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Consumer’s Claim For Abusive Clauses Of Foreign Currency Loans Does Not Prescribe

The consumer can demand a refund when he knows of the illegality

The consumer’s claim for the abusive clauses of foreign currency loans does not prescribe. The consumer can demand a refund when he knows of the illegality.

Consumers who have subscribed loans denominated in foreign currency and who ignore the abusive nature of the clause included in the loan contract cannot be imposed any limitation period to obtain the return of the amounts paid on the basis of this clause.

Thus, it is established by the Court of Justice of the European Union, in two judgments (one of them that brings together seven accumulated cases, all of them from June 10, 2021, in which it rules that the information provided by the lender to the consumer about the existence of exchange rate risk does not meet the transparency requirement if it refers to the fact that the parity between the account currency and the payment currency will remain stable throughout the life of the contract.

The rapporteur for the judgments, Judge Niilo Jääskinen, warns that “this is the case, in particular, when the professional does not warn the consumer of the economic context that may affect changes in exchange rates.”

Jääskinen determines that Council Directive 93/13 / EEC, of ​​April 5, 1993, on unfair terms in contracts concluded with consumers, does not oppose a national regulation that subject to a limitation period the action aimed at making assert the restorative effects of that declaration.

However, it declares that in no case can a limitation period for the refund of amounts paid on the basis of an abusive clause be compatible with the Directive that may have expired even before the consumer is aware of the abusive nature of said clause. .

In the judgment, the rapporteur reasons that “these clauses may lead to a significant imbalance, to the detriment of the consumer, between the rights and obligations of the parties that derive from the loan contract.”

To the extent that the professional has not observed the requirement of transparency in front of the consumer – indicates the magistrate -, it seems that these clauses place a disproportionate risk on the consumer in relation to the benefits and the amount of the loan received, since their application.

As a consequence, the consumer must ultimately bear the cost of the evolution of exchange rates. The judgments refer to disputes between French consumers and the BNP Paribas Personal Finance entity.

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