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13 october 2023, 11:38
A bank unilaterally set a commission for credit card transactions, so Financial Ombudsman Tatyana Savitskaya, having studied the case materials, recognised the financial institution’s actions as unlawful and obliged them to return the money unreasonably charged as a commission. The first-instance court found the bank’s actions to be lawful and cancelled the Financial Ombudsman’s decision. However, the first-instance court’s decision was overturned on appeal, and the Financial Ombudsman’s decision was upheld.
The gist of the case
In 2019, a resident of the Yaroslavl region entered into a consumer loan agreement with a bank providing for the issuance of a revolving credit card in the amount of RUB 53,000 at 39.9% per annum with an annual credit card maintenance fee of RUB 1,190. In 2022, the bank’s customer used the card – she withdrew cash twice, from both an ATM of a third-party bank and her home bank, and also made a money transfer via an ATM of a third-party bank. In all cases, the financial institution charged a commission of RUB 1,345, RUB 1,608 and RUB 3,791. The consumer appealed to the bank with a claim for refund of part of the funds withheld, but the bank refused to do so, arguing that the money had been debited in accordance with the relevant rates.
The Financial Ombudsman’s decision
Financial Ombudsman Tatyana Savitskaya found out that the bank had amended its rates in March 2022 as regards the amount of commission for cash withdrawal, and cancelled the option of free monthly withdrawal of up to RUB 50,000. The amendments were made public on the financial institution’s official website; the bank had not signed an additional agreement with the customer.
As the Russian Constitutional Court had previously pointed out, the citizen is an economically weak party and needs special protection of his or her rights, which entails the need to limit the freedom of contract for the other party, i.e. for banks, Tatyana Savitskaya emphasised. At the same time, the law does not restrict banks from changing the terms and conditions of banking services, and in particular, from setting different amounts of commissions. But in cases with individual clients, the change in the contract must be made in a form that allows to unambiguously establish the customer’s consent to service on new terms. This legal position was stated by the Judicial Board for Civil Cases of the Russian Supreme Court.
The Russian Supreme Court also pointed out that a bank’s unilateral amendment of the terms of the agreement infringes the consumer’s rights protected by law. Modification of any terms and conditions of an agreement concluded between a bank and an individual customer is only possible if the customer’s consent is obtained in the form in which the main agreement was concluded, and the individual’s consent must be expressed explicitly and unambiguously.
“In the appeal materials there are no data and documents evidencing the consent of the bank’s client to the new conditions in terms of rates and commissions of the financial institution. Accordingly, the rates that were in effect at the time of conclusion of the agreement are to be applied,” Tatyana Savitskaya clarified.
In her decision, Tatyana Savitskaya ordered RUB 2,954 to be recovered from the bank, i.e. the amount of the unlawfully withheld commissions.
The Court’s position
The financial institution did not agree with the Financial Ombudsman’s decision and appealed against it. The first-instance court – Dzerzhinsky District Court of Yaroslavl – cancelled the Financial Ombudsman’s decision. The court noted that in accordance with the terms of the agreement on comprehensive banking services, the consumer assumed the obligation to monitor changes made by the bank in the rates, but failed to fulfil this obligation, and therefore did not timely familiarise herself with the introduction of the commission for cash withdrawals through ATMs or cash points of third-party banks.
The appellate instance – the Judicial Board for Civil Cases of the Yaroslavl Regional Court – cancelled the first-instance court’s decision, ruling that it was flawed and not based on the materials of the case and the legal provisions.
The court of appeal noted that there was no evidence that the parties to the contract had agreed to change its terms and conditions. Consequently, the bank made a unilateral decision to change the terms and conditions of the loan agreement regarding the commissions and rates and charged the abovementioned commissions in accordance with its decision.
The requirements on the borrower’s obligation to monitor daily changes in the rates were standard, i.e. with predetermined conditions to which the consumer, based on individual conditions, had to accede without being able to influence their content as a party to the agreement. The customer is not a person engaged in entrepreneurial activity and is an economically weaker party in relations with the credit organisation, therefore there is a need to limit the freedom of contract for the bank, the court concluded.
