CONFERINȚA Viitorul bursier al SIF-urilor și FP - Ediția a III-a
THE EPIC OF CHF BORROWERS CONTINUES
BURSA 31.01.2017

EMILIA OLESCU (translated by Cosmin Ghidoveanu)
 
     * The High Court the complaint concerning the freezing of the CHF exchange rate denied as inadmissible, in a case against Banca Transilvania
     * Stan Târnoveanu: "The High Court of Cassation and Justice did not resolve the complaint, it has left the decision to the court"
     * Borrowers' lawyers: "A new slap in the face to consumers, their time has been wasted"
       CHF borrowers (CHF) keep their optimism and wait anxiously on any court ruling. Except their expectations have been denied lately, as many courts, as well as the Constitutional Court have postponed or denied as inadmissible various lawsuits or notifications that were very important to all the cases involving loan contracts denominated in Swiss Francs.
     That is also the case to the long awaited ruling that was supposed to be rendered yesterday, by the High Court of Cassation and Justice (ÎCCJ), which also rejected as inadmissible in court the notification formulated by the County Court of Dolj in a lawsuit demanding the freezing of the CHF exchange rate, in a case brought by a borrower against Banca Transilvania (which acquired Volksbank).
     The ruling rendered yesterday means that the ICCJ has declined to resolve the case, leaving the decision up to the county court, according to lawyer Stan Târnoveanu, senior partner at Law firm Zamfirescu Racoți & Partners.
     He told us: "The requirements were not met by those who notified the ICCJ, namely the County Court of Dolj, and the questions did not concern the clarification of law issues".
     The borrowers' lawyers expressed their displeasure with the ruling of the ICCJ. Călin Cuculis said "the ruling is a slap in the face of the borrowers".
     Lawyer Alexandra Burada wrote, on her Facebook page: "Whatever the courts don't like is inadmissible. If the issue gets thorny... it is inadmissible. If it happens to involve the people too...it is definitely inadmissible".
     "It was all a waste of time", lawyer Gheorghe Piperea concluded, who stressed the fact that the ICCJ ruled that the complaint did not concern a new issue.
     The High Court was expected to rule on the manner of interpreting certain laws which consumers were invoking in their lawsuits requesting the freezing of the CHF exchange rate. The ruling of the ÎCCJ was supposed to lead to the unification of the judiciary practice in the lawsuits requesting the freezing of the exchange rate, as the ruling was supposed to be mandatory for all the courts in the country.
     The county court of Dolj had sent in three questions to the High Court:
     "1. Whether the provisions of art. 45 and art. 48 of the Law no. 296/2004 concerning the Consumers' Code, art. 18 of Ordinance no. 21 of August 21st 1992 concerning the protection of consumers and art. 6 letter b of the Law no. 289 of June 24th 2004 concerning the legal status of consumer loans are part of the legal obligation of the bank in the pre-contractual phase of information concerning the risk of currency exchange;
     2. Whether the provisions of art. 1578 of the Civil Code of 1864, which consecrates the principle of monetary nominalism are applicable in a cause which claims that, even though the loan was taken out in CHF, the plaintiffs did not have the ability to actually withdraw and use the currency in question, because said currency only existed on paper at the moment of the drawing of the loan;
     3. Whether the provisions of art. paragraph 6 of the Law no. 193/2000 concerning abusive clauses of contracts concluded between professionals and consumers make it mandatory for banks to insert into foreign currency loan agreements a clear and intelligible clause and concerning currency risk".
     Despite yesterday's ruling by the ICCJ, the debtors will have to keep waiting, and in early February, three other decisions of major importance for the lawsuits brought in court requesting the freezing of the CHF exchange rate.
     The first, on February 2nd, is the ruling of the court in the lawsuit brought by lawyer Gheorghe Piperea against nine banks that have granted that type of loans.
     The second, on February 7th, is the ruling of the Constitutional Court of Romania (CCR), which is set to issue a ruling on the Law of the Conversion of CHF loans at the exchange rate, passed by the Parliament which the Cioloș government and disputed with the CCR.
     The third ruling is expected from the European Court of Justice (CJEU), which is going to respond, on February 9th, to the questions send by the courts of Oradea in a case concerning the freezing of the exchange rate.
