Article 39 of the Law on Mortgage Credit
Article 39 of the Law on Mortgage Credit and Supervision of Mortgage Credit Intermediaries and Agents stipulates that if the mortgage loan is repaid in full before the date specified in the mortgage loan agreement, the total cost of the mortgage loan is reduced by the interest and other mortgage loan costs falling for the period by which the term of the agreement is shortened, even if the consumer incurred these costs before the early repayment. The provision in question implements Article 25(1) of Directive 2014/17/EU of the European Parliament and of the Council of February 4, 2014 on consumer credit agreements relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No. 1093/2010 hereinafter: Directive No. 2014/17/EU into the Polish legal order. According to the cited provision of Directive No. 2014/17/EU, Member States shall ensure that the consumer has the right to discharge in full or in part his obligations under the credit agreement before the expiration of the agreement. In such cases, the consumer is entitled to a reduction in the consumer’s total cost of credit, which consists of interest and costs accruing over the remaining term of the contract.
Legal question of the District Court on the legal nature of the commission for granting a home loan
The legal question on the interpretation of the above-mentioned provision of Article 39 of the Law on Consumer Credit and Supervision of Mortgage Credit Intermediaries and Agents was submitted by the District Court in Szczecin, asking the Supreme Court “Is the commission for granting a home loan an expense relating to the entire term of the contract, in which, in the event of repayment of the loan before the date specified in the contract, it is reduced pursuant to Article. 39 (1) of the Act of March 23, 2017 on mortgage credit and supervision of mortgage brokers and agents (i.e., Dz.U.2020 of March 23, 2017, item 1027) by the period by which the term of the contract has been reduced, or at a cost that does not apply to the term of the contract?”
Preliminary question before the CJEU
The Supreme Court decided to wait with its answer to the question posed by the District Court until the Court of Justice of the European Union resolved the legal question presented in case C-555/21. The ruling in this case was handed down on February 9, 2023. The subject of the question in the case was whether, in accordance with Article 25(1) of Directive 2014/17/EU, it is permissible to regulate national law that allows a consumer to demand a proportionate reduction only in the costs of granting loans the amount of which depends on the term of the loan agreement, excluding from this right the right to demand a reduction in costs the amount of which does not depend on the term of the loan, in a situation where the borrower exercises the right to repay the loan in part or in full early.
In giving its answer, the CJEU took the position that it is permissible to regulate the consumer’s right to a reduction in the total cost of the credit in the event of early repayment of that credit in such a way that it covers only interest and costs whose amount depends on the term of the credit agreement. Said differently, national law may not allow a consumer to demand a reduction in the cost of credit which is fixed regardless of the term of the loan.
Supreme Court Resolution
On May 31, 2023 ref. III CZP 144/22, the Supreme Court adopted a resolution according to the content of which the mortgage loan commission is reduced pursuant to Article 39(1) of the Law of March 27, 2017 on Mortgage Credit and Supervision of Mortgage Credit Intermediaries and Agents, if its amount depends on the term of the agreement. Thus, the Supreme Court has opted for the general principle that it is permissible for a consumer to request a reduction in the amount of the mortgage loan commission if the consumer repays the loan early and the amount of the commission depended on the term of the agreement.