Съдебна практика

Injunctions Directive, Article 2

The fact that the defendant has removed the unfair terms from the contracts he concludes with consumers is not an obstacle to filing a class action lawsuit asking the court to establish the existence of unfair terms in the credit agreements offered by the trader and to prohibit him in the future to apply the same.

The Consumer Protection Commission has brought a class action lawsuit against K. Yes Ltd. seeking to establish the existence of unfair terms in the credit agreements offered by the trader and to prohibit him from applying them in the future. The lawsuit is joined by the Bulgarian National Association "Active Consumers" and one individual.

There are several clauses under attack:

-a clause which ostensibly entitles the consumer to choose a guarantee, bank guarantee or promissory note to provide as security, but ultimately obliges him to provide a promissory note in favour of the trader;

- a clause that obliges the consumer to reimburse the costs incurred by the merchant for telephone calls, personal visits and sending letters in the event of late payment;

- a clause entitling the lender to notify its defaulting partners, banks and financial institutions, as well as the borrower's employer;

- a clause which obliges the consumer in case of early termination of the contract to repay not only the interest accrued until the moment of termination, but also those that would be due by the end of the credit period;

- a clause stipulating that disputes related to the contract must be considered by the Arbitration Court at the Business Association of Plovdiv;

- a clause obliging the consumer in case of early termination of the contract to pay a penalty of 20% of the outstanding principal of the loan.

Does the fact that the trader has stopped applying clauses that the Consumer Protection Commission considers unfair in the contracts with consumers constitute an obstacle to filing a class action lawsuit by which the CPC asks the court to establish the existence of unfair clauses in the credit agreements offered by the trader and prohibit him to apply the same in the future?

The Supreme Court of Cassation considers that a collective action asking the court to establish the existence of unfair terms in credit agreements offered by a trader and to prohibit him from applying them in the future is also admissible in cases where he has ceased to use these clauses in the contracts he offers to the consumers after he has been informed by the CPC about the existence of unfair clauses.

The reason for this is that the trader has already concluded contracts with a large number of users in which these clauses are included and which are still in force, i.e., the procedural clauses actually affect a large number of users, and on the other hand, it is possible they could also be used by other traders.

URL: http://www.vks.bg/pregled-akt?type=ot-spisak&id=E651B5BB2DA7BFEDC225872200474236

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The Supreme Court of Cassation upheld the decisions of the Plovdiv Court of Appeal and the Haskovo Regional Court, which established the unfair nature of the clauses and sentenced the trader to suspend their application in the future.