Νομολογία

  • Στοιχεία της υπόθεσης
    • Εθνικός αναγνωριστικός αριθμός: Recourse 2016/16(AP)
    • Κράτος μέλος: Κύπρος
    • Κοινή ονομασία:link
    • Είδος απόφασης: Πρωτοβάθμια διοικητική απόφαση
    • Ημερομηνία απόφασης: 24/10/2016
    • Δικαστήριο: Υπηρεσία Ανταγωνισμού και Προστασίας Καταναλωτών
    • Θέμα:
    • Ενάγων: Competition and Consumer Protection Service
    • Εναγόμενος: Alpha Bank Cyprus Ltd
    • Λέξεις-κλειδιά: average consumer, confusion, consumer debt, consumer rights, contract relating to immovable property, credit agreement, economic behaviour, false impression, fine print, good faith, information obligation, information requirements, invitation to purchase, jurisdiction, misleading commercial practices, precontractual information, price information, professional diligence, transactional decision, unfair terms
  • Άρθρα της οδηγίας
    Unfair Commercial Practices Directive, Chapter 1, Article 2, (a) Unfair Commercial Practices Directive, Chapter 1, Article 2, (b) Unfair Commercial Practices Directive, Chapter 1, Article 2, (d) Unfair Commercial Practices Directive, Chapter 1, Article 2, (e) Unfair Commercial Practices Directive, Chapter 1, Article 2, (h) Unfair Commercial Practices Directive, Chapter 1, Article 2, (k) Unfair Commercial Practices Directive, Chapter 1, Article 3, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Article 5, 4., (a) Unfair Commercial Practices Directive, Chapter 2, Article 5, 4., (b) Unfair Contract Terms Directive, Article 3, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (c) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (d) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (e) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (f) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (g) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b), (i) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b), (ii) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 2. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 3. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (c) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (d) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (e) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 5.
  • Περίληψη
    (1) The dangers of granting loans in a foreign currency are substantial information that needs to be disclosed in detail.
    (2) Inclusion of unfair contractual terms in consumer contracts is an unfair commercial practice.
    (3) Excessive charges for the provision of information to consumers is an unfair commercial practice.
    (4) The practice of misleading consumers into thinking they have additional obligations which are not included in the contract is an unfair commercial practice.
    (5) The practice of contractually binding a consumer into accepting the absolute legality of the contract is an unfair commercial practice.
    (6) Inclusion of contractual term that is unlawful under EU law, is an unfair commercial practice.
  • Πραγματικά περιστατικά
    The object of the investigation of the present case are practices of the defendant, for a violation of the Unfair Commercial Practices Directive 2005/29/EC (implemented into national law by the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) in relation to contracts for housing loans with consumers. In particular, the court examined the following practices performed by the defendant:
    (1) Omission of information or insufficient information about the dangers of granting a loan in a foreign currency. In the present case the defendant was granting loans in Swiss franc to consumers who were in their majority permanent residents of Cyprus and the United Kingdom.
    (2) Vagueness of contractual terms in relation to the gradual disbursement of the loan, the burdening of consumers with various expenses, fees etc., and the early repayment of the loan.
    (3) Charging borrowers for the provision of information. The bank was charging €5 for every email reply, and €50 for every written letter reply, in relation to replies to consumers' complaints or requests for information in relation to their contract.
    (4) Establishment of a presumption of legitimacy of the charges without contractual provision to that effect. In the lower part of bank statements sent by the defendant to consumers it was mentioned that the consumers ought to check the statement and, in case of disagreement, to communicate with the defendant within a period of two weeks from the date of receipt of the bank statement, otherwise it would be considered that the bank statement is correct and that the consumers agree with it. This reference was written in fine print on the lower part of the bank statement, often below advertisements of other products of the defendant. However, in the loan agreements there is no term providing for the deadline of challenging amounts in bank statements, and that after such deadline it is assumed that such amounts are correct.
    (5) Contractual reassurance of the consumer that the contract is absolutely legal.
    (6) Contractual provision that responsible courts for the consumer's claims against the defendant are only the Cyprus courts, whilst the defendant may sue the consumer in any legal court.
  • Νομικό ζήτημα
    (1) Are the dangers of granting loans in a foreign currency substantial information that needs to be disclosed in detail?
    (2) Is the inclusion of unfair contractual terms in consumer contracts, an unfair commercial practice?
    (3) Are excessive charges for the provision of information to consumers an unfair commercial practice?
    (4) Is the practice of misleading consumers into thinking they have additional obligations which are not included in the contract an unfair commercial practice?
    (5) Is the practice of contractually binding a consumer into accepting the absolute legality of the contract an unfair commercial practice?
    (6) Is including in consumer contracts a term that is unlawful under EU law, an unfair commercial practice?
  • Απόφαση

