Case law

  • Case Details
    • National ID: No. of protocol 12708
    • Member State: Greece
    • Common Name:link
    • Decision type: Other
    • Decision date: 26/04/2016
    • Court: Ombudsman of the Consumer
    • Subject:
    • Plaintiff: Unknown
    • Defendant: ALPHA BANK
    • Keywords: abusive behaviour, ancillary contract, consumer, financial services, good faith, supplier, unfair terms
  • Directive Articles
    Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 4, 1.
  • Headnote
    (1) Contractual terms can deviate from soft-law rules. However, pre-formulated standard contractual terms are not binding, if the consumer is, without his/her fault, unaware of them, such as in case when the supplier did not indicate their existence or deprived the consumer of the possibility to acquire knowledge of their content.
    (2) A contractual term which has not been individually negotiated shall be regarded as abusive if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. Therefore, General Terms of Transactions that lay down such abusive provisions are forbidden and void. The unfairness of a contractual term shall be assessed, taking into account, apart from the need to protect the presumed weaker consumer, the nature of the goods or services for which the contract was concluded, its purpose and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
  • Facts
    The plaintiff had executed a deposit account agreement with the defendant (a bank institution) in order to open a savings account in USD. Once the plaintiff wanted to withdraw money from this account, the defendant charged a 10 € fee per withdrawal. The plaintiff, who, when signing the contract, was unaware of any term that laid down an additional transaction fee for every withdrawal of money from the account, filed a complaint against the defendant. The defendant claimed that in any case the bank has informed the plaintiff (orally at the cashier’s desk and in writing in the withdraw receipt that the plaintiff had signed) regarding the transaction fee before withdrawing the amount from the account. Also, it argued that the plaintiff, after that notice, proceeded anyways to the withdraw of the money. Finally, details for these fees were also available online in the bank’s website.
  • Legal issue
    A banking deposit contract is regulated under soft law rules. Although no additional charges are provisioned under applicable banking laws, a term that imposes a withdrawal fee is not in principle forbidden; contractual terms can deviate from soft law rules. However, when that term is not individually negotiated, it is not binding if the consumer is not aware of it prior to the conclusion of the contract. The existence or not of any additional charges when withdrawing an amount from a bank account is an essential element of the bank deposit contract executed between the parties. Moreover, the act of withdrawing any amount from the account is not a separate or new transaction/contract between the parties; it is rather a subsequent act that derives from the initial contract. So, providing subsequent information to the consumer regarding the extra charges at the time of the withdrawal does not cure the omission to inform the consumer before executing the initial contract. Therefore, since the defendant concluded a deposit contract without prior information regarding the specific extra charges, the bank cannot impose those additional charges. As such it was held that the defendant, contrary to the requirement of good faith transferred the cost to the plaintiff- consumer. As a result, a significant imbalance in the rights and obligations of the contracting parties occurred, to the detriment of the plaintiff.
  • Decision

    (1) Is a pre-formulated term included in a banking deposit contract regarding additional charges for withdrawing the money from an account in principle forbidden? Should the consumer be aware of it in order to be bound for the term?
    (2) When is a contractual term, which is formulated in advance for future contracts, prohibited and void and how is the abusiveness of such a term assessed?

    URL: http://www.synigoroskatanaloti.gr/docs/reports/2016-04-26.%CE%A3%CF%85%CF%83%CF%84%CE%B1%CF%83%CE%B7-Alpha-Bank.pdf

    Full text: Full text

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  • Result
    The court recommended to the defendant to refund the plaintiff the amount of 10 euro that had been already paid and not to charge this withdraw fee in the future; it also called both parties to notify the court in written, whether they accept the present written recommendation (plaintiffs’ request was granted).