Petitie Comuna Catre Parlamentul European Final 16.05.16 En

8/15/2019 Petitie Comuna Catre Parlamentul European Final 16.05.16 En

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The Group of Clients with Loans in CHF – ROMANIA – May 2016 Translation from Romanian

Petition to the European Parliament Contents

Introduction ......................................................................................................................................... 1

Chapter 1: The Banking System – abuse and deceptive practices .................................................... 2

Chapter 2: Banking system lobby against the laws ............................................................................ 8

Chapter 3: National Authority for Consumer Protection ................................................................. 10

Chapter 4: The social consequences of Swiss Franc loans ............................................................... 14

Conclusion .......................................................................................................................................... 15

Introduction

Ladies and Gentlemen,

We are addressing the European Parliament as citizens of a member state of the European Union,citizens whose rights to a dignified life have been flagrantly and systematically breached throughthe abuses practiced by the banking system and through the lack of action of competent authorities,who have the role of ensuring our protection, as consumers, through an adequate legislative

framework and through the enforcement of laws and court rulings.The Group of Clients with Loans in CHF is a civic movement constituted on a social network at the beginning of the year 2015, when the Swiss Franc appreciated against the national currency (1 CHFreached the threshold of 4,5 RON), and it has 23000 members of the (approximately) over 70000debtors in CHF from Romania. For more than one year, we have organized actions meant to drawthe attention of responsible factors over the dramatic situation of the debtors in Swiss Francs. Wehave organized meetings, marches, we have paid the installment divided in sums of 1-2 CHF, boycotting the bank counters for days, we have petitioned the deciding factors: Parliament,President, Government, Ombudsperson, we have lodged complaints to the National Authority forConsumer Protection (ANPC) regarding the abusive practices, the irregularities in contracts andwork practices of bankers, we have sent emails and messages to the entire political class, we havetried to draw the attention of the National Authority for Consumer Protection and to make itaccountable.

We have tried to negotiate, both individually and as a group, with the banks in Romania who havegiven loans in Swiss Francs, in order to reach common ground. Therefore, over 1500 debtors inCHF have legally mandated the Association of Romanian Financial Services Users (AURSF,member with voting rights of the European organization Better Finance) to carry negotiations intheir name with the banks. Unfortunately, these negotiations failed, as the banks showed noopenness towards any proposal and were unwilling to negotiate.



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Chapter : The Banking System abuse and deceptive practices


All our proceedings have encountered the aggressive lobby of the banks and of the National Bankof Romania against the laws meant to protect the consumer, causing difficulties in the legislative process, they have also encountered the authorities’ lack of responsibility, but especially thelack ofgood faith of the banking system. The situation of the debtors in CHF becomes more and moreserious and in many cases, even if the authorities will adopt laws to balance the bank – clientrelationship, any intervention is tardive for a part of the debtors. The endurance of some of thedebtors to the abuses of the bank wore off to the point where they became suicidal, in Romaniaexisting over 30 such cases up to this moment, and here we include just the ones that became publicthrough mass-media. Below, we present to you a video footage about these cases.

http://contrabanci.com/grupul-clientilor-cu-credite-in-chf/s-au-sinucis-din-cauza-datoriilor-la-banci/

https://www.youtube.com/watch?v=afbBAi2Lp6g

What does the continuous and systematic abuse on the debtors in Swiss Francs mean? Weinvite you to analyze the following issues:

1. Lending in CHF took place in the period between 2006 and 2008. The debtors signedpre-formulated contracts , without having the possibility of analyzing and/or negotiating, the bankstaking advantage of their lack of financial education and of their trust in coming to the financialinstitution.

2. The banks used deceptive practices presenting to the clients the Swiss Franc as being the moststable currency, the scenario being almost identical for all the banks: underlying the conditions

of a smaller interest for the loans in CHF than for the loans in the national currency and by being presented with“the most stable currency”, the clients were communicated that they didnot meet the criteria for obtaining a loan in the national currency or in euro, but only a loan inSwiss Francs, being guided towards this type of loan. This scenario is applicable to the vastmajority of clients who accessed loans in Swiss Francs.

The brochures offered by Raiffeisen Bank and OTP Bank to the clients are such examples, brochures which specify that the Swiss Franc is a stable currency.










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RAIFFEISEN BANK BROCHURE*Starting with September 2006, Raiffeisen Bank offers you the possibility of contracting loans inSwiss Francs under convenient conditions. What are the advantages of the Swiss currency comparedto other currencies?Stability : The stability of a currency is given by the stability of the economy ofthe state issuing the currency.The Swiss Franc (CHF), issued by the National Bank of Switzerland,is considered one of the most stable currencies . A neutral state with a historical political stability,Switzerland is at the same time characterized by a healthy economy with a sustainable and constantgrowth, without major imbalances and with a reduced inflation. The low inflation rate, supported bya balanced economic growth, permitted low interest rates, which is another major advantage for theSwiss currency. Interest rate : Expression of the performance, of economic stability and of the banking system in Switzerland, the interest rate for the Swiss Franc is generally lower than for otherinternational currencies (Euro, USD). As a result of the international liberalization of capital flow,numerous commercial banks in Central and Eastern Europe have started to offer loans in the Swisscurrency. Clients have chosen these loans due to the lower interest rates than those for the nationalcurrency, being able to obtain a loan for a larger sum.

