An end to evidentiary privilege for funds in relations with consumers | In Principle

The Constitutional Tribunal (“CT”) ruled in a judgment dated 11 July 2011 (case no. P 1/10) that art. 194 of the Investment Fund Act of 27 May 2004 (Journal of Laws, 2004, no. 146 pos. 1546 as amended) is unconstitutional in the scope in which it accords the status of official document to statements from a security fund in civil proceedings. This ruling is final and has the force of commonly binding law.

The District Court in Torun filed a legal query in connection with a lawsuit brought by a fund against a consumer (individual not engaged in commercial activity).  As a result, the CT issued a judgment in scope by limiting its ruling to the situation when an opponent is a consumer. This is significant when assessing the consequences of this judgment for security funds. If a fund acquires receivables whereby the debtor is an entrepreneur, art. 194 of the Investment Fund Act retains full force.

The judgment concerns accounting books as well as account statements. The remainder of art. 194 covering declarations of liabilities, release from liabilities, renunciation of rights, or confirmation of received amounts due are beyond the scope of CT adjudication. Therefore, such declarations or receipts do not lose the legal force of official documents with regard to consumers.

As a result of this judgment, fund account statements have been deprived of their evidentiary value as an official document in civil proceedings, which has great significance to consumers questioning fund claims based on such account statements. The overriding civil law principle is that the burden in proving a fact lies with the party drawing legal effects from such fact (in principle, therefore, the plaintiff must prove the existence of a claimed receivable, its origin and level). Meanwhile, as a result of legal presumptions relating to official documents, the party contesting the veracity of such document must provide evidence, thus the principle of reverse burden of proof lies.

Therefore, security funds were exempt from the obligation to prove the propriety of such claims on general principles when pursuing them on the basis of account statements. The CT judgment restores this fund obligation in the event of a dispute with consumers.  However, this does not mean that an account statement will be deprived of evidentiary value in civil proceedings. It will retain force as a private document constituting proof, in accordance with art. 245 of the Civil Code, that the party signing it submitted the statement in the document.

The consequence of this judgment is also the fact that fund accounting books and account statements will no longer serve as a basis to an order for payment in execution proceedings against consumers.

The CT issued a similar judgment pertaining to the evidentiary value of official documents consisting of bank accounts and account statements on 15 March of this year (case no. P 7/09).