FKA Facts Commentaries Analysis
Even considering excessive legislation of the recent years, which mainly constitutes translation or adaptation of EU regulations, it is uncommon to adopt an act that is as sloppily developed as the act of 5 August 2015 on considering complaints by the financial market entities and on the Financial Spokesperson ("Act").
The Act regulates the manner of submitting complaints by natural persons (also in relation to commercial activities conducted by them) to financial market entities specified in the law and appoints the Financial Spokesperson, who should supervise application of the Act.
The Act charges the financial market entities with a number of obligations concerning the form and manner of accepting and considering complaints.
The authorised persons will be entitled to submit complaints in writing (in every unit of the financial market entity providing services to the customers) or by post, verbally by telephone or personally to be recorded during the customer's visit in the financial market entity unit providing services to the customers, or in electronic form, if such method was indicated by the financial market entity for that purpose.
The financial market entity will be obliged among others to:
- add information concerning the place and form of submitting the complaint, date of its consideration and the method of notifying the customer about resolving the complaint,
- provide the customer with response to the complaint in writing or by e-mail (if the customer grants its consent) within the maximum period of 30 days from the date of submitting the complaint (in particularly complex cases, within the maximum period of 60 days from the date of submitting the complaint),
- if the customer's claims are not accepted, to notify it about the possibility and the manner of appealing against the standpoint presented in the response to the complaint.
Financial market entities will be obliged to apply the rules of the Act within the scope of complaint procedure since 10 October 2015. Starting from 1 January 2016, the provisions of the Act referring to out-of-court resolution of disputes before the Financial Spokesperson enter into force.
The Act causes a lot of controversy. Although it is going to affect a large number of financial market entities (inconsistency of that definition will be discussed below), it provides for only 30 days vacatio legis, which does not ensure a minimal comfort to the entities who should perform the new obligations, in particular because it is also connected with a change of the current draft agreements and developing annexes to agreements with a detailed complaint procedure. The Act is included in a wider scope of "regulating" the sector's activities and the entities who fail to observe the provisions that are often difficult to observe will be threatened by a fine up to the amount of PLN 100,000 for each case of infringement specified therein. There is a question whether such solution does not constitute an excessive sanction.
Unclear and sometimes contradictory regulations should be critically assessed as well. Doubts arise already at the stage of determining the scope and coverage of the Act. Considering interpretation doubts and irregularities regarding the Act, the entrepreneurs will rather choose to strictly observe the obligations charged by the Act, in particular because of high fines.
The Act contains terms which have not been used in the Polish law before, such as 'paper form', without defining them.
Significant doubts arise also with respect to the provision which states that in the case of failing to meet the period of 30 days (in certain cases - 60 days) for providing a response to a complaint, the complaint should be considered resolved in accordance with the customer's demands.
Even the definition of a financial market entity is imprecise. A financial market entity is among others a local bank, a foreign bank, a branch of a foreign bank, a credit institution branch, a financial institution within the meaning of the Banking Law and a loan institution. On the other hand, a customers of a financial market entity is a natural person who is a customer of among others a bank, a customer of a credit institution, a customer of a financial institution and a customer of a loan institution. It is clearly visible that the definition of a "financial market entity" has a more narrow coverage than the definition of a "customer of a financial market entity". The first definition covers only a branch of a credit institution, while a customer of a financial market institution is also a customer of a credit institution (not only its branch).
Similarly, critical assessment should be applied to the definition of a complaint, which constitutes a reservation submitted by a customer of a financial market entity in reference to services rendered by that entity. Definition of a complaint is wide and covers all services rendered by financial market entities, regardless whether they render them within the scope of their principal activities or such services constitute a fraction of their activities. Although during the legislative procedure suggestions were made to limit the possibility of submitting complaints only to agreements between a customer and a financial market entity, finally that suggestion was rejected.
The Act does not precisely define the notion of a "customer". Considering the goal of the Act, it seems to refer to a customer who has an agreement concluded with the financial market entity and also a customer who had such agreement concluded in the past, obviously if the complaint was submitted after the appropriate provisions of the Act entered into force. However, considering the fact that the Act mentions also a complaint of a customer who did not conclude an agreement with the financial market entity, the Act will be also applied to complaints submitted by third parties, if they refer to reservations concerning services rendered by a financial market entity.
Financial market entities who do not respond to the complaint in the period specified in the Act, will pay a high price. The Act states that if the entity does not provide the customer with a response to the complaint in the period specified in the Act, the complaint will be considered resolved in accordance with the customer's demands. It seems that this provision was based on a similar solution applied in the act on the consumers rights. However, in the act on the consumers rights, claims of the customers are limited to demanding replacement of goods or removal of defects, a customer may also submit a statement requesting lowering of the price with a simultaneous specification of the amount of decreasing the price, but in the case of the Act there are no limitations in that scope. It is therefore possible that a customer will submit an absurd claim (for example demanding payment of PLN 1 million) and the entity will not provide a response in the period specified in the Act, which will mean automatic acceptance of the complaint.
Similarly, it is unclear how to calculate the period of 30 days for granting a response to the customer if the customer's claim is imprecise. In such situation it seems reasonable to assume that the entity should ask the customer to describe the demand in more detail (because as a rule, if a complaint is considered justified, it should be resolved according to the customer's wishes). However, it is unclear whether the period of waiting for the customer's response should be included in the maximum period of 30 for responding to the complaint or not. Although it seems reasonable, the Act does not specify such procedure in such situation.
The Act introduces also the possibility of out-of-court proceedings aimed at resolution of a dispute between a financial market entity and its customer, which will be conducted before the Financial Spokesperson. If the parties do not reach an agreement during such proceedings, the Spokesperson will draw up a protocol and an opinion. The protocol will constitute an official document within the meaning of the Civil Procedure Code. On the other hand, the opinion will not constitute an official document. It will contain a legal assessment and will be available to the courts resolving the possible disputes (the protocol will be included in evidence of the case and the opinion will be attached to it). Although it will not constitute the basis for issuing judgments, it may affect decisions of the courts.