OTP BANK BROCHURE

Especially for you: OTP Bank introduces you to a new alternative for financing your loan: you canchoose a loan in Swiss Francs with a very convenient interest!This currency already has tradition inthe lending activity carried out in other European countries, presenting advantages from the perspective of stability and costs.In our country, the Swiss Franc is included in the category ofcurrencies for which the National Bank of Romania issues a reference exchange rate daily and youcan get an idea about its evolution, using the chart below or by visiting the BNR webpage, atwww.bnro.ro. If this financing option is of interest to you, we welcome you to any of the OTP Bank branches tolearn more about the lending offer in Swiss Francs. *In case you decide to take a loan in a currencydifferent than the currency of your incomes, it is recommended to consider the existence of anadditional risk: that of the fluctuation of the exchange rate.

Moreover, the brochure with the presentation of the Swiss Franc evolution contains only the partwith regard to its “stability”, the information concerning the evolution of the RON-CHF exchangerate throughout a more extended period of time not being presented to the public.

*The evolution of the BNR daily exchange rate for the Swiss Franc (January 2004-September 2005) – OTP BROCHURE

The situation over a course of 10 years of the evolution of the CHF-RON exchange rate is thefollowing, however the consumers had no knowledge of this information and never questioned theaccuracy and completeness of the information presented by the bank.

http://www.bnro.ro/

http://www.bnro.ro/

http://www.bnro.ro/



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BNR exchange rate for CHF (Swiss Franc)

Source: http://www.cursv.ro/bnr/chf/?sd=1998-01-01&ed=2016-08-01

Between June 1998 and June 2004, the CHF had a growth of 380%, followed by a 30% decrease (inthe period between June 2004 - July 2007), and then by 19% growth (July 2007 – June 2008). Thisevolution does not imply stability, as stated by the banks. Although we exemplified with theaforementioned brochures from two banks who gave loans in CHF, all the banks which gave suchloans promoted the Swiss Franc as a stable currency. The main banks who gave loans in CHF are:Volksbank, OTP Bank, Raiffeisen, Bancpost, Piraeus Bank, Credit Europe Bank, BancaRomânească.

3. Actually, the clients, in their vast majority, did not receive Swiss Francs, but Lei or Euro,CHFremaining only a currency written in the contract , with an exchange rate taken into accountwhen calculating the monthly installments. The problems of the debtors appeared one or twoyears after contracting the loan, the rate of the Franc having a constant growth throughout thisentire time. Compared to the peak period of lending in CHF (2007-2008), the rate has doubled,which has led to, among other factors, the debtors becoming over-indebted.

4. The clients were not explained whatsoever the risks they were taking. The contracts stipulated afixed interest only for the first one or two years from lending, the banks being able tounilaterally change risk margins and interests, without being required to notify the client, insome cases. Furthermore, no client has been informed with regard to the procedures ofenforcement and with regard to the fact that the guaranty consigned in the contract is notsufficient in case of a procedure of enforcement should take place.

5. The banks inserted abusive clauses in the pre-formulated contracts.

Apart from the exchange rate difference, fully supported by the debtors, all CHF loan contractscontained abusive clauses and most of them still do. With the exception of a few thousandclients who, after years of trials, recovered through court decisions these sums that wereunlawfully charged by banks, the great majority of debtors are held captive by contracts withabusive clauses. These clauses can involve up to 30-50% of the installment to be paid to the bank! We consider that the main responsibility here is that of the ANPC – the NationalAuthority for Consumer Protection which, although was notified 6-7 years ago about the

http://www.cursv.ro/bnr/chf/?sd=1998-01-01&ed=2016-08-01






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existence of these abusive contractual clauses, it has not exercised its attributions, moreover, itacted against the interests of the Romanian consumers of banking products, as we shall show ina separate chapter.

The Romanian courts have therefore decided that the following situations represent abusiveclauses or incorrect practices:

Clauses referring to fees hidden from the calculation of a loan Clauses referring to the fee for giving a loan Clauses referring to the risk fee Transforming the risk fee into administration fee Clauses referring to the administration fee (monthly sum for administrating the loan, a

fee which in some cases was higher than the interest rate) Clauses referring to the unilateral growth of the bank margin or of the interest Clauses referring to the inclusion of some variable margins in calculating certain fixed

interests Transforming the fixed interest rate into a variable interest rate

Formulas for calculating the non-transparent interest Clauses regarding the exchange risk taken by the client Clauses referring to the fee for anticipated reimbursement The bank imposing an insurance company Clauses referring to giving the loan in CHF

These were proven in court, by final and irrevocable rulings in favor of the bank debtors, currently being more than 10000 on trial in courts. Also, it is well known that the banks are not willing togive up these sums charged unlawfully from the rest of the loan contract which include theaforementioned clauses, which represents an illegal source of profit made on the account of thedebtors.

