Price adjustment clauses under scrutiny in Scandinavia

The action follows a final judgment of the Patent and Market Court (PMD) of 14 May 2025. In that judgment, DNB was prohibited from using a price adjustment clause in car leasing agreements with consumers, which the court found to be unfair under Section 3 of the Swedish Act on Contract Terms in Consumer Relations. The Swedish Act on Contract Terms in Consumer Relations is based on EU law, and according to Article 6.1 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (the Unfair Contract Terms Directive), unfair standard terms in consumer contracts are not binding on the consumer. The legal consequences of such terms have been further developed in the case law of the Court of Justice of the European Union (CJEU).

The case raises several complex legal questions, including how ARN should address the relationship between Swedish legislation and the CJEU’s case law in this area, as well as what legal effect the PMD judgment should be given in the ARN proceedings. In this article, we comment on the case from a Swedish perspective as well as from Danish and Norwegian perspectives, as similar issues concerning unfair contract terms and consumer protection are highly relevant throughout the Nordic region.

Consumer protection concerning standard contract terms is largely derived from the Unfair Contract Terms Directive. The directive covers standard terms and conditions in contracts between consumers and businesses and is binding on EU member states, including Sweden and Denmark.

According to Article 3 of the Unfair Contract Terms Directive, a standard term is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. In making this assessment, the court must compare the term with the national law that would otherwise have applied.^[1] Furthermore, Article 6.1 of the directive provides that unfair terms are not binding on the consumer.

The CJEU has developed extensive case law interpreting the Unfair Contract Terms Directive, including several cases concerning the fairness of various interest rate and price adjustment terms.

Although Norway is not an EU member state, the Unfair Contract Terms Directive is incorporated into Norwegian law through the EEA Agreement, making EU law and CJEU case law equally relevant for Norwegian consumer protection in this area. Consequently, the legal issues raised by the KO in Sweden have direct implications across all three Nordic jurisdictions.

On 14 May 2025, DNB was prohibited by the PMD from using a price adjustment clause in private leasing contracts, as the clause was deemed unfair pursuant to section 3 of the Swedish Contract Terms Act. The judgment has become final.

Following the judgment, the KO has now requested that ARN recommend that DNB repay the amounts that consumers have been overcharged through the application of the clause.

DNB offers private car leasing to consumers. During 2022–2023, DNB applied the following standard terms and conditions which gave the bank the right to unilaterally adjust the monthly fee in the event of, inter alia, changes in interest rates and borrowing costs:

"If the interest rate on the money market where the Lessor refinances its operations changes, if the Lessor's borrowing costs change, or if the Lessor's cost base changes as a result of legislation, credit policy measures or other reasons that the Lessor could not reasonably foresee when the agreement was entered into, the Lessor is entitled to change the leasing fee. One such reason is, inter alia, if the Lessor's costs for capital coverage were to change. If the interest rate on the money market where the Lessor refinances its operations is/becomes negative, the Lessor is entitled to maintain the leasing fee."^[2]

KO brought proceedings in the PMD and claimed that DNB should be prohibited, on penalty of a fine, from using the price adjustment clause.

As noted above, the Unfair Contract Terms Directive has been implemented into Swedish law partly through the general clause in section 36 of the Swedish Contracts Act and partly through the Swedish Contract Terms Act.^[3]

Pursuant to section 3 of the Swedish Contract Terms Act, the PMD may prohibit a business from using a standard term if, having regard to the price and other circumstances, it is unfair and the prohibition is justified from a public interest perspective.

The Swedish provisions are to be interpreted in the light of the Unfair Contract Terms Directive and the case law of the CJEU, where several cases have concerned the fairness of various interest rate terms.^[4]

The PMD's primary reason for finding that the standard term was unfair was that it lacked transparency. According to the PMD, it must be clear which factors the variable monthly fee is based on. The consumer must, on this basis, have a real possibility of at least estimating how the fee may change in the event of changes in market interest rates. In the PMD's assessment, DNB's terms lacked such information.

