The President of UOKiK has issued two decisions in which he questioned the provisions contained in the annexes to the credit agreements in foreign currencies. These provisions define the principles of determining foreign exchange rates, based on which banks convert credit instalments due. As a result, banks may freely set the exchange rates, and borrowers are not able to predict the amount of the instalments to be paid. Consumers’ feedback served as a basis for addressing the issue. The recent decisions apply to the following banks: PKO and Pekao.
The President of UOKiK recognised the provisions concerning the method of determining the amount of exchange rates applied by the aforementioned banks as prohibited. These are imprecise and arbitrarily fixed. For example, PKO BP stipulates that the exchange rate is calculated on the basis of „average interbank exchange rate”, „liquidity of the exchange market”, „competitiveness of exchange rates”. Pekao in turn refers consumers to „market exchange rates”. However, neither regulations nor contractual provisions or other objective and available sources specify any of the above terms. To check the interbank exchange rate, PKO BP refers consumers to the Reuters website. In the course of the proceedings, Pekao informed that it uses this website to set its exchange rates too. None of these banks, however, specify precisely which website they refer to.
Questionable was also the clause providing PKO BP with the right to change the source of data, if the exchange rates on Reuters website are no longer available – however, the bank does not indicate the basis on which such a change would take place. Moreover, PKO BP grants itself the right to unilaterally change the spread rate if „at least 2 of the 10 largest banks in terms of total assets” do so „by at least 0.5 percent”.
Both PKO BP and Pekao refer the consumers to exchange rate tables set up by the banks themselves. However, they do not specify when they will be developed and published. As a result, the borrowers are unable to estimate the exchange rates used for the purposes of calculation of their loan payments on their own. Therefore, banks may be likely to impose on consumers the rates that are most profitable for them. Thus, they are able to arbitrarily determine the amount of consumer debt.
The President of UOKiK, Tomasz Chróstny, imposed the following fines for the use of prohibited clauses:
- PKO BP – PLN 40,741,440
- Pekao – PLN 21,088,642
Once the decisions become final, the banks must also communicate them to consumers and inform them that the contested provisions – as prohibited – are not binding on consumers and must be regarded as if they had not been included in the annex to the contract at all. This would also make it easier for consumers to pursue claims.
