Bank Enforcement Order inconsistent with the Polish Constitution


Allowing banks to issue bank enforcement orders is inconsistent with the principle of equal treatment, stated the Constitutional Tribunal.

Bank enforcement order inconsistent with the Polish constitution

The Constitutional Tribunal decided that the right to issue a BTE is a privilege of the banks which violates the principle of equal treatment (Article 32 (1) of the Constitution) in three respects. Namely, in the relationship between the bank and its customer, in the relationship between banks as creditors and other entities that are creditors, and in the relationship between debtors of banks and debtors of other entities.

Bank enforcement order - how to defend against it?

The Constitutional Tribunal decided that the bank and its client have a significant common feature - they are parties to a private-legal obligation relationship, which is based on the legal principle (formal) equality and the autonomy of the will of the parties. Therefore, they should have equal, in principle, opportunities to defend their rights and interests arising from the concluded contract. Meanwhile, the bank itself issues an enforcement order, replacing the court decision, disregarding the substantive examination of the case, during which the client could raise substantive allegations. The client may defend himself against the BTE only by bringing an anti-enforcement action (Civil Procedure Code Art.840), thus incurring the full proportional fee (5% of the claim value) and the entire burden of proof - under the conditions of execution against him, involving the seizure of assets.

The Constitutional Tribunal found that such a privilege - i.e. being a judge in one's own case - does not justify the status of banks, which are (with few exceptions) private entrepreneurs, operating for profit, although the Constitutional Tribunal does not deny the special role of banks in the economy, justifying certain special powers, but not as far-reaching as BTE. It is also not justified by the character of banks as an institution of public trust, referred to in the proceedings. The Tribunal emphasized that such status is not granted to banks by any legal provision and that it is a matter of fact - it results not only from the important role of banks in the economy, but also from the supervision of state authorities over their establishment and operation.

Liquidation of the bank enforcement title

In the opinion of the Constitutional Tribunal, the bank enforcement order inconsistent with the Polish Constitution is also important for the privileging of banks as creditors in relation to other entities that are creditors. These other entities, in competition with banks over the property of the same person as the debtor, have virtually no chance of satisfying their claims.