REPUBLIC OF MOLDOVA
NATIONAL COMMISSION OF FINANCIAL MARKET

DECISION

6 October 2026
No. 52/19

Regarding the petition registered with the National Commission of Financial Market under no. 6888 on 07.08.2026, in relation to NCO "MOGO LOANS" SRL

On 07.08.2026, within the National Commission of Financial Market (NCFM), was registered (under no. 6888) the petition of Mr. [...] (debtor/consumer/borrower), submitted by his representative, Mr. [...], requesting the intervention of the NCFM with reference to the legal relationship mentioned infra.

I. Circumstances of fact

1. The legal relationship between NCO "MOGO LOANS" SRL (professional/creditor/lender) and the debtor was established based on the Credit Agreement no. [...] dated [...] (Agreement), concluded for a term of 84 months, having as object the granting of a non-bank credit in the amount of 71 060,00 lei, the total amount payable by the consumer being 223 918,80 lei.

2. The essential conditions of the Agreement include:

2.1. the total cost of the credit, which comprises:

2.1.1. the interest rate: fixed, 27,00 percent per year;

2.1.2. the credit granting commission: 6 460,00 lei (10,00 percent of the credit amount, minimum 5 000 lei);

2.1.3. the monthly credit administration fee 775,20 lei;

2.2. the annual effective interest rate (AEIR): 59,52 percent per year;

2.3. the payment method: annuity, the credit repaid in installments, according to the Payment Schedule: in 84 installments;

2.4. annex no. 1, namely:

2.4.1. the one-time penalty for late payment: 200 lei;

2.4.2. the commission for termination of the Agreement: 5 percent of the credit balance;

2.4.3. the commission for early repayment: according to pt. 5.6 of the "General Provisions";

2.4.4 the commission for processing documents related to traffic fines, concerning the pledged asset: 50 lei;

2.4.5. the commission for notifying the client, regarding late payment or termination of the Agreement: 50 lei;

2.4.6. the commission for re-concluding the Agreement: 7,5 percent of the credit balance;

2.4.7. the commission for parking the car, which is the object of the pledged asset: 800 lei;

bd. Ștefan cel Mare și Sfânt, no. 77, mun. Chișinău, MD 2012, tel: (373 22) 859 401, www.cnpf.md, e-mail: office@cnpf.md

2.4.8. the fee for changing the period: 1 percent of the credit balance, minimum 1 000 lei, first time free.

II. Procedural circumstances

3. Considering that a party to the contractual relationship in question is NCO "MOGO LOANS" SRL, according to the Order of the President of the NCFM no. 629 dated 14.08.2026 regarding the ex officio involvement of NCO "MOGO LOANS" SRL in the administrative procedure, initiated by the petition of Mr. [...], the representative of Mr. [...], and the suspension of the administrative procedure, the creditor was involved in the administrative procedure, being requested, by letter no. 04-5/3596 dated 17.08.2026, to present the necessary explanations, a copy of the Credit File, as well as a copy of other related documents.

At the same time, the administrative procedure was suspended until 28.08.2026 inclusive.

4. Consequently, on 28.08.2026, the creditor sent to the NCFM the requested documents, registered under no. 7630.

5. At the same time, taking into account the imperative of conducting complete investigations, which involves time for meticulous examination of the presented evidence and forming objective and reasoned conclusions, by the Order of the President of the NCFM no. 875 dated 17.09.2026 regarding the extension of the general term of the administrative procedure, initiated by the petition of Mr. [...], submitted by his representative, Mr. [...], the general term of the administrative procedure was extended until 05.09.2026.

6. Concurrently, in order to ensure the exercise of the right of NCO "MOGO LOANS" SRL to be heard in the administrative procedure, by NCFM letter no. 04-5/4579 dated 23.09.2026, it was informed about the possibility of presenting, by way of hearing, explanations and a copy of additional documents related to the circumstances invoked in the petition.

7. As a result, on 29.09.2026, within the NCFM, was registered (under no. 8816) the letter of NCO "MOGO LOANS" SRL, by which the creditor requested the extension of the term for presenting the written opinion by way of hearing, related to the administrative procedure initiated by the petition of Mr. [...], until 05.10.2026 inclusive.

8. Subsequently, by the Order of the President of the NCFM no. 975 dated 29.09.2026 regarding the suspension of the administrative procedure, initiated by the petition of Mr. [...], submitted by his representative, Mr. [...], the administrative procedure was suspended until 05.10.2026 inclusive.

9. Consequently, on 05.10.2026, NCO "MOGO LOANS" SRL presented the documents requested by the NCFM (documents registered under no. 9090).

III. Circumstances of law

10. In accordance with art. 37 para. (2) of Law no. 105/2003 on consumer protection (Law no. 105/2003), "(2) The National Commission of Financial Market carries out the control of compliance by the subjects indicated in art. 4 para. (21) of Law no. 192/1998 on the National Commission of Financial Market with the provisions of art. 1069 – 1081 of the Civil Code in the part referring to contracts concluded with consumers and the finding of abusive clauses in contracts, upon the consumer's complaint or ex officio, under the conditions of the law.".

11. According to art. 1 of Law no. 105/2003, "consumer" is "any natural person who intends to order or procure or who orders, procures or uses products, services for needs unrelated to entrepreneurial or professional activity;".

The same definition is also contained in art. 3 of Law no. 202/2013 on credit agreements for consumers (Law no. 202/2013).

12. In accordance with Art. 3 para. (1) and para. (2) of the Civil Code, "(1) Any natural person who, within a civil legal relationship, acts predominantly for purposes unrelated to entrepreneurial or professional activity has the status of consumer. The natural person does not have the status of consumer if the other party to the civil legal relationship does not have the status of professional. (2) Any natural or legal person under public or private law who, within a civil legal relationship, acts for purposes related to entrepreneurial or professional activity has the status of professional, even if the person does not aim to obtain a profit from this activity.".

