President of UOKiK Tomasz Chróstny issued three decisions in which he questioned the provisions contained in the annexes to the credit agreements imprecisely defining the principles of determining foreign exchange rates, based on which banks convert credit instalments due.
As a result of the existing provisions, banks may subjectively determine exchange rates, which are the basis for determining the amount of instalments paid by borrowers.
Consumers' feedback served as a basis for addressing the issue.
The decisions apply to the following banks: BNP Paribas, Millennium, Santander Bank Polska.
The exchange rates set by banks are freely determined by them - on the basis of the “average currency exchange rate on the interbank market” (Santander Bank Polska, BNP Paribas) which is not defined in any regulations whatsoever.
Furthermore, customers do not know where to look for these exchange rates, as the provisions of the contracts would refer them to the Reuters website (BNP Paribas, Santander Bank Polska, Bank Millennium) – not specifying any particular site of the website.
As BNP Paribas an Santander Bank Polska explain, these are paid websites available only to financial institutions.
Borrowers do not have access to them, they do not even know their names.
Doubtful are also the provisions in which BNP Paribas and Santander Bank Polska define the right to change the data source if the exchange rates on the Reuters website are no longer available - however, the banks do not indicate their names.
Moreover, BNP Paribas calculates rates based on "average market exchange rates" and the value of the Purchase Correction Ratio (PCR) and the Sales Correction Ratio (SCR).
In accordance with the provisions, the values of the PCR and the SCR depend on the fluctuations of exchange rates on the interbank market, the liquidity of individual currencies and the competitiveness of the exchange rates offered to customers.
According to UOKiK, these definitions are ambiguous and vague, and the bank’s customers are unable to verify them.
Additionally, Bank Millennium stipulates that "the values of the purchase rate and sales rate from the Foreign Currency Exchange Rate Table may differ from the base rate by no more than 10%", and the rate set by Santander Bank Polska may deviate by 1% from that presented by Reuters.
As regards BNP Paribas, inter alia, “the amount of the currency spread may not exceed 10 percent of the average market currency rate".
However, the banks failed to indicate what criteria they used to determine the deviations of the purchase and sales price.
This information should be provided in a transparent, unambiguous and explicit manner - so that each borrower can easily check the amount of their installment and whether it was based on a reliably calculated foreign currency sales rate.
Also, the provisions referring borrowers to the exchange rates listed in the tables of fees and commissions are unacceptable, as none of the aforementioned banks determines when and how many times a day these tables will be compiled and published.
The borrower is unable to determine precisely the exchange rate on the basis of which the loan payments would be calculated.
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.
President of UOKiK, Tomasz Chróstny, imposed the following fines for the use of prohibited clauses:
BNP Paribas - PLN 26,625,686
Bank Millennium - PLN 10,464,213
Santander Bank Polska - PLN 23,634,055
Once the decision becomes 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.