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Case Details

Case Details
National ID MD 2003:12
Member State Sweden
Common Name link
Decision type Court decision in appeal
Decision date 28/04/2003
Court The Swedish Market Court
Subject
Plaintiff The Consumer Ombudsman
Defendant Wasa Kredit AB
Keywords B2C, court, standard contract, unfair terms

Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, ANNEX I, 1., (q)

A contractual term which provides that disputes shall be resolved by a specific court, when used in relation to consumers, is considered unfair.
The defendant is a provider credits to both traders and consumers. To consumers, the defendant offers credits in relation to the consumers' purchase of cars, motorcycles etc.

In the defendant's general terms and conditions for credit purchases, the following term can be found: "(…) Any dispute may also be resolved by the district court of Stockholm."

The plaintiff has received complaints from consumers regarding the defendant's dispute resolution clause.
The court prohibits the defendant, under the penalty of a fine, when offering credit purchases to consumers, to apply the following contractual term or a substantially similar term:
1) "(…) Any dispute may also be resolved by the district court of Stockholm."

The court firstly states that the contractual term is included in a standard agreement offered to a large number of consumers, and the contractual term cannot be considered to be individually negotiated.

The assessment to be made concerns whether or not the term in question is generally unfair against consumers. This may be the case, inter alia, if the term is contrary to non-mandatory laws, gives the trader a benefit or deprives the consumer a right and thereby causes an imbalance between the parties' rights and obligations in a sense that a reasonable balance between the parties no longer exists.

The list of contractual terms under Directive 93/13/EEC, includes terms that are generally considered unfair, according to the preparatory works to the Act (1994:1512) on Contract Conditions in Consumer Relationships (implementing Directive 93/13/EEC). For example section q in the list, which concerns the consumer's right to bring a matter before court.

The court states that the purpose of the contractual term must be to appoint the court in the geographical area where the defendant is domiciled. Furthermore, the clause is contrary to non-mandatory law. In a previous similar case, the court found that a similar clause was unfair. The court finds no reason to make a different assessment in this case. The contractual term in question shall hence be considered unfair against consumers.
Is a contractual term which provides that disputes shall be resolved by a specific court, when used in relation to consumers, considered unfair?
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The plaintiff's request was granted,