In case the debtor has the financial resources to go to court against the bank (which is ratherdifficult for a debtor in CHF, impoverished by the burden of unbearable installments) and to put upduring the trial, even if the debtor wins the trail, his problems do not end here. There have beennumerous cases when the bank refused to apply the final decision of the court, the debtor beingforced to start all over again through another trial and to commence the enforcement of the bank.The most recent case of this type is represented by the trial with erga omnes effects between theANPC and OTP Bank in which, although the final ruling favors the consumers, it is not applied bythe specified bank, while the ANPC does not intervene to solve this problem.

A very serious aspect is represented by the lack of consistency in the rulings of the courts, twoidentical contracts being given different solutions depending on the court. A clause is abusive inone court and not abusive in another. We can assume that these aspects are somehow caused by theseminars held periodically by BNR exclusively with the magistrates. We consider incorrect andagainst the interests of bank clients organizing these seminars without the attendance of the clients’lawyers and/or of the associations for consumer protection.

6. Enforcements are widely practiced in Romania. We do not have clear statistics of these. According to BNR estimations, the number of loans guaranteed with a bank or with an apartmentwhich are under enforcement would be around 5230, and the number of loans guaranteed with aland would be of 3177. We do not know if these figures correspond to reality, given that this

institution has not offered clear statistics about the number and exact value of loans in CHF, the



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number and exact value of loans transferred externally (many of them being performing), thenumber and exact value of personal loans with mortgage given to the populations (they are notregulated by any law). The public statements of BNR officials are contradictory and do not presenta clear picture of the performing or non-performing loans, nor of those under enforcement. The borderline legal practices of commercial banks add to this opacity of the banking system and of theBNR.

Enforcement: the executed good is sold at much lower sums than its market value, reaching even 5-10% of the value of the mortgage, which implicitly means that the debtor and his family are judicially executed through the garnishment on incomes (even 70% of the family income) and onother goods, until the debt is fully paid. In numerous cases, the rest of the debt remaining to be paidafter selling the executed good is equal to or even surpasses the value of the initial loan, the payment of the debt being scheduled over dozens of years (the mass media presented a case ofscheduling until 2104!). With regard to loans in CHF, we estimate that, after 8-10 years of payment,an average of 10% of the main loan would be paid, the rest representing interests and bank fees.These enforcements take place based on contracts filled with abusive clauses. In Romania, theenforcement of bank debtors is a conviction to poverty for life, the debtor many times lacking thefinancial possibility of living in a rented space. Throughout the period involving the reimbursementof the rest of the debt, the bank continues to charge penalty taxes which it covers with priority inreimbursing debts. Additionally, the externalization of executed loans to other private companieswhich calculate even larger penalties and interests is practiced on a wide scale.

7. In Romania, a NEW type of loan was widely practiced between 2007 – 2008 – the personalloan guaranteed with a mortgage, different from the mortgage loan. These loans are notsubjected to the Law no. 190/1999, nor to the BNR methodological norms of applying the Lawno. 190/1999 regarding the mortgage loan and nor to the Law no. 289/2004 regarding the legalstatus of loan contracts for individuals and with respect to BNR norms, because their value wasover 20.000 euro and were given on a period extending beyond 5-10 years (the lending periodfor a personal loan). This way, the creditor was free from the limitations of the mortgage loanwhich restricted the number of fees, required mentioning the effective annual interest rate andexplaining the formula of the interest, as well as the total costs of the loan.

8. The level of the interest rates applied in Romania, the second poorest country in Europe,is 4-5 times higher than those applied in other countries in the EU, reaching 10%, even12% for a mortgage, real estate or personal loan guaranteed with a mortgage!

9. The only “supportive” measures taken by banks for clients who have difficulties payingthe loans are those of restructuring, which actually indebts the debtor even more, by

raising the interests and/or prolonging the lending period. Here we can remember, to exemplify, just one situation: that of two police officers from thecity of Timișoara, who had to pay 27.400 Swiss Francs for the “help” of the bank. Danielaand Eugen P., police officers, took a mortgage loan of 140000 Swiss Francs from RaiffeisenBank Romania, in May 2008, for a period of 318 months. With an interest of 5,5% and anadministration fee of 0,15%, the monthly installment was of 1037 CHF, installment paidreligiously by the two spouses until 2010. In 2010, the depreciation of the Leu against theFranc, which had reached from 2,26 at the moment of obtaining the loan to 2,95 Lei/Franc atthe middle of the year, made the monthly installment, expressed in Lei, to go from 2.345 Leito 3.060 Lei. In the summer of the same year, the Democratic Liberal Party government, led

by Emil Boc, decided to raise the VAT from 19% to 24% and to cut the salaries of state



