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BRADA - EANU AND OTHERS v. ROMANIA PDF
BRADA - EANU AND OTHERS v. ROMANIA PDF
DECISION
Application no. 27189/17
Gheorghe BRĂDĂȚEANU and Others
against Romania
THE FACTS
1. A list of the applicants is set out in the appendix. All applicants are
Romanian nationals, one of whom having also the German nationality; they
were all represented before the Court by Ms Diana-Elena Dragomir, a
lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by
their Agent, most recently Ms Simona-Maya Teodoroiu, from the Ministry
of Foreign Affairs. The German Government did not make use of their right
to intervene in the proceedings (Article 36 § 1 of the Convention and
Rule 44 § 1 of the Rules of Court).
3. Third-party comments were received from the Romanian Commercial
Bank (hereinafter “the Bank”), which had been given leave by the President
to intervene in the written procedure (Article 36 § 2 of the Convention and
Rule 44 § 3 of the Rules of Court).
BRĂDĂȚEANU AND OTHERS v. ROMANIA DECISION
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between the rights and the obligations of the parties. Even if those fees were
calculated on the basis of the initial value of the loan, and not on the basis of
the amount left to be paid, this did not mean that the terms were unfair, as
the related services provided by the Bank were the same, irrespective of the
amount still owed.
17. Lastly, in relation to the acceleration clause, the court considered
that it was justified for the Bank to expect the debtor to secure the loan at all
times and to maintain the value of such securities so as to minimise any risk
of loss. The clause was therefore also fair, in the court’s view.
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Those elements converged to overturn the presumption that the Bank had
acted in good faith at the time the contracts had been concluded.
Consequently, the court held the Bank liable to amend the contracts
accordingly and to modify the interest rate.
32. In respect of an appeal lodged by three of the claimants of Group 1
concerning the acceleration clause (see paragraph 8 above), the court held
that the clause was also unfair and thus needed to be eliminated from the
contract. It considered that the clause had not been negotiated and created a
significant imbalance between the rights and obligations of the parties,
because it placed too heavy a burden on the claimants, whereas the Bank
was trying to avoid any potential risk.
33. The High Court upheld the remainder of the appellate court’s
findings.
1. Domestic law
34. Law no. 193/2000 on unfair terms in contracts concluded between
traders and consumers, republished on 19 April 2008, was intended to
transpose European Directive 93/13/EEC (on unfair terms in consumer
contracts) into national law. Article 4 of the law states as follows:
“1. A contractual term which has not been individually negotiated shall be regarded
as unfair if, by itself or in conjunction with other terms and contrary to the
requirement of good faith, it causes a significant imbalance in the parties’ rights and
obligations arising under the contract, to the detriment of the consumer.
2. A term shall always be regarded as not individually negotiated where it has been
drafted in advance and the consumer has therefore not been able to influence the
substance of the term, particularly in the context of a pre-formulated standard contract
or of the general sale conditions practised on the market in relation to that good or
service.
3. The fact that certain aspects of a term or one specific term have been individually
negotiated shall not exclude the application of this Article to the rest of a contract if an
overall assessment of the contract indicates that it is nevertheless a pre-formulated
standard contract. Where any seller or supplier claims that a standard term has been
individually negotiated, the burden of proof in this respect shall be incumbent on him
...
5. Without prejudice to the present law, the unfairness of a contractual term shall be
assessed, taking into account:
a) the nature of the goods or services for which the contract was concluded at the
time of conclusion
b) all the circumstances attending the conclusion of the contract
c) all the other terms of the contract or of another contract on which it is dependent.
6. Assessment of the unfair nature of the terms shall relate neither to the definition
of the main subject matter of the contract nor to the adequacy of the price and
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remuneration, on the one hand, as against the services or goods supplied in exchange,
on the other, in so far as these terms are in plain intelligible language.”
35. Government Emergency Ordinance no. 50/2010 on loan contracts
for consumers, in force as from 11 June 2010, sought to transpose European
Directive 2008/48/EEC into national law. It introduced significant changes
to the manner in which various bank fees had to be calculated. Its provisions
were mandatory, not only for future loan contracts concluded with the
various banks, but also for those which were already in force. The latter
were to be amended by the banks within ninety days in accordance with the
new rules.
