Poland Author: Elwira Macierzyńska-Franaszczyk 1. PART I, GENERAL OBSERVATIONS KEY FINDINGS The CCA2011 has implemented the provisions subjected to a maximum harmonization. The CCA2011 has extended the objective scope of its application in comparison to the scope indicated by the Directive, by including under the CCA2011 specific kinds of credit agreements. The CCA2011 has distinguished a notion “credit risk” from “creditworthiness”. The CCA2011 has introduced the specific kind of SECCI for credit agreement secured by mortgage, beside the standard SECCI based on the formula required by the Directive. Implementation and Conformity to Deadlines for Transposition 1.1. State and place of implementation Date of Other modifications/ Further implementa notes Country tion/ Legal framework Enforcemen t Modifications of other acts: Polish petty offences' code (Dz.U. 1971 Nr 12 poz. 2114, with further amendments), Cooperate Credit and Savings Unions Act (SKOK) (Dz.U.1996 Nr 1 poz.2, with further amendments), Consumer Credit Act from 12 Liability of collective entities for acts May 2011 /further:CCA2011/ prohibited under penalty Act Adopted in Polish wording: Ustawa z dnia 12 (Dz.U.2001 Nr197 poz. 1661, with 12Mai2011 maja 2011 r. o kredycie further amendments), konsumenckim Access to economic and business data POLAND Enforcement exchange Act (Dz.U. 2010 nr 81 poz. 18December Published in the Polish Official 530, with further amendments), 2011 Journal 2011 No. 126 pos. 715 Former CCA2001 ceased to have /Dz.U.2011.126.715/ effect since 18 December 2011. Amendments to CCA2011: Implemented by the amending Act - Ustawa z dnia 29 lipca 2011 r. o zmianie ustawy-Prawo bankowe oraz niektórych innych ustaw, Dz.U.2011.165.984 1.2. Reason for not implementing/ late implementing Directive/ or if implemented: What were the main difficulties implementing the Directive and which is the chosen method of implementation? The provisions of the Directive have been implemented with delay in relation to the expected date (11 June 2010). Two major reasons resulted of the delay, namely the public discussion on the effects of the implementation and to some extend the length of the legislative process. Some assumptions to the government‟s draft of the new CCA, developed by the Office of Consumer Protection and Competition, were presented in September 2009 and adopted by the Council of Ministers in January 2010. On the base of comments reported on the base of assumptions and further public consultations the Government Legislation Centre, in collaboration with the Office of Consumer Protection and Competition, elaborated a bill of the new CCA, accepted by the Council of Ministers in October 2010. The text of the CCA was adopted in 12 Mai 2011 and entered into force on 18 December 2011. 1.2.1. What were the main difficulties implementing the Directive? The main difficulties connected with the implementation of the Directive were indicated in following areas: - Mode of regulating the access to data bases covered by the requirement of bank secrecy. - Possibility of adapting to the new CCA2011 the notion of “creditworthiness”, identified and in some sense assigned by the Polish legal system to the banking sector and subjected to the regime of the Banking Act. - The aspects emphasised in a public discussion, among them increase of credit costs being a result of pre-contractual duties, obligation of providing SECCI to each potential client, extensive contractual information, as well as obligatory assessment of creditworthiness (according to CCA: credit risk). - Subjective scope of the new CCA. The most discussed questions were: whether the CCA shall be applicable to consumer credits granted by SKOK (Spółdzielcze Kasy Oszczędnościowo –Kredytowe, see: 188.8.131.52.) and whether consumer being debtor of credit secured by mortgages shall be subjected to protection of CCA. 1.2.2. Method of implementation This second question is not related to the place of implementation (this is covered by 1.1. The question rather is, if there the transposition was carried out in a modular way (which could be a separate code, but also a closed chapter integrated in a code) or have the provisions of the directive been truly integrated into already existing regulations (which would mean that the provisions of the directive have been taken out of the context of the regulatory context of the directive and integrated into an already existing regulatory context of national legislation)? The Polish legislator implemented the provisions of the Directive by means of the separate Act – the Consumer Credit Act, which is not integrated into the pre-existing codes. The CCA comprehensively regulates the regime of consumer credit in Poland. The CCA2011 derogated the previous regulation of the Consumer Credit Act from 2001. 2. PART II, SPECIFIC ASPECTS OF DIRECTIVE 2008/48/EC 2.1. Implementation of Specific Aspects Directive which changed from the 1987 directive on Consumer Credit 2.1.1. Fully Harmonised Aspects The questions which relate to this section are of the following nature (1) do the MS comply with the full harmonisation? (2) How does the full harmonisation differ from the previous regime? i.e. is consumer protection raised or lowered? (3) Is this aspect Directive considered problematic? The following list is a list of full harmonised aspects. Only these aspects need to be discussed that were problematic in the implementation process. 