Sudska praksa

  • Detalji predmeta
    • Nacionalna osobna isprava: County Court Varaždin, Judgement Gž 730/2020-2
    • Država članica: Hrvatska
    • Uobičajeni naziv:N/A
    • Vrsta odluke: Sudska odluka u žalbenom postupku
    • Datum odluke: 19/08/2020
    • Sud: County court Varaždin
    • Predmet:
    • Tužitelj:
    • Tuženik:
    • Ključne riječi: enforcement, Enforcement system, ex officio, legal actions, unfair terms
  • Članci Direktive
    Unfair Contract Terms Directive, Article 6 Unfair Contract Terms Directive, Article 7
  • Uvodna napomena

    Unfair contractual terms and contradictory of the civil proceedings.

  • Činjenice

    Subject matter of the proceedings is a request for payment of the compensation and the costs for the telecommunication services and for the early termination of the contract. Obligation of the consumer derives from the contract they concluded and from the general terms and conditions which apply to that contractual relationship. General terms and conditions of the service provider contain a provision according to which such obligation arises for the consumer, however, that is an unfair contractual term to which the courts must pay attention of their own motion (ex officio). Although the court noticed during the procedure that it represents an unfair contractual term, the court did not express its opinion to the parties to the proceedings.

  • Pravno pitanje

    Should the court which during a procedure finds that certain contractual terms are unfair, and which terms represent a ground for the adoption of a decision on the claim, inform the parties to the proceedings so that the parties could use other arguments and evidence, and still try to give reasons for their claim?

  • Odluka

    The second instance court determined that the first instance court committed a substantial violation described in article 354 paragraph 2 point 6 of the Civil Procedure Act because by not expressing its opinion regarding the unfairness of the contractual term, which represents an illegal action of the court, it did not enable the plaintiff to present the facts and propose the evidence needed for determination of rights and obligations of the contractual parties in order to evaluate the grounds of the claim for payment of the compensation for early termination of the contract. The second instance court particularly stressed the following:

    “Court of Justice of the European Union in case C-472/11 in relation to the request for preliminary ruling in the procedure Banif Plus Bank Zrt c/a Csaba Csipai, Viktoria Csipai, responded that the provisions of article 6 paragraph 1 and article 7 paragraph 1 of the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts have to be interpreted in such way that a national court, which ex officio determined an unfair contractual term, does not have to wait for the consumer to demand that such contractual term be determined as null, in order to apply the consequences of such determination. However, the adversarial principle which applies to the procedure generally obliges the national court, which determined ex officio that a certain contractual term is null, to inform the parties to the procedure of such nullity and to enable them to provide the court with their opinion regarding the matter in question in a way prescribed by the national procedural law and in accordance with the adversarial principle”.

    Cjeloviti tekst: Cjeloviti tekst

  • Povezani predmeti

    Nema dostupnih rezultata

  • Pravna literatura

    Nema dostupnih rezultata

  • Rezultat

    Application of this decision in other cases before the courts could significantly change their approach in the disputes regarding the unfair contractual terms. On the other hand, it is questionable how this opinion of the court is applicable from the procedural point of view since it represents a general application of the Civil Procedure Act and not only in case of the unfair contractual terms.