“BTE market position puts the judge in his own case, while the bank and the client should be equal to the parties to a legal relationship,” – said the Court. The position of the debtor when issuing BTE TK rated as very poor, because the law does not even require the bank to notify the client that requested the court to the BTE against him, and the client – wanting to get a loan – it must voluntarily agree to submit to the execution, when there will pay off their obligations.
The five-part Tribunal held that the two provisions – Article 96 paragraph. And 97, paragraph 1. 1 of the Banking Law BTE violate the principle of equality. TK does not set aside the entire BTE and gave legislators time to 1 August 2016. On the adoption of the new rules. “Eliminating BTE no danger disaster for banks. They are instruments as effective and also convenient – eg. Bills” – indicated by the Court.
TK recognized on Tuesday joined the legal questions of the District Court in Konin, which had doubts as to the compatibility BTE laws with the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the court by Asker BTE authorizes banks to manage their debt enforcement proceedings without a judicial fact-finding phase, which results in an imbalance between the parties by a stronger legal position of the bank.
According to the court Konin, this situation violates the constitutional primarily the principle of equality of persons before the law. “This situation raises the social belief that a legal entity with a high economic power may use legal solutions that benefit him in relation to the others, because of its substantial financial capacity” – says in the question. Banking Law says that the receiving bank customer signs a loan agreement of enforcement when not repay obligations, and the court to give the bank a request for a clause to BTE not substantively examine it, but only formally – and aims to 3 days.
The entry into force of the judgment was postponed in order to “prevent chaos in the course of banking” – said the judge rapporteur Teresa Liszcz. According to her, now the courts of such matters will have to pay more attention to constitutional values. According to the Tribunal is not permitted to resume already completed similar procedures to prevent a secondary unconstitutionality. “The legislature enacting new legislation may create a new instrument which enables banks to protect their claims – but it should not be so detrimental to customers of banks, as the current BTE” – she said.
“The bank as a creditor and debtor client as – they should have the same position. Both of these entities are parties to the same legal relationship “- said in an oral Liszcz grounds of the judgment the judge. Also acknowledged that the Court did not deny the special role of banks as an institution of public trust. “The position of the bank has increased the advantage over the client. BTE is a privilege too far-reaching – even though the underlying reason for the fact that the bank is obliged to take care of the money of their depositors,” – she said.
The Tribunal confirmed that the bank BTE achieved without the merits of the case. The Bank does not even warn the debtor that apply for such a clause to the court. Although the Code of Banking Ethics suggests that this practice should take place, but such an obligation does not arise from any legislation. The debtor bank is not involved in the proceedings klauzulowym, which only examine the application of the bank from the formal – the Court has recognized, stressing that the bank is very convenient situation. “The customer can defend itself only when the execution is carried out” – she added Liszcz.
TK already in 2005. Judge BTE, but in terms of violations of the right to trial. Then found that the weak position of the customer to the bank ws. BTE is a restriction on the right of a citizen to court, but does not violate the Constitution. “But today, the Court found otherwise, because the judge the matter from the point of view of the constitutional principle of equality, which if not challenged” – Liszcz judge added.
The Court pointed out that the banks – defending himself against the charge of unconstitutionality of the contested provisions – indicated that the debtor when the credit agreement signed by the voluntary consent of enforcement. “Signing this consent is a prerequisite for obtaining a loan. In general, it is not so that the loan is taken for pleasure. It is usually in a worrying situation” – said the Court. Banks indicated that in the absence of BTE will benefit from another form of security for the loan, for example. Before a notary public – and that it will be even more expensive. “With larger loans should not be more important, bearing in mind that notaries are legal authorities” – rated CT.
A dissenting opinion filed against the judgment of the Constitutional Tribunal ruling in this case the president TK Andrew Rzepliński, not noticing Due to the judgment of a formal breach of the principle of equality in the challenged provisions. He pointed out that in a situation where the bank has complied with the agreement granting the loan, and the debtor – not repaying it – with the agreement failed to comply – he violates the constitutional principle of equality. “The Bank and its debtor entities are not similar. The Bank grants loans, investment activity, and the debtor is the recipient of those services,” – he said.
No comments:
Post a Comment