13. In accordance with Art. 16 lit. a) and lit. b) of Law No. 105/2003, "The consumer, when concluding contracts, has the following rights: a) to freely make decisions when purchasing the product and service, without being imposed in contracts abusive clauses or clauses that may favor the use of unfair commercial practices, likely to influence his choice; b) to benefit from a clear and precise drafting of the contractual clauses, including those regarding the main characteristics and warranty conditions, from the exact indication of the price or tariff, as well as from the precise establishment of the credit conditions and interest rates;".

14. Moreover, the Civil Code establishes, in Art. 10 para. (1), that "(1) Natural and legal persons participating in civil legal relationships must exercise their rights and perform their obligations in good faith, in accordance with the law, the contract, public order and good morals. Good faith is presumed until proven otherwise.".

15. Additionally, according to Art. 11 para. (1) of the Civil Code, "(1) Good faith is a standard of conduct of a party, characterized by correctness, honesty, openness and taking into account the interests of the other party to the legal relationship.".

16. In accordance with the provisions of Art. 1072 of the Civil Code, "(1) In a contract between a professional and a consumer, a clause that has not been individually negotiated is considered abusive if it is proposed by the professional and considerably disadvantages the consumer, contrary to good faith. (2) Articles 1077-1079 contain the list of clauses considered abusive in the contract between a professional and a consumer without the need for their assessment in accordance with para. (1) of this article and Art. 1075. (3) The lists provided by the articles mentioned in para. (2) shall not be interpreted as exhaustive lists.".

17. Additionally, according to Art. 1069 para. (1) of the Civil Code, "(1) A clause proposed by one of the parties is not individually negotiated if the other party was unable to influence its content, in particular because it was drafted in advance, regardless of whether it is part of standard clauses or not.".

18. In accordance with Art. 1071 of the Civil Code, "(1) The person who presents clauses that have not been individually negotiated is obliged to ensure that they are drafted and communicated in clear and intelligible language, as well as to be legible. This requirement applies to the entire text, including footnotes, references to other texts or specifications of any nature. (2) In a contract between a professional and a consumer, a clause proposed by the professional in breach of the transparency obligation imposed by the provisions of para. (1) may be considered abusive on this sole ground.".

19. Additionally, Art. 1075 para. (1) lit. (a) of the Civil Code establishes that, "(1) When assessing the abusive nature of a contractual clause within the meaning of Art. 1072 para. (1), Art. 1073 and 1074, account shall be taken of: a) compliance with the transparency obligation provided for in Art. 1071;".

20. Also relevant are the provisions of Art. 1075 para. (2) of the Civil Code, according to which, "(2) The assessment of the abusive nature of clauses cannot relate to the subject matter of the contract nor to the adequacy of the price or remuneration, on the one hand, in relation to the goods, works or services provided in exchange for them, on the other hand, if the transparency obligation provided for in Art. 1071 has been complied with. The subject matter of the contract and the price-quality ratio may be taken into account when assessing the abusive nature of the other contractual clauses.".

21. Under the conditions of Art. 329 para. (1) of the Civil Code, "(1) In consumer contracts, abusive clauses are null and void, as well as clauses that derogate from legal provisions from which derogation is prohibited to the detriment of the consumer (protection nullity).".

III. CNPF Assessment

22. Analyzing the contractual clauses, the information from the documents submitted by the creditor and the debtor, in light of the requirements of Law No. 105/2003, Law No. 202/2013 and the Civil Code, in particular, in relation to the normative framework set out above, the CNPF reveals the following:

22.1. Ab initio, the establishment of the status of professional, which OCN "MOGO LOANS" SRL possesses in relation to the consumer, is claimed.

In accordance with the information from the State Register of Legal Entities, OCN "MOGO LOANS" SRL has, as its main object of activity, inter alia, the activity of granting non-bank loans, being registered in the Register of authorized non-bank lending organizations.

Thus, it is concluded that OCN "MOGO LOANS" SRL carries out the activity of granting non-bank loans, on a professional basis, based on the clauses and conditions offered by it, the contractual clauses being drafted in advance for a multitude of contracts.

22.2. Non-compliance with Law No. 202/2013 regarding the use of the notion of "total amount payable"

22.2.1. In this context, the erroneous presentation of the essential conditions of the Contract is noted, by operating with terms distinct from the notions provided for in Art. 3 of Law No. 202/2013. In this way, the creditor allows the information to be presented to the consumer in a distorted manner, which indicates non-performance of the obligation to present the information in the contract in a clear and intelligible manner.

In this regard, it should be noted that, according to the definition provided in Art. 3 of Law No. 202/2013, the total amount payable by the consumer is "the sum of the total amount of the credit and the total cost of the credit for the consumer.".

In this case, it is found that the creditor incorrectly defined the total amount payable by the consumer as "the total costs related to the credit", which misleads the consumer, whereas, according to the notion defined in Art. 3 of Law No. 202/2013, the total amount of the credit (in this case – the loan) – the total sums made available under a credit contract, and the total cost of the credit are all costs, including interest, commissions, fees and any other type of costs that the consumer must bear in connection with the credit contract and which are known to the creditor, with the exception of notarial fees.

Therefore, by applying the cited legal provisions to the relevant factual circumstances, it is established that the creditor has breached the legal requirements to present, in a clear and precise manner, the information regarding the essential conditions of the Contract, which caused the consumer to be misinformed about the total amount payable and the total cost of the credit applicable under the Contract.

22.2.2. Additionally, it should be mentioned that, in this case, a credit contract was concluded between OCN "MOGO LOANS" SRL and the debtor. According to the definition contained in Art. 1763 para. (1) of the Civil Code, this is a credit contract, whereby "[...] a bank or a non-bank lending organization (creditor) undertakes to make available to another person (debtor) a sum of money as a loan, subject to its repayment, payment of interest and other related payments, or assumes any other commitment to acquire a claim or to make a payment, to extend the repayment term of the debt or to issue any guarantees.".

