Banca Comercială Română (BCR) is one of the banks whose contracts contain abusive clauses that consumers have been forced to accept, given their pre-formulated nature.
The most common issue in contracts with this bank concerns the calculation of interest, which is usually fixed in the first year of the contract and later becomes variable based on the bank’s reference interest rate, of which consumers were never informed.
In this case, we will analyze a credit contract concluded in 2008, for a period of 360 months. The successive payments made to the bank were accompanied by a constant interest during the first year and later by a variable reference interest, to which a fixed margin of 1.20 percentage points was added. The variable interest rate was linked to the reference index of Banca Comercială Română, without presenting a specific calculation method or formula based on which the resulting interest was applied monthly to the debtor.
Subsequently, with the issuance of Emergency Ordinance no. 50/2010, Banca Comercială Română notified consumers that the interest calculation method would change according to the new legislative regulations introduced by Emergency Ordinance no. 50/2010. Specifically, the applicable interest would be equal to the value of the ROBOR/LIBOR/EURIBOR index + margin (formed by the difference between the reference interest specified in the contractual provisions and the ROBOR/LIBOR/EURIBOR index plus the fixed margin from the contract). At the same time, the bank mentioned in the notification that if the debtor does not adhere to the additional act to the credit contract by signing it, the interest calculation changes will take effect through the debtor’s silent acceptance.
In all cases, consumers expressed dissatisfaction in writing with the bank’s proposal, explicitly requesting clarification of the calculation formula for the variable reference interest. Article 37, letter a) of Emergency Ordinance no. 50/2010 requires the interest calculation to be based on the EURIBOR/ROBOR/LIBOR reference index, to which the creditor adds a certain fixed margin throughout the contract period. Thus, Emergency Ordinance no. 50/2010, to which the bank refers and aligns itself with, establishes a strictly specified calculation formula that cannot be deviated from according to the will of the parties, let alone the unilateral will of the lending bank.
However, the bank maintains its position, emphasizing that the new applicable interest complies with the newly enacted legislative provisions, considering that ‘the current interest applied to the balance is calculated based on the quotation of the independent EURIBOR reference index at 6 months, to which 8.96 percentage points fixed margin per year are added.’ It also specifies that ‘the value of the fixed margin is formed by the difference between the current interest charged by the Bank for the consumer’s loan according to the contract provisions and the independent EURIBOR reference index at 6 months.’
We consider that the calculation method presented by the lender is nothing more than a gross way of misleading and significantly altering the economic behavior of the consumer. A simple calculation leads to the conclusion that the bank did not actually change the applicable interest of the loan, remaining in the previous formula applicable at the contract signing date. Analyzing the margin referred to, it can be concluded that it remains fixed only for 6 months, after which not only does the EURIBOR index change, but also the margin to which it is related, considering that it consists of the reference interest calculated according to the BCR variable index, from which the EURIBOR index itself is subtracted. Therefore, if initially the value of the independent EURIBOR index is added to the calculation interest, later the same value is subtracted, and the reference index of BCR and the fixed margin from the contract, 1.2 percentage points, are added exactly.
Hence, the EURIBOR index does not actually influence the interest paid by the debtor; the only reference is still the BCR reference index initially provided in the contract. In other words, the value of the difference between the interest calculated according to the BCR indices and the independent EURIBOR index accurately compensates for the losses suffered by the bank as a result of aligning the contractual clauses regarding interest with the requirements of Emergency Ordinance no. 50/2010.
However, clauses that give the bank the right to unilaterally change the interest rate are abusive.
In this regard, point 6 of the Annex to Law no. 296/2004 on the Consumer Code defines an ‘abusive clause’ as a ‘contractual clause that has not been negotiated directly with the consumer and that, by itself or together with other provisions in the contract, creates, to the detriment of consumers and contrary to the requirements of good faith, a significant imbalance between the rights and obligations of the parties.’
Also, according to Article 4(1) of Law no. 193/2000, correlated with Article 3(1) and (2) of Directive no. 93/13/EEC on unfair terms in consumer contracts, ‘a contractual clause that has not been negotiated directly with the consumer will be considered unfair if, by itself or together with other provisions in the contract, it creates, to the detriment of the consumer and contrary to good faith, a significant imbalance between the rights and obligations of the parties.’
Thus, from the legal definitions provided in point 6 of the Annex to Law no. 296/2004 and Article 4(1) of Law no. 193/2000, correlated with Article 3(1) and (2) of Directive no. 93/13/EEC, it results that, to consider a certain contractual clause as abusive, three cumulative conditions must be met: 1) the clause has not been negotiated with the consumer, 2) it creates a significant imbalance between the rights and 3) obligations of the parties, and 3) it is contrary to good faith.
Regarding the negotiated nature of the credit bank contract mentioned above, Article 4(2) of Law no. 193/2000 states that ‘a contractual clause will be considered as not being negotiated directly with the consumer if it was established without giving the consumer the possibility to influence its nature, such as pre-formulated standard contracts.’ Since consumers did not have the actual opportunity to negotiate directly with the bank the clauses inserted in the contract and could not influence their nature, the entire agreement between the parties has the character of pre-formulated standard contracts.
In addition, the pre-formulated nature of the clauses can be concluded from the fact that consumers were not informed about the essential elements of the clauses at the time of contract conclusion. The bank did not provide sufficient information about the way in which the variable interest was calculated, namely the method and calculation formula, which is a breach of Article 4(1) of Law no. 193/2000, according to which ‘the professional who, before the conclusion of the contract, knew or should have known that the term is unfair, is obliged to explicitly draw the consumer’s attention to the existence and content of the unfair term.’
Moreover, the lack of transparency regarding the calculation method of the variable interest contradicts the provisions of Article 5(1) of Directive no. 2005/29/EC on unfair business-to-consumer commercial practices, according to which ‘a commercial practice is misleading if it contains false information or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in a manner that causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.’
As a result, the clauses contained in the BCR credit contracts concluded in pre-formulated standard contracts, which the bank did not negotiate directly with the consumers and which create a significant imbalance between the rights and obligations of the parties, as well as a lack of good faith, are abusive.
In this sense, Article 5(1) of Directive no. 93/13/EEC stipulates that ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
The previous considerations lead to the conclusion that the bank’s practice of inserting abusive clauses in credit contracts must be stopped, and the consumers who have been affected by this practice must be protected.
For this reason, we request the intervention of the competent institutions in order to analyze the contracts concluded by Banca Comercială Română and to identify and eliminate the abusive clauses, as well as to take the necessary measures to sanction the bank for the use of such clauses.
At the same time, we request that the bank be ordered to clearly and completely inform consumers about the calculation method of the variable interest, including the specific formula according to which the interest is determined monthly, in order to allow consumers to make informed decisions.
Finally, we draw attention to the fact that this analysis is of a general nature, and for the complete examination of the credit contracts concluded with Banca Comercială Română, we request access to all relevant documents and information held by the bank.
We trust that the competent institutions will take the necessary measures to protect the rights of consumers and to ensure a fair and transparent credit market.