184.108.40.206. The duty to provide pre-contractual information to the consumer, Art. 5 and 6, 2008/48/EC (1) The expanded pre-contractual duties and SECCI-form create a new instrument of consumer protection arising from the consumer credit regulation in Poland. Information duties were not exercised so broadly on the base of previous regulation of the CCA2001, where information duties of CCA were limited to advertisement information. Art. 16 of the CCA2001 obliged the creditor and credit intermediary to provide the information as to the APR in offers and advertisement containing any information of the credit costs. (2) In the new CCA2011 the Polish legislator implemented the information requirements of Art. 5 and 6 of the Directive properly and with the generally high precision (as to detailed remarks: see sec. (3) and (4) below). The pre- contractual duties imposed by the CCA2011 to a creditor and a credit intermediary cover the standardised scope of the information provided to the consumer. (3) Detailed aspects of to the implementation of Art. 5 Directive: Pre-contractual duties of Art. 5 Directive are regulated in the new CCA2011 according to following scheme: - Art. 5.1 Directive implemented to Art. 13,14, 16, 24.1, 63 CCA2011 1, - Art. 5.2 Directive implemented to Art. 15.2 CCA2011, - Art. 5.3 Directive implemented to Art. 15.1 CCA2011, - Art. 5.4 Directive implemented to Art. 12 CCA20112, - Art. 5.5 Directive implemented to Art. 26 CCA2011, - Art. 5.6 Directive implemented to Art. 11 CCA20113. (4) Detailed aspects of to the implementation of Art. 6 Directive: - Art. 6.1 Directive implemented to Art. 17.1-3, 19.1, 63 CCA20114, 1 Notes as to details of implementation: In Art. 24.1 CCA2011 implementing Art. 5.1 lit. g Directive, the Polish legislator precisely indicated the minimum level of information delivered to consumer, which is the combination of “the duration of the credit agreement and the total amount of credit”, while the Directive by using the conjunction word “and” seems to create the alternative of one of these components delivered to the creditor /” one or more components of his preferred credit, such as the duration of the credit agreement and the total amount of credit”/. Art. 5.1 lit. q Directive indicates that the creditor obtains the “immediate and free of charge information”, while according to Art. 15 lit. q CCA2011 provides only the “free of charge” information. 2 Notes as to details of implementation: The Polish legislator clearly determined in Art. 12 CCA2011 that a consumer shall receive personalised draft of a credit agreement. 3 Notes as to details of implementation: According to the disposition of the Directive the implementation was limited to the necessary provision obliging to serve to the consumer the credit assistance. The legislator did not exercise the option of sentence 2 (see also: 220.127.116.11). - Art. 6.2 Directive – optional implementation5, - Art. 6.3 Directive implemented to Art. 18.1 CCA2011, - Art. 6.4 Directive implemented to Art. 20.2 CCA20116, - Art. 6.5 Directive implemented to Art. 17.4 CCA20117, - Art. 6.6 Directive implemented to Art. 12 CCA2011, - Art. 6.7 Directive implemented to Art. 20.1 and 21.1 CCA20118. (1) Did your Member State simply incorporate the Standard European Consumer Credit Information, found in Annex II Directive? The Polish legislator has implemented SECCI form found in Annex II and III of the Directive almost verbatim. There is, however, provided the separate information form referring only to SECCI-form and related to credits secured by mortgages. The standard SECCI (Polish wording “Formularz informacyjny dotyczący kredytu konsumenckiego”) which is incorporated to Annex I of the CCA2011 almost verbatim reflects provisions of SECCI, found in Annex II of the Directive. Some differences in wording do not change the scope or meaning of consumer information. The distinction between mandatory and optional information of SECCI remained preserved. Also the SECCI found in Annex II of the CCA2011, which applied to credit agreements in the form of an overdraft, remains generally consistent with requirements of the Directive. In Annex II is not given the APR value, what is consistent with Art. 6.2 Directive. Further information indicated in Annex II also complies with the requirements of the Directive. 4 Notes as to details of implementation: According to Art. 17.1 a standard information delivered to a consumer in the case of credit agreements in the form of an overdraft facility, as referred to in Art. 2.3, covers the full scope of information indicated in Art. 13.1 CCA2011. It means that the Polish legislator requires the extended information, in comparison to disposition of Art. 6.1 Directive, which covers information listed in Art. 6.1 lit. a-g, i-l and in Art. 5.1 lit. c, h, k, j, m-r. Art. 17.2-3 CCA2011 differentiate the scope of information indicated in Art. 17.1 CCA2011 in case of credit agreements in the form of an overdraft facility repaid within three months. The specific regulation of Art. 17.2 narrows the scope of pre-contractual information to data indicated in Art. 6. 1 lit. a-e, g, i- l. According to Art. 17.3 CCA2011, when the consumer may be requested to repay the amount of credit in full at any time pre-contractual the information contains also data indicated in Art. 6.1 lit. h Directive. 5 Notes as to details of implementation: According to the option of Art. 6.2 Directive, the Polish legislator decided that the duty to provide the annual percentage rate of charge is not applicable to credit agreements in the form of an overdraft facility and repaid on demand or within three months (see also: 18.104.22.168.). In other cases of credit agreements in the form of an overdraft the requirement of Art. 6.1 lit. f Directive is applicable, also to the credit in the form of an overdraft facilities (general rule of Art. 17.1 and Art. 17.4.2 CCA2011). 6 Notes as to details of implementation: A consumer receives information containing the scope indicated in the implemented provision including the information indicated in Art. 6.1 lit. k. Directive. 7 Notes as to details of implementation: Pursuant to the Directive the information delivered in case of credit agreements repaid within one month, referred to in Art. 2.2 lit e., shall be compatible to information mentioned in Art 6.4 Directive. The scope of the information required by Polish CCA2011 is slightly broader than required by the Directive. The pre-contractual information in this case consists of data indicated in Art. 6.1 lit. c, e, f, h and k. 8 Notes as to details of implementation: Details of pre-contractual information delivered to consumer in agreement concluded at the consumer's request by using means of distance communication, referred to in Art. 6.7 Directive, are precised in Art. 20.1 CCA2011. The scope of information covers requirements of Art. 10.5 Directive. Art. 21 .1 CCA2011 defines the scope of pre-contractual information of arrangement agreed in respect of deferred payment or repayment methods, where the consumer is in default on the initial credit agreement, which according to Art. 2.6 of Directive covers appropriately requirements of Art. 10.2 a-h, r, l Directive. Requirement