     In this latter case, the response of Mr. Răsvan Horațiu Radu, our representative in the European Court of Justice, sent at the request of the CJEU following the enquiry of the court of Oradea, states that "the obligation of repaying using a foreign currency (the same that the loan was contracted in), while the risk of that currency's fluctuation is borne exclusively by the consumer, leads to an uncertain situation for the latter. More specifically, the costs that they need to bear could increase, apparently without an upper cap, and the lender does not have the obligation to provide any service in return". The CJEU representative also thinks that the insertion of clauses concerning the bearing of the currency risk in its entirety exclusively by the consumer, without contractual mechanisms in order to mitigate that risk, denotes the creation of an imbalance between the rights and the obligations of the parties, from the very conclusion of the contract.
     Răsvan Horațiu Radu says, in his answer, obtained by the BURSA newspaper: "The fact that the circumstance that causes that risk to materialize only occurs at a subsequent time and is expressed through the creation of an imbalance between services does not mean that the significant imbalance between the rights and obligations does not already exist at the time of the conclusion of the contract. (...) It follows from the situation noted by the court that the bank had the possibility to use the fluctuations on the currency market, which creates a risky context for the consumer".
     According to law firm Piperea și Asociații, the three questions that the CJEU is set to answer are:
     "1. Should article 3 paragraph (1) of Directive 93/131 be construed to mean that the significant imbalance between the rights and the obligations of the parties that follows from the contract must be analyzed strictly in relation to the time of the conclusion of the contract or does it include the situation where, throughout the unfolding of a contract with successive execution, the service of the consumer becomes excessively onerous compared to the moment of the conclusion of the contract due to significant fluctuations of the currency exchange rate?
     2. According to the interpretation of article 4 paragraph (2) of the Directive 93/13, should the clear and intelligible nature of a contractual clause be construed to mean that said contractual clause must stipulate only the reasons that led to that clause being included in the contract and in its operating mechanism or should it also stipulate all of its possible consequences which can cause a variation in the price paid by the consumer, such as the currency risk, and should it be considered, from the point of view of Directive 93/13/CEE that the obligation of the bank to inform the customer at the time of the granting of the loan applies exclusively to the lending terms, respectively the interest rates, commissions, collaterals which are the responsibility of the borrower, and that the possibility or a foreign currency strengthening or weakening may not be included in this obligation?
     3. Should article 4 paragraph (2) of the Directive 93/13/CEE be construed to mean that the terms «the main object of the contract» and «the adequate nature of the price or remuneration, on one hand, against the services or goods supplied in exchange for the former, on the other hand» cover a clause stipulated in a loan agreement concluded in a foreign currency between a provider and a consumer and which has not been negotiated individually to be «repaid in the same currency»?"
     The law firm mentions that the trial of most the lawsuits in Romania (approximately 3000) which concern requiring lenders to convert CHF loans in lei, at the exchange rate at the time the loan was taken out has been suspended, in waiting for the solution of the CJEU.
     According to specialists, CJEU rulings are mandatory for the Romanian courts. 
 

 
Readers' comments    [ add a comment ] 
Aceeasi sectiune (English Section)
ON MARCH 29TH, JUSTICE MINISTER WILL BE CONDUCTING THE EVALUATION OF THE HEADS OF THE PROSECUTORS' OFFICE OF THE HIGH COURT OF CASSATION AND JUSTICE AND OF THE NATIONAL ANTI-CORRUPTION DEPARTMENT
FINANCE MINISTRY SAYS THAT THE LIKELIHOOD OF DEFAULTS ON FIRST HOME LOANS IS LOW:
Ediții precedente
Newsletter Facebook Twitter YouTube LinkedIn RSS
Jurnal Bursier
30.03.2017
SIBEX
     Cu un total de 50 de contracte futures având o valoare de aproape 600.000 lei, prima jumătate a penultimei ședințe a săptămânii de pe piața Sibex indica o implicare superioară a participanților...  detalii
30.03.2017
BVB
     Domnul Ovidiu Dumitrescu, director general adjunct Tradeville, ne-a declarat: "Majoritatea indicilor Bursei de Valori București au încheiat ziua în ușoară scădere, pe fondul unei oarecare...  detalii
30.03.2017
BURSELE DIN LUME
     Piețele din Europa au fluctuat ieri, după ce Marea Britanie a declanșat procedura de ieșire din Uniunea Europeană (Brexit), generând declinul indicelui FTSE 100 al pieței din Londra.  detalii
29.03.2017
SIBEX
     După jumătate din ședința de marți, piața futures de la Sibiu se situa într-o poziție la fel de slabă ca în ședința anterioară, anunțându-se un nou rezultat modest.  detalii
29.03.2017
BVB
     * Piața, dominată de "deal-ul" de 27,3 milioane lei cu titluri "SIF Banat-Crișana"
       Piața principală a Bursei de Valori București (BVB) a fost dominată, în ședința de ieri, de încheierea unei tranzacții de tip "deal", de 27,3 milioane lei (5,99 milioane de euro), cu...  detalii
29.03.2017
BURSELE DIN LUME
     Acțiunile de pe piețele din Europa au fluctuat ieri, după două zile de declin, generat de temerile investitorilor cu privire la capacitatea președintelui american Donald Trump de a-și implementa...  detalii
Cotații Internaționale

Curs Valutar

