Absence of Security for a Borrower’s Claim for Annulment of a Mortgage Loan Agreement and the Principles of Effectiveness and Proportionality Under the Directive 93/13

Abstract

In view of discrepancies in the jurisprudence of common courts of law in adjudicating applications for securing consumer claims against banks for annulment of loan agreements, as well as in connection with changes in the banking sector which indicate the existence of grounds for adopting restructuring measures against banks, a question arises whether national courts should be bound by such an interpretation of the Directive 93/13 which is to take into regard the principles of equity and proportionality. The reason for considerations on this subject was a request of the Regional Court (Sąd Okręgowy) in Warsaw for a preliminary ruling regarding the granting of security for claims to declare invalidity of a loan agreement in the context of Article 6(1) and Article 7(1) of the Directive 93/13.