The Supreme Court handed down a judgment on 14 February 2024 in the case between the Consumer Ombudsman and Svea Bank. The Consumer Ombudsman had filed a petition to the Patent and Market Court requesting that Svea Bank be prohibited from using contractual terms and conditions in a credit agreement with a consumer that contained a requirement for a fee for overdue payment in the event that the consumer failed to make payment on time. The grounds for the Consumer Ombudsman’s petition consisted of the fact that a fee for overdue payment of that kind was prohibited under the Act on Compensation for Debt Recovery Costs etc. (the “Debt Recovery Costs Act”) and was therefore unreasonable under the Consumer Contracts Act. The Consumer Ombudsman’s action had been upheld by both the Patent and Market Court and the Patent and Market Court of Appeal.
Nevertheless, the Supreme Court upheld Svea Bank’s appeal against the judgment of the Patent and Market Court of Appeal on the grounds that the fees for overdue payment in question could not be considered to fall within the scope of applicability of the Debt Recovery Costs Act and could thus not be considered to be prohibited under that Act. This was because, on the basis of a general assessment and on objective grounds, the fee for overdue payment is not intended to reimburse the costs of a creditor’s actions aimed at inducing the debtor to pay a debt that has fallen due. According to the Supreme Court, the fee has more of an action-directing function and even though it can to some extent be presumed to be aimed at covering certain types of costs arising due to an overdue payment, the adoption by the creditor of specific measures for the fee to be paid is not a prerequisite as it is for the payments referred to in relevant provisions of the Debt Recovery Costs Act. Because the fee for overdue payment was not considered to be prohibited under the Debt Recovery Costs Act, nor could it be considered unreasonable under the Consumer Contracts Act.
In a separate opinion, two of the Supreme Court justices are critical of the delimitation of the scope of applicability of the Debt Recovery Costs Act. They state in their opinions that the structure of the scope of applicability makes it possible for creditors to circumvent the limits of the Act and thus ensure that they can obtain compensation from the debtor to a greater extent than was intended by the legislator. The justices also emphasise the notable circumstance that a limiting rule in the Debt Recovery Costs Act regarding a debtor’s ability to deduct certain costs is only applicable in the relationship between traders and not when a consumer is involved.
Certain aspects of the legislation in this area are now subject to review in the over-indebtedness inquiry submitted to the Government.
