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  1. 2 Studia Prawa Publicznego

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  1. 2 Wyżykowski B.

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  1. 2 2018

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Kompetencja Rzecznika Finansowego do nakładania kar pieniężnych na podmioty rynku finansowego

100%
Wyżykowski B.
Studia Prawa Publicznego
|
2018
|
issue 3 (23)
75-112
EN
The subject of this article is the competence of the Financial Ombudsman to impose financial penalties on financial market entities for violations of the provisions of the Act of 5 August 2015 on complaints handling procedures by financial market entities and on the financial Ombudsman. One of the main tasks of the Financial Ombudsman is to enforce the proper performance by financial market entities of their obligations under the Act. For this purpose, Article 32(1) thereof provides that in the event of a breach of the provisions set out in the Act the Financial Ombudsman may, by way of a decision, impose a fine of up to PLN 100 000. The short duration of the new provisions and, consequently, the lack of case law outlining the directions of their interpretation may, particularly in the initial period, give rise to doubts as to their application. The aim of the article is to analyse possible disputable issues and provide proposals for their resolution. In particular, it is necessary to discuss the conditions for imposing a fine on a financial market entity. In this regard it is important to analyse both – the specific torts indicated in Article 32(1) of the said Act, as well as the general rules upon which the imposition of administrative fines by the Financial Ombudsman is possible. Also important is the consideration of the rules for determining the amount of the fine and in this matter the mutual relationship between Article 32 and the provisions of section IVa of the Act of 14 June 1960. Finally, amendments to certain provisions of the exiting laws are being proposed in order to increase the effectiveness of actions undertaken by the Financial Ombudsman and consequently to increase the level of protection of clients of financial market entities.  
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Istotny pogląd Rzecznika Finansowego jako instrument ochrony klientów podmiotów rynku finansowego

100%
Wyżykowski B.
Studia Prawa Publicznego
|
2018
|
issue 1 (21)
121-151
PL
The article describes the competence of the Financial Ombudsman to submit to the court of law a view (observation) relevant to a case before the court. For long this instrument has been reserved for non-governmental organisations only. In December 2007, the Insurance Ombudsman was vested with such a competence as well. However, the scope of cases in which the Insurance Ombudsman can submit observations is limited to disputes arising from insurance contracts and disputes concerning members of pension funds or participants of occupational pension schemes. With the establishment in October 2015 of the Financial Ombudsman (who is the legal successor of the Insurance Ombudsman), this competence has been extended to cases and disputes regarding all clients of financial market entities. Submitting an observation is intended to enable the transfer of knowledge and experience of the Financial Ombudsman as a specialist in matters concerning financial market services, to the courts of law. In practice however, certain doubts arise in regard to how this instrument should be used properly. In particular, it is not always clear in which cases the Financial Ombudsman may be allowed to submit an observation and in what circumstances such a possibility should be considered as unacceptable or undesirable. Also, the legal character of an observation and its legal nature in regard to the civil procedure is being assessed differently. Thus the question arises on what the content and scope of an observation should be based. In regard to the main task imposed on the Financial Ombudsman, namely the protection of the rights and interests of clients of financial market entities, it seems only reasonable that the content and scope of an observation as well as the decision on whether it will be submitted to the court at all remains in the exclusive judgment of the Financial Ombudsman. The main aim of the article is to analyse these issues based on the experience of the Financial Ombudsman resulting from the use of the instrument in practice.
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