In this context, the use in the Contract of the words "loan", "lender" and "borrower", which are terms specific to a loan agreement, is improper and may mislead the consumer in light of the legal effects it produces, whereas the regulations on loans establish more favorable conditions for the debtor, with the potential to determine the latter to accept the conclusion of such a contract.

22.3. Non-compliance with the mandatory requirements of Art. 5 para. (2) lit. c) of Law No. 202/2013

In point 4 of Part I, "Special provisions" of the Contract, the "Monthly credit administration fee (775.20 lei)" is established.

In this context, according to Art. 5 para. (2) lit. c) of Law No. 202/2013, "(2) Pre-contractual information is provided: […] c) by means of the form set out in Annex No. 1;" and, in accordance with Art. 5 para. (4) of the same law, "(4) Any other additional information shall be provided by the creditor to the consumer in a separate document, which may be annexed to the form set out in Annex No. 1.".

In this case, by applying the legal provisions to the relevant factual circumstances, it is established that, although the Payment Schedule annexed to the Pre-contractual Information includes information on the monthly payment of the credit administration fee, that cost is nevertheless not found in the "Pre-contractual Information" form provided to the debtor. That information was not included in the "Credit costs" box, depriving the debtor of the possibility to analyze the pre-contractual information transparently, given the weight of this cost in the "Credit amount".

22.4. Non-compliance with the mandatory requirements of Art. 10 of Law No. 202/2013

According to Art. 10 para. (3) lit. a) and lit. g) of Law No. 202/2013, "(3) The credit contract shall specify in a clear and concise manner: a) the type of credit; [...] g) the annual percentage rate of charge and the total amount payable by the consumer, indicated in a highlighted manner (in bold) and calculated at the time of conclusion of the credit contract; all the assumptions used to calculate this rate shall be mentioned;".

In this case, the Contract does not specify the type of credit granted, this being indicated only in the "Pre-contractual Information" form.

Also, in Part I "Special provisions" of the Contract, the annual percentage rate of charge (59.52 percent) and the total amount payable by the consumer (rendered as "Total costs related to the credit" – 223,918.80 lei) are not indicated in a highlighted manner (in bold), as required by Art. 10 para. (3) lit. g) of Law No. 202/2013.

Therefore, by applying the cited legal provisions to the relevant factual circumstances, it is established that the creditor has breached the requirements set out in Art. 10 para. (3) lit. a) and lit. g) of Law No. 202/2013.

22.5. Non-compliance with the requirements set out in Art. 20 para. (1) of Law No. 202/2013

According to point 5.5 of the Contract, "The Borrower is entitled, at any time, by notifying OCN «Mogo Loans» SRL in writing thereof 5 (five) working days in advance, to repay in advance in full or in part the Contractual Payments[...]".

In accordance with Art. 20 para. (1) of Law No. 202/2013, the consumer has the right, at any time, to discharge, in full or in part, the obligations arising from a credit contract, benefiting, in this case, from a corresponding reduction in the total cost of the credit. From the content of the provision it follows that the right to early repayment may be exercised at any time during the contractual relationship, the law not conditioning its exercise on compliance with a minimum notice period in favor of the creditor.

Moreover, point 5.5 of the Contract is not limited to establishing a notification obligation, but requires that the notification be made 5 working days before repayment. Consequently, the consumer who requests early termination of obligations does not benefit from the effects of early repayment at the chosen moment, but only after the expiry of the term established contractually.

Therefore, the 5 working day term restricts the exercise of the right recognized to the consumer by Art. 20 para. (1) of Law no. 202/2013, since it transforms the right of repayment "at any time" into a right exercisable only after going through a minimum waiting period, established for the benefit of the creditor, which also influences the amount of the reduction of the total cost of the credit.

22.6. Non-compliance with the requirements provided in Art. 15 para. (3) lit. c) of Law no. 202/2013

According to point 11.2 lit. h) of the Contract, it constitutes a case of non-performance, which entitles the creditor to declare the termination of the Contract, the situation in which "third parties file claims against the Borrower, the total amount of which exceeds 20% of the credit balance".

At the same time, point 9.6 of the Contract provides that, in the event of one of the situations established in point 11.2 of the Contract, the creditor is entitled to terminate the Contract by a written declaration of termination, granting a term of 15 days for the payment of contractual payments.

According to the contractual definitions, "Contractual payments" represent the payments owed by the borrower according to the Contract, including credit payments, penalties and other payments. At the same time, "Credit payments" include, as applicable, monthly credit installments, the "balloon" type payment or the single payment, depending on the applicable repayment method.

Additionally, point 11.3 of the Contract establishes that "The termination of the Contract suspends the use of the credit balance by the Borrower, who is obliged to pay to OCN «Mogo Loans» SRL within the term indicated in point 9.6 the Contractual payments, in the amount indicated in the termination declaration".

The examination as a whole of the clauses provided in point 9.6, point 11.2 lit. h) and point 11.3 of the Contract reveals that, although the Contract uses the notion of "termination", the effect of the contractual mechanism consists in the early termination of the contractual relationship and in obliging the consumer to, within a term of 15 days, pay the contractual payments in the amount established in the termination declaration, these including credit payments.

Under these conditions, to the extent that the termination declaration includes the credit balance, which, according to the Payment Schedule, was to become due subsequently, and during the 15 days, the debtor is bound to pay not only the payments due at the time of declaring the alleged termination, it is attested that the contractual mechanism determines the loss of the benefit of the term and produces, from a functional perspective, the effect of declaring the early maturity of the credit.

