Tribunalul Bacău – Secţia a II-a Civilă şi de Contencios Administrativ şi Fiscal
National case details
Registration ID: 1034/180/2014
Instance: 1st Instance
Area of law
Relevant principles applied
Identification of the case
- Consumer protection (art. 38 CFREU)
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Art. 9 para. 2, art. 22 para. 6, art. 430, 435 para. 1, art. 711, art. 713 para. 2 of the Civil Procedural Code, Law 193/2000 regarding the unfair terms in contracts involving consumers and professionals
- Art. 6 of Directive 93/13/CEE,
Summary of the case
The claimant filed an opposition to enforcement of the credit contract claiming the contract is null because it contains unfair terms and because the defendant (the bank) tried to enforce even the terms of the contract that were previously declared invalid by a court. In a previous case, concerning the same claimant and the same defendant, the same credit contract was found partially null because it had unfair terms. In detail, the previous judgement said that the manner of calculation of the credit’s variable interest rate was null. This decision was indisputable, as both parties appealed it and lost the appeals. In the procedures in front of the first instance court, an expert assessed that the amount of money the bank intended to collect from the claimant while enforcing the contract included sums related to the terms declared invalid. The calculation of the interest rate was made in the same manner that had previously been declared null. The judgement of the first instance court was partially in favour of the claimant, declaring the enforcement of the invalid terms was in contradiction with the previous binding decision, therefore invalid regarding part of the amount of money the defendant wanted to collect. The judgement of the first instance court also stated that the claim that the terms were unfair was inadmissible in the procedure of the opposition to enforcement.
- Civil judicial enforcement
The consumer asked for the enforcement of the contract to be declared totally invalid, the first instance court declared that the enforcement of the contract was partially valid, and that it was invalid to what regards the sums of money asked on the basis of the unfair terms declared previously. In the appeal, the consumers claimed that the enforcement of the contract should be declared null and that the tribunal (appellate court) should reassess the case and establish the costs of the credit contract according to the European directives and CJEU’s judgments regarding credit contracts. In his opinion, the court should have found that according to the CJEU’s jurisprudence in case C-76/10 the enforcement of the credit contract was invalid and without any expert’s opinion maintain that the amount of money the bank could collect from him was the difference between the credit granted and the sums the bank previously paid by him, as it was unfair that a credit institution has the right to ask for interest, commissions and other costs, against the law. The bank asked the tribunal to change the judgement of the first instance court and dismiss the opposition to enforcement, because the first instance court tried to enforce the previous decision, despite the fact that this previous decision did not state that the bank should return the claimant the sums collected while the contract was voluntarily respected by the claimant on the basis of the calculation of interest rate declared null.
The tribunal dismissed both appeals, maintained the judgement of the first instance court and partially changed the reasoning of this judgement.
The appellate court explained that the claimant is allowed to criticize the credit contract’s unfair terms in the procedure of the opposition to enforcement of the contract, art. 713 para. 2 of the Civil Procedural Code granting him this possibility to claim, in cases where a different kind of title than a court decision is enforced, like credit contracts, leasing contracts, that the terms of the contract are invalid, but only if the procedural period of making such claims is observed (the limitation period). In the particular facts of this case, since the claimant already had a favorable, indisputable, court decision saying that parts of the terms of the credit contract are null because they were unfair, the tribunal found that the same reasons regarding the same unfair terms from the claim addressed to the court cannot be reassessed in a new procedure, such a reassessment being prohibited by the positive effects of the res judicata principle, stated in art. 430 and art. 431 para. 1 of the Civil Procedural Code. The appellate court found that in this second case, in the procedure of opposition to enforcement, the claimant raised the same issues regarding the unfair terms of the calculation of the interest rate, the unfair behavior of the bank, that were addressed to the court in the case where he asked for the contract to be partially declared null, invalid, hoping that this way he can secure a more favorable judgment. The appellate court found that the previous binding decision cannot be ignored and that the consumer could address in a second case only issues that were not raised and assessed in the previous judgment, which was not the case, since the reasoning of the first action filed by the claimant and the reasoning of this second action – the opposition to enforcement, were identical. The court stated that the effects of the res judicata principle according to art. 431 of the Civil Procedural Code have both a negative aspect, for the party that lost the case, meaning that this party cannot file the same claim in a new case, and a positive aspect, for the party who won the case, meaning that this party can oppose the other one the rights recognized in its favor in the previous decision. The court found that the principle of the judge having an active role in the Civil Procedure (art. 22 of the Civil Procedural Code) could not be interpreted as a right to ignore the res judicata principle. To what concerned the claims in the appeal addressed to the court by the claimant, the tribunal found that some of those claims were not addressed to the first instance court and therefore could not be