In the opinion submitted yesterday to the case No. C-520/21, the Advocate General of the CJEU Anthony Michael Collins finds that the Directive is no obstacle to national legislative provisions, or national case-law interpreting those provisions, that facilitate the consumer in pursuing claims going beyond reimbursement of the instalments paid under the invalid mortgage loan agreement and default interest at the statutory rate from the date of the request for reimbursement. It is, however, a matter for the national court to determine, by reference to national law, whether consumers have the right to assert such claims and, if so, to rule on their merits.
As for the possibility of the bank asserting claims of a similar nature against consumers, Advocate General Collins takes the opposite view. He advises the Court that a bank is not entitled to assert against a consumer claims that go beyond reimbursement of the loan capital transferred and payment of default interest at the statutory rate from the date of the request for reimbursement.
By way of justification, Advocate General Collins observes that the annulment of a mortgage loan agreement arises as a consequence of the bank having introduced an unfair term into that agreement. A supplier ought not to derive any economic advantage from a situation it has created by its own unlawful conduct. Nor would the bank be deterred from including unfair terms in loan agreements with consumers if, despite the annulment of the contract, it could charge consumers remuneration at the market rate for the use of the loan capital. Such a situation might even make it profitable for banks to impose unfair terms on consumers.
Advocate General Collins finally observes that the argument as to the stability of financial markets in Poland has no weight in the context of the interpretation of the Directive, which aims, above all, at protecting consumers’ interests. Banks, as creatures of the law, are under a duty to arrange their affairs in such a manner to respect all of its provisions.
More – https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-02/cp230036en.pdf