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workers by 25%. The net incomes of the family dropped by 43%, and being in financialdifficulty, the family reached for the help of the bank. Initially, they hoped the bank wouldgive up charging the administration fee, since the contract allowed such a measure. That didnot happen. The clients’ petition, according to them, received no answer, was given noregistration number, but the bank came with another proposal, leaving no room fordiscussions, presenting it as the only solution and placing an addendum in front of the

clients to be signed. Through this addendum, the monthly installment dropped at 528Francs, as a result of applying an interest rate of 1% for one year. Initially, the clients believed they had made a good deal, since the maturity schedule showed a totalreimbursement value of 306.838 Francs, far smaller than the one from the time of obtainingthe loan, which was of 307.589 Francs. However, the bank had introduced in the maturityschedule only the sums which were about to be paid, leaving out the sums that had been paid until then, which meant that the debtors would pay again what they already paid untilsigning the addendum, respectively 28000 Francs, of which 22.500 interests and fees. The bank transformed the loan from one with fixed interest into one with variable interest andimposed a fixed margin of 8,16%. The administration fee was included in the new interestand the effective annual interest for the rescheduled sum was set at 7,94% (upon signing thecontract it was 7,75%). Through that addendum, the clients were giving up other optionsthey had in the initial contract. After the year of restructuring went by, the installment wouldhave been 1081 Francs, but the bank suggested a new addendum, this time for 2 years. The bank applies one of the widely spread methods of restructuring: it postponed the payment ofthe main loan for one year, the client paying only the interest, and the margin of the bankgrew again, reaching 8,55%. In this first year, the monthly installment was of 537 CHF,from December 2012 it grew to 811 CHF and from December 2013, to 1.113 CHF. TheCHF exchange rate was already 3,55 Lei/Franc. This case was featured in the media and formore details please access the link below: http://www.economica.net/cum-te-ajuta-banca-la-greu-doi-politisti-s-au-dus-sa-faca-o-restructurare-in-vremea-taierilor-lui-boc_78463.html

However, the dramatic situation of the two police officers from Timișoara is not singular, the salarycuts operated by the Boc government to state workers (who make up a large portion of the totaldebtors in CHF) leading to numerous cases of people being unable to pay their installments.Moreover, although at that time, not only the former President Traian Băsescu, but also the former prime-minister, declared these austerity measures had been imposed by the International MonetaryFund, subsequently, according to the statements made in 2010 by the former President of the IMF,Dominique Strauss-Khan, it was clear that the IMF requested raising the taxes for those with aboveaverage incomes and for the rich, not cutting salaries. In addition, the IMF was against this measurewhich hit state workers and protected the rich, but could not stop it, since the measure was taken bythe Romanian government.

The term for the law of personal bankruptcy coming into force was postponed. The law waspublished in the Official Gazette in June 2015, but the term of coming into force waspostponed through a Government Emergency Ordinance (OUG) from the end of last year.Romania is the only state member of the European Union which does not apply such a law.There is no law of conversion, we have been witnessing an extraordinary pressure from banklobbying for not voting or for postponing some laws that would balance the relationshipbetween client and bank or for amending some existing laws which regulate loans, even if thisis about transposing European directives into the Romanian legislation.

http://www.economica.net/cum-te-ajuta-banca-la-greu-doi-politisti-s-au-dus-sa-faca-o-restructurare-in-vremea-taierilor-lui-boc_78463.html








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Chapter 2: Banking system lobby against the laws

Ladies and gentlemen,

As consumers, we are witnessing constant pressure from the banking system on the political factor,to our detriment. We offer you just a few examples:

a) In the2008 civil code project, the initial form of article 2478 from section III was “the mortgagecreditor can forcefully execute only the goods which are mortgaged to him” (the projectimplicitly provided the datio in solutum of the mortgaged good). At the intervention of the banking lobbyists, the article gained the current form in the code. In a similar manner, in thecivil procedure code project, the initial form of article 814 paragraph 4 was: “the mortgagecreditor can demand the sale of the mortgaged estates only” (again, the datio in solutum wasimplicitly provided). Following the intervention of banking lobbyists, the article gained thecurrent form in the civil procedure code.

Both codes, in their initial form, implicitly provided the datio in solutum, forbidding theforeclosure of the debtor after the mortgage estate was sold. The codes did not allow the debtorselling to the debt collector after the enforcement/datio in solutum of the mortgaged estate.Without the intervention of bank lobbyists, today the Civil Code would have included the datioin solutum law, a 2000-year-old law.

At the moment of editing this petition, the President of Romania promulgated the datio insolutum law, despite the huge pressure from the banking system and from BNR, a law whichoffers the right to life to those who are about to go through enforcement or who already are.

b) The norm 10/2005 of BNR was repealed in 2007 under the pressure of bank lobbyists and was

replaced with norm 3/2007. This favored a rise of the indebtedness level from 35% to 65%, theintroduction of personal loans with mortgage and of abusive clauses in contracts.

c) As a result of the intervention of bank lobbyists, the effects of applying the GovernmentOrdinance 50/2010 on ongoing loans, through which the European Directive 48/2008/CE wastransposed in the internal legislation, were annulled (even after the CJUE confirmed that theDirective 2008/48/CE of the European Parliament is not in opposition) and the laws from theconsumer protection field were applied in a faulty manner or were not applied at all, throughANPC.

In 2010, the direct intervention of the Romanian Banking Association (A.R.B.) on the NationalBank of Romania, as well as on representatives of the Monetary International Fund in Romania,regarding the effects of the OUG 50/2010 on the ongoing loans portfolio at the moment when itentered into force, resulted in the termination of the proceedings of the Romanian Governmentof transposing and implementing the Directive 2008/48/CE of the European Parliament and ofthe Council of April 23rd 2008, which had as purpose reaching a certain level of transparency inthe relationship client-bank, including through the elimination of abusive clauses which havesubsequently thrown thousands of clients in the middle of complicated, long-term trials whichuselessly crowd Romanian courts even to this day.

