Case law

  • Case Details
    • National ID: I 286/1994
    • Member State: Denmark
    • Common Name:Consumer Ombudsman versus The Danish Bankers’ Association on behalf of Bikuben Girobank A/S
    • Decision type: Other
    • Decision date: 08/12/1997
    • Court: Højesteret (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 7
  • Headnote
    The case concerned an injunction according to the Marketing Practices Act § 1 (implementing art. 7 of the Unfair Contract Terms Directive 93/13/EEC) against a bank’s terms on "asymmetrical valuation" of deposits credited and withdrawals debited.
  • Facts
    The General Conditions of a bank contained inter alia the following term, :

    +As a main rule deposits are credited with value the next banking day. Normally, withdrawals are debited with value from the date of the withdrawal.*

    According to the Danish Consumer Ombudsman this principle of "asymmetrical valuation" was unfair to consumers, inter alia because it may result in "technical" overdrafts.

    The Consumer Ombudsman filed a lawsuit under the Marketing Practices Act against the bank. In its judgment of 30 June 1994 the Maritime and Commercial Court of Copenhagen (votes 3-2) decided the case in favour of the bank. The Consumer Ombudsman appealed against the judgment to the Supreme Court.
  • Legal issue
    the contract term in question is essentially the same in all Danish banks;
    the term is a preformulated contract term drafted unilaterally by the bank and difficult to comprehend in its details;
    in several situations, especially in the case of “technical overdrafts” the rule leads to less reasonable results;
    the transaction cost coverage argument does not speak in favour of the term to the same extent as before the modern electronic payment systems now used by the banks;
    “asymmetrical valuation” is a problem mainly for commercial customers with payment transactions concerning big amounts, whereas the consequences in terms of costs normally are insignificant as far as normal transactions of typical consumer customers are concerned;
    an injunction prohibiting the future use of the term would affect the entire financial sector and its income structure;
    as demonstrated by information concerning the development in other member states legal intervention in the area of valuation rules can take different forms;
    therefore, still in the opinion of the Supreme Court, the case concerns a general problem not fit for regulation by an injunction according to the Marketing Practices Act; instead the problem was considered a matter for the legislator if occasion should arise.
  • Decision

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