Although the Swedish Consumer Credit Act does not directly apply to private leasing agreements,^[5] the PMD compared the term with section 17, second paragraph, of the Consumer Credit Act, which states that the interest rate may be changed to the consumer's detriment only to the extent justified by credit policy decisions, increased borrowing costs or other cost increases that the creditor could not reasonably foresee when the agreement was entered into.

The PMD found that the standard term deviated from the Swedish Consumer Credit Act on several points:

• Vague concepts: "Credit policy measure" is a broader concept than the statutory "credit policy decision", and "other reason" is too imprecise compared with "other cost increases".

• Lack of proportionality limitation: The term lacked the limitation that an interest rate change may only occur "to the extent justified by" the stipulated conditions.

• Lack of reciprocity: The term was not sufficiently clear that interest rate changes should be applied in the same way to the consumer's advantage as to the consumer's disadvantage.^[6]

In light of this, the PMD found that the price adjustment term was unfair and should be prohibited.

KO has now, with reference to the PMD's judgment, requested that ARN recommend that DNB repay the amounts that DNB has overcharged consumers through the unfair price adjustment clause. A potential repayment obligation is estimated to cover several billion Swedish kronor.

KO's action is based on EU law. The legal consequence of unfairness, according to Article 6.1 of the Directive, is that the standard term is not binding on the consumer.^[7] It follows from the case law of the CJEU that the consumer's legal and factual situation must be restored to the situation in which the consumer would have been if the unfair contract term had not existed.^[8] In short, this means that the unfair term in principle never existed (it is invalid ex tunc) and it may not be modified to make it fair, as the deterrent effect of the rules would be undermined if an unfair term did not lapse.^[9]

At the same time, according to Swedish regulation, section 36 of the Swedish Contracts Act is also applicable to standard terms in contracts between consumers and traders. The provision is limited to some extent by section 11 of the Swedish Contract Terms Act, which states that circumstances that have occurred after the conclusion of the contract may not be taken into account to the consumer's detriment. There is no corresponding limitation regarding the content of the contract and the circumstances at the time of the conclusion of the contract. Therefore, it appears that Swedish legislation does not correspond with the case law of the CJEU. Moreover, as recently as 2017, the Supreme Court appears to have considered it possible to modify an unfair standard term in a consumer contract (although the term was not modified in that specific case).^[10] How should ARN approach this?

A further question is what legal effect the PMD's judgment should be given in the ARN proceedings. Certain aspects of the PMD's assessment may give rise to further discussion, particularly in light of the regulatory framework governing interest rate adjustments in financial contracts. DNB's price adjustment clause largely corresponds to the requirements of the Swedish Consumer Credit Act. There is no indication that DNB adjusted the leasing fee for any reason other than increased financing costs, which corresponds to the purpose of the requirements in the Swedish Consumer Credit Act. It may also be debated to what extent an average consumer is realistically able to estimate how borrowing costs change in response to fluctuations in market interest rates, even in contractual frameworks that follow the structure of the Swedish Consumer Credit Act.

It may also be considered whether ARN is a suitable forum for this case. ARN is an important tool for ensuring consumers' rights, but it is a forum with limitations. This is particularly true when it comes to more complex legal questions and larger disputes concerning financial services.

In 2014, the Swedish Shareholders' Association filed a group action against Swedbank Robur with ARN. In that case, the issue concerned whether Swedbank Robur's actively managed funds had in practice functioned as passively managed funds and therefore should have had a lower management fee than that which savers had paid for. That case also concerned a group action involving potentially billions of Swedish kronor. ARN chose not to accept the case for their assessment, inter alia because the board assessed that oral preparation and oral evidence were required, which could not be considered by ARN.

The DNB case may raise similar challenges. It cannot be ruled out that oral hearings may be required, or that sub-issues may need to be referred to the CJEU.

