Penal liability for usury under the Shield 3.0
The provisions of the special laws adopted in connection with the COVID-19 pandemic have a significant impact on the short-term loans market. We would like to remind you that from April 1, 2020, the maximum non-interest consumer loan costs were lowered, and the ban on rolling credit for 120 days was extended to capital related entities.
The latest Act of Shield 3.0, i.e. (the Act of 30.04.2020 on the amendment of certain acts in the field of protective measures with the spread of the SARS-CoV-2 virus), adopted by the Sejm, provides for penalization of debt recovery resulting from, among others under consumer loan agreements, if the claimed amounts of interest or non-interest costs exceed the statutory thresholds. The conditions of penal liability and very unclear intertemporal provisions, however, raise a number of doubts as to the scope of application of the adopted provisions. It should be indicated that
- the Act qualifies as a crime a demand for non-interest costs of at least two times MPKK (maximum non-interest loan costs) or a demand for interest of at least two times the maximum interest.
- the costs or interest claimed must result from a loan, credit or other contract which is intended to provide such a benefit with a refund obligation.
- the perpetrator of an offense may be anyone who requests the payment of costs or interest referred to above in exchange for a cash benefit. This may suggest that the legislator’s assessment can only be caused by the entity that granted the cash benefit to the natural person, i.e. the lender or lender, and not e.g. employees of a debt collection company commissioned to recover the debt. On the other hand, a different interpretation is also possible, according to which it will be possible to prosecute anyone who demands payment of excessive costs or interest resulting from a loan or credit agreement, calculated in exchange for providing a cash benefit to the consumer. By adopting a second interpretation, the perpetrator of a crime may be e.g. e.g. debt collector, helpdesk employee, person signing the payment request or signing the lawsuit.
- the Act does not specify the form and circumstances of the criminalized request – it can therefore be oral (direct or telephone conversation), written or e-mail.
- the crime of „unlawful recovery” will be punishable by imprisonment from 3 months to 5 years.
- The inter-temporal provisions provide for the application of the Act to acts committed after the entry into force of the Act. The act (in this respect) enters into force within 14 days from the day of publication.
- The Act will also penalize the demand for payment of costs or interest arising from loan agreements concluded before the Act enters into force, if the amount of costs or interest exceeds the levels allowed on the date of entry into force of the so-called Shield 2.0, i.e. from April 1, 2020. . The wording of these intertemporal provisions is unclear and inclines to different, possible interpretations:
- The Act makes it possible to penalize requests for payment of costs and interest arising from a loan agreement before 1.04.2020, if the contract provided for costs or interest higher than allowed under Shield 2.0. However, exceeding the levels of Shield 2.0 only allows the provisions of the Act to be applied, while the condition of criminal liability is twice exceeding MPKK or maximum interest under the provisions of the Act on Consumer Credit („UKK”) before Shield 2.0, i.e. twice exceeding MPKK ≤ (K × 25% ) + (K × n / R × 30%) or.
- The Act prohibits demanding costs or interest twice exceeding the levels allowed under Shield 2.0. even for contracts before April 1, 2020.
Unfortunately, the written motives of the Act very vaguely raises the question of applying intertemporal provisions to contracts before 1.04.2020. Consequently, it cannot be unequivocally determined whether the Act will penalize the demand for repayment of debts arising from contracts concluded before April 1, 2020, if the amount of the claimed non-interest costs exceeds twice lower MPKK level ≤ (K × 15%) + (K × n / R × 6% ).
Therefore, as a precautionary measure, it should be assumed that if the Act enters into force, law enforcement authorities may prosecute for demanding from consumers repayment of non-interest costs exceeding twice the MPKK in force under Shield 2.0 from April 1, 2020, even if they arise from contracts concluded before April 1, 2020.