of Art. 10.2 lit i Directive is separately guaranteed by Art. 37.1 and 2 CCA2011. According to this provision a consumer receives in case of credit agreement with a fixed duration on request at any time and free of charge the amortisation table (“harmonogram spłaty”). The standard SECCI implemented in Annex I and Annex II of CCA2011, does not apply to credit agreements secured by a mortgage (the CCA2011 is applied to them in the range indicated in Art. 4 .2.1 CCA2011). The Polish legislator proposed in Annex III of the CCA2011 the modified form based on European Standard Information Sheet (ESIS) used to credit agreements relating to residential property. Any additional information not included in SECCI shall be given to a consumer in a separate document attached to the form (see Art. 5.1Directive implemented to Art. 16 CCA2011). (2) How does this change from the previous national regime in force prior to the 2008 Directive? Directive 87/102, which provisions were implemented to the Consumer Credit Act from 20019 (CCA2001) did not refer extensively to the pre-contractual information. The only pre-contractual duty was implemented to Art. 16 CCA2001 and obliged the creditor and credit intermediary to provide the information on the APR in offers and advertisements relating to the credit costs. The lack of provision was substituted by the rules of consumer protection. According to the legal interpretation of Art. 16 CCA2001, after its amendment in 200310, the information relating to APR was provided in advertisement, commercials and offers delivered to the consumer. It was pointed out, in the context of the requirement of Art. 3 Directive 87/102 and Art. 71 of the Polish Civil Code, that the advertisement, commercials and price lists should be understood as offers in case of doubts. Moreover, it was adopted pursuant to postulates of consumer protection, that the content of the offer presented to the consumer shall be compatible to previous advertisement 11. A violation of the duty to inform might have resulted in the sanction in form of a fine according to the provision of Art. 138 lit. c of the Polish petty offences' code12, which implemented the requirement of Art. 23 Directive. (3) Were problems with the SECCI discussed at national level before the implementation or subsequent to the transposition? YES, there were some doubts as to the scope and the possibility of adapting the SECCI to credits secured by mortgages. The extensive scope of the SECCI, as well as argument that too many information may create the impression of high complexity of credit services was indicated in the course of the legislative process. Moreover, the overabundance of information may discourage the consumer from effective analysis of the content of the SECCI13. There were mentioned some doubts as to the binding nature of SECCI, level of individualising and costs of providing the form to the consumer14. Also the practical uselessness of the SECCI as an instrument serving to comparing offers was indicated. 9 Act from 20 June 2001, Dz.U.2001.100.1081. 10 Dz.U.2003.109.1030. 11 J. Pisuliński: O nowelizacji ustawy o kredycie konsumenckim, MoP 2003, nr 19, s. 879. 12 Act from 20 May 1971 r. - Kodeks wykroczeń (Petty offences' code), Dz.U. 1971 Nr 12, poz. 114 ze zm. 13 Table of comments on the draft guidelines to the Consumer Credit Act, p. 29. available on: http://www.uokik.gov.pl/szukaj.php?szukaj=kredyt+konsumencki&x=0&y=0. 14 Table of comments on the draft guidelines to the Consumer Credit Act , p.76, available on: http://www.uokik.gov.pl/szukaj.php?szukaj=kredyt+konsumencki&x=0&y=0. Generally, the comments and arguments which have had intended to limit the scope of the SECCI, were not taken into account during the implementation. The SECCI is implemented to Annex I and Annex II of the CCA2011 and covers the standard catalogue of information duties and respond requirements of the maximum harmonization. The Polish legislator emphasised also the binding nature of the form. The special attention was paid to the form of SECCI devoted to credits secured by mortgages. During the initial stages of the legislative process it was considered the possibility of creating one universal form applicable to consumer credit and mortgage credit. The different nature of the credits secured by mortgages excluded this option. The form devoted to this kind of credits differs from SECCI, and is more unified with the form of European Standard Information Sheet (ESIS) relating to mortgage credit. 22.214.171.124. Contractual information to be written into the credit agreement, Art. 10, 2008/48/EC (1) The Polish legislator implemented the provisions relating to the scope of contract agreement in the general compliance with the requirements of the Directive. The new regime extended the scope of the information entered into the credit agreement and stipulated the requirements of quality, stating that the contract shall be formulated clear and understandable. The previous CCA2001 had precised the required scope and form of the credit agreement in Art. 4, 5 and 5a. The range of details as to the credit (kind, detailed mode of calculation) was not so extensive, in comparison to the new regime. The CCA2011 puts a special emphasis on financial aspects of the consumer credit affecting burden of the consumer. (2) Detailed aspects of to the implementation of Art. 10 Directive: Elements of a credit agreement required by Art. 10 Directive are regulated in the new CCA2011 according to following scheme: - Art. 10.1 Directive implemented to Art. 29.1 CCA2011 - Art. 10.2 Directive implemented to Art. 29.3, 30, 31.1, 33, 37.1 CCA2011 - Art. 10.3 Directive implemented to Art. 37.1 CCA2011 - Art. 10.4 Directive implemented to Art. 30.2 CCA2011 - Art. 10.5 Directive implemented to Art. 32 CCA2011 126.96.36.199. Right of withdrawal for the consumer until 14 days after the conclusion of the credit agreement, Art. 14, 2008/48/EC (1) The Polish legislator implemented the provisions of the right of withdrawal in accordance with the requirements of the Directive. (2) Right to withdrawal was implemented also on the ground of a previous regime of consumer credit (Art. 11-14 CCA2001). Pursuant to the previous regulation a consumer was entitled to withdraw the credit agreement without giving any reasons to its