The special right of a bank to issue an enforced collection order against housing cooperatives which have housing loans from the so-called “old credit portfolio” K 8/09
The right of a bank to issue an enforced collection order against housing cooperatives which have housing loans from the so-called “old credit portfolio”, without any necessity to obtain a cooperative’s written statement concerning its surrender to enforced debt collection, are consistent with the Constitution.
At the hearing on 13 September 2011 at 1 p.m., the Constitutional Tribunal considered an application submitted by a group of Sejm Deputies with regard to the right of a bank to issue an enforced collection order against housing cooperatives which have housing loans from the so-called “old credit portfolio”, without any necessity to obtain a cooperative’s written statement concerning its surrender to enforced debt collection.
The Constitutional Tribunal adjudicated that:
1) Article 3(1) of the Act of 29 November 2000 on providing sureties by the State Treasury for the repayment of certain housing loans, insofar as it applies to Article 11(1) of the Act of 30 November 1995 on providing state assistance in the repayment of certain housing loans, granting guarantee premiums and refunding guarantee premiums paid by banks, is consistent with the Constitution;
2) Article 5(5) of the Act of 29 November 2000 on providing sureties by the State Treasury for the repayment of certain housing loans - insofar as it entrusts a bank with the right to issue enforced collection orders without obtaining a debtor’s written statement concerning the debtor’s surrender to enforced debt collection - is consistent with Article 20 and Article 32(1), as well as it is not inconsistent with Article 76 and Article 75(1) of the Constitution.
Article 3(1) of the Act of 29 November 2000 on providing sureties by the State Treasury for the repayment of certain housing loans makes reference to Article 11(1) of the Act of 30 November 1995 on providing state assistance in the repayment of certain housing loans, granting guarantee premiums and refunding guarantee premiums paid by banks, which was binding after 18 January 1996, i.e. to a provision which was declared by the Constitutional Tribunal to be inconsistent with the Constitution in the judgment of 17 December 1997 (Ref. No. K 22/96, OTK ZU No. 5-6/1997, item 71) only in respect of the way it had been enacted (retroactivity, lack of vacatio legis). Therefore, it is misguided for the applicant to state that Article 3(1) of the Act of 29 November 2000 on providing sureties by the State Treasury for the repayment of certain housing loans refers to a provision which has previously been declared by the Constitutional Tribunal to be unconstitutional in respect of its content.
Also, in the opinion of the Constitutional Tribunal, it is unjustified for the applicant to claim that state organisational units (banks) are privileged and given preference in civil law transactions. A bank which issues an enforced collection order on the basis of Article 5(5) of the Act of 29 November 2000 on providing sureties by the State Treasury for the repayment of certain housing loans is no longer a party (a creditor) to an obligation relationship with a cooperative (a debtor) which results from a loan which has previously been granted. Indeed, after the surety is granted it is the State Treasury that becomes the said party.
By contrast, addressing the allegation of infringement of the constitutional principle of equality, the Constitutional Tribunal noted that the actual situation of housing cooperatives which had been granted loans by banks for housing in the years 1965-1992 differed from the actual situation of housing cooperatives which had been granted such loans after 1992, since granting loans to housing cooperatives constituted banks’ activity aimed at generating profits only after the transformation to market economy. In the former economic system, granting a loan was a form of the state’s support for a debtor – a housing cooperative. Indeed, granting loans constituted the implementation of a housing policy of the state and a method of supporting housing. In the view of the Constitutional Tribunal, the allegation of infringement of the principle of equality which consists in differentiating between the legal situation of two parties to a loan agreement, i.e. the creditor – a bank and the debtor – a housing cooperative, is unjustified as, in accordance with the legal construct of a surety, the place of the previously satisfied creditor (a bank) is taken over by the State Treasury.
The Constitutional Tribunal stated that the circumstances of the case and the normative context of Article 5(5) of the Act of 29 November 2000 on providing sureties by the State Treasury for the repayment of certain housing loans, with regard to housing cooperatives which had been granted loans on favourable terms until 1992, provided for the possibility of issuing an enforcement clause for a bank’s enforced collection order also when the debtor (a housing cooperative) has not submitted a written declaration of intent concerning its surrender to enforced debt collection.
At the same time, the Constitutional Tribunal emphasised that its stance in the case under examination might not be stretched to the questions of constitutionality concerning other statutory solutions which pertained to issuing an enforcement clause for a bank’s enforced collection order.
The hearing was presided over by Judge Maria Gintowt-Jankowicz, and the Judge Rapporteur was Judge Andrzej Rzepliński, Vice President of the Constitutional Tribunal.
The judgment is final and its operative part shall be published in the Journal of Laws.