analyzed, omisso medio, as states art. 478 para. 3 and art. 715 para. 1 point 3 of the Civil Procedural Code. The tribunal dismissed the claim that the court should ex officio declare the credit free of costs and interest rate, finding that such a claim has no legal or factual support, a court had already deemed the contract partially null, maintaining parts of the contract regarding commissions and other costs. The appellate court highlighted the fact that in Case C-76/10 the decision of the CJEU did not address a situation where in a previous case a court already decided on the unfairness of the contract terms at the request of the consumer, but a situation where the consumer was forced to pay an amount of money by an arbitration court who did not assess the unfairness of contractual terms, and afterwards, a court was asked to enforce the previous arbitration decision. Such is not the case in this claim, where the consumer filed a civil lawsuit against the bank and won partially, a previous court deciding that some of the terms of the contract are null, and then filed another civil action, an opposition to the enforcement of contract, making the exactly same claims as in the previous lawsuit. The appellate court found that the ex officio powers cannot aim at ignoring the res judicata principle. Finding that in an opposition to enforcement it is prohibited to reassess judgments that are indisputable, the court made a reference to the judgment of the CJUE in case C-40/08, Asturcom, highlighting the following paragraph: a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. Since no such assessment in possible in similar actions of a domestic nature, as art. 430 and 431 of the Civil Procedural Code states, the court decided the claims cannot be reassessed in the second procedure of the opposition to enforcement. It also made reference to a decision of the CJUE pronounced after the judgment (note: in the Romanian Civil Procedural Code the judgment is given first, and the reasoning in 30 days after) in order to highlight the same conclusion deducted from Case C-40/08, respectively the judgment from 26 January, 2017, in the Case C 421/14, Banco Primus SA, where the CJUE stated that Directive 93/13 must be interpreted as not precluding a rule of national law, such as that resulting from Article 207 of Ley 1/2000, de Enjuiciamiento Civil (Law 1/2000 on the Civil Procedure Code), of 7 January 2000, as amended by Ley 1/2013, de medidas para reforzar la protección a los deudores hipotecarios, reestructuración de deuda y alquiler social (Law 1/2013 on the protection of mortgagors, restructuring of debt and social rent), of 14 May 2013, then by Real Decreto-Ley 7/2013, de medidas urgentes de naturaleza tributaria, presupuestaria y de fomento de la investigación, el desarrollo y la innovación (Decree-Law 7/2013 on urgent fiscal and budgetary measures and promoting research, development and innovation), of 28 June 2013, then by Real Decreto-Ley 11/2014, de medidas urgentes en materia concursal (Decree-Law 11/2014 on urgent measures in the area of bankruptcy), of 5 September 2014, which prohibits national courts from examining of their own motion the unfairness of contractual terms where a ruling has already been given on the lawfulness of the terms of the contract, taken as a whole, with regard to that directive in a decision which has become res judicata.
In what regards the appeal made by the defendant (the bank), the appellate court found that the first instance court acted in a manner that observed the limits of the claims it was addressed with when decided to reduce the amount of money that could be collected from the consumer to the sums that were not calculated according to unfair terms established in the previous ruling. The court said that the opposition to enforcement had two sets of claims: one set of claims that regarded the unfair terms of the credit contract, which could not be reassessed as they were analized by a previous ruling which has become res judicata, and one set of claims that regarded the amount of money the defendant wanted to collect by judicial enforcement was too large and it did not observe the previous ruling that declared null some terms of the contract. This second set of claims was found partially correct, after the first instance court asked the opinion of an expert regarding the calculation made by the bank. The tribunal dismissed the claim that the first instance court tried to enforce the previous ruling despite of the fact that this previous ruling did not say the bank had to return the money paid by the consumer according to the unfair terms. The tribunal found that such a claim completely ignores the principles that govern the absolute invalidity of the terms that are found to be unfair and the effects of a previous indisputable binding ruling. The court made reference to art. 6 para. 1 of the Directive 93/13/CEE, as interpreted by the CJUE in case C-243/08, judgment from 4 June, 2009, Pannon GSM Zrt, citing: Article 6(1) of Council Directive 93/13/EEC of 5 April 1993, on unfair terms in consumer contracts, must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand, and in case C-168/05, judgment from 26 October, 2006, Mostaza Claro, para. 36, cited: the importance of consumer protection has in particular led the Community legislature to lay down, in article 6 (1) of the Directive, that unfair terms used in a contract concluded with a consumer by a seller or a supplier shall...not be binding on the consumer. This is a mandatory provision which, taking into account the weaker position of one of the parties of the contract, aims to replace the formal balance which the latter establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. The court said that, no matter if the consumer criticised or not the unfair terms of the contract enforced, in the procedure of the opposition to enforcement the court has to make sure that any unfair terms does not bind the consumer. Therefore, if a previous binding ruling already states the unfair terms of the contract, both the provisions enacting consumer protection and the provisions enacting the principle of res judicata must be observed, meaning that no unfair term of the contract is to be enforced.
