This opinion was awaited by all those interested in the issue of disputes relating to franc loans. 16 February Opinion of the Advocate General C-520/21, in which he explicitly sided with the borrowers.
The Ombudsman stated that once the mortgage agreement was declared invalid, the bank was not entitled to claim against them beyond the reimbursement of the cash benefits.
Therefore, in view of the fact that the credit agreement is invalid from the outset, the bank may require only the repayment of the capital of the loan (the amount paid to the borrower) and the statutory interest on that amount for delay from the time of the call for payment, and it cannot claim additional benefits i.e.
like remuneration for using the capital provided.
According to the Advocate General, since the mortgage credit agreement was declared invalid because the bank had unfair conditions in it, such an entrepreneur (the bank) could not benefit from the economic advantage of its unlawful activity.
In addition, there would be no ‘incentive’ for banks not to apply unfair terms in credit agreements if, despite the fact that such an agreement was invalid, the bank could still collect from the consumer a market remuneration for the use of credit capital.
As the Advocate General rightly points out, this could even prove to be profitable for the bank.
The Ombudsman therefore considers that the right to claim claims beyond the reimbursement of cash benefits in accordance with Directive 93/13 they can only benefit consumers. It is then up to national courts, based on national law, to decide whether a consumer can actually claim such a claim.
It is true that the opinion is not yet a judgment, however, that the judgments of the EU Court are usually in line with the opinions of the Ombudsman in the case.
Currently, some banks are either bringing actions against borrowers or calling for them to pay amounts containing additional remuneration as capital remuneration.
Although banks make their demands, sometimes they claim that they pay for the use of capital on other occasions, it is intended to be compensation, reimbursement of costs or the valorisation of the benefit. Regardless of how the bank names its amount, it will constitute a claim beyond the reimbursement of the cash benefits.
Therefore, if the Court confirms by judgment the position expressed by the Advocate General, such proceedings should be dismissed. This case is due in the fall.
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