DETERMINATION OF THE LEGAL INTEREST APPLICABLE TO THE AMOUNTS CHARGED UNDER ABUSIVE CLAUSES INCLUDED IN CREDIT CONTRACTS CONCLUDED IN ROMANIA, IN FOREIGN CURRENCY

Romanian legislation allows the granting of loans in foreign currency, even if both the credit institution and the borrower have Romanian nationality. To the extent that these contracts contain abusive clauses allowing the charging of certain commissions or the modification of the interest rate, they may lead to the collection by the credit institution of sums subsequently subject to restitution as a result of the annulment of those clauses by the courts. In such situations, the principle of full reparation of the damage suffered by the borrower imposes the obligation of the credit institution not only to return the amount of money unduly charged, but also to moratorium damages from the time of collection of said sums until the time of their effective return. The legal regulation, respectively GO no. 13/2011, establishes two mechanisms to determine the moratorium damages (or, in other words, the applicable punitive legal interest): a mechanism based on the reference interest rate of the National Bank of Romania and another that involves the application of a fixed legal interest of 6% per year. The latter is applicable in legal relations with a foreign element, if Romanian law is applicable and the payment was established in foreign currency (art. 4 of GO no. 13/2011).