A decision by ARN may also have unforeseen consequences. If DNB loses at ARN and wishes to have the issue thoroughly examined by a real court, the bank may be forced to bring declaratory proceedings against the affected customers. A scenario in which a bank is forced to bring proceedings against its customers is likely not desirable for either ARN or KO.

The issues raised by the Swedish Consumer Ombudsman’s action against DNB may also be relevant from a Danish law perspective. The Unfair Contract Terms Directive is implemented in Sections 38 a - 38 d of the Danish Contracts Act (aftaleloven).

Section 36 of the Danish Contracts Act provides the general authority for courts to modify or set aside unfair contract terms, whilst Sections 38 a - 38 d contain specific rules for consumer contracts implementing the Unfair Contract Terms Directive. Danish law permits unfairness assessment of all consumer contract terms, including those defining the main subject matter and the adequacy of price against quality.

However, when dealing with unfair standard terms in consumer contracts, Section 36 must be interpreted in accordance with EU law. 

Recent Danish case law demonstrates these principles in practice. In September 2025, the Danish Maritime and Commercial High Court issued a significant judgment in proceedings initiated by the Danish Consumer Ombudsman (Forbrugerombudsmanden) against a Danish bank regarding negative interest rates on consumers' deposit accounts.^[11] The court validated the bank's price adjustment clause, determining that negative interest rate implementation was objectively justified and compliant with Section 36 pursuant to Section 38 c. The court did, however, invalidate a clause permitting the bank to withhold interest below an unspecified threshold, finding it lacked clarity and was arbitrary in application. Given its (potential) implications and nature, the judgment has been granted permission to appeal directly to the Danish Supreme Court.^[12] This decision illustrates how Danish courts apply the transparency requirement in practice in a manner comparable to the PMD's approach in the DNB case.

Additionally, albeit not specifically based on the Contracts Act, the Danish Consumer Ombudsman has also previously established that price adjustment clauses require objective foundations and must specify with sufficient clarity the circumstances justifying price increases. Sellers/suppliers must identify as precisely as practicable the factors which may trigger fee changes, to enable consumers to evaluate the likelihood and scale of future adjustments.^[13] This transparency requirement mirrors the approach taken by the PMD in its assessment of DNB's clause, where the court found that it must be clear which factors the variable monthly payment is based on, and that the consumer must have a real opportunity to at least estimate how the fee may change in the event of changes in market interest rates. 

The Unfair Contract Terms Directive is implemented in Norwegian law through Section 37 of the Norwegian Contracts Act (avtaleloven), which refers to the general contract revision rule in Section 36 of the Norwegian Contracts Act. 

The Norwegian Contracts Act should be interpreted in light of the case law of the EFTA Court and, indirectly, the CJEU.^[14] The courts have issued several judgments on the fairness of interest rate terms in credit agreements. For example, the EFTA Court has recently issued an advisory opinion stating that contractual terms allowing the bank to unilaterally change the interest rate must be formulated in a manner that enables an average consumer to foresee the conditions and procedure for interest rate changes.^[15] If such clauses are not sufficiently transparent, the bank may face repayment claims for all interest rate changes made pursuant to that term.

The issue recently gained renewed relevance in a Norwegian context. In late January, Finansklagenemda (FinKN) delivered two decisions stating that the interest adjustment terms in private home loan agreements were unfair pursuant to Sections 36 and 37 of the Contracts Act.^[16] The contracts were based on floating interest rates (flytende rente). FinKN found the terms for adjusting interest unfair, mainly because the terms didn't satisfy the Unfair Contract Terms Directive's requirements for plain intelligible language and transparency. 

FinKN didn't consider what should be the consequences of the unfair terms, because determining the consequences would require a full review of a great number of Norwegian loan agreements.^[17] As 90 % of Norwegian home loan agreements operate with similar floating interest rate terms, the potential financial implications may be significant.

