CHF denominated loans - a case study of Montenegrin approach

• Author: Nikola Dozic
• Position: Faculty of Law, University of Montenegro
• Pages: 86-102

CHF denominated loans – a case study of Montenegrin approach

PhD. Nikola DOŽIĆ

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Abstract

Montenegro has harmonized its legislation with EU consumer protection

directives during its ongoing accession negotiations. However, in view of the CHF

denominated loans issue, harmonization in financial services sector came too late. To that

end, the main objective of this paper is to present the case study of Montenegrin “solutio n”

to this problem, as well as some of the key p roblems this “solution” has caused. The

reactions of the Montenegrin Parliament, amendments and new legal texts relating to

consumer protection, which were the product of the Parliaments frenetic legi slative

activities car ried on the wings of public’s outrage with this case, are scrutinized. In that

regard, all the problems that followed the “Montenegrin solution” are critically examined

and along with those some of the most interesting cases trialed before the Montenegrin

courts in the ca ses of CHF denominated loans. The above analyses are complemented with

the analysis of the Montenegrin media coverage of some of the most interesting media

reports regarding the CHF denominated loans, particularly of the relevant case law. The

conclusion is made that cooperation of all the relevant persons and institutions entrusted

with facilitating and executing consumer protection is of primary importance for efficient

protection of consumer’s rights and legitimate interests.

Keywords: CHF denominated loan s, Montenegro, harmonisation of national law, lex

specialis, CJEU ruling.

JEL Classification: K12, K33

1. Introduction

Signing of the Stabilisation and Association Agreement between European

Communities and their Member States and Montenegro in the October of 2007

caused intensive development of consumer protection mechanisms in Montenegro.

Following the successful examples of other candidate countries, the decision was

made that harmonization through several legal texts was necessary given the

complexity of relations and the number of areas covered by European acquis on

consumer protection.

Following 2007, Montenegro has harmonized its legislature with number

of EU consumer protection directives, but still harmonization with some of the

directives in the financial services sector, as well as with new consumer directive is

yet to come.

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Naturally, the most important novelties in consumer protection were

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Nikola Dožić - Faculty of Law, University of Montenegro, dozicn@t-com.me.

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The new Montenegrin Consumer Protection Act of 2014 does not comply with the Directive on

consumer rights (2011/83/EU), wich amended the Directive on unfair terms in consumer contracts

Juridical Tribune Volume 8, Issue 1, March 2018 87

incorporated in the Consumer Protection Act,

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and some were incorporated into the

Law on Obligations,

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the Consumer Credit Act,

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the General Product Safety Act,

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the Supervision of products on the market Act,

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as well as other laws which in

addition to its the underlying regulation contains some important provisions related

to the consumer protection. Almost all legal texts in this area were adopted in the

end of 2013 and beginning of 2014, which coincides with the obligation form the

Directive on consumer rights, although Montenegrin legislation is not yet

harmonized with this Directive. Main rezoning behind this decision was that when

the drafting of the Consumer Protection Act started the Directive on consumer

rights was not yet adopted, and that there will be enough time in the transitional

period for its transposition. Although the amendments to the Consumer Protection

Act were adopted in 2015, all of the novelties related to some impugned provisions

of the original text and problems in the implementation of its new rules.

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It is evident that majority of the Montenegrin legislation on consumer

protection was either changed or adopted for the first part of 2014, with a high

level of normative approximation to the EU directives, with mentioned exception.

Until these changes some of the areas now clearly defined were prescribed by the

Consumer protection law only in principle (credit agreements for consumers, for

example).

The aim of this paper is not to show the most important novelties in

consumer protection in Montenegro (which are numerous), or to highlight the

problems in the application of specific solutions (which are numerous as well), or

to propose solutions for further harmonization in the field of consumer protection.

Since the CHF denominated loans were a common problem in the East European

countries,

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the main objective is to present the case study of Montenegrin

“solution”, if it may be termed “solution” to begin with. Hence, the reactions of the

Montenegrin parliament, amendments and new legal texts, which were the product

of its frenetic legislative activities carried on the wings of public’s outrage with this

(93/13/EEC) and the Directive on certain aspects of the sale of consumer goods and associated

guarantees (1999/44/EC), and repelled the Directive to protect the consumer in respect of contracts

negotiated away from business premises (85/577/EEC) and Directive on the protection of consumers

in respect of distance contracts (97/7/EC).

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Consumer Protection Act, Official Gazette of Montenegro, No. 2/2014.

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Law on Obligations, Official Gazette of Montenegro, No. 47/2008.

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Consumer Credit Act, Official Gazette of Montenegro, No. 35/2013.

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General Product Safety Act, Official Gazette of Montenegro, No. 45/2014.

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Supervision of products on the market Act, Official Gazette of Montenegro, No. 33/2014.

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In July of 2015 Montenegrin Parliament adopted amendments on the Consumer Protection Act

(Official journal No. 43/2015). The impugned provision, was amended so that information on

products in Braille are required for the certain products and in certain trade facilities. Remaining

provisions were the solutions for the complaints filed by some consumers who paid the weight of

packing case by the price of the goods that are packed. Also, new amendments brought protection

to the consumer against the trader which wants to bil l the consumers for the shopping bags with his

advertisements, his logo, official sign or a name of its company.

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The term East European countries is used as a geographical determination intended to point out

common problems of the countries regardless of that if they are a member state of the European

union, and not as a regional determination in any statistical way.