24
Aug2018

Unfair Terms. Consumers vs. OTP Bank

Cases referring to unfair contractual terms are still amongst the most interesting. It is also the case of a case successfully administrated by the lawyer’s civil partnership Costaș, Negru & Asociații, defending a consumer and against OTP Bank Romania SA (joint-stock company).

On the 19th of September 2016, the Cluj Specialised Tribunal (appeal court) judged a case for the annulment of unfair terms included in the two credit contracts between the consumer and OTP Bank Romania SA.

On this occasion, the court rejected the appeal of OTP Bank Romania SA against civil judgment no. 9229/8.10.2015 of Judecătoria Cluj-Napoca as unfounded.

At the same time, the court granted the consumer’s appeal against the same judgment and partially changed the legal decision, as follows:

The court is ordering the defendant to specify the stipulation regarding the interest rate in the C2204/100/10526 credit contract from 12.06.2008, in the sense of defining the component elements and its amount, as follows: 4.1 p. p + LIBOR CHF 3M. The method of modifying the interest rate will exclusively determine based on the LIBOR CHF 3M reference index, noting that the bank’s margin is fixed and can only be modified by the parties’ written agreement, and the interest rate modification is going to be applied both ascendingly and descendingly, based on the variations of the LIBOR index.

The court is ordering the defendant to specify the stipulation regarding the interest rate in the C2202/1000/7724 credit contract from 19.06.2008, in the sense of defining the component elements and its amount, as follows: 3.64 p. p + LIBOR CHF 3M. The method of modifying the interest rate will exclusively determine based on the LIBOR CHF 3M reference index, noting that the bank’s margin is fixed and can only be modified by the parties’ written agreement, and the interest rate modification is going to be applied both ascendingly and descendingly, based on the variations of the LIBOR index.

The court is ordering the defendant to reimburse all the amounts paid as interest in the two contracts by the application the previously determined calculation formula, calculating the penalty interest from the date of every amount’s payment and until the reimburstment, as referred to in article 1 paragraph (3) in conjunction with article 3 paragraph (2) of the Government Ordinance no. 13/2011.

The court concluded as to the abusive nature and decided to quash clauses 6.3 of the C2204/100/10526 credit contract from 12.06.2008 and 7.3 of the C2202/1000/7724 credit contract from 19.06.2008. According to these contractual terms, “For any other services provided by the Bank, the client owes the Bank, according to its General Business Conditions, charges, taxes and commissions calculated in compliance with the Bank’s taxes and commissions list”.

The Specialised Tribunal’s legal decision is reforming the Judecătoria Cluj-Napoca’s judgment that concluded the abusive nature of the terms concerning the variability of the interest rate according to the Bank’s policy and declared its annulment, but did not see fit to maintain the variable nature of the interest rate based on the LIBOR CHF index. Consequently, the first instance court ordered the determination of a fixed interest rate, relative to the current interest rate of 6.99%, according to the parties’ C2204/100/10526 credit contract from 12.06.2008, respectively to the C2202/1000/7724 credit contract from 19.06.2008. In this regard, the judge of the first instance concluded that “in the case in which the abusive terms concern the interest rate level, they cannot simply be eliminated from the contracts, as it is inacceptable for a long-term credit contract to continue without the consumer paying any interest (practically, in this case, the consumer would benefit from the credit without bearing any costs).”

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