Injunctions Directive, Article 2

In collective proceedings regarding unfair terms, the Court should only rule the terms in the claim stated by the claimant. It should not rule subsequent claims, nor should it revise the General Conditions of the defendant.

The plaintiff is a consumer association which brings a collective claim for declaring 5 different clauses in the general terms of the defendant – a telecommunications company. In the proceedings before the Second Instance Court, the plaintiff wanted to declare another three clauses of the General Conditions as unfair.

The claim was dismissed by the Sofia City Court and by the Sofia Appellate Court.

The plaintiff appealed the judgment of the Sofia Court of Appeal to the Supreme Court of Cassation. The Supreme Court of Cassation upheld the judgment of the Sofia Court of Appeal and dismissed the claim of the association.

The consumer association requests that the Court declare 5 clauses contained in the general conditions to be unfair.

The Supreme Court of Cassation held that:

The arguments of the plaintiff for procedural violations of the Court are unjustified because the provisions of the defendant’s General Terms and Conditions are not mentioned in the claim. In the context of collective claims, the nullity of specific provisions of the General Conditions is sought, without these claims being objectively linked to an action for the resolution of a particular dispute to which these General Conditions apply. In this situation, any unfair term is an autonomous subject of a claim for the suspension of its application. The Court rules on each clause with an independent legal conclusion and with an operative part of the judgement for its abolition of the General Conditions.

If the Court was to resolve a specific dispute in which, apart from the clauses in question, other provisions of the General Conditions would apply to its resolution, the Court would have the obligation to rule on their own motion, since in these cases the nullity is of preliminary nature for the legalisation applicable to the particular legal relationship.

Collective claims do not resolute a specific dispute and, therefore, the thesis of the plaintiff that the Court must revise the General Terms means that by challenging specific provisions of the General Conditions, the Court is seized with a claim for invalidating the General Conditions entirely. This would be a breach of the dispositive start of the process.

For these reasons, the Court considers that it should only rule on the validity of the clauses set out in the plaintiff’s application and not on those referred to the Court of Second Instance or on clauses which the plaintiff has not indicated at all.

Regarding the clauses set out in the application, the Court considers that they are not unfair.

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The Court upholds the First and Second Instance Court’s decision that rejected the plaintiff’s claim.