    (1) Foreign currency loans involve dangers that flow on the one hand from the fluctuations of exchange rates between the two currencies, and on the other hand by interest fluctuations. The above dangers may cause serious economic problems to the consumer due to the increase of the unpaid installments and the uncalled capital. This is particularly true for housing loans, which have a long repayment period. In this way the possibility of repayment of the loan is greatly affected and as such the economic data on which the consumer relies in order to decide whether to sign a loan agreement and on what terms. Furthermore, the average consumer does not have the requisite techniques, specialized knowledge of calculation of foreign currency and interest risks. In order for the average consumer to understand the dangers he is undertaking, the information needs to be detailed, specific and simple to understand, accompanied by negative examples. Therefore, this information is 'substantial' and needs to be disclosed in detail.

    (2) By virtue of article 3(1) of Directive 2005/29/EC (implemented into national law by article 3(1) of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) it follows that commercial practices may relate to conduct before, during, and after a commercial transaction in relation to a product. In parallel, contractual terms contain information in relation to the rights and obligations of parties to the contract, and in this way, pre-formulated contractual terms determine the trader's manner of behavior in relation to the product it offers to consumers, ie. the loan in this case, thus are connected directly with the promotion and selling of the product to them. Besides that, it is mainly based on pre-contractual information in relation to the content of the contract that the consumer decides if he wishes to be bound by the terms that the trader has pre-formulated. Therefore, the contractual terms are directly connected with the promotion of the loans to the consumers. As such, contractual terms are a commercial practice, as has been confirmed by the CJEU. It should also be noted that the existence of the Unfair Contract Terms in Consumer Contracts Law 93(I)/1996, (which implements in national law Directive 93/13/EEC), does not obstruct in any way the parallel application of the provisions for the unfair commercial practices against consumers. Articles 5(1) and 5(2)(c) in connection with articles 7(1) and 7(2) of the Directive 2005/29/EC (implemented into national law by articles 4§1 and 4§2(c) in connection with articles 6§1 and 6§2 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) provide that it is a prohibited unfair practice to omit to provide substantial information to the consumer, which is required for him to make an informed ransactional decision, since such an omission may cause him to take a ransactional decision he would not otherwise have taken. Such omission is presumed, when the trader conceals substantial information or provides such in a vague or ambiguous manner.

    An important element in the application of the aforementioned provisions is the "substantial" nature of the information. From the wording of article 5(1) of the Directive 2005/29/EC (implemented into national law by article 6§1 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) it follows that whether the information is substantial depends on the nature of the good or service, but also on the limitations of the medium of communication used by the trader. Generally information is "substantial" when it plays an important role in the transnational decision of the consumer and therefore contribute in altering in a non-insignificant manner his transactional decision. Sections (3) to (5) of article 7 of Directive 2005/29/EC (implemented into national law by sections (3) to (5) of article 6 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007), provide guidance about what "substantial" information means. Section (4) of article 7 of Directive 2005/29/EC (implemented into national law by section (4) of article 6 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) specifies certain information as "substantial" in the case of an "invitation to purchase". Article 2 of Directive 2005/29/EC (implemented into national law by article 2 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) defines an invitation to purchase as a wider term than pre-contractual information or an offer to contract, as defined in article 2(2)(a) of the Cyprus Contracts Law. Taking into account therefore, that pre-formulated contractual terms of bank loans are an offer to contract, the provisions of section (4) of article 7 of Directive 2005/29/EC (implemented into national law by article 6§4 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) may be used to specify the information as substantial. Article 7(4) (a) of Directive 2005/29/EC (implemented into Cypriot law by Article 6§4 (a) of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007) specifies the main characteristics of the product as "substantial" information, and paragraph (c) of the same provision "the price, inclusive of taxes, or where, due to the nature of the product the price cannot reasonably be calculated in advance, the manner in which the price is calculated, and, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable".

    The price of a housing loan is the real rate. Where that is variable, it is a "price that cannot reasonably be calculated in advance" and therefore the manner in which it is calculated must be specified in the contract, that is, the criteria of variation of the interest. Therefore, terms that provide for the criteria of variation of the interest, as well as for additional charges of the consumer in relation to the loan, the procedure and conditions of disbursement and the conditions for early repayment are considered "substantial" in accordance with article 7 of Directive 2005/29/EC (implemented into national law by article 6 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007). For this reason, contractual terms for the gradual disbursement of the loan (Term 2), the charges to the consumer and their variation (Term 4b), the early repayment of the loan (Term 6), and other terms imposing various other fees and charges on the consumer (Terms 14 and 20), are deemed as unfair omissions in accordance with article 5 sections (1) and (2)(c) in connection with article 7(1) and (2) of Directive 2005/29/EC (implemented into Cypriot law by article 4§1 and 4§2(c) in connection with article 6§1 and 6§2 of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007), because they are too vague.

