The dispute over invoking abusive clauses inserated in banking contracts in the trial of a contestation of the execution - alignment to european trends in the matter

Author:Adriana Ioana Pîrvu
Position:Senior Lecturer, PhD - Faculty of Economic Sciences and Law, University of Pitesti
Pages:211-218
SUMMARY

The number of cases concerning the abusive clauses inserted in banking contracts, trialed in front of the national courts, is a considerable one. It seems like the compliance of the national regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in consumer contracts, is a difficult process. The purpose of the present study is to observe the current state of the alignment of the national legislation and jurisprudence to the European tendencies in the matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process of a contestation of an execution, since the national case law is not unitary in this regard. Even in theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion on this matter, in the cause C-407/18, the case of Ales Kuhar, Jožef Kuhar v Addiko Bank d.d. At the end of the study, we aim to point out the main directions set at European level that must be followed by the national legislation and case law of a Member State.

 
CONTENT
The dispute over invoking abusive clauses inserated… 211
THE DISPUTE OVER INVOKING ABUSIVE CLAUSES
INSERATED IN BANKING CONTRACTS IN THE TRIAL
OF A CONTESTATION OF THE EXECUTION – ALIGNMENT
TO EUROPEAN TRENDS IN THE MATTER*
Adriana Ioana PÎRVU**
Abstract: The number of cases concerning the abusive clauses inserted in banking contracts,
trialed in front of the national courts, is a considerable one. It seems like the compliance of the
national regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in
consumer contracts, is a difficult process. The purpose of the present study is to observe the current
state of the alignment of the national legislation and jurisprudence to the European tendencies in the
matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process
of a contestation of an execution, since the national case law is not unitary in this regard. Even in
theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion
on this matter, in the cause C-407/18, the case of Aleş Kuhar, Jožef Kuhar v Addiko Bank d.d. At the
end of the study, we aim to point out the main directions set at European level that must be followed
by the national legislation and case law of a Member State.
Key words: Private law, Banking law, abusive clauses, banking contracts.
Introduction
Although it does not define abuse in law or of law, the Civil Code1 stipulates
in article 15, entitled Abuse of law: “No right can be exercised in order to harm or
damage others in an excessive or unreasonable way, contrary to good faith”.
The abusive clause is not defined by the Civil code, either. However, it is
regulated by Law no. 193/2000 regarding the abusive clauses in the contracts
concluded between professionals and consumers. According to art. 4 paragraph (1)
of the law, “A contractual clause that has not been negotiated directly with the
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 1 November 2019.
** Senior Lecturer, PhD – Faculty of Economic Sciences and Law, University of Pitesti
(adrianapatoiu@yahoo.com).
1 Law no. 287 from 17 July 2009 regarding the Civil Code, republished in the Official Journal of
Romania, Part I, no. 505 from 15th of July 2011.
Law Review special issue, Decembre 2019, pp. 211-218
212 ADRIANA IOANA PÎRVU
consumer will be considered abusive if, by itself or in conjunction with other
provisions of the contract, it creates, to the detriment of the consumer and contrary
to the requirements of good faith, a significant imbalance between the rights and
obligations of the parties”. Further, paragraph (2) provides that "a contractual
clause will be considered as not being negotiated directly with the consumer if it
has been established without giving the consumer the possibility to influence its
nature, such as the pre-formulated standard contracts or the general conditions of
sale practiced by traders on the market of the respective product or service”. In the
annex that forms an integral part of the law, a series of clauses considered by the
legislator to be abusive are listed, as an example.
The law faithfully reproduces the provisions of art. 3 paragraph (1) and
paragraph (2) of the Council Directive 93/13 / EEC of April 5, 1993 regarding the
abusive clauses in the contracts concluded with the consumers. The protection
system created by the directive envisages the consumer who is inferior to a seller
or a supplier in terms of bargaining power and the level of information, a situation
that ends with the former's adherence to the conditions imposed.
The Directive mentions in Article 6 paragraph (1) that it is the responsibility of
the Member States to ensure that the use of abusive clauses inserted in a contract
between a seller or supplier and a buyer, concluded in accordance with national
law, will not create obligations for the consumer, and the contract will continue to
engage the parties only insofar as it can continue to exist without abusive clauses.
Moreover, art. 7 paragraph (1) provides that "States shall ensure that, in the
interests of consumers and competitors, there are adequate and effective means to
prevent the continued use of abusive clauses in contracts concluded with
consumers by sellers or suppliers."