decision and within 10 days from the conclusion of the contract. However, in the absence of the information of the right to withdraw the contract, the time period for consumer decision did not start until the consumer received the proper information. But the state of the suspension lasted only three months from concluding of the agreement. If the credit fund was paid to the consumer, the statement of withdrawal became effective only if the consumer returned the credited sum together with the submission of the withdrawal. The right of withdrawal was excluded by credits designed to acquire rights or items whose price depends solely on price fluctuations on the financial market and stock exchange. Provisions of the new CCA2011 have enhanced the level of the consumer protection, especially by extending the tempus ad deliberandum up to 14 days and by resigning from the three-month period restricting the consumer right. (3) Detailed aspects of the implementation of Art. 14 Directive: - Art. 14.1 Directive implemented to Art. 53.1 and 53.2 CCA201115, - Art. 14.2 Directive did not required implementation16, - Art. 14.3 (a) Directive implemented to Art. 53.3 to 5 CCA201117, - Art. 14.3 (b) Directive implemented to Art. 54.1 to 4 CCA201118, - Art. 14.4 Directive implemented to Art. 55CCA2011, - Art. 14.5 Directive implemented to Art. 58, 63 CCA201119, - Art. 14.6 Directive did not subject to the implementation, - Art. 14.7 Directive did not subject to the implementation. 188.8.131.52. Conditions for early repayment, Art. 16, 2008/48/EC (1) The Polish legislator implemented the provisions of early repayment in accordance with the requirements of the Directive. (2) According to the CCA2001 a consumer was entitled to early repayment without incurring of any additional costs. The provisions of CCA2011 introduce the compensation for the creditor. In this aspect the new provisions are less favourable to the consumer. Provisions clearly precise the mode of calculation of the compensation and establish limits of compensation, which protect the consumer financial interest. (3) Detailed aspects of to the implementation of Art. 16 Directive: - Art. 16 para. 1 Directive implemented to Art. 48.1 and 49.1-2 CCA201120, - Art. 16.2 composed with Art. 16.4. lit. a Directive implemented to Art. 50.1-3 CCA201121, 15 Notes as to details of implementation: The Directive indicates that the right to withdraw the agreement may be exercised during a period of 14 calendar days. Art. 53.1 CA2011 states that the consumer may withdraw the agreement during 14 days. The discrepancy does not influence the length of the period (calculation of the period stays in accordance with the general provisions of the Civil Code). The provision of Art. 53.2 CCA2011, however formulated in a slightly complicated way than on the ground of CCA2001, fulfils requirements of the implemented Art. 14.1. 16 Notes as to details of implementation: The Polish legal system does not provide any restriction that the credited funds can be made available to the consumer before the expiry of a specific period. 17 Notes as to details of implementation: The CCA2011 does not precise, whether the statement must be made only in the form of durable medium provided to the consumer or also by means of another durable medium available to the consumer and the addressee of the statement. 18 Notes as to details of implementation: A consumer withdrawing the agreement does not incur costs, beyond the interests calculated for the period from the date of payment until the day of repayment, reimbursement of creditor‟s costs to state administration entities and notary costs (Art. 54.4. Art. 54.3 defines a day of repayment, as the day of the transfer made by the consumer to the creditor. 19 Notes as to details of implementation: The provisions of distance marketing of consumer financial services are not applicable to the right of withdrawal from consumer credit (and further settlement between consumer and creditor).Provision of Art. 16a of Act of protecting consumer right and liability for damage caused by product19 amended by the CCA2011 excludes application of provisions of right of withdrawal included in this act to the consumer credit. Conversely, its provision will be applied to the consumer contract linked to the contract concluded away from business premises and distance contracts, indicated in Art 14.4 of the Directive. 20 Notes as to details of implementation: Art. 49 CCA2011additionally clarifies that the consumer in entitled to reduction of the total cost, even if they are incurred by the consumer before early repayment of the credit. Art 49 CCa2011 provides for the creditor the 14-day period from the day of early repayment to settle accounts with the consumer. - Art. 16.3 Directive implemented to Art. 50.1 and 51 CCA201122, - Art. 16.4 Directive implemented to Art. 50.1 CCA201123, - Art. 16.5 Directive implemented to Art. 50.4 CCA201124. 184.108.40.206. Calculation method for the Annual Percentage Rate of Charge (APR), Art. 19, 2008/48/EC The questions which relate to this section are of the following nature (1) do the MS comply with the full harmonisation? (2) How does the full harmonisation differ from the previous regime? i.e. is consumer protection raised or lowered? (3) Is this aspect Directive considered problematic? The following list is a list of full harmonised aspects. Only these aspects need to be discussed that were problematic in the implementation process. (1) The rules of calculation of the annual percentage rate of charge have been implemented to Art. 25 CCA2011. The provision reflects provision of Art. 19 Directive without significant modifications. The mode of calculation of the annual percentage rate of charge in included to Annex IV of the CCA2011, which was adopted almost literally the equations and additional assumptions of Annex I of the Directive. (2) The previous regulation specified the mode of calculation of annual percentage of rate of charge, as well as sample calculation of APR in Annex to the CCA2001. (3) Detailed aspects of to the implementation of Art. 19 Directive: - Art. 19.1 Directive in principle implemented to Art. 25.3 CCA2011, - Art. 19.2 Directive has been transposed to Art. 25.1 No. 1 and 2 CCA2011, - Art. 19.3 Directive implemented to Annex 4.3 No. 1 CCA2011, - Art. 19.4 Directive implemented to Art. 25.2 CCA2011. 