Work is ongoing on regulations that will allow for faster recognition of Swiss franc cases. As reported by the Ministry of Justice, some of the planned solutions are to be optional, and some will be mandatory. It is anticipated that restrictions on the use of set-off defence will be abolished. A significant role is expected to be played by facilitations in reaching settlements, especially within the framework of mediation. In addition, incentives for banks to withdraw appeals and cassation complaints are under consideration. Experts commenting on these reports express doubts about the effectiveness of some chosen solutions. There are also opinions, however, suggesting that the planned changes will improve the situation in the courts.
Optionally and compulsory
We know the details of the planned changes to the law that will be felt by, among others, the holders of Swiss franc loans. The Civil Law Codification Commission is currently working on amending the Civil Procedure Code. The aim is to eliminate the most significant defects, mistakes and gaps in the law. Regardless of this, there is a project under preparation for a separate law that is intended to relieve courts from Swiss franc disputes. It is assumed that this will speed up the recognition of all categories of cases, serving every participant in the justice system. Some solutions will be optional, such as the possibility of hearing the case in a private session or the option to refer the case to mediation by a court clerk. Others will be mandatory, such as hearing the appeal by a single judge.
According to the Ministry of Justice, the proposed solutions are not new. Hearing appeals by a single judge is a sensible measure that streamlines the work of the court. In most cases, this is already practiced under Art. 367(1) of the Civil Procedure Code. In particular, it is justified to hear appeals of judgments in Swiss franc cases by a single judge. In addition, the civil procedure regulations allow for the possibility of considering the case in a private session if the court decides that a hearing is not necessary.
Defense of the set-off and settlements
The Ministry of Justice also informs that the anticipated solutions also include the abolition of restrictions on the use of the set-off defence, which should reduce the number of new cases. Facilitating the process of reaching settlements, particularly in the context of mediation, will also be of great importance.
The abolition of restrictions on the use of the set-off defence may indeed contribute to a reduction in the number of new cases. Banks will be able to settle mutual claims within ongoing proceedings, instead of initiating new ones. It will reduce the number of separate court cases, which are now the result of claims being pursued in separate proceedings. The decisive factor in this matter will be the courts’ proper application of the regulations related to set-off and the precise calculation of mutual claims of the parties.
In the opinion of advocate Mocarski, the changes in set-off regulations will have no practical impact on the timing of case consideration.
Incentives for banks
In addition, the Ministry of Justice informs that incentives for banks to withdraw appeals and cassation complaints are also being considered. It is important because the allegations contained in a large part of them have become obsolete as a result of EU court rulings. As emphasized by advocate Milena Mocarska, banks appeal in virtually all cases in which they have received an unfavorable judgment. It is exceedingly rare for a lender to decide to implement the judgment of the first instance court and to waive the appeal. According to the expert, if the incentive to withdraw an appeal is, for instance, refunding part of the fee paid, some banks may take advantage of it. However, it is not likely to be the rule.
According to the Ministry, the law aims not only to speed up the recognition of cases but also to reduce their numbers. Increasing the number of settlements is supposed to lead to a reduction in new Swiss franc cases in the courts. From the perspective of current court practice and the trends in jurisprudence, it can be cautiously assumed that the number of new Swiss franc cases will gradually decrease, regardless of the introduced legislative changes.
In the expert opinion of attorney Adrian Goska, realistically, only an increase in the number of adjudicators in the courts can relieve the backlog. Procedural corrections may speed up this process to some extent, but without spectacular effects. The proceedings must be conducted according to the rules that guarantee process rights to both parties, regardless of the subject of the dispute, even if the outcome of the case might be known after a short review of the files. As the expert from the SubiGo Law Firm emphasizes, the introduction of non-public hearings in appellate proceedings may accelerate this stage and relieve queues considerably, but only in appellate proceedings.
Source: https://managerplus.pl/ministerstwo-pracuje-nad-szybszym-rozpoznawaniem-spraw-frankowych-eksperci-zglaszaja-watpliwosci-53392