In many cases, the Court held that the inequality between the consumer and
the seller or supplier could only be compensated by a positive intervention,
outside the contracting parties (Judgment of June 27, 2000, Océano Grupo Editorial,
C 240/98, EU:C:2000:346, paragraph 27, as well as the Judgment of 26 October
2006, Mostaza Claro, C 168/05, EU:C:2006:675, paragraph 26). Thus, the Court
considers that in such cases the intervention of the national courts is needed and
they are obliged to assess the abusive nature of a contractual clause ex officio. The
aim of such an intervention is to create a substitution of the formal balance
established through the contract, with a real one (Judgement of 6 October 20092,
Asturcom Telecomunicationes, C-40/08, EU:C:2009:615, paragraph 30).
In this sense, we interpret the provision inserted in art. 1 letter q of the annex
to Directive 93/13 / EEC, which includes among the abusive clauses those clauses
that have as their object or effect "the exclusion or obstruction of the consumer's
2 Judgement of 6 october 2009, Asturcom Telecomunicationes, C-40/08, EU:C:2009:615, available on
http://curia.europa.eu/juris/document/document.jsf?text=&docid=77861&pageIndex=0&doclang=
RO&mode=lst&dir=&occ=first&part=1&cid=586083.
The dispute over invoking abusive clauses inserated… 213
right to bring legal proceedings or to exercise any other appeal, in particular by
requesting the consumer to refer exclusively to an arbitration court that is not
regulated by the legal provisions, unjustifiably restricting the evidence at his
disposal or imposing the burden of proof which, in accordance with the law
applicable, it must intervene to another part of the contract ”.
With regard to the present study, its purpose is to identify in what extent it is
permissible to invoke the abusive clauses in a forced appeal and whether or not the
prohibition of such an action is an infringement of the consumer's right to action.
1. The character of the rules regarding the abusive clauses
Directive 93/13, as a whole, is regarded as absolutely necessary for the
fulfilment of the measures taken by the European Union, by increasing the level
and quality of life at Union's level.
As regards Article 6 of the Directive, it is considered to contain an imperative
rule. Based on the nature and importance of the public interest protected by the
directive, the Court of Justice of the European Union emphasized that Article 6
"must be considered a norm equivalent to the national norms that occupy, within
the internal legal order, the rank of norms of order public " (Judgement of 6
October 2009, Asturcom Telecomunicationes, C-40/08, EU:C:2009:615, paragraph 52)3.
2. Aspects of comparative law. Divergences and convergences in the practice
of national courts at European Union's level
2.1. Hungary
Regarding the abusive clauses, they were initially regulated by art. 209 of the
Civil Code of 1997. It offered a party the opportunity to challenge any general
contractual condition considered abusive. As a result of such an appeal, the
contract was losing the legal force, retroactively, from the date of its conclusion.
Subsequently, Government Decree no. 18/1999 regarding the clauses to be
considered abusive in the contracts concluded with a consumer, classified the
contractual clauses into two categories: clauses whose stipulation in the contracts
was prohibited, their insertion in the contract being sanctioned with the nullity,
and clauses considered abusive until the contrary was proven, such a presumption
could have been overturned by the author of the clause.
Without expressly ruling on the invocation of abusive clauses directly in the
procedure for contesting forced execution, the Court of Justice of the European
Union ruled in a case brought by a national court of Hungary in the sense that an
abusive contractual clause does not create obligations for the consumer, even if he
3 Idem.
214 ADRIANA IOANA PÎRVU
has not made an express request in this regard. A contrary interpretation would
exclude the right of the national court to ex officio analyze the abusive character of
the clause, when analyzing the admissibility of the request with which it was
referred (Judgement of 4 June 2009, Pannon GSM zrt., C-243/08, EU:C:2009:350,
paragraph 24)4.
The Court underlined that the national court to whom the cause was brought
to notice has the obligation to compensate for the imbalance between the seller or
the supplier and the buyer. The role of the national courts is not only to decide on
the possible abusive nature of a contractual clause, but also the duty to examine
this aspect ex officio, as soon as it has the necessary legal and factual elements in
this regard.
2.2. Spain
As was natural, Spain has aligned its internal regulations on consumer
protection with the requirements of Directive 93/13/EEC. Thus, the provisions of
Law no. 26/1984 on the protection of consumers and users were modified by Law
no. 7/1998 regarding the general conditions of the contracts, which transposed the
provisions of the directive.
The amended Law no. 26/1984 contains a new article, introduced by the law
no. 7/1998, respectively art. 10 bis, which stipulates, in paragraph (1): “any
provisions that have not been the subject of individual negotiations are considered
abusive clauses, which, despite the requirements of good faith, create to the
detriment of the consumer a significant imbalance between the rights and
obligations of the parties arising from the contract”.
Starting from this provision, from a procedural point of view, the question has
been asked whether, Directive 93/13 should be interpreted as meaning that a
national court seized with a request for enforcement of an arbitral decision that has
acquired judicial authority is obliged to establish ex officio the abusive character of
an arbitration clause contained in a contract between a seller or supplier and a
consumer, as well as to annul the respective decision (Judgement of 6 october 2009,
Asturcom Telecomunicationes, C-40/08, EU:C:2009:615, paragraph 59)5.