2.1.2. Implementation of “options” provided in Artt. 5 para. 6 sent. 2, 15 para. 2 sent. 2 and Art. 23 of Directive 2008/48/ EC The purpose of this section is to elucidate the state of implementation according to the way in which the Member States dealt with aspects to be implemented in a manner defined by the directive (“may”, “shall”). 220.127.116.11. Did your Member State take the option to adapt a manner by which and the extent to which an assistance in the sense of Art. 5 para. 6 sent. 1 is given (Art. 5 para. 6 sent. 2)? The Polish legislator assured exercising of ”credit assistance” indicated in Art. 5.6 sent. 1 Directive. Provision of Art. 11 CCA2011 oblige a creditor of a credit intermediary to provide explanations according to Art. 5.6 sent. 1. However, the legislator did not exercise the option from sent. 2., and resigned from determining the mode or scope or specific way of pre-contractual assistance. 21 Notes as to details of implementation: CCA2011 adapted the limits of compensation of the creditor in accordance with Art. 16.2 Directive. The national legislator took the option of Art. 16 para 4. lit a Directive (see below). 22 Notes as to details of implementation: Art. 51 CCA2011 lists the premises, which exclude the creditor‟s right to compensation, according to Art. 16.3 lit. a and b Directive. Art. 50.1 CCA2011 clearly expresses the condition of Art 16.3 lit. c Directive. 23 Notes as to details of implementation The Polish legislator took the option indicated in Art. 16.4 lit. a Directive and set a national threshold of the amount of the earlier repaid credit and did not take the option indicated in Art. 16.4 lit. b Directive (see: 18.104.22.168.). 24 Notes as to details of implementation: Art. 50.4. settled the dual limits of the compensation for early repayment. Firstly introduces the limit from Art. 16.5 Directive. But additionally provides that the compensation may be not higher than the direct costs associated with the early repayment. 22.214.171.124. Did your Member State determine to what extent and under which conditions remedies in the sense of Art. 15 para. 2 sent. 2 shall be exercisable? YES, in accordance with the disposition of Art. 15.2 sent. 2 Directive, implemented to Art. 59.2 of CCA2011, the Polish legislator stipulated a limit of liability for non-performance of the linked contract agreement for the supply of goods or services. The creditor is liable only to the amount of the credit granted to the consumer. Polish legislator did not determine other specific conditions of creditor liability in such cases. 126.96.36.199. Did your Member State follow the order to lay down rules on penalties in the sense of Art. 23? YES, according to Art. 23 Directive the Polish legislator foreseen in Art. 45.1 CCA2011 a civil sanction of „free of interest and charge credit” for infringement of national provisions relating to form and content of a credit agreement and required by Art. 29.1 and 30.1 point 1-8, 10, 11, 14-17 and Art. 31-33 CCA2011. The consumer is entitled to make a statement (of an informative nature) of loan repayment free of interests and charges in case of infringement. The entitlement to executing this sanction expires within one year from the date of the performance of the credit agreement. A consumer is entitled to a credit repayment in a manner and time set out in the credit agreement (Art. 45.1), or in a lack of contractual provisions in monthly instalments of equal value, payable from the date of agreement within five years (for credits up to the value of 80000 zł) or within ten years (for credits above this sum) (Art. 45.2-3). Until the repayment of the total credit sum the consumer shall bear costs for securing the credit, if they were provided by the agreement25. Moreover, is worth to indicate, that the Polish legislator provided the penalty sanction (penalty of a fine form) for offenses against pre-contractual duties, duty to standard information in advertisement relating to costs of the credit and duty to check the creditworthiness of the consumer. The sanction is implemented by means of Art. 60 CCA2011 amended the art 138c of the Polish petty offences' code (Ustawa z dnia 20 maja 1971 r. - Kodeks wykroczeń, Dz.U. Nr 12, poz. 114 ze zm.). 2.1.3. Implementation of other “options” The purpose of this section is to elucidate the state of implementation according to the way in which the Member States took options provided by the Directive. In contrast to options in the sense of point 2.1.2., the beneath listed provisions of the directive order that these options could either be taken fully or not at all.26 Only these options of the following list should be discussed that were taken by the Member State. 188.8.131.52. Did your Member State take the Option in Art. 2 para.5 and 6? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? Option in Art. 2 para.5 Directive NO, the Polish legislator rejected the option allowing to restrict the application of the Directive to organizations indicated in Art. 2.5 Directive. 25 Provisions of free of charge credit are similar to previous regulation of Art. 15.1 and 3 CCA2001. 26 Wendehorst, Das deutsche Umsetzungskonzept für die neue Verbraucherkreditrichtlinie, ZeuP 2011, p. 264 (268). According to Polish legal system the Polish Spółdzielcze Kasy Oszczędnościowo- Kredytowe27 (Cooperative Savings and Credit Unions, SKOK) shall be considered as organizations referred to in Art. 2.5 Directive. According to Art. 2 CCA2011 the new CCA applies in its entirety to consumer credit agreements rendered by SKOK to its members. Option in Art. 2 para.6 Directive The issue of agreements reffered to in Art. 2.6 Directive is implemented to Art. 4.1.5 CCA2011. The Polish legislator adapted the limited level of application of the CCA to credit agreement agreed by the creditor and the consumer in respect of deferred payment or repayment methods, where the consumer is already in default on the initial credit agreement. Provisions of the CCA shall be applied only if the newly agreed contract is not less favourable than those laid down in the initial credit agreement (comp. to Art. 2.6. lit b Directive). The scope of application adopted by the Polish legislator differs, however, from the disposition of Art. 2.6 Directive. Considering the specificity of these contracts the CCA will be applied as follows: - mode and scope of advertisement (Art. 4 Directive implemented to Art. 7 and 8 CCA2011), - pre-contractual duties (Art. 6 .. 