The decision made by FinKN is only advisory. However, if the banks disagree with the decision, they're required to formally notify FinKN of their disagreement. In that case, the consumer can bring the matter before the courts without the risk of bearing adverse costs.^[18] It is currently not announced whether the banks have formally disputed the decision, but it is likely to happen.^[19] 

KO's action against DNB highlights issues of cross-Nordic relevance.

First, financial institutions and other companies operating in the region may wish to review the structure and wording of such clauses, while also closely monitoring how courts and other authorities interpret the transparency requirements under EU and EEA consumer protection law.

Second, if these standards are not met, the financial implications may be significant. Unfair terms could be declared void, and financial institutions and other companies could be directed to repay the amounts that consumers have been charged pursuant to invalid terms. 

Taken together, these developments illustrate the growing scrutiny of price adjustment clauses across the Nordic region. The DNB case, as well as the recent Danish and Norwegian developments, may therefore prove to be important reference points for how such clauses are assessed under EU and EEA consumer protection law.

^{[1] CJEU judgment of 14 March 2013 in Case C-415/11, Aziz, EU:C:2013:164, para. 67.}

^{[2] Please note that the clause in question was originally drafted in Swedish and has been translated solely for the purposes of this article.}

^{[3] Act (1994:1512) on contract terms in consumer relationships. For further reading, see e.g. Bernitz in SvJT 2019 p. 679, Oklarhetsregeln och oskäliga avtalsvillkor: ny rättsutveckling för konsumentavtal.}

^{[4] See e.g. CJEU judgment of 14 March 2013 in Case C-415/11, Aziz, EU:C:2013:164.}

^{[5] Rental and leasing agreements do not fall within the definition of credit. However, if the intention under the agreement is that the consumer is to become the owner after having paid the "rents" or "leasing fees", it is a credit agreement regardless of the designation, see prop. 2009/10:242 p. 41.}

^{[6] For more on reciprocity in, and repayment requirements for unfair, interest adjustment terms in leasing agreements, see the Supreme Court's decision in Ränteskruven, NJA 2005 p. 142.}

^{[7] See also CJEU judgment of 26 April 2012 in Case C-472/10, Invitel, EU:C:2012:242, para. 34.}

^{[8] CJEU judgment of 21 December 2016 in joined Cases C-154/15, C-307/15 and C-308/15, Guitérrez Naranjo, EU:C:2016:980, para. 61.}

^{[9] See e.g. Banco Español de Crédito, EU:C:2012:349, para. 69. Under certain conditions, an unfair term may be replaced by default law, see e.g. CJEU judgment of 30 April 2014 in C-26/13, Kásler, paras. 82 and 83. However, this exception does not appear to be applicable in the present case.}

^{[10] NJA 2017 p. 113.}

^{[11] Danish Maritime and Commercial Court judgment of 1 September 2025, no. BS-45638/2023-SHR, Forbrugerombudsmanden v. Jyske Bank A/S (UfR 2025.5040 S).}

^{[12] Danish Supreme Court decision of 10 November 2025, no. BS-46409/2025-HJR (U 2026.394 H).}

^{[13] Danish Consumer Ombudsman decision of 20 November 2008, no. 08/03883.}

^{[14] The principle of homogeneity requires EEA-legislation to be interpreted similarly as identically worded EU-legislation. Case law from the CJEU is therefore relevant for EEA countries as well, even though the EEA countries are not formally bound by the CJEU.}

^{[15] EFTA Court judgment of May 23rd 2024, no. E-4/23, Íslandsbanki hf. (62023EJ0004).}

^{[16] FinKN 2026-64 and FinKN 2026-65.}

^{[17] https://www.finkn.no/nyheter/kan-bankene-endre-boliglansrenten-slik-de-gjor-i-dag (Klagerne fikk medhold, rettsvirkninger ikke vurdert).}

^{[18] FOR-2014-05-06-608 § 1 jf. finansieringsvirkomshetsloven § 2-12b.}

^{[19] Based on statements made to the media by DNB and Handelsbanken in a news article from Finansavisen:.}