The imperative of the norm contained in art. 6 of the directive imposes on the
national court notified the ex officio assessment regarding the compliance of the
arbitration clause with the national norms of public order and, at the same time,
imposes the obligation to assess the abusive character of the clause ex officio
4 Judgement of 4 june 2009, Pannon GSM zrt., C-243/08, EU:C:2009:350, available on
http://curia.europa.eu/juris/document/document.jsf?text=&docid=74812&pageIndex=0&doclang=
RO&mode=lst&dir=&occ=first&part=1&cid=1186162.
5 Judgement of 6 october 2009, Asturcom Telecomunicationes, C-40/08, EU:C:2009:615.
The dispute over invoking abusive clauses inserated… 215
(Judgment of 26 October 2006, Mostaza Claro, C 168/05, EU:C:2006:675, paragraph
39)6.
To bring us closer to the proposed topic, we recall a relatively recent
Judgement of 18 february 2016, Finanmadrid EFC SA, C-49/14 EU:C:2016:98,
paragraph 2 of the summary)7. As a result of the questions referred to, the Court
stated that the correct interpretation of the provisions of Directive 93/13 indicates
that it "opposes a regulation of a Member State that does not allow the court that
was notified with the execution of a payment order to ex officio assess the abusive
character of a clause contained in a contract concluded between a professional and
a consumer, if the authority notified with the request for payment order is not
competent to proceed with such an assessment”.
As long as the payment order procedure, as regulated by Spanish law, is, apart
from the circumstances that attract the intervention of the judge, a closed one,
without being able to control the existence of abusive clauses in a contract
concluded between a professional and a consumer, the effectiveness of the
protection of the rights deriving from Directive 93/13 is affected. The same is the
result in the situation in which the court notified with the execution of the payment
order is not competent to assess ex officio the existence of such clauses. The
procedural system of a Member State must allow, in the case of a payment order
procedure or a procedure for the execution of a payment order, an ex officio
control of the clauses with a potential abusive content.
2.3. Slovakia
Focusing on the topic chosen for analysis, we conclude the comparative view
on the procedural aspects pertaining to the jurisdiction of the courts to rule on the
abusive nature of clauses inserted in contracts concluded between professionals
and consumers, in various procedural stages, with a kind of the banking field,
which concerns the possibility of invoking abusive clauses through an enforcement
appeal.
Council Directive 87/102/EEC of 22 December 1986 on the approximation of
the laws, regulations and administrative provisions of the Member States
concerning consumer credit, as amended by Directive 98/7/EC of the European
Parliament and of the Council, of 16 February 1998 (currently repealed by
Directive 2008/48 / EC of the European Parliament and of the Council of 23 April
6 Judgment of 26 October 2006, Mostaza Claro, C 168/05, EU:C:2006:675, available on
http://curia.europa.eu/juris/document/document.jsf?text=&docid=63926&pageIndex=0&doclang=
EN&mode=lst&dir=&occ=first&part=1&cid=1014913.
7 Judgement of 18 february 2016, Finanmadrid EFC SA, C-49/14, EU:C:2016:98, available on
http://curia.europa.eu/juris/document/document.jsf?text=&docid=185933&pageIndex=0&doclang
=RO&mode=req&dir=&occ=first&part=1&cid=1253779.
216 ADRIANA IOANA PÎRVU
2008), supported the involvement of the Member States in maintaining or applying
stricter consumer protection measures.
A national court in Slovakia has referred the Court of Justice of the European
Union with a preliminary question regarding the competence of a national court
empowered to solve a request of a forced execution of a final arbitration ruling, to
assess, even ex officio, the disproportionate character of the penalty provided in
the credit contract, concluded between a financial service provider and a
consumer, if, according to the national procedural rules, this court may proceed to
such an assessment in some similar procedures, based on national law (Judgement
of 16 November 2010, Pohotovost` s.r.o., C-76/10. EU:C:2010:685, paragraph 29)8.
The judgment of the Court was similar to the judgment in Asturcom
Telecomunicationes, mentioned above.
Thus, the Court has decided that the provisions of Directive 93/13 impose on
the national courts the obligation to assess, even ex officio, the abusive nature of
the penalties provided for in the credit agreement concluded between a financial
service provider and a consumer, a penalty that has been applied through an
arbitration decision, which has acquired judicial authority and which was
rendered in the absence of the consumer. The national court will rule in so far as it
has the elements regarding the legal and factual situation necessary for this
purpose, and, according to the national procedural rules, the court can proceed to
such an assessment in similar procedures based on national law.