3 Directive implemented to Art. 18 CCA2011; Art. 6. 4 Directive implemented to Art. 21.2 CCA2011, Art. 6. 6 Directive implemented to Art. 12 CCA2011; Art. 7 Directive implemented to Art 19.2; Art. 21 Directive implemented to Art. 28 CCA2011), - consultation of a database (Art 9.2. implemented to Art. 10 CCA2011), - credit agreement (Art. 10.1 implemented to Art. 29 CCA2011; Art. 10.2 as to the scope implemented to Art. 33 CCA2011; Art. 10.4 implemented to Art. 30.2 CCA2011; CCA2011; Art. 11 implemented to Art. 36 CCA2011; Art. 13 Directive implemented to Art. 42 and 43 CCA2011; Art. 18 Directive implemented to Art. 34 i 39 CCA2011), - annual percentage rate (Art. 19 of the Directive implemented to Art. 25 and Annex I of the Directive) - free of charge credit sanction (Art. 22 Directive implemented to Art. 47 CCA2011; Art. 23 Directive implemented to Art. 45 CCA2011), - conditions of early repayment (Art. 16 implemented to chapter IV CCA2011). 184.108.40.206. Did your Member State take the Option in Art. 4 para.2 lit c? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? NO, the Polish legislator did not take the option of Art. 4.2 lit. c tiret 2 of Directive. Pursuant to this, there is no requirement to deliver the information about the APR among the other information included in advertising, in reference to a credit agreement in a form of an overdraft facility and repaid on demand or within three months. It was indicated in the explanation to the CCA2011, that due to the specificity of these credits such information might be misleading to a consumer. 220.127.116.11. Did your Member State take the Option in Art. 6 para.2? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? 27 The actvitiy of SKOK is regulated by Cooperate Credit and Savings Unions Act from 14 December 1995 (Dz.U.1996 Nr 1 poz.2), NO, similarly to the above (point 18.104.22.168.) and in reference to Art. 6. 2 Directive the Polish legislator withdrew from delivering the pre-contractual information of APR in relation to credit agreement identified in Art. 2.3 Directive. The unknown number and value of payments, impossibility of determining a fixed amount of the credit excluded indication of the APR precisely and might be misleading to the consumer. 22.214.171.124. Did your Member State take the Option in Art. 10 para.5 lit f? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? The Polish legislator implemented the provision of Art. 10.5 lit. f to Art. 30 point 7 CCA2011, which assumes that the agreement shall specify the annual percentage rate of charge and the total cost of the credit to the consumer, calculated at the time the credit agreement is concluded, with mentioning all the assumptions used in order to calculate that rate. The provision is implemented in accordance with the requirements of the Directive. 126.96.36.199. Did your Member State take the Option in Art. 14 para.2 and 6? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? Option in Art. 14.2 Directive The Polish legislator did not take the option of Art. 14. 2 Directive. The national legislation did not provide the solution referred to in this provision. Thus, the implementation of the option would not be reasonable. Option in Art. 14 para. 6 Directive The option of Art. 14.2 Directive is not applicable under the Polish law, thus it was not the subject of the implementation. 188.8.131.52. Did your Member State take the Option in Art. 15 para.3? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? The provision was not the subject of the implementation. 184.108.40.206. Did your Member State take the Option in Art. 16 para.4? If so, how did your MS take the Option? Is the regulation provided in conformity with the directive? Option in Art. 16 para. 4 lit. a Directive The Polish legislator took the option indicated in Art. 16.4 lit. a Directive and determined a national threshold of the amount of the earlier repaid credit, which entitled the creditor to the compensation. According to Art. 50.1 CCA2011 the compensation might be charged by the creditor, if the amount of the early repayment during the twelve-month period exceeds the triple average salary in enterprises sector, announced in the Official Journal “Monitor Polski” by the President of the Central Statistical Office in December of the year preceding the year of early repayment28. Option in Art. 16 para. 4 lit. b Directive The Polish legislator did not take the option indicated in Art. 16.4 lit. b Directive. According to this, the creditor is not allowed to demand the additional compensation, even a damage exceed the sum of compensation defined according to Art. 50.2 i 3 CCA2011 (corresponding to Art. 16.2 of Directive). The provision should be assessed as implemented in accordance with the requirements of the Directive. 2.1.4. Implementation of selected “new” regulations 220.127.116.11. Advertising requirements, Art. 4 (1) How has your Member State implemented Art. 4(1)? Art. 4 was implemented to Art. 7 and 8 CCA2011. The mode of implementation should be assessed as compliant with the requirements of Art. 4 of the Directive. Art. 7.1 and 2 CCA2011 oblige the creditor and credit intermediary to provide in advertisement, which indicates an interest rate or any figures relating to the cost of the credit to the consumer, the specific information specified in Art. 4.2 lit. a-f Directive. Art. 7.3. CCA2011 implements the scope of Art. 4.3 Directive. Information delivered to the consumer in advertisement must be formulated in unequivocal manner, understandable and be visible (Art. 7.1 and 3 CCA2011). The information specified in Art. 7.1 - 3 CCA2011 (which covers the scope of information of Art. 4.2 and 3 Directive) are delivered by means of a representative example. The representative example, pursuant to Art. 8.1. CCA2011, shall base on the conditions under which the creditor or credit intermediary expects to agree at least two-third of this kind of credit agreements and including the average duration of the agreement, total amount of the credit and frequency of this specific type of credit agreement (Art. 8.2 CCA2011). In Art. 7.4 and 5 CCA2011 there are indicated the specific additional information delivered by credit intermediaries in advertisement, such as: legitimacy to entering consumer credit agreements, information about cooperation with creditors, and names of credits cooperating with the intermediary. Art. 4 para. 4 Directive did not required the implementation. (2) Is the annual percentage rate of charge also required to be specified for overdraft facilities as defined under Art. 2(3)? This question might already be covered by answering question 18.104.22.168. 