Role of the Charter and role of the general principles on enforcement
No reference was made to art. 47of the EU Charter, nor to art. 38 of the EU Charter, but the court observed the principles regarding consumer protection stated in art. 38 of the Charter and res judicata, especially in relation with the principle of equivalence.
The court observed the principles regarding consumer protection and res judicata, including the obligation to make sure that no unfair terms of the contract are enforced based on a credit contract that is enforceable by law. The principles of access to justice and fair trial would be infringed if a claimant could not oppose the enforcement of a contract that disobeys previous binding rulings favourable to him. If the ruling deciding that some terms of the contract are unfair could be ignored by the professional (the bank) while enforcing the same contract, simply because the consumer did not ask for restitution, his right to access to justice would be meaningless.
The national law (particularly provisions regarding the effects of res judicata, such as art. 430, 431 of the Civil Procedural Code) does not seem to affect the level of protection that the EU act aims at establishing, since only decisions that address the exact same claims could prevent the consumer of repeating the lawsuit, and no limitation period is stipulated in the national law for claiming the invalidity of unfair contractual terms, therefore claims regarding other terms of the contract, which were not assessed previously, could be addressed to the courts in the future. The principle of equivalence needed to be observed, since no reassessment of previous rulings regarding other invalidity reasons could be made in the procedure of the opposition to enforcement, therefore no reassessment of such a ruling could be done in the procedure of opposition to enforcement if the invalidity reasons of the contract regard unfair terms. Moreover, enforcement of provisions of a contract previously declared null for reasons not involving EU law could not be done according to art. 430 and 431 of the Civil Procedural Code, so no enforcement of unfair provisions of a contract previously declared null is possible, in both circumstances the party that won the first lawsuit could successfully file an opposition to enforcement, as was the case in this lawsuit. The opposition to enforcement of a contract invalid for other reasons (eg. Lack of consent) or of a contract invalid for including unfair terms can be made according to the national law (art. 713 para. 2 of the Civil Procedural Code) with no difference regarding the procedural rules that must be obeyed.
The principle of effectiveness means that the protection of the claimant needs to be effective and concrete, so in the procedure of the opposition to enforcement of a credit contract that includes unfair terms the court needs to make sure that those unfair terms are not binding for the consumer, meaning that it must prevent the enforcement of such terms.
Elements of judicial dialogue
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- Dialogue between high court - lower instance court at national level
- CJEU C-76/10, 16 November 2010, Pohotovosť s.r.o.
- CJEU C-40/08, 6 Ocober 2009, Asturcom
- CJEU C-421/14, 26 January 2017, Banco Primus SA
- CJEU C-243/08, 4 June 2009, Pannon GSM Zrt
- CJEU C-168/05, 26 October 2006, Mostaza Claro
The court made no reference to other similar rulings, but referred to the CJEU jurisprudence.
Regarding the limits of the positive effect of the res judicata, the High Court of Justice and Cassation stated in decision no. 2569/18.03.2011 in a similar manner that the claims the party files needed to be addressed in the previous lawsuit, and if they were not, they could be assessed in a new lawsuit. If the claims were addressed in the first lawsuit, the court can not reassess them if the new lawsuit is based on the same claims - Decision of the High Court of Justice and Cassation no. 291/21.01.2009.
The national court cited the CJEU rulings to explain better the reasons of the judgment and also because the claimant addressed the application of EU Law in his requests, referring to particular decisions of the CJEU that he believed to apply to his situation (he referred to Case C-76/10, for example, and the court needed to explain why the situation in that particular case was very different from his). Since relevant jurisprudence of the CJEU was particularly of interest in deciding whether the court of first instance was compelled by the principles of consumer protection to ignore or not the res judicata principle.