According to Art. 15 para. (3) lit. c) of Law no. 202/2013, it is prohibited to introduce in credit contracts clauses by which the creditor can declare the credit due early in the event that the consumer has not fulfilled his obligations according to other credit contracts, concluded with other creditors.

Moreover, point 11.2 lit. h) of the Contract has a general wording, referring to claims filed by "third parties", without excluding claims resulting from other credit contracts, concluded by the consumer with other creditors. Thus, the clause allows the application of the termination mechanism, provided in points 9.6 and 11.3 of the Contract, including in the situation where the respective claims arise from the non-performance of obligations related to other credit relationships.

The circumstance that the Contract qualifies the respective mechanism as "termination" is not decisive to the extent that its concrete effect consists in obliging the consumer to pay early the credit balance, under conditions specific to declaring early maturity. The legal qualification is to be carried out by reference to the effect produced by the contractual clauses, but not exclusively to the terminology used by the professional.

Consequently, to the extent that point 11.2 lit. h), corroborated with point 9.6 and point 11.3 of the Contract, allows obliging the consumer to early repay the credit balance, as a result of the non-performance of obligations arising from other credit contracts, concluded with other creditors, the clause contradicts the prohibition provided in Art. 15 para. (3) lit. c) of Law no. 202/2013.

22.7. The abusive nature of certain contractual clauses, which establish various fees and commissions

22.7.1. Corresponding to point 1 of part I Special Provisions of the Contract, the credit amount is 64 600,00 lei, and according to point 3 of the same part, the total credit amount is 71 060,00 lei.

At the same time, point 2 of part I "Special Provisions", establishes "The credit granting commission (10% of the Credit Amount, min 5 000 lei) – 6 460,00 lei".

According to Art. 1071 para. (1) of the Civil Code, the person who presents clauses that have not been individually negotiated is obliged to ensure that they are drafted and communicated in a clear and intelligible language, and in accordance with para. (2) of the same article, in a contract concluded between a professional and a consumer, the clause proposed by the professional, in breach of the transparency obligation, can be considered abusive on this sole ground. In this sense, the transparency obligation is not limited to the formally intelligible drafting of a clause or to the numerical indication of the amount of a payment obligation. In the case of a clause that imposes a pecuniary obligation on the consumer, the contract must allow him to understand, by examining the clause itself and by corroborating it with the other contractual provisions, the concrete mechanism for executing the obligation, including the moment at which it becomes due and the conditions under which the creditor is entitled to request payment.

In this respect, point 4.3 of Part II "General provisions" of the Contract provides that "the Borrower agrees to pay O.C.N. "Mogo Loans" SRL the loan arrangement fee, in accordance with the Payment Schedule".

Therefore, the contractual clause itself conditions the performance of the obligation to pay the fee on the content of the Payment Schedule, this being the contractual document in which the consumer must be able to identify the time and manner of performance of that obligation.

However, from the examination of the Payment Schedule, it is found that it does not contain the arrangement fee, does not individualize a payment corresponding to the amount of 6 460,00 lei and does not indicate the date or deadline by which this fee is to be paid.

Consequently, although the Contract indicates the existence and amount of the arrangement fee, it does not allow the consumer to determine the time at which the payment obligation becomes due and, implicitly, the manner of performance of that obligation.

The consumer cannot establish, on the basis of the contractual clauses, whether that amount must be paid on the date of conclusion of the Contract, at the time of disbursement of the loan, together with one of the installments provided for in the Payment Schedule or at another time.

Moreover, the express reference in point 4.3 of Part II "General provisions" of the Contract to the Payment Schedule legitimately creates the expectation that the payment deadline for the fee can be identified in its content. The omission of the fee from the Payment Schedule thus leads to a lack of coherence between the contractual clauses and prevents the consumer from determining, unequivocally, the mechanism for performing the payment obligation.

In the same context, it should be noted that the materials of the administrative file contain Payment Order no. 3674 dated 15.01.2020, according to which the consumer was disbursed the amount equivalent to 64 600,00 lei, which attests to the withholding of that fee at the time of disbursement, a fact which does not result from the Contract.

Therefore, point 4.3 of Part II "General provisions", read in conjunction with point 2 of Part I "Special provisions" of the Contract and with the Payment Schedule, does not meet the transparency requirement laid down in Art. 1071(1) of the Civil Code, since the consumer is not placed in a position to determine, clearly and foreseeably, the time at which the obligation to pay the arrangement fee becomes due.

22.7.2. Annex no. 1 to the Contract contains a clause according to which the creditor may collect a "Fee for re-conclusion of the Contract – 7.5% of the Loan balance, first re-conclusion – free of charge".

In accordance with Art. 1765 of the Civil Code, in addition to interest, the parties may agree on a fee for the services provided in connection with the use of the credit.

Therefore, the establishment of a fee presupposes the existence of an identifiable service in connection with the credit relationship, as well as the possibility for the consumer to determine its nature, the conditions under which the cost becomes owed and the extent of the payment obligation.

Although the clause sets the amount of the fee at 7.5 percent of the loan balance, the Contract does not define the notion of "re-conclusion of the Contract". In particular, the contractual clauses do not set out the circumstances that may lead to the "re-conclusion of the Contract", the conditions justifying it and the situations in which it may take place, the relationship of this operation with the existing Contract, nor the time at which the obligation to pay that fee falls on the consumer. In the conditions set out, it is noted that the clause referred to does not meet the transparency requirement laid down in Art. 1071(1) of the Civil Code, and, under paragraph (2) of the same article, it may be considered unfair on this sole ground.

22.7.3. According to Annex no. 1 to the Contract, the creditor is entitled to charge a "Fee for termination of the contract – 5% of the loan balance, for the contract that was terminated at the initiative of O.C.N. "Mogo Loans" SRL" and "Fee for notifying the client regarding late payment or termination of the Contract – 50 lei".

