Wednesday, July 1, 2020

Legal conditions for identifying abusive clauses in loan agreements

Legal conditions for identifying abusive clauses in loan agreements

1. Abusive clauses in credit agreements have not been negotiated;

The bank is obliged to offer the possibility to negotiate the contract, thus removing the abusive clauses from the credit agreements.

Although a contract can be concluded by the simple agreement of will, in the banking financial field the negotiation is also essential, including especially regarding the abusive clauses. Once notified the competent court, from the evidence to be administered in the process, it will result that there was no negotiation, contrary to the task of art. 4 para. 3) of Law 193/2000.

The negotiated character of a contractual clause is not given by the fact of knowing the existence of this contractual clause, or more precisely by the bank / IFN policy regarding the respective clause, but by the possibilities of the consumer to effectively negotiate the elements of the clauses.

2. The inserted clauses are contrary to the exigencies imposed by good faith;

In this sense, as the specialized doctrine has shown, the verification of the abusive character of a clause presupposes the existence of a contract signed by the parties, so the conclusion of the contract itself cannot, at the same time, exclude the applicability of consumer protection norms.

3. Clauses considered to be abusive create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties.

If the banking institution has inserted in the contract a series of clauses regarding the bearing of foreign exchange risk, variable interest, analysis fee, risk fee and annual credit fee, their consequence being to burden the consumer with some additional amounts of money. , which do not have any consideration from the Bank, it is obvious the imbalance that has been created in the consumer's patrimony, he owing as a result of the clauses mentioned above a huge amount.

4. The clauses are not limited to the notion of "main object of the contract" so that they allow the intervention of the court regarding the restoration of the contractual balance.

Solutions to fight against abusive clauses

The most important solution should result from the Case of the Court of Justice of the European Union C40 / 08 Asturcom and from the national Civil Code:

Directive 93/13 on unfair terms in contracts concluded with consumers must be interpreted as meaning that a national court seised of a request for enforcement of an arbitral award which has acquired the authority of res judicata, rendered in the absence of the consumer, is bound as soon as possible. has the necessary legal and factual elements for this purpose, to assess ex officio the abusive nature of the arbitration clause contained in a contract concluded between a seller or a supplier and a consumer, insofar as, according to internal rules of procedure, it may such an appreciation in similar actions of an internal nature.

Therefore, the courts are obliged to verify ex officio the legality of all the clauses in the credit agreement.

There are a dozen legal norms, found in Directive 93/13 / EEC, Law 193/2000, Law 296/2004 and GEO 21/1992, which allow and oblige judges to restore the contractual balance, on the grounds that the forced executions of receivables increase the imbalance.

BUT, in practice this does not happen, the active - mandatory - role of judges is missing.
Whoever expects a judge to invoke ex officio defenses in favor of the debtor, ie the observance of a legal and professional obligation under the judge, will have a serious depression.

Wednesday, June 3, 2020

Abusive Lending Contract Clauses

Lending is the engine of the current socio-political system, so abusive clauses in credit agreements jeopardize the stability of the system, especially since the forced executions of debt collectors are based on these abusive clauses banks.

Society works through credit and debt, which is why the activity of banks and NFIs, which use abusive clauses, is a criminal one for the future of capitalism.

Banks and NFIs took advantage of their status, forcing customers to sign contracts. Their policy, throughout the years 2005 - 2016, was simple and dictatorial:

You receive the money if you sign the contract, ready written and prepared by us. You do NOT sign the contract, as it has been written and used in thousands of cases, you do not receive the money from us.

In these conditions, there were and there are situations in which the credit officers did not know and did not understand the abusive clauses in the credit agreements.

You had no one to ask and nothing to ask, because there is no real discussion about what can happen in case of an impossibility to repay the loan.

What is worse is the lack of financial education that the Bank or the IFN had to provide to the borrower in the case of those loans for acquisitions.

Like the icing on the cake, the forced executions of debt collectors, buy receivables / loans with 3% of the value. Start on the basis and under these abusive clauses of banks.

