Jurisprudenţă

  • Detalii privind cazul
    • ID național: 5812/200/2007
    • Statul membru: România
    • Denumire comună:N/A
    • Tipul de decizie: Altele
    • Data deciziei: 17/10/2010
    • Instanţa: Judecatoria Buzau
    • Obiect:
    • Reclamantul:
    • Pârâtul:
    • Cuvinte-cheie: Jurisprudenţă România română
  • Articole din directivă
    Unfair Contract Terms Directive, Article 3, 2.
  • Notă preliminară
    The credit contract concluded by the parties is an adhesion contract, the contract clauses being pre-established by the bank, without giving the opportunity to the other party to modify or remove any of these clauses. The consumer had no possibility to negotiate any of the contractual clauses.
    The court applied article 4 of the Law no. 193/2000 and considered certain clauses of the mentioned contract as being abusive [respectively article 7 point 2]. The court ascertained that by not clearly providing the elements which allows the bank to unilaterally modify the current contractual interest and failing to indicate any criteria which gives this right to the bank and due to the fact that the decision to increase the interest was at the sole disposal of the bank, this clause was abusive and breached the legal provisions. Also the Court stated that the constitutive elements of the misdemeanour provided in article 15 of the Law no. 193/2000 are fulfilled.
  • Fapte
    The claimant filed a request whereby he forwarded to the Court the finding report no. 195/284 dated 12.07.2007 which ascertained the fact that the loan agreement concluded between the bank and the consumer contained abusive clauses. It was argued that the abusive clause gave the bank the right to unilaterally modify the interest established in the contract. On the basis of this clause, the bank increased the interest two times, once reaching 10% and the second time reaching 11.5%. It was also argued that the attitude of the bank to insert this abusive clause corroborated with the way this clause was applied (the bank increased the interest in a short period of time with 1,75%, while the bank granted loans in Euros with an interest of 8,5%) triggers the misdemeanour liability of the bank.
    The bank argued in its defence that the consumer was completely and correctly informed about all the characteristics of the products and services provided by the bank and thus the consumer had the possibility to make a rational choice between the offered products and services, in accordance with its economical needs. Also, the bank argues that the conditions for a clause to be considered abusive are not fulfilled because the clause does not breach the good faith principle considering that the interest was fluctuant and that it could have had also a descending level, not only ascending.
    In response to the arguments of the bank, the Claimant sustained that the potential amendment of the interest was not related to a clear and individualized indicator, being only generic related to “the evolution of the monetary financial market”, and that it is well known that the financial market may evolve different depending on the indices.
    Also, the consumer made some specifications accordingly: the clause was not directly negotiated with the consumer; the bad faith of the bank results from the intentionally lacunar wording of the clause; the bad faith of the bank was shown also in the way the clause was applied; it has been created a high imbalance for the consumer. Moreover, the consumer requested the court to decide on the termination of the contract.
    The first court issued the decision no. 5766 dated October 17, 2007. The bank submitted a recourse (second appeal) which was rejected by the court. Thus, the decision of the first court remained final and irrevocable.
  • Chestiune juridică
  • Hotărârea

    The court ruled as follows:
    • It maintains the finding report no. 195/284 dated 12.07.2007 of the County Office for Consumer Protection;
    • Ascertains that article 7 para 2 from the credit contract constitutes an abusive clause, breaching the provisions of article 4 from Law no. 193/2000.
    • Ascertains that the action of the bank to insert article 7 para 2 in the contract constitutes a misdemeanour as it is provided by article 15 para 1 from Law no. 193/2000;
    • Applies a misdemeanour fine to the bank, in the amount of Ron600 (on June 24, 2009 the official exchange rate of the National Bank of Romania is: 1Eur is 4,2329 RON);
    • Decides the termination of the credit contract concluded by the bank and the consumer.
    • Compels the bank to pay to the consumer the amount of Ron1500 as court expenses.

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