Therefore, the Law 288/2010 amending the OUG 50/2010 made the provisions of the OUG50/2010 inapplicable to ongoing loans, being applicable only to new loans, thus validating loan



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contracts filled with abusive clauses, according to the court rulings from the thousands of trialsup to that date.

The pretext of amending this law was that it breached the European legislation, when, in fact,the Court of Justice of the European Union showed that this law was in accordance withEuropean norms.

http://curia.europa.eu/juris/document/document.jsf?docid=124988&doclang=RO

d) The legislative apparatus was subjected to constant pressure by bank lobbyists who targeted themodification, in the detriment of consumers, of the law 193/2000, the law of abusive clauses,one of the few instruments that can be used by the Romanian consumer to eliminate abusiveclauses from contracts, clauses which are inconceivable in other European countries.

Starting with October 1st 2013, new articles of this law came into force (articles 12 and 13),which supported the consumers because the legal basis form trials with erga omnes effects wasintegrated in the national legislation, respectively from that moment on, if a clause is foundabusive by a court, that clause shall be eliminated from all ongoing adhesion contracts signed bya certain professional. These class action suits can be filed only by the ANPC and consumer protection associations, under certain conditions.

Through an aggressive and systematic lobby, the banking system, through the RomanianBanking Association, succeeded in delaying with a few months the modification of the law193/2000, in the sense of introducing the aforementioned articles.

The Constitutional Court has recently expresses its opinion with regard to these two articlesfrom the law 193/2000 and decided that erga omnes suits do not breach in any way theRomanian Constitution.

With just a month before the amendments brought to the law 193/2000 became operative, 12deputies of the Social Democratic Party (PSD) and 6 from the National Union for the Progressof Romania (UNPR) filed a bill at the Senate, asking other amendments, in the interest of the banks. In December 2013, the bill passed the Senate and entered the Chamber of Deputies,although it had a negative opinion from the Government and all the other commissions. TheRomanian Banking Association (ARB) was the only party which came with amendments to the project, meant to transform the law of abusive clauses in a law tailored for bankers. The pressures for amending this law are ongoing, and bank clients live fearing that, despitenumerous petitions and appeals to the political factors, the banking lobbying will take its course

once again and the law shall be modified in the best interest of the bankers. Practically, this lawis the ground for all the trials on abusive clauses in Romania.

e) The law of datio in solutum of the mortgaged good with freeing the debtor from his debts has just been promulgated by the President. It is the first law in Romania that could have a real possibility of balancing the relationship client-bank, but that is still far from solving all the problems of the debtors. For 11 months, we have witnessed unprecedented lobbying of the banking system against this law, which proves once again that the banks Romania have notunderstood they cannot function without clients.






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Chapter 3: National Authority for Consumer Protection


In the only country of the European Union where there is no law on personal bankruptcy, theinstitution which should have handled the protection of financial services clients, the NationalAuthority for Consumer Protection (ANPC) not only fails to do so, but it even acts againsttheir interests.

We consider that the ANPC has all the necessary legislative leveraging tools to stop the abusive andillicit practices of the banks, but this seldom happens, so the situation of the debtors aggravates oneday to another. Moreover, from some actions of the ANPC, developed throughout the past years, wecan draw the conclusion that this institution intervened in many case in favor of the bank and to thedetriment of the clients.

We present to you some arguments which prove this de facto situation:

1. The ANPC (the National Authority for Consumer Protection) acted against theconsumers’ interests at the moment of implementing the OUG 50/2010, the transpositionof the European Directive 48/2008/CE

In July 2010, the ANPC sends to the ARB (Romanian Banking Association) a letter in which itmentions how the formula of the interest for the contracts aligned at the OUG 50/2010 can bemodified, although this provision does NOT exist in the European Directive 48/2008/CE,transposed in the Romanian legislation through OUG 50/2010. If a legal modification of theformula for calculating the interest was desired, it had to have been specified in the OUG 50/2010or in the la law 288/2010 for the approval of OUG 50/2010, but certainly not in an internal letter.

In accordance with the law 24/2000 regarding legislative technique norms for normativedocuments, amendments are made through a document of the same hierarchy. The banks inRomania have changed the formula for calculating interests and renamed some fees based on thisletter sent by the ANPC to ARB, with the purpose of aligning all ongoing contracts to OUG50/2010.

CONCLUSION: The banks were advised by the ANPC on how to act against the interests of theconsumers. They have modified all loan contracts based only on an internal letter, knowinglyignoring that neither the European Directive 48, nor OUG 50/2010 and nor the law 288/2010 do notmention this provision. Moreover, all af orementioned three documents clearly stipulate that “theintroduction of other provisions apart from the ordinance are null”.

