The amendments aim to expand the scope of the consumer`s protection due to their weaker bargaining position when dealing with traders. Thus, the scope of one of the main principles of the civil procedure, namely the ‘ex officio principle’, was widened. According to the new par. 3, Art. 7 of the Civil Procedure Code (‘CPC’):
‘The court ex officio monitors the existence of unfair terms in a contract concluded with a consumer. It shall provide an opportunity for the parties to express an opinion on these matters.’
The protection above was also transferred to the order for payment proceeding, which is the subject-matter of the amendments and supplements of the Code of Civil Procedure.
Pursuant to the new par. 3, Art. 410 of the CPC, when the applicant`s receivable originates from a consumer contract, ‘the contact, if it is written, together with all of its enclosures and annexes, as well as the applicable standard business terms, if any’ should be attached to the application. The purpose is for the court to be able to review the standard business terms (‘SBT’) for the existence of unfair terms.
The definition for ‘unfair terms’ is laid down in Art. 143 of the Consumer Protection Act (‘CPA’) pursuant to which
“Unfair term in a contract concluded with a consumer” shall be any clause to the detriment of the consumer which is contrary to the requirement of good faith and causes a significant imbalance in the rights and obligations of the trader or supplier and the consumer…’
According to the new p.3, par. 2, Art. 411 of the CPC, the court should not issue the payment order if it reaches the conclusion that ‘the claim is based on an unfair term in a contract concluded with a consumer or there is a reasonable possibility that this might be the case’.
Pursuant to Art. 411, par. 1 of the CPC, a special local jurisdiction has been provided:
‘An application against a consumer shall be filed with the court in whose area his current address is, and in the absence of a current address – the permanent address.’
The obligation to provide the document from which the receivable stemmed, together with all its enclosures, the applicable SBT included, is envisaged also with regards to the banks if they base their payment order claims to their accounting books.
A similar obligation is provided for also when the application is based on a promissory note, convertible note or another equivalent negotiable security payable to order as well as a bond or coupons thereto. According to the new second sentence of Art. 417, par. 1, p. 10 of the CPC:
‘When the security guarantees a receivable stemming from a consumer contract, the written contract should be attached together with its enclosures, the applicable SBT included.’
A large part of the amendments concerns the CPC`s terms, favoring the debtor. Pursuant to change in Art. 412, par. 1, p.8 of the CPC, the term within which the debtor can perform his obligation voluntary is extended from two weeks to one month. The term for objection under Art. 414, par. 2 of the CPC is similarly extended. The same term amendment is also envisaged with regards to the term for the appeal of the immediate enforcement order. The term provided in Art. 436, par. 1 of the CPC for the appeal of the bailiff actions has also been extended from one to two weeks.
Art. 419, par. 3 of the CPC states that in case of an appeal of the immediate enforcement order, the court revokes the latter, when the requirement under Art. 418, par. 2 and par. 3 for the issuing of a writ of execution are not met, as well as if the receivable is based on an unfair term in a consumer contract.
With regards to the stay of the immediate enforcement against a collateral provided by the debtor, a new sentence has been added to Art. 420, par. 1 of the CPC, namely: ‘When the debtor is a consumer the collateral amounts to one third of the receivable’. The cases in which the court can stay the enforcement without a guarantee are explicitly provided in Art. 420, par. 2 of the CPC, namely: ‘when the request for a stay is supported by written evidence that:
- the payment is not due;
- the receivable is based on an unfair term in a consumer contract;
- the amount of the receivable from a consumer contract has been wrongly calculated.’
The new par. 4, Art. 420 of the CPC envisaged that the ruling on the motion for cessation is immediately enforceable regardless of its appeal. Pursuant to the newly made par. 5 of the same article, ‘When an action procedure has been initiated, the court before which the claim under Art. 422, par. 1 has been filed, is entitled to rule on the request for stay of the enforcement.’