28 The value of the average salary in enterprises sector for December 2010 was 3847,91 Polish zloty. NO, the information about APR is not required in advertisement of credit agreements in the form of an overdraft facility and where the credit has to be repaid on demand or within three months (according to the option in Art. 4. 2.c tiret 2 Directive, compare to: 22.214.171.124.) 126.96.36.199. Fixed calculation method for the Annual Percentage Rate of Charge (APR), Art. 19 See chapter 188.8.131.52. of this report. 184.108.40.206. What is considered a sufficient assessment of the creditworthiness by the credit provider of the consumer for the purposes of implementing Art. 8 2008/48/EC, in your Member State‟s implementing legislation? General remark as to the notion “creditworthiness” Instead of the verification of a creditworthiness the creditor, according to CCA, is obliged to verify a credit risk of a consumer. Application of the notion “creditworthiness” does not meet the approval of the legislator and banking environment in Poland. The term of “creditworthiness” is defined in Art. 70 of the Banking Act29, and precisely identified on the ground of Polish financial and banking system. The obligation to verify the creditworthiness has the public-legal character, reserved for banks and credit institutions subjected to the Banking Act. Also the scope of it is quite deep and covers also the information as to the credit history of the creditor. The specificity of the “creditworthiness” on the ground of Polish banking system deeply differs from its scope defined by the Directive. Hence, the Polish legislator replaced it with the notion “credit risk”. The obligation to submit the verification of the credit risk of the consumer arises from Art. 9 and 40 CCA2011. The credit risk assessment is obligatory only before conclusion of the consumer credit contract (Art. 9.1 CCA2011) and repeated in case of significant increase of the credited sum occurring after conclusion of the agreement (Art. 40.2 CCA2011). The change of the total amount of the credit, occurring after concluding the agreement, but not being a significant increase of the credit sum, allows the creditor to demand from the consumer to update the information on its financial situation (Art. 40 para. 1 CCA2011). The defining of the notion “significant increase of the total amount of the credit” is delegated to creditors. The credit risk assessment is conducted be means of information obtained from the consumer or collected by the creditor in its data bases (Art. 9.2 CCA2011). The consumer is obliged to deliver on demand of creditor documents and information necessary to evaluate a credit risk. Art. 9.4 CCA2011 contains the significant reservation, that if a creditor of a consumer credit is the bank the verification of the credit risk shall respond standards of credit rating (creditworthiness) according to Art. 70 of the Banking Act. 2.1.5. Implementation of Aspects requiring interpretation This section should provide an answer to the question whether there were any problems related to the transposition of the following Art.s/ terms? Please comment only if problems are recognisable. 220.127.116.11. How did your Member State implement “In good time” according to Art. 5 para. 1? 29 Act from 29 August 1997 Prawo bankowe (Banking Law), Dz. U. 2002 Nr 72 pos. 665. Notion “in good time” used by the European legislator in Art. 5.1 Directive has not been literally expressed in Art. 13.1 CCA2011, which implements this provision of the Directive. The subject of defining of the right moment to provide the information to the consumer was considered by the Polish legislator30. It was considered, that precisely specified time period (number of days) could result in creating the barrier for consumer credit market. Hence, Art. 13.1 CCA2011 indicates that the pre-contractual information shall be delivered to the consumer „before concluding a contract agreement”. The interpretation of this notion is determined on the ground of the Polish consumer law, and it is understood, that the information must precede the moment of conclusion of the contract, to enable the consumer a factual/real opportunity to familiarise with the offer. Moreover, providing the information may be considered as successful only if it is delivered on the durable medium31. The explanation to the CCA indicates, that the time shall enable the consumer “familiarize with the terms and costs of the consumer credit and obligation which will be incumbent upon the consumer”. 18.104.22.168. How did your Member State implement “adequate explanations” according to Art. 5 para. 6? Art. 11 CCA2011, implementing Art. 5.6 Directive, obliges to provide to the consumer „explanation concerning the content of pre-contractual information delivered to the consumer and provisions including in the contract, in a manner which enables the consumer to decide” where he will or not conclude the agreement. The consumer shall be provided with explanations relating to various provisions of pre-contractual information and agreement, which shall serve as the additional support to help the consumer to take an independent decision. 22.214.171.124. How did your Member State implement “sufficient information” according to Art. 8 para. 1? Art. 9 CCA2011, implementing Art. 8. 1 Directive, defines the kind of information delivered by the consumer to the creditor. The Directive in Art. 8.3 indicates, that the consumer shall provide the creditor with documents and information necessary to assess the credit risk”. See also: 126.96.36.199. 