2. What meant for bank clients the faulty implementation of OUG 50/2010

The clauses regarding fees and interests were changed, but to the detriment of the clients. TheBanks had to switch from non-transparent/internal formulas for calculating interests to transparentformulas, by applying some reference indicators: Robor/Euribor/Libor, but the resulting marginswere raised in an artificial and abusive manner. This happened because the banks took intoconsideration the value of reference indicators from the fall of the year 2010, when these valueswere much smaller than those from previous years. Therefore, the resulting fixed margins weremuch higher than before, in some cases reaching 8-10 percentages for mortgage loans in foreign



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currency! The banks renamed forbidden fees, such as the risk fee and modified the fixed interestmargins. The clients have therefore paid increased installments.

3. The ANPC acted in a discriminatory manner with regard to the complaints of the clients,depending on the termination of addenda of aligning to OUG 50

The internal ANPC order no. 358/23.10.2013 regarding the method of dealing with clientcomplaints about the abusive clauses in contracts produces other shortcomings for the consumers.Explicitly, this order provided that the complaints on this subject addressed to the CountyCommissariats for Consumer Protection (CJPC) be redirected to the ANPC. In case the consumerdenounced abusive clauses in the loan contract, they were sent and could be taken intoconsideration at the central level of the ANPC and perhapsonly the complaints formulated by the petitioners who had denounced theaddendum of aligning to OUG 50/2010, according toL88/2010, in January – February 2011 , could go further to court. But very few consumers had previously denounced this addendum in this time interval, as the law 288/2010 for modifying theOUG 50 permitted. Even the complaints of those who had expressly refused, in writing, theaddendum in the interval between September – December 2010 were not taken into consideration, because the ANPC considered the L288 had not entered into force although it was the ANPC whoadvised consumers, during that period, to refuse addenda proposed by the banks if they did notrespect the provisions of OUG 50/2010 still unmodified by L288/2010. Therefore, the ANPC,through an internal order, treated the consumers in a discriminatory manner and blocked thecomplaints regarding loan contracts.

This order was revoked on 11.03.2015, all loan consumers being given the right to notify the ANPCin the purpose of analyzing the credit contract with regard to the existence of abusive clauses,regardless of the petitioner has denounced or not the OUG 50/2010 through the law 288/2010.

4. Within the ANPC, there is no unitary practice in the process of analyzing and retrievingsolutions for the complaints of petitioners

Subsequently to the order no. 358/23.10.2013, the ANPC faced an avalanche of notifications foranalyzing loan conventions. But the existence of abusive clauses was concluded in very few cases,conclusion which has as result sending these case to court. It is worth mentioning that these abusiveclauses were notified only in the case of persistent consumers or in the case of those who hadminimum legal knowledge, practically pushing and pulling this institution by offering clear data(e.g.: reference to a certain law, mentioning a specific case settled in court, etc.) in the complaintssent/filed to/at ANPC. For the other plaintiffs, the response was the same: the complaint isunresolvable, or worse, the complaint is UNFOUNDED!

The ANPC lacks a coherent unit of judging complaints, offering contradictory responses to thesame cases. More precisely, on the same type of contracts, some consumers are answered that thereare abusive clauses, and other consumers (with the same type of standard contract, same clauses,same articles within the contract), in the same contract, are first answered that there are no abusiveclauses, and subsequently that there are abusive clauses!

Most standard answers of the ANPC are structured as follows: In accordance with the provisions of article 95 paragraph 2, 3 and 5 from the OUG

50/2010, amending the contract was possible until the deadline 20.09.2010, and, if theywere not signed, it was considered they were tacitly accepted;



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In accordance with the provisions of article II from the Law no. 288/2010: (2)”Theaddenda which are not signed by the consumers, considered as tacitly accepted until thedate when this law enters into force, shall produce effects in accordance with the termsin which they were formulated, with the exception of the case in which the consumer orthe creditor notifies the other party otherwise, within 60 days from the date the presentlaw entered into force,

within 60 days from the date the Law 288/2010 entered into force, meaning the interval between January 03 – March 03 2011, neither you, nor the Bank denounced theaddendum; THE COMPLAINT IS UNRESOLVABLE”.

Practically, the annulment of that order by the president of the ANPC has produced purelytheoretical results. In reality, absolutely nothing has changed, the responses of this institutions to thecomplaints of consumers bearing the proof.

The answers of the ANPC have a serious omission, namely: even if the addenda were not signednor denounced by the consumers, according to the provisions of article II of the Law no. 288/2010,within 60 days, and the addendum was tacitly accepted, the ANPC intentionally omitted thefollowing:

a. The banks increased the bank margin even if it is fixed throughout the entireperiod of the contract and a unilateral amendment is illegal

b. The banks renamed fees

Moreover, the banks did not return to the clients the sums they charged illegally.

5. The ANPC refuses to give the order of halting the incorrect practices of the banks

The day the order 358/2013 was revoked, respectively on 11.05.2015 and in full crisis caused by theexplosion of the Swiss Franc,the law 363/2007 “regarding fighting incorrect practices ofmerchants” was amended. This modification made it impossible for the ANPC to be able to applythe provisions of the Government Resolution (HG) 1553/2004 regarding halting illicit and incorrect practices of banks, since they were not included in the annexed list of practices considered incorrectin any situation, and by modifying the possibility of acknowledging and sanctioning being limitedto these.

