Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: Higher Court, Ljubljana, Judgement VSL Sklep II Cp 1766/2021
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 06/01/2022
    • Sodišče: Višje sodišče v Ljubljani
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: consumer rights, professional diligence, unfair terms, imbalance between the rights of the parties
  • Členi direktive
    Unfair Contract Terms Directive, link Unfair Contract Terms Directive, RECITALS Unfair Contract Terms Directive, Article 1 Unfair Contract Terms Directive, ANNEX I
  • Uvodna opomba

    ECLI:SI:VSLJ:2022:II.CP.1766.2021


    The purpose of the bank's pre-contractual explanatory duty is to protect consumers from risks in a way that enables them to make a rational or prudent decision, knowing all the important facts. The CJEU has taken the view that a bank is obliged to present a loan to a consumer in foreign currency in such a way that he/she can assess the total cost of the loan on the basis of precise and understandable criteria. This also means providing information on how the repayment instalment of the loan would be affected by a greater depreciation of the legal tender of the Member State where the borrower resides and an increase in foreign interest rates. Regarding the bank's explanatory duty on currency risk, the Appellate Court concluded that the bank's explanatory duty is not exhausted by signing a statement on currency risk assumption. Rather, the information must be provided to the consumer in a way that he/she understands the economic effects, and how the changes in exchange rates will affect his/her monthly liabilities.

  • Dejstva

    On 21 April 2008, the applicant and the first defendant entered into a long-term foreign currency credit agreement. On the same day, they concluded a contract in the form of a notarial deed and an agreement on securing the bank’s claim by registering a mortgage on the consumer’s real estate. After the appreciation of CHF, which significantly increased the creditors' credit obligation, the consumer brought actions against the bank, claiming nullity due to unfair contractual conditions.

  • Pravna zadeva

    - Did the bank comply with its explanatory duty at the time of concluding the contracts in accordance with the criteria established by the CJEU?

    - Was there significant imbalance in the level of information between the consumer and the bank at the time of the contract conclusion regarding the exchange rate risk because of the banks’ bad faith?

  • Odločba

    The Court of Appeal held that the creditworthiness of borrowers is a legally relevant factor regarding the explanatory duty. There is also a necessarily relevant assessment of the finding of the Court of First Instance as to whether the applicant was able to convert the credit into EUR at all times. If the claimant was insolvent in EUR at the time the contract was concluded, it may be important to explain to the plaintiffs how early repayment under Article 20 of the contract is made in this case. The Court of Appeal emphasises: the purpose of the bank's pre-contractual explanatory duty is to protect consumers from risks in a way that enables them to make a rational or prudent decision, knowing all the important facts. The CJEU has taken the view that a bank is obliged to present a loan to a consumer in foreign currency in such a way that he/she can assess the total cost of the loan on the basis of precise and understandable criteria. This also means providing information on how the repayment instalment of the loan would be affected by a greater depreciation of the legal tender of the Member State where the borrower resides and an increase in foreign interest rates.

    The Court of First Instance correctly cites the legal bases and correctly refers to Directive 93/13 and the case law of both the CJEU and the case law of the Supreme Court. The correct conclusion is also that the bank cannot relieve itself of its obligation only by objecting that the client did not request information. The Court also correctly concludes from the cited judgements that the bank's explanatory duty on currency risk is not exhausted by signing a statement on currency risk, but the information must be provided to the consumer so that he/she understands the economic effects, and changes in exchange rates. However, the Court of First Instance had not taken all evidence into account. Therefore, the Court will have to rule regarding whether the explanatory duty fulfilled or not. The same goes for the statute of limitations. The Court of First Instance will have to determine when the consumer may have been aware in a particular case that there were circumstances which indicate the annulment of the transaction. Only then can the Court of First Instance decide from when the limitation period begins to run. Directive 93 emphasises the notion that the consumer does not know that a condition in a contract is unfair nor does he/she understand the scope of his rights, and that the limitation period can be compatible with the principle of effectiveness only if the consumer has had access to their rights before that period has begun to run or has expired. This means that the moment of the appreciation of the CHF against the EUR is not decisive for the start of the limitation period. It is important when the consumer was able to be aware in a specific case that these are circumstances that indicate the nullity of the transaction.

    However, the Court of Appeal highlighted that the applicant (consumer) was not able to demonstrate that the professional articles show that the defendant (bank) knew that such an increase in the exchange rate would occur. The Court of First Instance found that the bank had not benefited from the exchange rate itself. Indeed, the bank also had collateral with a mortgage and also with the mortgage of the second defendant. However, this is not sufficient to consider that the bank was therefore unfair in its conduct in the stipulating phase.

    URL: http://www.sodnapraksa.si/?q=id:2015081111456026&database[SOVS]=SOVS&database[IESP]=IESP&database[VDSS]=VDSS&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&page=0&id=2015081111456026

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    The appeal is upheld, the judgement is set aside, and the case is remitted to the Court of First Instance for a retrial. The costs of the appeal proceedings are further litigation costs. Against this decision only extraordinary legal remedies are possible. Concretely, an appeal on points of law and a revision of the judgement, both only if the legal requirements under the Civil Procedure Act are fulfilled.