Curs valabil din data de 29 martie 2017
1 Dolar australian...
1 Leva bulgărească...
1 Dolar canadian....
1 Franc elvețian...
1 Coroană cehă...
1 Coroană daneză...
1 Liră egipteană...
1 Euro...
1 Liră sterlină...
100 Forinți maghiari...
100 Yeni japonezi...
1 Leu moldovenesc...
1 Coroană norvegiană...
1 Zlot polonez...
1 Rublă rusească...
1 Coroană suedeză...
1 Liră turcească...
1 Dolar S.U.A...
1 Rand sud-african...
1 Real brazilian...
1 Renminbi chinezesc...
1 Rupie indiană...
100 Woni sud-coreeni...
1 Peso mexican...
1 Dolar neo-zeelandez...
1 Dinar sărbesc...
1 Hryvna ucraineană...
1 Dirham emirate arabe...
1 Kuna croată...
1 Gram aur...
1 DST...
AUD
BGN
CAD
CHF
CZK
DKK
EGP
EUR
GBP
HUF
JPY
MDL
NOK
PLN
RUB
SEK
TRL
USD
ZAR
BRL
CNY
INR
KRW
MXN
NZD
RSD
UAH
AED
HRK
XAU
XDR
3,2342
2,3302
3,1605
4,2496
0,1687
0,6125
0,2324
4,5575
5,2473
1,4687
3,8060
0,2151
0,4950
1,0760
0,0741
0,4763
1,1604
4,2232
0,3229
1,3450
0,6129
0,0651
0,3791
0,2227
2,9657
0,0368
0,1557
1,1498
0,6125
170,1325
5,7499
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
..Lei
click aici pentru cursurile pieței valutare - istoric
English Section
28.03.2017
ON MARCH 29TH, JUSTICE MINISTER WILL BE CONDUCTING THE EVALUATION OF THE HEADS OF THE PROSECUTORS' OFFICE OF THE HIGH COURT OF CASSATION AND JUSTICE AND OF THE NATIONAL ANTI-CORRUPTION DEPARTMENT
     * Laura Codruța Kovesi: "I haven't been asked to resign, and I don't intend to"
     * Băsescu: "The criminal faction made up of Livia Stanciu, Laura Kovesi or Florian Coldea wanted to take over the Romanian state and has been supported by a barefaced guy like Hans Klemm"
       The chief prosecutor of the DNA, Laura Codruța Kovesi, yesterday had a meeting with Justice Minister Tudorel Toader, after which she stated that she wasn't going to resign as head of the DNA...  details
27.03.2017
     Greece's national motto is "Freedom or death", and the title of the state hymn is "Hymn to Freedom". On March 25th, the Greek republic celebrates its National Day, which marks...  details
23.03.2017
     The survival of empires, and even that of countries that do not harbor such ambitions, depends on the existence of at least two fundamental conditions: a functional economy, that ensures its...  details
22.03.2017
AS THE PROPRIETATEA FUND POSTED LOSSES UNDER THE IFRS SYSTEM,
     * The offer by which the Proprietatea Fund bought back 640 million of its own shares, at a price of 0.91 lei per share, oversubscribed almost tenfold
     * The Proprietatea Fund is waiting for the approval of the ASF for a new capital reduction
       An issue raised by lawyer Gheorghe Piperea, last year - the fact that the Proprietatea Fund has reduced its share capital, even though it was posting losses in 2015, a fact which is prohibited by...  details
21.03.2017
GABRIEL PURICE, BRM:
     * "Our opinion is that approximately 20-25% of the Romanian population really needs the price of natural gas to be subsidized, while the rest can bear its liberalization", according to the Romanian Commodities Exchange (BRM) CEO
      * Purice: "The BRM has never supported or agreed to making it mandatory to trade all the natural gas contracts on the exchange"
     * (Interview with Mr. Gabriel Purice, President And CEO of the Romanian Commodities Exchange)
       The recent debates on the Emergency Government Ordinance 64/2016 concerning the liberalization of the natural gas market starting with April 1st have caused arguments in the Industries Commission...  details
20.03.2017
     * Interview with H.E. Mr. Kisaburo Ishii, The Ambassador of Japan to Bucharest
     * "I don't think that Japanese banks would be interested in opening branches in Romania at the moment"
     * "At present, JICA does not have the right to offer financial aid to new projects in Romania any longer"
     * "Bucharest is missing the big picture in what regards urban planning"
       His Excellency, Kisaburo Ishii, the Ambassador of Japan to Bucharest, arrived in Romania in October 2015.  details
20.03.2017
