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Case detail



Directive article Article 8 al1
Annex I al2 29.
National ID Ombudsman of the Consumer 10th of March 2011 (Νo of protocol 2528)
Country Greece Decision date 10/03/2011
Common name Decision type Other
Court Συνήγορος του καταναλωτή Plaintiff(s) Consumer
Court translation Ombudsman of the Consumer Defendant(s) Several credit institutions
Subject unordered product
Keywords aggressive commercial practicescoercioninformation requirementstransactional decisionunordered product

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Headnote

The unsolicited issuance and provision of credit cards to consumers without their previous written consent imposes pressure upon the consumers. Consequently, it impairs or is likely to significantly impair the contractual freedom of the consumers regarding the acquisition of products and services. This practice is an aggressive commercial practice.

Facts

 

The Ombudsman of the Consumer had received a number of consumers’ complaints regarding the practice of some companies that issued credit cards on the name of the consumers without their prior written consent. Additionally the consumers were charged with a yearly fee, without having expressed in writing their will to acquire the credit cards. 
 
The practice of the companies was to send the credit card to the house of the consumer by post. Afterwards, the consumer was obliged in order to cancel the card, to visit a branch of the card issuer. In case the consumer neglected to visit the branch, he was charged with a yearly fee for the card.

Legal issue

Does the commercial practice of a credit card issuer, consisting of issuing and providing credit cards to consumers without having previously received their written consent, constitute an unfair commercial practice?

Decision

 

The issuance of a credit card requires a consumer to fill out the relevant application and to submit it to the credit institution of his choice along with the necessary documents. The unsolicited issuance of a credit card on the name of a consumer infringes his basic right of personality as set forth in the Greek Constitution and in article 57 of the Greek Civil Code.
 
By acting as described, the trader infringes the consumer’s financial freedom since the trader is forcing the consumer to acquire the card without prior request. Simultaneously, the trader is imposing upon the consumer a financial burden which the consumer has never accepted. Next, the consumer’s contractual freedom is breached, which would have normally allowed him to freely choose whether to contract or not, to choose the contracting party and to define the content of the contract. 
 
It is further held that no person should be obliged to enter into a contract when he either ignores the terms of a contract or he didn’t have the chance to express his disagreement in writing.  Art. 2 par 1 of the law 2251/1994 as amended by the law 3587/2007 introduced the right of pre-contractual information of the consumer according to which all the terms that the consumers ignored or all the terms that the trader omitted to indicate to the consumer, are not binding. 
 
Moreover, article 5 par. 1 of KYA Z1-699/10 (adaptation of the Greek law to the Directive no 2008/48/EC) introduces the obligation of the credit institutions to provide all necessary information to the consumers prior to the conclusion of a credit contract in order to enable them to take an informed transactional decision. In this respect, the Act of the Director of the Greek Central Bank no 2501/2002 obliges all credit institutions to properly inform the transactional parties regarding the nature and the characteristics of the products and services as well as the terms and conditions of all banking transactions. 
 
Finally, according to article 9g of the law no 2251/1994,  using pressure towards a consumer regarding his transactional decision, a trader impairs or is likely to significantly impair the consumer’s contractual freedom and therefore this practice is an aggressive commercial practice.

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Result

 

The Ombudsman of the Consumer recommended:
 
A. To the Hellenic Bank Association :
 
To immediately address to its members an austere recommendation asking them not to issue and not to provide credit cards without preliminarily receiving the consumers’ consent in an undisputable way.
 
B. To the consumers:
 
1. In case that a credit institution issues a credit card on their name without their previous written consent, to ask such credit institution to proceed to the immediate cancellation of the card and to omit such infringing actions in the future. 
 
2. Additionally, to ask for an immediate reversal of any charges paid as a yearly fee.
It was also pointed out to the consumers that they are entitled to seek compensation for non pecuniary loss where the conditions of the law are met. In addition the Ombudsman held that compensation can also be established for the consumers pursuant to article 23 of the law. 2472/1997 (Protection of the person from the processing of personal data).
 
C. To the General Secretary for the Consumers of the Ministry of Employment and Social Security:
In case that any consumer addresses to them any case of unsolicited issuance of credit cards, to immediately assess whether there is a possible infringement of the law no 2251/1994 in order to impose penalties.

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