In accordance with Art. 1765 of the Civil Code, in addition to interest, the parties may agree on a fee for the services provided in connection with the use of the credit. Therefore, the charging of a fee presupposes the existence of an identifiable service, and the consumer must be able to determine, from the content of the contract, the nature of the remunerated operation and the conditions under which it gives rise to the payment obligation.

At the same time, according to Art. 1071(1) of the Civil Code, clauses that have not been individually negotiated must be drafted in clear and intelligible language. In the case of clauses that impose costs on the consumer, this requirement is not limited to indicating the name and amount of the payment, but presupposes the possibility of identifying, by examining the Contract as a whole, the operation that generates the cost, the time at which it is charged, the limits within which it may be charged, as well as its relationship with the other contractual costs.

In this respect, the Contract already separately establishes a "Loan administration fee", defined as the fee to be paid "for the costs of administering the loan, intended also for advertising expenses or costs borne by the partners/distributors of OCN «Mogo Loans» SRL". From the wording of this definition it follows that that payment has a general scope, intended to cover the costs related to the administration of the loan, certain categories of expenses borne by the creditor for this purpose being indicated by way of example.

The existence of this fee is relevant for the analysis of the transparency of additional charges not because it would demonstrate, by itself, that the notifications or the termination are already remunerated through the administration fee, but because it would require identifying the relationship between this general fee and the additional costs, provided for the situation of non-performance; however, the Contract does not specify, with sufficient clarity, which are the concrete activities or operations included in the administration fee and, correspondingly, which are the distinct activities for which the notification fee is charged, additionally.

Therefore, the consumer cannot determine from the contract whether the notification regarding the late payment constitutes a distinct operation, excluded from the scope of the administration fee and remunerated separately, or represents one of the activities related to the administration of the credit relationship.

The transparency issue is amplified by the fact that the clause regarding the 50 lei fee does not establish whether this cost is charged for each notification sent, whether multiple notifications regarding the same delay can generate successive fees, whether the notification of the delay and of the termination constitute distinct triggering events, and whether there is a limit on the number of fees that can be charged in connection with the same situation of non-performance.

Thus, although the individual amount of the fee is indicated, the extent of the payment obligation is not determinable with sufficient clarity at the time of conclusion of the contract. The consumer can know that a notification is charged 50 lei, but cannot anticipate, based on the clause, how many such costs can be generated by the same contractual situation and under what conditions. This lack of delimitation is directly relevant in light of art. 1071 of the Civil Code, since the transparency obligation concerns not only the mathematical expression of the amount, but also the contractual mechanism through which the payment obligation arises.

Regarding the clause “The fee for the termination of the contract – 5% of the credit balance”, it should be noted that it does not identify a service provided to the consumer in exchange for this payment. Termination represents, according to art. 921 para. (1) of the Civil Code, a right of the entitled party, exercised by declaration notified to the other party. Under these conditions, the mere carrying out of the termination does not explain, by itself, the existence of a “service” provided to the consumer, within the meaning of art. 1765 of the Civil Code.

If it is argued that this fee remunerates the administrative operations carried out upon termination, then the contract does not indicate the nature of these operations and does not allow the consumer to distinguish their cost from the other costs of administering the credit. If, on the contrary, the fee represents a financial consequence of the consumer's non-performance of obligations, then its legal nature must be examined and, as the case may be, its compatibility with the rules regarding clauses that establish disproportionate penalties for non-performance.

Likewise, the method of calculating the fee – 5 percent of the credit balance – does not, by itself, allow the identification of the remunerated service. The amount of the fee varies depending on the credit balance, but not depending on the nature, volume or frequency of the operations carried out by the creditor upon termination. This circumstance is not invoked as a mere criticism of the amount of the remuneration, but as a relevant element for verifying whether the consumer can understand what contractual service constitutes the consideration for the amount owed.

Therefore, the analysis of the clauses must not be based on the premise that the notification or termination activities are necessarily included in the “administration of the credit”. Such a conclusion does not result, with sufficient clarity, from the contractual wording. The relevance of the administration fee lies in the fact that it creates the need for a clear contractual delimitation between the general administration costs and the additional costs charged upon non-performance.

In the absence of this delimitation, the consumer cannot determine, with sufficient certainty, the nature of the remunerated service, the conditions under which the payment obligation arises and the limits within which the costs can be accumulated.

Consequently, the clauses regarding the fee for notifying the consumer and the fee for the termination of the Contract do not allow a sufficiently clear determination of the nature and limits of the costs established, of the services to which they correspond and of their relationship with the other contractual costs. To this extent, the respective clauses do not meet the transparency requirement provided for in art. 1071 para. (1) of the Civil Code, and under the conditions of para. (2) of the same article, they may be considered abusive.

22.7.4. According to point 8.2 of the Contract, “After OCN “Mogo Loans” SRL has received and analyzed the request for extension of the term, OCN “Mogo Loans” SRL decides at its own discretion whether or not to accept the modification of the credit term and regarding the Extension Fee, notifying the Borrower in this regard. The extension fee will be applied and charged to the Borrower only if the due date is changed by more than 30 days.”. Point 8.5 of the Contract provides, “The extension of the credit term applies and enters into force only after OCN “Mogo Loans” SRL has collected the Extension Fee and the Borrower has signed the new payment schedule”.

At the same time, from the examination of the Contract, it is found however that it does not establish the amount of the extension fee, its calculation formula, nor the objective and verifiable criteria based on which the amount is to be determined.

In accordance with art. 1071 para. (1) of the Civil Code, clauses that have not been individually negotiated must be drafted in clear and intelligible language. In the case of a clause that imposes a cost on the consumer, compliance with this obligation entails not only indicating the existence of the cost, but also the consumer's ability to determine, on the basis of the contract, the calculation mechanism and the extent of the financial obligation that may arise for them.

