The proceedings before the District Court for Warsaw-Wola concern the bank’s refund of the commission for granting a loan for the purchase of an apartment. This loan was granted for 360 months and was repaid early 19 months after concluding the agreement.
The consumer who initiated the process believes that she is entitled to a refund of a proportionate part of this commission. The bank asked for the case to be discontinued, arguing that the commission was a one-time fee and as such was not subject to the obligation of proportional repayment in the event of early repayment of the loan. In case the court decides otherwise, the bank assumed that the amount to be refunded should be calculated not according to the proportion between the period provided for in the contract and the date on which the loan was repaid, but taking into account the interest expected (and lost) by the bank, for the period from the date of actual repayment of the loan to the repayment date originally specified in the agreement.
In the questions asked to the Court of Justice, the Warsaw court seeks to determine whether, in accordance with the EU Directive on consumer credit agreements relating to residential immovable property, in the event of early repayment of the loan, the consumer is entitled to a refund of part of the commission for granting the loan. And secondly, how to calculate the portion of the commission due to the consumer.
In the opinion presented on Thursday, the Advocate General of the CJEU dealt exclusively with the issue of calculating the amount of commission payable to the consumer in the event of early repayment of the loan.
In his opinion, Directive 2014/17/EU does not establish a specific method for calculating the reduction in the total cost of credit. “This method cannot be determined by literal, systemic or teleological interpretation. The decision of the EU legislator in this matter does not result from preparatory work on the above-mentioned directive,” we read in the opinion.
In the opinion of Manuel Campos Sanchez-Bordonia, the fact that “the method based on the proportion of the period during which the contract will not be performed to the period resulting from the contract itself is simpler or more understandable to the average consumer is not decisive.”
“The directive does not impose or prohibit anything in this respect, in particular it does not determine the +default+ solution. Consequently, the decision of the national court will have to be based on other types of arguments,” concluded the Advocate General of the Court.
The Ombudsman’s opinion is an introduction to the judgment in this case. The CJEU may agree with it, and often does, but it may also issue a completely different ruling.
