Information Note on the Court’s case-law 248

February 2021

Antonopoulou v. Greece (dec.) - 46505/19

Decision 19.1.2021 [Section I]

Article 1 of Protocol No. 1

Positive obligations

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Availability of adequate remedies to respond to an exchange-rate fluctuation between the euro and the currency of a loan, during a period of financial crisis: inadmi ssible

Facts – The applicant had taken out a property loan in Swiss francs in order to take advantage of a favourable and stable exchange rate. A clause in the loan agreement stipulated that the loan was to be repaid on the basis of the exchange rate appli cable on the date of repayment rather than the date on which the loan had been contracted. Having had to cease her occupation for health reasons, the applicant sought to repay the loan but was unable to do so because the rise in the value of the Swiss fran c against the euro had increased the amount of the loan by approximately 60%. The applicant brought proceedings in the domestic courts arguing that the clause in question was unfair, but her claims were dismissed.

Law – Article 1 of Protocol No. 1

The chan ge in the exchange rate between the euro and the Swiss franc had occurred during a period of financial crisis affecting the whole of Europe, and particularly Greece, and which had continued to worsen over a lengthy period. Such a change in circumstances ha d undoubtedly been unforeseeable both for the banks and for borrowers, and for the latter had entailed a level of risk exceeding the risk assumed in normal circumstances in choosing between a fixed-rate and variable-rate property loan. In the face of a fin ancial crisis on this scale, the State was required to take steps to ensure that thousands of people who had taken out property loans did not have to bear a disproportionate burden and risk losing their properties, through no fault of their own.

Neverthele ss, the applicant had not been unaware of the risk entailed in taking out a loan in Swiss francs and the risk that such a strong currency would fluctuate upwards over the 25-year term of the loan.

Hence, the applicant had been insured for three years against the risk of an increase in her monthly repayments owing to a rise in the exchange rate, but had opted not to renew that insurance. Likewise, she had not availed herself of the possibility under the loan agreement of requesting at any time that the loan be converted into euros. Lastly, between December 2010 and January 2015 she had signed four covenants with the bank amending the original agreement by reducing the monthly repayments, extending the time-limits for repayment and even temporarily suspending some of the repayments.

Between 2007 and 2015 the applicant had continued to make her monthly repayments without claiming that she was unable to meet her obligations owing to the fluctuation in the exchange rate. However, in the event of her ability to repay the loan being impaired owing to unforeseen circumstances beyond her control and that of the bank, such as a sudden change at international level in the exchange rate between the euro and the Sw iss franc, domestic law had afforded the applicant appropriate remedies by which to assert her property rights. Those remedies were an application to the civil courts to set aside the clause in the loan agreement which she considered unfair – a remedy of w hich she had made use – and the possibility of applying to the courts to have the agreement renegotiated or even terminated. In addition, under the terms of the agreement itself she could have requested the bank at any time to convert the loan into euros a nd could have taken out insurance against a possible increase in the monthly repayments. As to the effectiveness of the legal remedy which she had chosen, the applicant had been given the opportunity to set out all her arguments before the competent courts and to obtain a judgment, giving detailed reasons, by the Court of Cassation sitting as a full court.

Lastly, the Court of Cassation, while not referring expressly to the case-law of the Court of Justice of the European Union, had interpreted the domestic law in conformity with that case-law, to the effect that a contractual clause which had not been negotiated individually, but which reflected a rule applicable between the parties under domestic law, was not subject to review as to its fairness. The natio nal legislation had in fact already established a balance between the rights and obligations of the parties to such contracts.

Accordingly, the legal framework put in place by the State had provided the applicant with a mechanism by which to assert her ri ghts under Article 1 of Protocol No. 1. The respondent State had therefore satisfied its positive obligations flowing from that provision, even assuming that the latter was applicable in the present case.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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