The Polish Constitutional Tribunal has challenged the provisions of Polish banking law which allow banks to issue enforcement certificates against their debtors. The Tribunal's ruling will enter into force in August 2016.
Bank enforcement certificates (also known as "BTEs") allow banks to initiate enforcement proceedings against debtors in default without the need to first bring a case to court. Since their introduction in 1998 BTEs have been controversial. BTEs were challenged in 2005 because of the alleged infringement of the debtors' right to a court trial. However, the Tribunal did not declare BTEs unconstitutional on that occasion. Now BTEs have been reviewed by the Tribunal from a different perspective – the constitutional standard of equality. The Tribunal stated that the banks' right to issue enforcement certificates (and effectively skip the court proceedings) unduly privileges banks and deteriorates the position of debtors.
The Tribunal decided to postpone the entry into force of the ruling to August 2016. In the meantime the challenged provisions of banking law will remain in force. However, it is not clear whether banks will be able to issue new BTEs even before August 2016. This is because of the controversies in Polish jurisprudence – some judges believe that unconstitutional provisions should not be applied even before the Tribunal's ruling formally enters into force. Some guidelines concerning the application of BTEs before August 2016 may be provided in the written grounds of the Tribunal's ruling which are not available yet.
In the absence of BTEs banks may consider other tools available under Polish law expediting enforcement procedures against debtors. These include promissory notes which allow for obtaining payment orders in quicker, ex parte court proceedings, or debtors' voluntary submissions to expedited enforcement (art. 777 of Polish Code of Civil Procedure).