The court admitted the claim, noted the unfairness of the contractual clauses inserted in the loan agreement and absolute nullity of these clauses.
It also ordered the removal of these clauses from the contract and also ordered the defendant to refund the amounts collected by way of management fee and processing fee, amounts updated until actual payment date.
Moreover, it noted the unfairness of the contractual clauses inserted in the loan contract in section 4 of the general conditions regarding the disbursement in the currency of the loan and bearing by the consumer the foreign exchange rate differences, the absolute nullity of such clauses as well as freezing of the CHF – RON exchange rate – for making payments under the credit agreement at the amount as of the conclusion date of the contract, respectively the calculation and payment of the loan repayment rates in lei after the conclusion date of the contract, for the entire period of validity of the contract, following the defendant to refund the amounts overpaid by the applicant.
The court based its decision considering that is abusive a clause which has not been individually negotiated, as in the case of loan contracts concluded with banking companies, is contrary to good faith and creates a significant imbalance between the rights and obligations of the parties obviously in the detriment of the consumer. Thus, the terms specified put in question the contractual balance, because it gives to the bank the right to revise the current interest rate, without negotiating the new level of the interest with the client, the client only having to be notified.
In addition, banks’ failure to inform the consumer on the hyper valorization risk of CHF, a phenomenon which was predictable for financial experts, given that CHF- is an unstable currency, and at the time of concluding the contract the value of this coin was at a historic low level, its increscent of value against the national currency being inevitable, constitutes a breach of the advice obligation, severely sanctioned in the European and national law as it is likely to engage in legal terms a consumer starting from a distorted image of the limits of the consumer’s rights and obligations.
Regarding the exchange rate freeze CHF – lion value of the conclusion and signing of the convention, given the unfairness of clauses bearing the currency risk exclusively by buyers, the Court ruled that it must freeze CHF exchange rate – lion, to make payments under the conventions concluded, the value of the conclusion and signing conventions, calculation and payment of loan repayment rates at this value throughout the period of validity of the contract and repayment of amounts overpaid to the applicant.
Also, considering the contractual imbalance caused due to the currency clause, in detriment of the consumer, the court considers that there must be restored the benefits inherent to the contract, assumed by freezing the CHF – LEU exchange rate at the value from the signing date of the contract, so as to ensure a proportionality of the payments which the will for engaging in this legal relationship.
Hyper valorization of CHF is an unpredictable, uncertain and future event in comparison with the power of understanding of consumers, because they do not have specialized knowledge in finance and banking, allowing them to anticipate an accelerated growth of the exchange rate and, consequently, to knowledgeably assume the currency risk. Given this aspect, it may be considered that the revising of the effects of the contracts corresponds to the agreement will between the parties, because hyper valorization of the CHF hijacks the contracts from the purpose in which they were concluded, changing their nature, to the extent that their execution in the current context no longer meets the consensus between the parties.