Time for a counter-attack. Do lawsuits for remuneration for the use of capital by the bank make sense?

‘Do you understand that if your contract is invalidated, the bank will be able to claim against you for remuneration for the use of the money it has provided?’. This is a question posed to borrowers by Courts across the country during hearings in cases of invalidation of valorised loan agreements has lost its relevance as of 15 June 2023.

Bank without compensation 

On the day in question, the Court of Justice of the European Union stated unequivocally that banks that had used prohibited clauses in loan agreements valorised with the Swiss franc rate were not entitled to claim compensation from borrowers for the use of the capital they had provided after the conclusion of the agreement. The Court took the view that such claims are contrary to the provisions of Directive 93/13, which protects the interests of consumers in relations with professional entities.

Time for a counterattack?

While blocking banks from claiming remuneration for the use of capital, the Court also acknowledged that it is the borrowers who can claim more from the bank than just the reimbursement of instalments and interest paid. It stated that, contrary to the claims of the banks, the provisions of the Directive referred to do not prevent borrowers from being compensated by the bank for the non-contractual use of the money they paid in carrying out an invalid credit agreement.

Doubts

It should be noted that the Court - while stating that the EU rules will not oppose consumer claims - has delegated to national courts the exclusivity to review such claims. The issue, therefore, is what specifically can be claimed from the bank that has entered into a defective contract with us. This is because the consumer's claim must be fully proven and present a certain hypothesis - what would have happened if the borrower had not paid the amount corresponding to the credit instalment to the bank every month, but had used the same amount, for example, to make contributions to a term deposit and regularly added to it further funds corresponding to the amount of successive credit instalments.

The fight may pay off

Many years of battles with the bank to declare the loan agreement invalid may have worn down the patience of many borrowers. However, there is no doubt that the common courts and the institution of community law have overwhelmingly sided with them. With such serious support, it is worth considering whether the stress, and often the disruption to health, associated with the bank's abusive treatment should be redressed