Case Study: Annulment of Abusive Clauses in a Credit Agreement
Cluj Attorney Brisc Legal: Objectives Achieved
The courts in Cluj-Napoca found that certain clauses included in a credit agreement with BRD Groupe Société Générale S.A. were abusive. Accordingly, the court ordered the annulment of clauses concerning the loan file preparation fee, the monthly management fee, and the credit administration fee. The court further ordered the bank to reimburse the amounts paid by the borrower under those contractual provisions.
In fact, an individual entered into a credit contract of €22,000 over 300 months with a Romanian bank. Besides the principal repayment obligation and interest, the agreement included various clauses imposing additional financial burdens on the borrower.
Specifically:
- The original contract stipulated a fixed file preparation commission of approx. €400 and a monthly credit management commission of 0.10% of the loan value.
- Via an addendum, a credit administration commission of 0.10% on the outstanding balance was introduced, replacing the management commission.
Given these terms, the borrower approached Brisc Legal’s attorneys specializing in financial and banking litigation, requesting courts to annul those clauses and reclaim all sums paid under them.
Court’s Finding of Abusive Clauses: Solution
The court competent to adjudicate the dispute — Cluj-Napoca Court — ruled in favor of the borrower, granting fully the claims submitted in the lawsuit.
A first matter addressed by the court was that the credit agreement was a standard preformulated contract, giving rise to a rebuttable presumption (under Law 193/2000, art. 4(3)) that the challenged clauses were not individually negotiated. The bank had the burden to prove negotiation of those clauses, which it did not.
File Preparation Fee
Regarding the clause for the file preparation commission, the court noted that nowhere in the credit agreement was the method by which the approx. €400 was determined explained. Because of this lack of transparency, it was impossible to verify whether the fee represented a genuine counterperformance by the bank. Coupled with the failure of the bank to show that it was negotiated, the court declared that clause abusive.
Management and Administration Commissions
In respect of the monthly management commission (0.10% of the loan amount), even though the bank argued that it compensated a service provided, the court found that the commission was fixed without regard to actual performance or services. The commission was independent of any service and imposed a significant imbalance versus the consumer, so it was declared abusive and null.
When the addendum introduced the administration commission (0.10% of the outstanding balance), replacing the management commission, the court similarly found an imbalance in rights and obligations. The bank asserted that its administrative services (account management, monthly updates, automatic collections) justified the fee. But the court rejected this: such services are largely automatic, and the commission cannot be imposed as a separate, fixed burden in addition to interest. Thus, that clause also was annulled.
In conclusion, the court annulled the three types of commission clauses and ordered:
- Reimbursement to the borrower of amounts paid for file preparation commission
- Reimbursement of amounts paid for monthly management commission
- Reimbursement of amounts paid under the administration commission
- Payment of penal legal interest on those amounts from the time they were paid until repayment
- Reimbursement of legal costs borne by the claimant