Credit agreement, terminated by the bank for lack of payment. Abusive clauses – admissibility of action. Variability of the bank’s margin. Revision of interest and fees. Credit fees, credit management fees, risk tracking fees and early repayment fees.

LITIGII CU PROFESIONIŞTI

Abstract

Consumer protection is governed by public policy provisions; a contractual clause established by the court as abusive is affected by absolute nullity, and the action for confirmation is not subject to the limitation term. 
The examination of unfair terms from the perspective of abusive nature presupposes the existence, in advance, of a contract signed by the parties (bank and consumer), which has produced all or part of its effects, respectively which is in progress or which has ceased. 
If it were considered that, after the termination of the credit agreement, it would no longer be possible to criticize a contractual clause that produced patrimonial effects on the consumer, then the indefeasible nature of the right to invoke a contractual clause as abusive would remain without effect, respectively to invoke its absolute nullity, and the consumer would be deprived of the right to remedy in the sense of refunding the amounts 
paid under the unfair term, since only after finding the absolute nullity of such a clause the consumer's right to restitution appears (restitution of the payments made on the basis of an unfair term). In this situation, the bank would be allowed to definitively enjoy a patrimonial advantage obtained by violating the law in force at the date of concluding the contract, respectively of some legal provisions of public order. 
The variability of the bank's margin was not expressed clearly and intelligibly as the bank excluded an objective criterion from the composition mechanism of its margin and set an ambiguous element – the cost of credit resources, which is not explained, was not defined 
and no concrete method of calculation thereof was exposed.

The credit granting, management and risk tracking fees were not specifically defined in the contract and the purposes for which they were collected were not mentioned. Early repayment fee – the lack of a significant imbalance between the rights and obligations of the contracting parties in view of the fact that it was not actually charged by the bank until the declaration of early credit maturity and the consumer did not make advance payments on the loan.