Moreover, in this case, the consumer knows only that the extension of the term by more than 30 days may give rise to the obligation to pay an extension fee, without being able to determine, at the time of conclusion of the Contract, its amount or limits. Furthermore, the wording of point 8.2 of the Contract, according to which the creditor decides "at its own discretion", including with regard to the extension fee, leaves the subsequent determination of the cost within the creditor's decision-making sphere, without indicating objective contractual criteria to limit this margin of appreciation.

This lack of determinability is all the more relevant given that, according to point 8.5 of the Contract, payment of the extension fee is a condition for the entry into force of the amendment to the credit term. Thus, the consumer cannot assess in advance the cost of a possible extension or the economic consequences of exercising this option.

Consequently, the clauses set out in points 8.2 and 8.5 of the Contract do not allow the consumer to determine, on the basis of clear and intelligible criteria, the amount or the mechanism for setting the extension fee and, respectively, the economic consequences of extending the credit term, and thus the transparency obligation laid down in Article 1071(1) of the Civil Code is not complied with.

22.8. The unfair nature of clauses establishing the unilateral modification of the contractual interest rate

22.8.1. According to point 6.2(b) of the Contract, "6.2. The interest rate may be modified: [...] b) unilaterally by the Lender depending on the evolution of the base rate of the National Bank of Moldova, the inflation rate and market developments, including a change in the EUR or USD exchange rate by more than 10% compared to the exchange rate on the date of conclusion of this Contract, taking into account the rules of equity, by notifying the Borrower by e-mail and/or SMS at least 10 (ten) days before the application of the modified interest rate.".

In the same vein, it should be noted that, in the "Pre-contractual information" form, which was made available to the debtor, under the heading "3. Costs of the credit", it is stated: "The interest rate on the credit or, where applicable, the different interest rates applicable to the credit agreement: - 27.00%, per annum, fixed".

In this context, in accordance with Article 3 of Law No. 202/2013, "fixed credit interest rate – the agreement of the parties, in the credit agreement, on a credit interest rate for the entire duration of the credit agreement or on several credit interest rates for partial terms, applying exclusively a fixed established percentage.".

Therefore, the Pre-contractual information, according to which the interest rate is fixed, and the clause set out in point 6.2(b) of the Contract, which allows the creditor to modify it unilaterally depending on the evolution of certain economic indicators, create an inconsistency regarding the nature and the mechanism for determining the interest rate applicable to the Contract. The consumer is presented, prior to the conclusion of the Contract, with a fixed rate, while the contractual clause allows its subsequent modification at the unilateral initiative of the creditor.

In this regard, it should be specified that the assessment of the unfair nature of the clause does not concern the adequacy of the level of the interest rate, as an element of the creditor's remuneration, but the manner in which the trader has reserved the right to unilaterally modify an interest rate presented to the consumer as fixed.

Therefore, according to Article 1072(1) of the Civil Code, when assessing the potential unfair nature, it is examined whether the pre-formulated contractual clause that was not individually negotiated is considered unfair if it is proposed by the trader and significantly disadvantages the consumer, contrary to good faith.

According to Article 1069(1) of the Civil Code, "(1) A clause proposed by one of the parties is not individually negotiated if the other party was unable to influence its content, in particular because it was drafted in advance, regardless of whether it is part of standard clauses or not.", and, in accordance with paragraphs (3) and (4) of the same article, if a clause was proposed as part of standard clauses by the creditor, it is presumed that it was not individually negotiated.

In assessing the imbalance created to the detriment of the consumer, the nature of the legal relationship must also be taken into account. The consumer enters into the credit, assuming the obligation of staggered repayment, and the level of the interest rate is an essential element for determining the cost of the credit and the extent of their payment obligations. In the case of a rate presented as fixed, the consumer is entitled to rely on the stability of the agreed percentage for the period in which it is declared applicable; however, through point 6.2(b) of the Contract, the creditor reserves the possibility of unilaterally modifying precisely this element of the cost of the credit, depending on the evolution of the base rate of the National Bank of Moldova (NBM), inflation, the market and the EUR or USD exchange rate, even though the interest rate was presented to the consumer, at the pre-contractual stage, as fixed.

Thus, the clause affects the predictability of the cost of the credit and the stability of the obligations assumed by the consumer, being incompatible with the fixed nature of the interest rate presented to them prior to the conclusion of the Contract.

According to Article 11 of the Civil Code, "Good faith is a standard of conduct of a party, characterised by fairness, honesty, openness and taking into account the interests of the other party to the legal relationship.".

22.8.2. At the same time, the clause provided in point 6.2 letter b) of the Contract is to be analyzed also in light of art. 15 para. (1) of Law no. 202/2013, which prohibits contractual clauses that grant the creditor the right to unilaterally modify the contractual conditions, without concluding an additional act, accepted by the consumer.

In this case, point 6.2 letter b) of the Contract expressly grants the lender the right to unilaterally modify the interest rate, depending on the evolution of the NBM base rate, inflation, the market and the EUR or USD exchange rate. Therefore, the modification of the interest can be carried out by the simple decision of the creditor, without the prior consent of the consumer being necessary. The fact that the creditor has the obligation to inform the consumer at least 10 days before applying the new rate does not remove the unilateral character of the modification. The notification of the consumer represents only informing them about the modification decided by the creditor and does not equate to the consumer's consent nor to the conclusion of an additional act.

Also, the Contract does not provide that the modification of the interest rate is conditioned by the express acceptance of the consumer and the signing of an additional act. On the contrary, the wording "the interest rate may be unilaterally modified by the Lender" grants the creditor, through the contractual clause itself, the right to unilaterally modify an essential condition of the contract.