     * There are market rumors that the Banca Transilvania group, as well as Swiss Capital are the most important players in the elections
     * The ASF can use sanctions for acting in concert to tilt the scales in favor of one side or the other
       The elections for new elections at the SIF are causing tumult on the stock market. What's at stake are the assets of 1.69 billion Euros of the five companies.  details
17.03.2017
     * Bankruptcy trustee RTZ & PARTNERS SPRL has rejected their request of an addition to the agenda of the General Shareholder Meeting March 27th
       A group of "Romcab" (MCAB) shareholders, who together hold more than 5% of the company, has asked for an addition to the agenda of the General Shareholder Meeting of March 27th: the...  details
16.03.2017
AFTER IOHANNIS SENT THE LAW BACK TO THE PARLIAMENT
     The governor of the NBR will not have criminal and civil immunity for his position of president of the National Committee for Macroprudential Oversight, according to the new form of the law which...  details
15.03.2017
CRISTINA CHIRIAC:
     WTCB was created in 1994, as a joint Romanian-French company, in which the Romanian party held 55% of the shares. The World Trade Center București complex also includes the 4-star Pullman hotel,...  details
14.03.2017
     The signals on the domestic market, as well as the ones from the international markets, increasingly show us that the budget "fantasy" of the new government will be very costly for Romania,...  details
13.03.2017
FINANCE MINISTRY SAYS THAT THE LIKELIHOOD OF DEFAULTS ON FIRST HOME LOANS IS LOW:
     * MFP: "The fact that the ANAF will foreclose on the debtors discourages them from defaulting on their First Home loan payments"
     * Piperea: "The ANAF not only forecloses on the debtors, but it also charges penalties of 18% per annum"
     * Ministry of Public Finance: "The program stipulates the total loan cost to be equal to the 3-month ROBOR plus a margin of a maximum of 2% a year"
     * Analysts estimate that the ROBOR will rise in the coming years
     * Ciprian Dascălu, chief-economist at ING Bank: "In the second half of the year we expect upwards adjustments of the interest rate, amid inflation growth forecasts"
       The amounts paid to banks by the National Fund for the Guarantee and Counterguarantee of Small and Medium Enterprises Loans (FNGCIMM) for the First Home Program get recouped from debtors, through...  details
10.03.2017
     * The four big international audit and consulting firms - Ernst&Young (EY), Deloitte, KPMG and PricewaterhouseCoopers (PWC) - have drawn up the most important bailout banking programs
       Nongovernmental organization Transnational Institute (TNI) of Holland recently published an analysis of the costs and losses borne by the European taxpayers for the rescue of some of the important...  details
08.03.2017
FOLLOWING THE POLISH MODEL
     * BVB: "We are confident that such non-refundable loans could represent a sufficient stimulus for Romanian businesspeople to consider using the Bucharest Stock Exchange for financing"
       The management of the Bucharest Stock Exchange (BSE) wants the Romanian state to subsidize the listing costs for small and medium companies in Romania, following the Polish model, according to...  details
07.03.2017
SOURCES:
     * "Banks don't pay taxes unless they want to; between 2011-2015, out of the 46 banks, 19 paid a profit tax in some of those years, and the other banks never paid anything"
     * "The competent institutions should check whether banks with foreign companies are doing hostile takeovers of Romanian companies"
     * "Expenses with the sale of non-performing loans are fully deductible"
     * "Since 95% of the banking system is owned by foreign capital, banks could freeze the financing of Romania's economy"
       Romanian banks only pay taxes if they want to, as they have a very complicated profit reporting system, according to official, very reliable sources.  details
.