Solution by The High Court of Cassation and Justice reffering to typical variable interest

The court at the top of the judicial system, The High Court of Cassation and Justice has passed a historic decision in case no. 17947/3/2011. Through Civil Decision No. 3913/13 nov. 2013 recently motivated, the clause for interest typical to BCR, the so-called variable interest rate of reference (DRV) is found to be abusive. Also, the management fee is abusive. The same is applicable commission for credit. At this point, the contract remained without interest. It gives, in this way, the expected effect of the ECJ, especially in the case Invitel, as well as in cases Juaquin Camino and Mohamed Aziz.

It’s the first irrevocable decision unfavourable BCR that THCCJ pronounced and, anyway, the first in relation to unfair terms, whose legal status is regulated by Law no. 193/2000.

I invite you to consider a few passages of reasoning:

(i) “The Bank excluded the formation mechanism of the financial market interest objective criteria, establishing an element of financial policies favourable to its own, giving the bank the possibility that, regardless of the increase or decrease of the Euribor index, the interest would never drop it following to be adjusted by increasing the fixed margin, operating as an automatic adjustment to keep the interest rate at the desired level.”

(ii) “free will is limited, as far as the customer is concerned, to signing the contract or not. The contract in question has been previously chosen, a choice which is also controlled by the bank, it being the one that sets the scoring/rating of the customer, this being used by the bank to indicate the type of credit that the customer falls under”. (given that the customer also pays fees for such analyzes)

Very interesting for future litigation CHF denomination in retail payments in contracts are the following passages of reasoning:

(i) “contractual unbalance [ … ] is obviously unfair since it works to transfer a risk from the load of the bank [ … ] to the consumer;”

(ii) “The integration of all these clauses in the contract denotes the obvious intention of the bank to shelter itself from the occurrence of any risk that can lower the gain by transferring its full to the consumer.”

(Case ICCJ no. 3913/13 nov . 2013 in file no. 17947/3/2011)

prof. Gheorghe Piperea

:: The source:

Dan-Alexandru NEGRU

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