3. Current trends, at European level, in establishing the competence to
appreciate the character of the abusive clauses included in the banking contracts
Recently, the Court of Justice of the European Union was referred again with a
request for a preliminary ruling on the interpretation and application of Directive
93/13, by a national court in Slovenia, in Ales Kuhar, Jozef Kuhar v. Adikko Bank
dd, C-407/18.
In Slovenian law, Article 24 of the Law on consumer protection no. 98/2004
provides that those contractual clauses which either cause, to the detriment of the
consumer, a significant imbalance between the contractual rights and obligations
of the parties, or cause the execution of the contract to be considered abusive either
harmful to the consumer, without a fault thereof, or leading to a significantly
different performance of the contract, against the reasonable expectations of the
consumer or contrary to the principles of good faith and loyalty.
In the case brought before the Slovenian court, the applicant requested for the
forced execution of a mortgage loan contract, concluded between a professional
and a consumer in the form of a direct executory notarial act. According to the
8 Judgement of 16 november 2010, Pohotovost` s.r.o., C-76/10. EU:C:2010:685, available on
http://curia.europa.eu/juris/document/document.jsf?text=&docid=79737&pageIndex=0&doclang=
en&mode=lst&dir=&occ=first&part=1&cid=2873234.
The dispute over invoking abusive clauses inserated… 217
Slovenian law, "the notarial act which provides for an obligation to give, to do, not
to do or to allow something, which may be the subject of a transaction, constitutes
an enforceable title, if the obliging party expresses itself, in the same act or in a
separate notarial act, the consent regarding its directly enforceable character and if
the respective claim is due” (Judgement of 26 June 2019, Ales Kuhar, C-407/2018,
EU:C:2019:537, paragraph 16 regarding art. 4 of the Law on the notarial activity
no. 2/07) 9.
The Court considered, as we were accustomed, that in the light of Directive
93/13, the principle of effectiveness must be respected, which is not the case in the
such a national regulation, under which the national court cannot, at the
consumer's request or ex officio, examine whether or not certain clauses inserted in
a contract are abusive, within the meaning of the directive.
4. National regulation and case law
According to art. 713 paragraph (2) of the Civil Procedure Code: "If the forced
execution is done under a title other than a court decision, the appeal can be
invoked in the execution and for reasons of fact or of law regarding the substance
of the contained law in the enforceable title, only if the law does not provide in
connection with that enforceable title a procedural route for its termination,
including an action of common law”.
Regarding the admissibility of the invocation of the abusive clauses in the
contest to the execution, we find that the practice of the courts is not unitary.
The majority of the courts consider that “the invocation of the abusive clauses
is subsumed to the situation in which defences regarding the extension of the belief
are invoked, so that from a procedural point of view the qualification is the one of
challenge to the actual execution”.
Another part of the jurisprudence considers that the invocation of the abusive
clauses regarding the appeal must be qualified as an enforcement challenge
regarding the clarification of the meaning, scope and application of the enforceable
title.
There is also a part of the jurisprudence that requires an analysis of the abusive
clauses through the prism of the European jurisprudence in this matter, provided
that the national procedural law is respected.
Finally, in line with the European jurisprudence in this matter, there are also
courts that have understood to exonerate the nullity of the abusive clauses, in the
files in which a challenge to the execution is solved.
We remind that the High Court of Cassation and Justice has relatively recently
ruled that “although Law no. 193/2000 on the abusive clauses in the contracts
9 Judgement of 26 June 2019, Ales Kuhar, C-407/2018, EU:C:2019:537, available on
http://curia.europa.eu/juris/document/document.jsf?text&docid=215509&pageIndex=0&doclang=
EN&mode=lst&dir&occ=first&part=1&cid=1121608.
218 ADRIANA IOANA PÎRVU
concluded between professionals and consumers does not provide as a sanction
the cancellation of the clauses of an abusive character, but the in-opposability (or
ineffectiveness) of them in relation to with the consumer the legal regime of this
sanction being identical to that of absolute nullity”. In accordance with the
jurisprudence of the Court of Justice of the European Union, the JCCJ emphasized
that the rules of Law 193/2000 are aimed at the protection of a general interest, and
not of an individual interest, the law pursuing the protection of a generic category,
that of consumers. Therefore, the sanction that intervenes in case of violation of
these norms will be the absolute nullity, which can be invoked at any time by any
interested person, even by the court ex officio.
Conclusions
We find that at national level, we have varied case law in the field. However,
the issue under discussion has not yet been appealed in the interest of the law. It
notes, however, that it tends to align with European trends in the field. Thus, the
analysis of the clauses considered to be abusive is to be done on the basis of the
law and the jurisprudence in this matter, in compliance with the national
procedural law, regarding the legality of the investing of the court and of the term
in which the appeal must be formulated.