Types of abusive clauses in credit agreements, used in forced executions of debt collectors

Regarding the abusive clauses in credit agreements, the most common are the following:

- The clause by which the creditor assumes the right to assign the receivable or the credit to any entity he wishes, ie also to the debt collectors.
- The risk commission, especially in the conditions in which an insurance was concluded;
- Management fee;
- Early repayment fee;
- Commission for file analysis or granting credit;
- The clause by which the creditor assumes the right to a variable contractual interest;
- Early maturity clause;
- The foreign exchange risk clause, regarding the CHF, Euro, Dollar currencies, through which the credit does not assume any risk from the fluctuation;
- The clause by which the creditor can access the penalizing interest, excessive or variable.

Tuesday, May 5, 2020

What is meant by decision of the medical expertise bodies by which the physical and / or mental incapacity of the employee is ascertained

Regarding the procedure for ascertaining the employee's incapacity, the Labor Code provides in art. 61 lit. c) the fact that it takes place by decision of the competent bodies of medical expertise.

In recent jurisprudence, especially by ICCJ Decision no. 7/2016 regarding the pronouncing of a preliminary decision regarding the interpretation of the provisions of art. 61 lit. c) of Law no. 53/2003, it was appreciated that, “although the normative act does not expressly determine the medical expertise bodies that ascertain the physical and / or mental incapacity of the employee, the specific legislation in the field of workers' health surveillance will be taken into account first of all ( Government Decision No. 355/2007, as subsequently amended and supplemented, and Law No. 418/2014, as subsequently amended and supplemented), which states that the occupational medicine specialist, by the given opinion, is the one who has the right and obligation to determine whether the employee is medically fit or unfit for a particular position.

Thus, from the interpretation of the provisions of art. 8 of Law no. 418/2014, with subsequent amendments and completions, corroborated with the provisions of art. 8 and 9 of the Government Decision no. 355/2007, with the subsequent modifications and completions, previously presented, results that the occupational medicine doctor is the specialized body that establishes the physical and / or mental aptitude of the employee for a certain job.

In addition to the medical examinations he performs at work, periodically or at the resumption of activity, the occupational medicine doctor may request other specialized investigations, the final decision following these medical examinations belonging to the occupational medicine specialist.

This solution also results explicitly from the provisions of art. 12 of the Government Decision no. 355/2007, as amended and supplemented by Government Decision no. 1,169 / 2011, corroborated with the provisions of art. 22 lit. e) and art. 30 of the same normative act.

Unlike the initial form of art. 12 of the Government Decision no. 355/2007, which provided in par. (2) that "All cases of permanent medical incapacity will be resolved by occupational physicians in collaboration with physicians of work capacity expertise, who will inform each other on the resolution of the factual situation", following the amendment by Government Decision no. 1,169 / 2011, para. (2) in art. 12 was repealed, so that, according to the legal regulations in force, the only body specialized in issuing and completing the employee's aptitude card remained the occupational medicine doctor.

Also, the occupational medicine doctor has the competence to propose to the employer the change of job, according to art. 189 para. (2) of the Labor Code, stage prior to dismissal based on incapacity, according to art. 64 para. (1) of the same normative act.

Another argument taken into account when defining the phrase “decision of the medical expertise bodies” concerns the procedure of contesting the medical conclusions of the occupational medicine specialist, included in the act drawn up at the examination, procedure provided in art. 30-33 of the Government Decision no. 355/2007, with subsequent amendments and completions.

Thus, according to art. 30 and 31 of the mentioned normative act, the examined person may contest the result given by the occupational medicine specialist regarding the work aptitude, the appeal addressing the county public health authority or the Bucharest municipality, within 7 days from the receipt of the aptitude for work.

The appeal is solved by a commission composed of 3 occupational medicine doctors, which convenes the parties involved within 21 days from the date of receipt of the appeal, according to art. 32.

The decision of the commission shall be recorded in a report and shall be communicated in writing to the medically examined person, according to the provisions of art. 33.

The analysis of the arguments set out above shows that it is sufficient for the aptitude file to be drawn up by the occupational physician, uncontested by the worker, stating that the employee no longer has the necessary aptitude for the post occupied, and, not having vacancies compatible with his aptitude for work, under the conditions of art. 64 para. (1) and (2) of the Labor Code, the employer will proceed to dismiss the employee based on the provisions of art. 61 lit. c) of the Labor Code.

The same conclusion is valid in the hypothesis in which the evaluation made by the occupational medicine specialist would be contested, and by the medical decision pronounced under the conditions of art. 33 of the Government Decision no. 355/2007, with the subsequent modifications and completions, the appeal of the examined person would be rejected.