Therefore, point 6.2 letter b) of the Contract allows the creditor to unilaterally modify the interest rate, without the consumer's consent and without concluding an additional act accepted by them, which contravenes the requirements of art. 15 para. (1) of Law no. 202/2013.

This circumstance also constitutes an additional element in assessing the abusive character of the clause, as it allows the professional to unilaterally modify an essential element of the credit cost and creates, to the detriment of the consumer, an imbalance between the rights and obligations of the parties.

22.9. Non-compliance with the provisions established in art. 15 para. (1) of Law no. 202/2013 in the clause contained in point 6.3. of the Contract

Point 6.3. of the Contract provides that, "Without prejudice to the provisions of point 6.2, OCN "Mogo Loans" SRL has the right to modify the interest rate or the amount of other fees for financial services, without prior notice, if there is a justified reason, with the obligation to immediately inform the Borrower thereof and that the Borrower has the freedom to immediately resort, on this basis, to the termination of the Contract or, as the case may be, to the early repayment of the Contractual Payments, without any additional cost for the Borrower.".

Through its content, the clause grants the creditor the right to unilaterally modify two essential elements of the credit cost — the interest rate and the amount of other fees for financial services — without the prior expression of the consumer's consent and without concluding an additional act, accepted by them. The information of the consumer occurs, according to the clause, after the modification is made, and their right to resort to the termination of the Contract or to early repayment represents a consequence of the modification already decided unilaterally by the creditor.

In this case, art. 15 para. (1) of Law no. 202/2013 prohibits contractual clauses that grant the creditor the right to unilaterally modify the contractual conditions, without concluding an additional act, accepted by the consumer. The existence of a "justified reason", the subsequent information of the consumer or their possibility to resort to the termination of the Contract or to early repayment does not remove the unilateral character of the modification and cannot substitute the consumer's consent.

22.10. Non-compliance with the provisions established in art. 18 para. (3) letter b) of Law no. 202/2013 in the clause contained in point 7.3. of the Contract and their abusive character

In accordance with point 7.3 of the Contract, "If upon receipt of the Borrower's notification regarding the exercise of the right of withdrawal, "OCN "MOGO LOANS" SRL has already disbursed to the borrower the entire amount or a part of the credit, the Borrower is obliged, within at most 3 calendar days from sending the notification of exercising the right of withdrawal, to return to OCN "MOGO LOANS" SRL without any unjustified delay the amounts received and the increased interest for this period.".

According to art. 18 para. (3) letter b) of Law no. 202/2013, in the case of exercising the right of withdrawal, the consumer is obliged to return the principal and the related interest without any unjustified delay and, in any case, no later than 30 calendar days from sending the notification. Therefore, the legal norm regulates not only the existence of the restitution obligation, but also the temporal regime of its execution, establishing both the criterion of execution without unjustified delay and a maximum time limit of 30 days.

The phrase "without any unjustified delay" cannot be interpreted as meaning that the 30-day term is devoid of legal effect. The two elements of the norm have distinct functions: the obligation to execute without unjustified delay implies that the consumer cannot unjustifiably postpone the restitution of the amounts received, while the 30-day term constitutes the maximum time limit within which the obligation must be executed as an effect of exercising the right of withdrawal.

Moreover, by establishing a fixed term of 3 calendar days, the creditor substantially reduces the period provided by the legislator for the execution of the restitution obligation, replacing the legal regime, which allows execution without unjustified delay but establishes, as a maximum limit, the 30-day term, with a fixed contractual term that is significantly shorter.

Such a completion does not consist in the mere fact that the 3-day term is different from the 30-day term provided by law, but in whether, through a pre-established contractual clause, the creditor can restrict, to the detriment of the consumer, the temporal regime of the restitution obligation established by Art. 18 para. (3) lit. b) of Law No. 202/2013. Such a contractual restriction must be examined in light of Art. 27 para. (1) of Law No. 202/2013, which provides that consumers cannot waive the rights conferred by this law. To the extent that the temporal limit established by Art. 18 para. (3) lit. b) of Law No. 202/2013 represents a legal guarantee regarding the performance of the restitution obligation, as an effect of exercising the right of withdrawal, the establishment by contract of a shorter term cannot have the effect of depriving the consumer of the protection conferred by the legal norm. Therefore, the contractual clause cannot be justified merely by the fact that Art. 18 para. (3) lit. b) of Law No. 202/2013 requires restitution "without any unjustified delay", since the same legal provision expressly establishes that restitution must not occur later than 30 calendar days from the transmission of the notification. The establishment of a 3-day contractual term imposes on the consumer a more restrictive temporal obligation than that resulting from the legal regime, without the clause revealing the legal basis for such a derogation.

22.11. The abusive and non-transparent nature of the clause provided in point 11.2 lit. j) of the Contract regarding "essential non-performance"

Point 11.2 of the Contract establishes the situations that are considered non-performance of the contractual obligation by the borrower and that entitle the creditor to declare the termination of the Contract. Thus, lit. j) qualifies as non-performance of the contractual obligation: "j) in other situations where there has been an essential non-performance of the contract by the Borrower".

According to point 11.2 lit. j) of the Contract, the creditor is entitled to declare termination in "other situations where there has been an essential non-performance of the contract by the Borrower".

However, the clause does not establish the concrete circumstances, criteria or threshold of gravity based on which a non-performance can be qualified as "essential". Although Art. 916 of the Civil Code establishes the criteria according to which non-performance has an essential character, the contract nevertheless does not transpose them in a manner that would allow the consumer to foresee in which concrete situations the non-performance of an obligation can lead to the termination of the contract.

Under these conditions, the consumer cannot anticipate, with sufficient clarity, the legal consequence of the non-performance of a certain obligation, namely the possibility of termination of the contract.

In particular, according to Art. 1071 para. (1) of the Civil Code, clauses not individually negotiated must be drafted and communicated in clear and intelligible language, so that the consumer can understand the extent of the obligations assumed and their legal consequences.

