Unfair Contract Terms Directive, Article 2, (b) Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 4, 1. Unfair Contract Terms Directive, Article 4, 2.

ECLI:RO:CAIAS:2022:007.______

 

When the contract stipulates that the loan was granted for financing “personal non-nominalized needs” of a natural person, this person shall be considered as a consumer, unless the bank proves an eventual different purpose for the debtor; the debtor/consumer has standing to bring court proceedings in relation with the unfairness of some contractual clauses even after the termination of the contract, the action being imprescriptible

Dispute between four natural persons (one as a borrower and three as guarantors) and a bank, on the unfairness of the clauses from a credit agreement, terminated, related with the commissions perceived by the bank for granting the credit and for supplementary services. The natural persons were successful before the inferior courts and the bank launched an appeal on points of law, alleging the wrong interpretation and application of legal provisions of the Law 193/2000 concerning the concept “consumer”, with its scope of application and with the unfairness of the contested clauses.

1) Whether when the contract stipulates that the credit was granted for financing “personal non- nominalized needs”, the borrower may nevertheless be qualified as a professional.

2) Whether when the credit agreement has been declared due in advance, and the creditor obtained a forced execution of an asset of the debtor, it is still possible for the latter to bring court proceedings for annulling the unfair provisions of that contract

1) The consumer is a person who does not act for professional purposes. When the credit agreement stipulates that it was concluded for personal needs, it is for the bank to prove an eventual different purpose for the money.

The (elevated) value of the credit or the way of reimbursement agreed cannot justify, by themselves and in absence of other proofs, the professional purpose of the borrower. The fact that the money may have been used to buy a specific immovable (aspect not proven by the bank) is not relevant since an immovable may be used for personal or for professional activities. Also, the fact that 4 years after the conclusion of the credit agreement the borrowers started to exploit a pharmacy in that immovable is not a sufficient proof, able to overturn the conclusion resulting from the contractual provision stating that the credit will be used for “personal uncategorized needs”; the quality of the professional/consumer must be appreciated with regard to the moment of the conclusion of the credit agreement.

2) Since the alleged unfair clauses produced specific effects and the declaration of their illegality may entrain for the debtor the restoration of the previous situation, and since the declaration of the unfairness of the clauses even after the termination of the contract allows the consumer to obtain damages and thus serves to the purpose of the Law 193/2000, the debtor has an interest in bringing court proceedings regarding the unfairness of some contractual clauses even after the termination of the contract.

The consequence of founding the unfairness of a clause results in the absolute nullity of that clause since the legal norms, which transpose EU provisions, follow public interest’ goals, and judges may act ex officio for their protection. Given this equivalence, the legal action brought by the consumer is not subject to the 3-year limitation period, but it is imprescriptible.

3) As regards the unfairness of the clause on the commission for granting the credit, the clearly legible language supposes that the consumer is able to predict the economic consequences following from the clauses of the contract. Even if the clause stipulates that the commission for granting the credit is 0,7% of the value of the loan, which at a first sight appears as clear and legible, the fact that the resulting sum (approx. 2.000 euros) diverges from the one that the contract mentions as due for this commission (approx.. 80.000 euro) obviously speaks to the illegible character to that clause. Since the other conditions for the unfairness of the clause were met (the establishment of an arbitrary commission for granting the credit, with an exorbitant value - 1/4 of the credit- is able to create, contrary to the good faith requirement, a supplementary burden for the consumer and an imbalance between the parties rights and obligations), the conclusions of the inferior courts were correct.

4) As regards the unfairness of the clause on the commission for supplementary services, since the contract did not mention the purpose of this commission nor its precise calculation method, the corresponding clause can be held as unfair, with the other requirements for unfairness also being met. The fact that the consumers accepted it and requested a supplementary service – the modification of the duration of the credit – does not eliminate the unfairness of the clause, which is equivocal and totally illegible.

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The Court rejected the appeal on points of law launched by the bank and upheld the contested decision; it affirmed that the characterization as a consumer should be done with reference to the moment of the conclusion of the contract, by taking into account the content of that contract and any other relevant proofs and affirmed that the consumer has standing in an action for declaration of the unfairness of some clauses even if the contract containing them was already terminated. The decision is final.