Съдебна практика

Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, ANNEX I, 2., (b)

A credit agreement providing for the possibility of increasing the initially agreed interest is only admissible if it meets the following cumulative conditions:

1. The circumstances in which the interest may be altered must be expressly agreed in the contract or in the General Terms.

2. These circumstances should be objective, meaning they do not depend on the will of the lender, and their determination or application is not placed under the control of the creditor.

3. The methodology for the changes in the interest rate is clearly described in the contract or General Terms. The forming of the interest must be clear.

4. In the event of such circumstances, both the increase and the decrease of the interest initially agreed must be possible. If only an increase is possible, this results in a “significant imbalance between rights and obligations of the trader and the consumer”.

The independently agreed possibility of a unilateral increase of the interest rate by the bank in the credit agreement, in the case in which it is unannounced and excluded in the part of the content of the contract which states the clear rules under which this amount may change, does not meet the requirement for good faith. Because of this the exception under article 144(3)(1) of the CPA is inapplicable.

The plaintiffs are consumers, who have signed a bank loan agreement with the defendant and annexes attached to it.

The plaintiffs file a claim for the invalidity of part of the terms of the credit agreement and the annexes.

The Stara Zagora District Court and the Plovdiv Court of Appeal rejected the claims.

The plaintiffs appealed the decision of the Plovdiv Court of Appeal to the Supreme Court of Cassation.

The plaintiffs file a claim for the invalidity of part of the terms of the credit agreement and the annexes.

The Supreme Court of Cassation held that:

The following terms of the bank credit agreement are unfair:

Article 4 (2), which provides that, in changing market conditions, the bank may unilaterally change the interest rate upon a change in various factors affecting the value of the credit resource. Under this clause, the change in the base interest is provided at the sole discretion of the bank, without specifying specific parameters of the various factors and how much each of them participates in the calculation of the interest rate. There is no link between the change in the interest rate and specific objective indicators, which creates the possibility for such a subjective judgement of the creditor.

Article 4 (9), which regulates the right of the bank to change the interest on the loan “in the event that the borrower, for whatever reason, changes his employer in case the borrower benefits from preferential loan terms, which arise from the preferences granted to the employer by the bank”. While formally outside of the creditor’s will, the final outcome of determining the amount of the surplus is given to the subjective will of the bank without prior knowledge of the rules for calculating this change.

Article 5(6), which provides that the borrower has the right to partially or fully repay the principal of the loan on any payment date before submitting a two-day written notice to the bank, in which case he pays a commission in the amount of 4% and the amount of the prepaid amount can’t be less than 1000 BGN. The Court considers that the setting of a threshold of 1000 BGN for the amount with which the borrower’s debt will be repaid early will make it possible to partially repay the principal on the loan early.

The following clauses in Annex № 1 are unfair:

Article 6(2), which provides that the bank may unilaterally change the interest rate on any of the following conditions:

1) The average annual interest rates

2) The main market indicator for the credit risk or the credit rating in the Republic of Bulgaria

3) The generally accepted monetary market indices

4) The Bulgarian National Bank regulatory framework

These levels are only regulated as a condition for the creditor to take unilateral interest rate changes. There is no explicit specification in the contract on how the changes in each of these prerequisites affect the change in interest-forming factors.

Article 6(4) gives the bank the right to inform the borrower of interest rate changes by posting it on its Internet site, in a visible place in its offices or in another appropriate manner. According to the Court, in order to guarantee the consumer’s right to be informed is fulfilled, a sufficiently effective way of communicating the change must be provided, such as a user-defined telephone, e-mail or a correspondence address.

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The Supreme Court of Cassation partially rejects the decision of the Plovdiv Court of Appeal and declares some of the terms as unfair.