrowed is related to the increased exchange rates of the Swiss franc, caused by the financial crisis that affected not only Poland, but all of Europe and had serious long-term consequences on the financial markets (compare   Antonopoulou , cited above, § 76). 31.     The Court further observes that as established by the domestic courts, the applicant had been informed about the risks involved in a   foreign-currency loan and the fluctuations in exchange rates yet he had chosen to sign the loan contract (see paragraphs 7 and 9 above and compare Antonopoulou , cited above, § 77). Moreover, according to the terms of contract and as pointed out by the Court of Appeal, the applicant had a   possibility to restructure the loan into a loan denominated in Polish zlotys (see paragraph   9 above). However, he had not made any attempts to do so (compare Antonopoulou , cited above, § 79). 32.     The Court finds that the proceedings before the domestic courts were conducted in an adversarial manner and there is no indication that the applicant was in any way prevented from submitting his evidence and/or developing legal arguments before the domestic courts. The domestic courts exhaustively addressed the applicant’s arguments and their decisions are sufficiently reasoned. 33.     In view of these considerations and its conclusion above under Article 6 of the Convention (see paragraphs 21   -   25), the Court finds that the applicant’s claims were adjudicated effectively and fairly by the domestic courts in proceedings in which all procedural safeguards had been observed (compare Antonopoulou, cited above, § 82). 34.     The Court therefore considers that the positive obligation of the State under Article 1 of Protocol No. 1 has been complied with in the present case, and in the absence of any arbitrariness or manifest unreasonableness, it cannot call into question the findings of the domestic courts. 35.     It follows that this part of the application is likewise manifestly ill ‑ founded and should be dismissed pursuant to Article 35 §§ 3 (a) and 4 of the Convention.   Complaint under Article 13 of the Convention 36.     In so far as the applicant complained about the refusal of the Supreme Court to entertain his cassation appeal, the Court reiterates that it has already found that a refusal to examine an unmeritorious cassation appeal or a cassation appeal in which no serious issue of law arises is not incompatible with the general obligation to secure an effective remedy under Article 13 of the Convention (see Zmaliński v.   Poland (dec.), no.   52039/99, 16 October 2001). 37.     The Court further observes that the cassation appeal at issue was lodged after the case had been examined by courts at two levels with full jurisdiction, and the assessment of whether the applicant’s cassation appeal warranted examination must have involved, to a certain extent, an examination of the grounds of appeal. 38.     Accordingly, this complaint is inadmissible as being manifestly ill founded within the meaning of Article 35 § 3 (a) and must also be rejected pursuant to Article 35 § 4 of the Convention For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 September 2021.   {signature_p_2}   Liv Tigerstedt   Lorraine Schembri Orland   Deputy Registrar   President