Therefore, the generic use of the phrase "essential non-performance", without establishing contractual criteria sufficiently clear for its determination, gives the clause a non-transparent character, and, under the conditions of Art. 1071 para. (2) of the Civil Code, constitutes a basis for assessing it as abusive.

23. Regarding the violations admitted by OCN "MOGO LOANS" SRL, found in light of the provisions of Law No. 202/2013, it should be noted that these non-conformities are of a nature to attract the contraventional liability of the creditor. At the same time, according to the provisions of the Contraventional Code, the attraction of contraventional liability is conditioned by compliance with the general limitation period, set at 12 months from the date of commission of the act. Considering that, from the date of signing the Contract, more than 12 months have passed, the limitation period provided by law has been exceeded.

Therefore, CNPF is legally unable to order the application of contraventional sanctions in this case.

24. Based on the considerations set out above, pursuant to Art. 4 para. (21) lit. c), Art. 8 lit. t), Art. 18 para. (3), Art. 20 para. (1), para. (6) and para. (7) and Art. 22 para. (3) of Law No. 192/1998 on the National Commission of the Financial Market, Law No. 202/2013 on consumer credit contracts, Law No. 105/2003 on consumer protection, the Civil Code, the Administrative Code and the Regulation on the organization and functioning of the National Commission of the Financial Market (CNPF Decision No. 57/11/2022),

The National Commission of the Financial Market DECIDES:

1. It is found that OCN "MOGO LOANS" SRL has failed to comply with Art. 3, Art. 5 para. (2) lit. c), Art. 10 para. (3) lit. a) and lit. g), Art. 15 para. (1) and para. (3) lit. c), Art. 18 para. (3) lit. b) and Art. 20 para. (1) of Law No. 202/2013 on consumer credit contracts.

2. The unlawful nature of the clauses in Credit Contract No. [...] dated [...], concluded between OCN "MOGO LOANS" SRL and Mr. [...], contained in:

2.1. point 5.5, in the part concerning the text "[...] with 5 (five) working days in advance, [...]";

2.2. point 6.3., which establishes that, "Without prejudice to the provisions of point 6.2, O.C.N. "Mogo Loans" SRL has the right to modify the interest rate or the amount of other fees for financial services, without prior notice, if there is a justified reason, with the obligation to immediately inform the Borrower thereof and that the borrower has the freedom to resort to, immediately on this basis, the termination of the Contract or, as the case may be, the early repayment of contractual payments, without any additional cost for the borrower.";

2.3. item 7.3., according to which, "If upon receipt of the Borrower's notification regarding the exercise of the right of withdrawal, "OCN "MOGO LOANS" SRL has already disbursed to the borrower the entire amount or a part of the credit, the Borrower is obliged, within at most 3 calendar days from sending the notification of exercise of the right of withdrawal, to return to OCN "MOGO LOANS" SRL without any unjustified delay the amounts received and the increased interest for this period.";

2.4. item 11.2 letter h), which stipulates that "third parties submit claims against the Borrower, the total amount of which exceeds 20% of the credit balance".

3. The abusive nature of the clauses in the Credit Agreement no. [...] dated [...], concluded between OCN "MOGO LOANS" SRL and Mr. [...], contained in:

3.1. item 4.3. of part II, "General provisions", according to which "The Borrower agrees to pay to O.C.N. "Mogo Loans" SRL the credit granting Commission, according to the Payment Schedule.";

3.2. item 2 of part I, "Special provisions", which establishes "The credit granting commission (10% of the Credit Amount, min 5 000 lei) – 6 460 lei";

3.3. the text in annex no. 1, regarding "Commission for notifying the client regarding late payment or termination of the Agreement - 50 lei";

3.4. item 8.2, in the part concerning the text "[...] and regarding the Extension Fee,", as well as the text "The extension fee shall be applied and charged to the Borrower only if the maturity date is changed by more than 30 days.";

3.5. item 8.5, in the part referring to the text " [...] the collection by OCN "Mogo Loans" SRL of the Extension Fee and [...]";

3.6. the text in annex no. 1, in the part concerning "Commission for termination of the Agreement – 5% of the Credit balance, for the Agreement that was terminated at the initiative of OCN "Mogo Loans" SRL. It is offset if the Agreement is concluded again.";

3.7. the text in annex no. 1, which establishes "Commission for concluding the Agreement again - 7.5% of the Credit balance, the first re-conclusion – free of charge";

3.8. item 11.2 letter j), in the part related to the text "[...] material non-performance of the contract by the Borrower".

4. The illegal and abusive nature of the clause in the Credit Agreement no. [...] dated [...], concluded between OCN "MOGO LOANS" SRL and Mr. [...], contained in item 6.2., according to which "The interest rate may be modified: [...] b) unilaterally by the lender, depending on the evolution of the NBM base rate, the inflation rate and market developments, including the modification of the EUR or USD exchange rate by more than 10% compared to the exchange rate on the date of conclusion of this Agreement, taking into account the rules of fairness, notifying the Borrower by e-mail and/or SMS at least 10 (ten) days before the application of the modified interest rate.".

5. A legal action is filed in court, in order to request the finding of the nullity of the illegal clauses, indicated in point 2, of the abusive ones, indicated in point 3 and of the illegal and abusive ones, indicated in point 4.

6. Control over the execution of points 2, 3 and 4 is assigned to the Legal Department.

7. This Decision may be contested by submitting a prior request to the CNPF address (MD-2012, mun. Chișinău, bd. Ștefan cel Mare și Sfânt, nr. 77), within 30 days from the date of communication.

8. This Decision enters into force on the date of adoption and is communicated to the recipients in accordance with the legislation and is published on the official website of the CNPF (www.cnpf.md).

Dumitru BUDIANSCHI,
PRESIDENT