36. The relevant domestic provisions on appeals in the interests of the
law are summarised in the case of Lupeni Greek Catholic Parish and Others
v. Romania ([GC], no. 76943/11, § 46, 29 November 2016).
2. Domestic case-law
37. The Government submitted several judgments rendered by the High
Court on the fairness of certain terms of loan contracts. They concerned
contracts concluded with several commercial banks, including the Bank.
While emphasising that each loan contract – and, implicitly, each case – had
its own particularities, the Government indicated that the High Court’s case-
law concerning the unfairness of loan terms such as those relevant for the
present case was generally favourable to the claimants. The main arguments
used by the court were that the terms had not been negotiated, they had not
been drafted in sufficiently clear language, or that the relevant indicators
were imprecise.
38. In the very few situations where the High Court had dismissed
claims, it had been mainly on the grounds that they had not been raised in
compliance with the procedural rules (for example, deadlines had not been
respected, or stamp duty had not been paid), or that the claimant had not
been a consumer within the meaning of the relevant law.
39. The Government also submitted a document containing consistent
information concerning the related domestic practice at the level of the
appellate courts, which had rendered final judgments on appeal. They
pointed out that at the relevant time those judgments had not been subjected
to any appeal on points of law before the High Court, having regard to the
relatively low value of the subject matter. Although the case-law showed a
slight tendency towards accepting the applicants’ claims, the outcome
depended very much on the manner in which the claims had been
formulated and on the language used in the contested terms. The
Government argued that the factual basis for each case was relevantly
different.
40. To substantiate their claim, and arguing that their case was an
isolated example, the applicants relied mainly on the High Court’s decision
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COMPLAINTS
43. The applicants complained, under Article 6 taken alone and in
conjunction with Article 14 of the Convention, that the High Court had
delivered divergent judgments on the same subject matter.
44. The applicants also raised complaints under Article 1 of Protocol
No. 1 to the Convention and Article 14 of the Convention, alleging that the
inconsistency of the domestic case-law had led to their being discriminated
against in comparison with all other applicants whose claims had been
allowed by the courts and who had consequently been reimbursed for
payments they had made based on unlawful contractual terms.
1. http://curia.europa.eu/juris/document/document.jsf;jsessionid=360C9961AE5ABA7FD3
AE879B45E03FD7?text=&docid=162540&pageIndex=0&doclang=EN&mode=lst&dir=&
occ=first&part=1&cid=3811468
2. http://curia.europa.eu/juris/document/document.jsf?text=&docid=194645&pageIndex=0
&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3811468
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THE LAW
A. Complaint under Article 6 § 1 of the Convention
45. The applicants complained that the proceedings in their case had
been unfair and that the principle of legal certainty had been breached when
the High Court, without proper justification, had decided on their claims
differently from other similar cases. They relied on Article 6 § 1 of the
Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ... everyone is entitled to
a fair ... hearing ... by [a] ... tribunal ...”
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v. Ukraine, no. 48553/99, § 96, ECHR 2002-VII and Kotov v. Russia [GC],
no. 54522/00, § 114, 3 April 2012).
75. Turning to the present case, the Court considers that the applicants’
claims were adjudicated effectively and fairly by the High Court, in a set of
proceedings in which all procedural safeguards had been respected (see also
paragraph 61 above). The Court therefore finds that the positive obligation
of the State under Article 1 of Protocol No. 1 has been complied with in the
present case, and in the absence of any arbitrariness or manifest
unreasonableness, it cannot call into question the findings of the High Court
(see, mutatis mutandis, Anheuser-Busch Inc. v. Portugal [GC],
no. 73049/01, §§ 85-86, ECHR 2007-I, and Ali v. Georgia (dec.),
no. 41710/05, 12 June 2018).
76. It follows that the applicants’ complaints raised under Article 1 of
Protocol No. 1 to the Convention are manifestly ill-founded and should be
dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
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Appendix
List of 5 applicants
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