Din nou despre conversia monedei creditului şi „îngheţarea” cursului valutar. A schimbat cauza Andriciuc ceva?

Rezumat

The paper aims to analyse to what extent did the European Union’s Court of Justice decision in the case Andriciuc brought any major change for the consumers who concluded loan agreements in Swiss francs. We concluded that, despite the enthusiasm on which the decision was received, it does not facilitate consumer’s situations. On the contrary. Stating that the contractual term that regulates the exchange rate risk refers to the main subject matter of the contract, the Court made the consumers’ task of proving that the clause is unfair more difficult. Even though, apparently, a major ease results from the reasoning that the seller or supplier has a specific obligation to inform the consumer on the risk of exchange rate, it must be observed that such an obligation exists only regarding that information that was known by the seller or supplier, an element that must be proven by the consumer. Furthermore, even though the principle of monetary nominalism does not preclude the analyse of the exchange rate risk contract term on the grounds of unfairness, it, nevertheless, makes it nearly impossible to conclude that a significant imbalance in the parties’ rights and obligations arising under the contract exists. Finally, the Court’s decision leaves unsolved one of the major issues with this kind of claims: the compatibility of the sought remedy with the unfair contract terms legislation.