Unfair Contract Terms Directive, ANNEX I, 1., (m) Unfair Contract Terms Directive, ANNEX I, 1., (q)

Reversing the burden of proof with regards to the payments of the debtor-consumer through a contractual clause in the credit agreement does not constitute as an unfair term, unless the consumer explicitly and specifically surrenders a right it is legally entitled to in the contract.

The primary respondent, as creditor, agreed with the plaintiff (and secondary respondents), as debtors, on a credit agreement based on foreign currency. This agreement included a particular clause that posited that the debtor accepts documents released by the creditor (and testified by public notary) as proof of debt and that in case of potential execution, the public notary similarly testify to the amount of debt. This eventually culminated in a conflict between the parties, that led  the Court of First Instance to decide in favour of the debtor, while the Court of Second Instance delivered a more favourable ruling to the creditor. As a consequence, the case went to the Supreme Court.

Whether the above clause reverses the burden of proof to the consumer, and whether it creates an unfair contractual term in the process.

The Supreme Court rejected the argument that such reversal implies unfair terms. In doing so, it partially relied on the jurisprudence of the CJEU with regards to Directive 93/13/EEC. It also noted that it cannot be argued that the clause constitutes a surrender of rights, as that requires an explicit clause testifying to such.

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The Supreme Court rejected the debtor’s arguments, overruled the Court of Second Instance’s ruling and upheld the original court decision. It reasoned that the reversal of the burden of proof with regards to the payments made by the debtor-consumer does not constitute a sufficiently high degree of unfairness to be considered a violation of relevant national and EU law, as that would have required the consumer to have explicitly surrendered a right it is otherwise legally entitled to in the contract.