2.1.6. Regulated Aspects which fall outside the scope of the directive as defined in Art. 2 Directive/ Aspects which fall outside the scope of the either positive or negative regulative scope Directive 188.8.131.52. Has the scope of the implementing legislation been extended beyond that Directive? If so, which agreements are affected? (an illustration of the possibilities can be found below, 2.2.2 Eg‟s) The Polish legislator fallen outside the minimum harmonization and decided that the CCA2011 is applied in a specific of full range to the following types of contracts: - credit agreements referred to in Art. 2.5 Directive are subjected to the CCA2011 in a full range by virtue of Art. 2 CCA2011. Contracts granted by SKOK to its members (see: 184.108.40.206.) are in the range of the notion of consumer credits, are granted on a large scale and on commercial terms; 30 Grounds explanatioin for government bll on Consumer Credit Act (Official Sejm printing nr 3596), p.10-11, available on: http://orka.sejm.gov.pl/proc6.nsf/opisy/3596.htm. 31 K. Zagrobelny, w: E. Gniewek, Kodeks cywilny. Komentarz, Warszawa 2008, Art. 384, s. 617. - credit agreements involving the total amount of credit less than 200 EUR 32. The CCA2011 does not indicate the lower limit of the consumer credit 33. Excluding this kind of credits from the application of the CCA2011 would be unreasonable for the interest of the consumer, because there is quite large number of credits granted in an amount of less than 200 EUR. Moreover, the inverse solution may provoke to split the credited sum; - credit agreement secured by a mortgage mentioned in Art. 2.2 lit. a Directive. The average value of mortgage credit granted in Poland corresponds with the average amount of the consumer credit with the meaning of CCA2011, hence excluding these contract beyond the application of the directive might result in unjustified depriving of the consumer protection. The scope of application, according to disposition of Art 4.2 point 1 CCA2011, covers provisions relating to the scope of pre-contractual information (Art. 22 CCA2011), obligation to provide the consumer credit information to the credit secured by a mortgage in a form elaborated in Annex III to CCA2011 (Art.23 CCA2011, also see above: 220.127.116.11), contractual provisions (Art. 29, 35, 35a CCA2011), sanction of the free of interests and charge credit (Art. 46.1 CCA2011); - to credit agreements in the form of an overdraft facility if t has to be repaid within one month, according to Art. 4.2.2 CCA2011, applies provisions of art 17.4 (selected pre- contractual information); - credit agreements under the terms of which the credit has to be repaid within three months and only insignificant charges are payable, mentioned in Art 2.2 lit. f Directive; -credit agreements upon the conclusion of which the consumer is requested to deposit an item as security in the creditor's safe-keeping and where the liability of the consumer is strictly limited to that pledged item, mentioned in Art 2.2 lit. k Directive. 18.104.22.168. Credit agreements falling outside of the „newly‟ harmonised regime? According to Art. 4.1 beyond the scope of the CCA2011 stays: 1) credit agreements where the credit is granted free of interest and without any other charges connected to granting or payment of the credit (the first category of credit agreement mentioned in Art..2 lit. f Directive); 2) lease agreements where an obligation to purchase the object of the agreement is not laid down either by the agreement (comp. to Art. 2.2 lit. d Directive). However, according to Art. 4 para. 4 CCA2011 the act is applicable to lease and hire agreement if any separate agreement provides an obligation to purchase the object of the agreement, od demand of the creditor; 3) credit agreements which are concluded with investment firms defined according to Art. 4.1 point 3 CCA2011 (comp. to Art 2.2 lit. h Directive); 4) credit agreements which are the outcome of a settlement reached in court or as a result of arbitration or mediation proceeding (comp. to Art 2.2.i Directive); 5) credit agreements where the credit is granted by an employer exclusively to his employees as a secondary activity, free of interest or at annual percentage rates of charge lower than those prevailing on the market (comp. to Art 2.2.g Directive); 32 Similar regulation was applied by the CCA2001. 33 Art. 2 CCA2011 indicates the maximal limit determined according to Directive requirements, which is the amount of 255.550 Polish Zloty 6) credit agreements granted under a specific statutory provision at lower interest rates than those prevailing on the market or free of interest or on other terms which are more favourable to the consumer than those prevailing on the market and at interest rates not higher than those prevailing on the market (comp. to Art 2.2.l Directive). Moreover, Art. 2.3 CCA2011 specifies that, as the credit agreement shall not be considered agreements relate to the deferred performance, which subject is rendering services or supply of goods of the same kind where the consumer pays for them periodically for the duration of the agreement. 22.214.171.124. Credit agreements partially subjected to the „newly‟ harmonised regime? (pArtially pokrywa się z zakresem 126.96.36.199.) The CCA2011, pursuant to its Art. 4 para. 2, is also applied in a specific range to: 1) credit agreements which are secured by a mortgage (comp. to exclusion of Art. 2.2 lit. a Directive, comp. also: 188.8.131.52.); 2) credit agreements in the form of an overdraft facility, if it has to be repaid within one month (comp. to exclusion of Art. 2.2 lit. e Directive, comp. also: 184.108.40.206.); 3) credit agreements in the form of an overdraft facility and where the credit has to be repaid on demand or within three months (comp. to Art 2.3 Directive); 4) overrunning of the credit sum in the form of the overdraft facility (provisions of CCA2011 are applied according to the scope indicated by Art 2.4 Directive); 5) credit agreements which provide for arrangements to be agreed by the creditor and the consumer in respect of deferred payment or repayment methods, where the consumer is already in default on the initial credit agreement and where the consumer would not thereby be subject to terms less favourable than those laid down in the initial credit agreement facility (comp. to Art 2.6 Directive, see above: 220.127.116.11.); 6) credit agreements indicated in point 5. above, granted in the form of an overdraft facility.
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