Европейски портал за електронно правосъдие

Данни за случая
- Национален идентификатор: Supreme Administrative Court, Judgment 4320/18, VII d.
- Държава-членка: България
- Общоприето наименование:N/A
- Вид решение: Решение на върховния съд
- Дата на решението: 03/04/2018
- Съд: Supreme Administrative Court
- Заглавие:
- Ищец:
- Ответник:
- Ключови думи: aggressive commercial practices

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Членове от директивата

Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9 Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9, (e)
Уводна бележка

When several individual contracts are concluded between a trader and a consumer, suspending the access to a service from one of the contracts, when the consumer has no obligations under the contract and the suspension is aiming to force the consumer to perform a late but disputed payment, constitutes an aggressive commercial practice.
Факти

The defendant is a mobile operator which concludes three different contracts for various services with one consumer. The last contract states that all previous contracts become an integral part of this agreement and are identified by its unique number. The defendant suspends the access to services under all contracts because the consumer has not paid the fee for one of them in time.

The Consumer Protection Commission issued an order establishing that the defendant used unfair aggressive commercial practice, because he enforced excessive, inconsistent and non-contractual behaviour on the consumer.

The defendant appealed this order before Sofia Administrative Court, which annulled the order of the Consumer Protection Commission, holding that with the conclusion of the last contract between the consumer and the mobile operator, the separate services were merged into a framework contract.
Правен въпрос

The Consumer Protection Commission issued an order establishing that the defendant used unfair aggressive commercial practice, because he enforced excessive, inconsistent and non-contractual behaviour on the consumer.
Решение

The Supreme Administrative Court held that:

In order to conclude a framework contract, it is necessary that the will of both parties is expressed. In this case, the behaviour of the defendant, reflected in the three contracts concluded with the consumer, in no way demonstrates the will to conclude a framework contract. Placing the same number on three contracts does not demonstrate the willingness to conclude a framework contract. If the defendant truly intended to conclude a framework contract, he would have clearly and unambiguously stated this to the consumer and pursued interdependence in the implementation of the three contracts.

In the present case, the facts show that there are three separate contracts. The defendant connected the default of any one of the contracts with a sanction under all the other contracts.

This obligation has occurred in a way which by its very nature constitutes a non-contractual obstacle for the exercising of the consumer’s rights under the contract. This obstacle is burdening, excessive and inconsistent with the objective pursued, namely to guarantee the fulfilment of the consumer’s obligations under the contract because it actually crosses the agreement between the parties and in an unacceptable way binds the failure of fulfilling the obligations under one contract with the execution of another contract.

URL: http://www.sac.government.bg/court22.nsf/d038edcf49190344c2256b7600367606/84bc4423478f0bb9c22582560061964f?OpenDocument

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Резултат

The Supreme Administrative Court annulled the decision of the Sofia Administrative Court and confirmed the decision of the Consumer Protection Commission.

Съдебна практика

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