Uvodna opomba
The author compares the Supreme Court’s judgement in the case of subordinate bonds and the case of Swiss francs and the different interpretation in each case of the obligation to inform. In the case of subordinate bonds, the Supreme Court gave an explanation on how it understands the relationship between the lack of transparency of a contractual condition because the bank did not perform its obligation to inform and of the unfairness of the contractual condition. That relationship is defined as a cause-and-effect relationship. The Court also decided that the negative and positive components of the obligation to inform have a compelling role in preventing a significant imbalance in the contractual rights and obligations of the parties, because the negative and positive components are constituent elements of unfair conditions. Meanwhile, in the case of Swiss francs, the relationship between the lack of transparency of a contractual condition and the unfairness of the contractual condition was not defined as a cause-and-effect relationship, which means that positive and negative components of the obligation to inform were not regarded as constituent elements of unfair conditions. The author concludes that the borrowers in the case of Swiss francs were discriminated, as Article 3(1) of Directive 93/13/EEC was not correctly interpreted.