Case Study Cluj — Abusive Clauses: Court found abusive in a credit contract concluded in 2008 with BRD – Groupe Société Générale SA
Objectives Achieved
The court found the abusive nature of the clauses in a 2008 credit contract with BRD – Groupe Société Générale SA, specifically the clauses that regulated:
- the file preparation commission
- the credit management commission
- the credit administration commission
As a result, the court ordered the bank to refund the sums collected under those abusive clauses, namely:
- The amount of approx. €1,750 collected as file preparation commission
- The amount of approx. €1,900 collected as credit management commission for the period from contract start (May 2008) until issuance of the addendum (August 2010)
- The amounts collected under the administration commission applied after the addendum, at 0.10% of the credit balance, to be calculated extra-judicially
- Additionally, the bank was required to pay the borrower penal legal interest on each refunded sum, from the moment it was paid until the date of reimbursement.
Presentation of the Case
In 2008 the client concluded a personal-needs loan contract with BRD SA in the amount of €70,000, for a period of 300 months, secured by a real estate mortgage. In 2010 the bank issued an addendum to align the contract with OUG 50/2010.
By that addendum, BRD sought to modify the name and the method of calculation of the monthly management fee: the management fee was transformed into an administration fee, calculated on the outstanding balance (not on the original loan amount), while retaining the percentage rate of 0.10%.
Additionally, via that addendum the bank waived the early repayment fee.
Abusive Clauses and Fees
Starting from the notion that the borrower is a consumer under specific legislation, the court accepted the arguments and found the following clauses and fees to be abusive:
- The file preparation commission of 1.8%, but not less than €200, charged once upon loan approval. The court held this was abusive because it represents an extra and artificial gain for the bank, unjustified as a proportionate fee, given that the documentation and required analysis remain essentially the same, irrespective of loan size.
- The monthly credit management commission of 0.10% calculated on the original loan amount. The court considered this abusive as it does not adjust with the loan balance, thus creating significant imbalance between rights and obligations, and benefiting the bank unfairly (in practice, 70 EUR/month added on top of the interest).
- The administration commission of 0.10% on the outstanding balance, introduced after the addendum in 2010. Although OUG 50/2010 allowed charging an administration commission on the balance, it required that such commission be introduced by a signed addendum. The court held that by declaring the nullity of the prior management commission, the bank had the obligation to adopt the new commission via a valid addendum; mere issuance of an addendum and communication was insufficient. The court concluded that the administration commission could not be enforced against the consumer.
Conclusions
With respect to the contractual interest clause: the contract provided a fixed 7.25% per annum interest for the first year and thereafter a variable interest of EURIBOR 3 months + 3.5 pp, fixed margin, calculated on the outstanding balance. Because it did not include a discretionary or nontransparent component, the court held that this interest clause was not abusive.
Because amounts collected under the declared-null clauses become undue payments, the court required the bank to refund the sums collected under:
- the monthly management commission
- the monthly administration commission
- the file preparation commission