Doctrină

Unfair Commercial Practices Directive, Chapter 1, Article 2, (a) Unfair Contract Terms Directive, Article 2, (b) Unfair Contract Terms Directive, Article 2, (c) Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 4, 2. Unfair Contract Terms Directive, Article 6, 1.

This paper discusses the absolute protection granted to credit consumers, a constant tendency in the relevant case law rendered by the Romanian courts within the context of the judicial intervention into the contract for the purpose of repressing the unfair terms and of adapting the foreign currency loan contracts.
The author describes (i) the notion of the loan (scope, loans in CHF, the difference between a necessity and a vital necessity), and (ii) the consumers' protection against the responsibility of signing a loan agreement (consumer's definition). In addition, the article touches upon the exception provided by article 4 para (6) from the Law 193/2000 on unfair terms in consumer contracts (which transposes the provisions of art. 4(2) of Directive 93/13/EEC) according to which the abusive character of a clause which represents the main object of the loan agreement can be analysed by the courts only if it is drafted in a incomprehensible language. The article also comprises a comparison made between the loan agreements and other agreements to which Law 193/2000 on unfair terms in consumer contracts applies from a theoretical perspective, but in practice no such claims are addressed to the courts (for example, some utility agreements includes a "co-generation tax” which is the equivalent of the risk commission included in the loan agreements; although the wording of this clause is unclear, no consumer - or certainly not the majority of consumers - have claimed that such clause is abusive). The article also comprises an interpretation of the negotiation notion by reference to the Romanian explanatory dictionary.
In spite of several decisions issued by the Romanian courts, the author considers that (i) the consumers had the possibility to choose between more currencies when they concluded the loan agreements in Swiss francs (CHF) and by choosing the most convenient currency for them at that moment, the consumers assumed the risk arising from the currency variation; (ii) the commission and the interests comprised in the loan agreements are part of the main object of the agreement and should not be subject to the courts' analysis; and (iii) the sanction for an abusive clause should be not be the absolute nullity, but rather the termination of the clause's application.