Unfair Contract Terms Directive, Article 4, 1. Unfair Contract Terms Directive, Article 4, 2.

By applying Law no. 193/2000 on abusive clauses in the contracts concluded between traders and consumers (which transposes the Unfair Terms Directive 93/13) the Focsani Court held that the defendant – bank – must construe the reference to variable rate interest in EURIBOR terms plus the 1.5% margin, according to point 5 of the credit contract concluded on 29.11.2007. In addition, the Court declares abusive the clause regarding the monthly administrative commission of 11 euros, representing 0.05% of the value of the credit and obliges the defendant to recalculate de administrative commission reported to the amount left to pay and not to the initial sum of the credit. Moreover, the Court decides that the extra sums paid by the claimant as a consequence of the wrong way of calculating the administrative commission must be reimbursed by the bank.

The claimant physical person concluded with the defendant a credit contract with a fixed rate interest for the first year and variable interest rate for the following years. At the moment the contract was concluded, the interest rate was 6.95%. A year later, the interest rate grew to 10.4%, without any explanation of the bank.
When Emergency Government Ordinance no. 50/2010 regarding credit agreements for consumers was adopted, the claimant expressly declared that he would not agree to the addendum and that his refuse should not be considered a tacit approval.
The claimant also addressed his claims to Consumers’ Protection Office Focsani, which communicated that the legal provisions were misinterpreted by the bank. The claimant requested the Court to consider the contract as mortgage contract, to interpret the reference variable rate interest in EURIBOR terms plus the 1.5% margin, to order the reimbursement of the credit granting commission and of the risks commission, to eliminate the abusive clauses regarding the increase of the rate interest without the agreement of the claimant, to diminish the amount of the administration monthly commission calculated with reference to the outstanding amounts under the credit agreement.
The defendant answered that the request tends to imply the judge in determining the price of the contract, that the request should be rejected since the necessity of the obligatory previous procedure was not fulfilled, the nullity of the requests regarding the reimbursement of the commissions.
According to the credit contract, the rate interest is fixed to 6.95% for the first 12 months and flexible for the following months, when the rate interest shall be calculated as variable reference rate interest which is shown at all of the bank’s quarters plus 1.5%. According to the Notice dated 22.09.2010 of the Consumers’ Protection Office Focsani, the rate interest was actually calculated according to the independent reference index EURIBOR, updated every 6 months plus a 9.26% margin every year.

The first court argued as follows:
- in this case, the claimant paid a monthly 11 euros administrative commission, calculated as 0.05% of the total amount of 22,000 euros of the credit. The Court held that the clause, by the way it was formulated and asked for, has the nature of an abusive clause.
- The Court considers that the way the bank calculates the rate interest is not in accordance with the contractual provisions and, in addition, the defendant did not even try to prove the contrary
- The Court obliges the defendant to calculate the variable reference rate interest according to point 5 of the Contract
- The Court holds that the clause mentioning the administrative commission of 11 euros a month is abusive
- The Contract shall not be considered a mortgage credit contract as the claimant requested because it would imply the amendment of the legal regime of the contract and, therefore, the modification of the bank product. At the moment when the contract was concluded, the claimant could have opted for a mortgage credit contract, but he chose not to. As a consequence, the Court cannot change the will of the parties
- The Court finds the request regarding the reimbursement of the credit granting commission and of the risks commission lacking substance since the claimant had not paid these commissions
- Regarding the request of the defendant to reject the whole request of the claimant because an preliminary procedure was not undergone, the Court held that according to art. 15 letter j) of the Law no. 146/1997 regarding trial taxes, the present request is excepted form paying trial taxes and the necessity of any preliminary procedure. Even in the case when the preliminary procedure was mandatory, the Court could not have rejected the request since it would have the signification of breaching the right to access to justice

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