There was the need, once more, of consumers pressuring the ANPC, the Government and theParliament for this law, working instrument in the consumer protection, to be functional. Only afterdeclaring the intention of notifying European institutions with regard to these issues was the law

revised through a Government Ordinance.Based on article 3 paragraph 3 of the HG 1553/2004, which transposes the directive 2009/22/CE ofthe European Parliament and of the Council, of April 23rd 2009, regarding the interruption actionsconcerning the protection of consumer interests (in the sense of the present directive, a breachrepresents any document contrary to the Directive 93/13/CEE of the Council from April 5th 1993regarding abusive clauses in the contracts signed with the consumers (JO L 95, 21.4.1993, p. 29)and to the Directive 2005/29/CE of the European Parliament and of the Council from Mai 11th 3005regarding disloyal commercial practices of companies from the internal market towards theconsumers (JO L 149, 11.6.2005, p. 22), as they were transposed in the internal legislation, whichcauses prejudice to collective interests), the ANPC can decide to halt the incorrect practices of the

banks.



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Starting with June 20th 2015, bank consumers, clients of OTP Bank, have petitioned the ANPC (viae-mail) to request halting the illicit activities and practices of OTP Bank by applying the sanction oftemporarily suspending the activity of OTP Bank if it does not conform to the ANPC decisionwithin the term of 20 days provided in paragraph 3 or article 3 of the Government Resolution (HG)1553/2004. Starting with June 30th and until July 10th 2015, clients of OTP Bank, Bancpost,

Volksbank, Raiffeisen, BCR sent e-mails to ANPC, requesting that this institution decides to stop,limit or remove the effects of the illicit practices of the banks, in an urgent manner, in maximum 20days from the date they receive the complaint, according to HG 1553/2004, with the sanction oftemporarily suspending the activity of the banks if they do not conform to the ANPC decisions.

Starting with July 10th 2015, bank consumers have sent petitions not only to the APC (ConsumerProtection Association – independent state entity with the ability of notifying illicit practices), butalso the ANPC (which can decide to halt the illicit practices), through which they requested theacknowledgement and taking the decision, where applicable, of the same measures of halting illicit practices. The APC notified the ANPC, according to its attributions. In October, the ANPC sendsthe response that it refuses to give the order of halting illicit practices. We consider that the ANPCfailed to fulfill its duty of protecting consumers from the continuous abuses of the banks, havinglegal leverage tools for taking halting measures. It is true, the measure of closing a bank (in case itdoes not comply) is a radical one. However, the rights of the consumer have to be protected and toconstitute a priority.

6. Did the ANPC check if the banks respected the law when signing a loan contract in foreigncurrency from the viewpoint of the exchange risk?

As we presented in the content of this petition, at the moment of signing the loan contracts in CHF,the banks omitted to inform the clients about the risks they expose themselves to by signing acontract in a safe haven currency, on the contrary, presenting to them the Swiss Franc as being oneof the most stable currencies. In the field of consumer protection, there can be identified a numberof normative documents which establish the role of the professional to inform the consumer withrespect to all the relevant aspects of the contract established by the parties.

The Government Ordinance 21/1992 regarding consumer protection contains a chapter dedicated to“Informing and Educating Consumers”, the most relevant law texts comprised in the Ordinance being Article 3 paragraph b., “to be completely, correctly and accurately informed about theessential characteristics of products and services, so that the decision they take in connection tothese suits their needs as best as possible”, Article 18 “Consumers have the right to be completely,correctly and accurately informed about the essential characteristics of products and services by

economic operators (the evolution of the exchange rate is such a characteristic) so they can havethe possibility of making a rational choice, according to their interests, between the offered products and services, and of being able to use them safely according to their purpose”, Article 19and 20 paragraph 4,“Sellers and service providers must inform the consumers about the final priceof the product or about the fee of the provided service (…)”.

These consumer rights are restated in the Law no. 296/2004 regarding the Consumer Code Article 27, paragraph b, Article 45, Article 47 and Article 48, which provide the professional’s

obligation to inform the consumer about the risks he is exposed to by the normal or predictableuse of the goods, this text being applicable to services as well, this being the reasoning behindthe entire regulation. Not just the immediate risks to which the consumers are exposed are taken

into account, but also medium term and long term risks as well, respectively the possibility of



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sustaining an exchange risk which can prove excessive when it lies exclusively in the hands ofthe debtor.

This year, in January, as a result of the ANPC blocking halting actions, banking clientsnotified the Ombudsperson. The Ombudsperson, in his answer, only mentions that headdressed the ANPC. The ANPC responded to the Ombudsperson Institution, mentioning it

took all the legal measure to eliminate abusive clauses, within its competence limits, makingreference to the class-action suits filed against several banks.

7. On February 10 th 2016, the ANPC won the class action suit with erga omnes effectsagainst OTP Bank, an irrevocable and final decision which proved the abusive nature of theinterest clause from the OTP Bank contracts. Even to this day, the sentence has not been carriedout. Banking client have publicly ANPC imposes the bank in question to halt the illicit practices. ANPC did not react, therefore the sentence was not applied.

Postponed justice is denied justice.

Chapter 4: The social consequences of Swiss Franc loans


The entire generation of those who accessed loans in Swiss Francs between 2006 – 2008 is nowdestroyed from an economic and a social viewpoint. We are talking about middle class people,about professionals who sacrificed their wellbeing and sometimes even their lives to pay huge bankinstallments.