    (3) The charges in question are in no way justified by the cost of sending an email which is virtually free or the cost of a registered letter, which even when sent abroad does not exceed €15. The cost of the above charges is neither justified by the time the trader's employees spent to reply to the complaints or requests of consumers, since the provision of information by each contractual party to the other falls within the range of executing a contract in good faith. In this way, the trader is taking advantage of its informational advantage and its dominant transactional position, in order to avoid granting information to consumers and to deter them from doubting the parameters of their contractual relation. Therefore, the trader is trying to avoid granting information to consumers who need it in order to be in a position to demand any of their legal rights from it. This has as a result the creation of the risk that consumers abstain from the exercise of their legal rights due to lack of information and in this way distorting their economic behavior. This practice of surcharging for the provision of information contradicts the requirements of professional diligence, and in parallel it deters consumers from exercising their legal rights. Therefore, this practice is unfair in accordance with article 5 section (2) paragraphs (a)-(b) of Directive 2005/29/EC (implemented into Cypriot law by Article 4§2(a)-(b) of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007).

    (4) This practice creates the risk that the average consumer forms the impression that he or she is not allowed to challenge the charges against him following the two weeks' deadline, because he or she thinks that they are in a contractual term to that effect. However, the consumer is not bound by any contractual limitation as to the deadline of challenging charges, because something like this is not provided in the terms of the trader's loan agreements. The bank statement is merely an informative document, which does not function as a contract per se, so as to create new rights and obligations for the parties. Therefore, there is a legitimate danger that the consumer will be caused to make a transactional decision, namely the acceptance of the charges, which he or she would not have otherwise taken. For this reason, the indication which is in especially fine print, is a prohibited commercial practice . With this practice, the trader under examination violated the provisions of article 5(1) and (4)(a), and of article 6(1) and 6(1)(g) of Directive 2005/29/EC (implemented into national law by article 4§1 and 4§2(c), and by article 5§1 and 5§2(g) of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007).

    (5) This term creates the impression to the average consumer, who does not have specialized legal knowledge, that he or she has accepted fully the legality of all the contractual terms. Therefore, a risk arises that the consumer considers that he or she is not allowed to challenge the legality of the contractual terms. This however is not true at all, since the right to object to the legality of pre-formulated contractual terms in consumer contracts is provided by the law, without affording the consumer with the possibility to waive such a right in advance, as follows from the wording of article 6(1) of Directive 93/13/EEC (implemented into national law by article 6 §1 of the Unfair Terms in Consumer Contracts Law 93(1)/1996). Therefore, it is an unlawful misleading practice to contractually reassure the consumer that the contract is absolutely legal. With this practice the trader is in violation of the provisions of article 5(1), 5(4)(a), article 6(1) and 6(1)(g) of Directive 2005/29/EC (implemented into Cypriot law by article 4§1 and 4§2(c) and by article 5§1 and 5§2(g) of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007).

    (6) The term in question was unlawful by virtue of Regulation (EC) No. 44/2001 which was in force at the time of signing of the loan agreements (but has since been replaced by Regulation (EU) No. 1215/2012). It should be noted that the 'average consumer', as defined in the Directive 2005/29/EC, does not possess specialized legal knowledge so as to know that this term is unlawful under certain circumstances and therefore is powerless against him or her. In this way this term may deter the consumer from exercising his or her rights before other responsible courts in accordance with the aforementioned provisions. In cases where consumers reside abroad, the expenses required for the appearance of such consumers (transport expenses, translation expenses, rewards of foreign lawyers, etc.) to courts of the trader's home country may deter them from and cause them to waive their right to commence legal proceedings or to defend themselves. Therefore the above term is unlawful and its use by the trader is a misleading action in accordance with article 5(1), (4)(a), 6(1) and 6(1)(g) of the Directive 2005/29/EC (implemented into Cypriot law by article 4§1 and 4§2(c) and by article 5§1 and 5§2(g) of the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007).

    URL: http://www.mcit.gov.cy/mcit/cyco/cyconsumer.nsf/All/4D3D960D0D3C0567C22580610044FF33/$file/%CE%91%CF%80%CF%8C%CF%86%CE%B1%CF%83%CE%B7%2016-2016%20-%20Alpha%20Bank.pdf?OpenElement

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  • Αποτέλεσμα
    The court ordered the defendant to immediately terminate any continuing violations and to refrain from repeating those in the future, and imposed on the defendant an administrative fine of two hundred fifty thousand euros (€250.000,00).
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