Throughout this entire period, apart from the extreme cases when the debtors cracked under the pressure of bankers and committed suicide, the impoverished and humiliated generation of debtorsin Swiss Francs suffered irreparable consequences: families torn apart, denied access to educationfor their children, dramatically limited basic survival elements: food, clothing, restricted access tohealthcare due to lack of financial resources, restricted access to justice, to file a suit, also due to thelack of necessary resources, constant stress. In Romania, many of the debtors in Swiss Francs arealmost social welfare cases.

We are aware of numerous cases in which the debtors in Swiss Francs became seriously ill and theirhealth condition did not improve, on the contrary. Diseases caused by the constant stress of getting

enough money to pay exorbitant installments to the bank, this being possible by depriving the person from essential elements to maintain a balanced physical and mental state. We are notdiscussing persons who have no income, but persons who have a job and who, under normalconditions, should benefit from the results of their work.

Diabetes, cardiovascular disease, strokes, mental diseases of the debtors but also of their children.We have come across cases where children threaten to commit suicide because of a childhood livedin poverty and all kinds of deprivations, despite their parents earning a lot more than the averageincome, but the degree of indebtedness exceeds 80% of the incomes! In most cases, these problemsremain unsolved, also due to the lack of money.



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Families being torn apart as one of the members goes to another country to earn enough money sothey could pay installments is another consequence of irresponsible lending in Romania.

Children cannot pursue an education and they are often forced to find a job once they reachadolescence or maturity, in order to sustain bank installments together with their parents.

Conclusion


We have tried to briefly present a few aspects which highlight the way in which the fundamentalrights of Romanian citizens to decent living are crushed by the incorrect, abusive, anti-consumer practices of some banks operating on Romanian territory, as well as by the complete lack of interestof Romanian authorities which should intervene for the protection of consumers.

Once again we bring to your attention the fact that, after more than one year from the explosion ofthe exchange rate CHF/RON, Romania has not adopted any legislative measure to bring balance inthe relationship client-bank, apart from the datio in solutum law which was recently promulgated but which does not solve the major issues. The law of personal bankruptcy did not enter into force,the law of conversion does not exist.

The banks remain indifferent to the requests of the clients, the only solutions suggested were resultsof lawsuits won in court. The solutions offered by the banks are still abusive, over indebting theclients instead of offering them the possibility of financial recovery. The lack of communicationand transparency, disloyal practices and false advertising continue to be, unfortunately, the traits

that define most commercial banks in Romania. We are disappointed by the attitude of the BNR inthe issue of protecting debtors, the BNR taking the side of the banks and being in total disagreementwith the debtors. The public messages sent by the BNR to citizens and to the economic environmentwere meant to pressure the Parliament with the purpose of halting any legislative action for the protection of banking clients. From our point of view, BNR shares a common blame with the banksin Romania concerning the issue of loans in CHF, a macroprudential supervision being a guaranteeof disloyal practices.

We want a law that would support the debtors in CHF, we want a National Authority for ConsumerProtection to defend our rights, we want a National Bank of Romania to respect its statute andanswer to the law when the decisions of those in charge cause the over-indebtedness of the

Romanian population or when they encourage abuse in the banking system. We want a Parliamentwhich does not give in under the pressure of commercial banks to impose laws that favor them.

We would also like to mention that in other European countries, the authorities have found or theyare debating solutions for the problems of debtors in Swiss Francs. In the first month of this year,the President of Poland announced the conversion of loans from foreign currency into zloty, thenational Polish currency, at an exchange rate 23% higher than that at which they were given,according to the examples provided by Polish officials.

In Hungary, all the loans were converted from foreign currency into the national currency,including the personal loans without mortgage guarantees, at a pre-established rate, prior to theJanuary 2015 crisis and in convenient conditions for clients.



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In Croatia, the legislativeunanimously adopted the law of loan conversion AT THE RATEFROM THE MOMENT OF GIVING THE LOAN. All politicians set aside party interests andvoted the law in favor of the citizens!

It is time Romanian authorities took measures against the banks which profit from the tragedy of

Romanians. The financial availability or possibility of banks should not be confused with theirresponsibility. Clients cannot afford to carry the weight of the mistakes and of the disastrouslending policies of the banks, under BNR supervision. They have been doing this for almost 10years. The shareholders of every bank have to assume the mistaken decisions of the managingmembers and to intervene by bringing capital, not over-indebting the clients through abusiveclauses and incorrect practices. In the absence of a conversion law, it is assumed a great part ofthem would have to keep doing this, with disastrous consequences over the economy and social lifein Romania.

We send this account to you hoping that our dramatic situation will not remain unheard and that ourcomplaint will have a solution. The petition is signed by over 1000 persons, whose names and personal data are in the attached table.

With hope,The Group of Clients with Loans in CHFthrough the team of coordinators:

Cristian DANAdriana NECULAAnca SPÂNUIon ROBUIonuț Nicolae CĂLIN

Contact person: Adriana NECULAE-mail address: [email protected]

Petitie Comuna Catre Parlamentul European Final 16.05.16 En

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