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Case Details

Case Details
National ID T XVII Amc 11/01
Member State Poland
Common Name Claimant - not specified, Defendant - „E-A.” Konsorcjum sp. z o.o.
Decision type Other
Decision date 13/05/2002
Court Sąd Antymonopolowy (Others)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 7

1. The provisions of the Act on the Protection of Certain Consumer Rights and Liability for damage caused by an unsafe product of 2 March 2000 which amended the Civil Code (introducing to it the provisions implementing the Unfair Contract Terms Directive) apply not only to contracts concluded after 1 July 2000 when the Act came into force, but also to contracts concluded (but not executed) earlier.
2. However, the claim (based upon the amended provisions of the Civil Code) made after the six months’ period from the time the defendant stopped using the suspected clauses has passed, must be struck down
The facts of the case have not been specified in any great detail. They concerned a claim by a physical person – a customer of a company „E-A.” Konsorcjum sp. z o.o. which operated the so-called ‘Argentinian system’ of sale of cars. The case involved a claim for a declaration that some clauses in a contract concluded by the plaintiff (customer) with the defendant (company) are prohibited. The contract was concluded in 1997 – before the Act on the Protection of Certain Consumer Rights and Liability for Damage Caused by an Unsafe Product was adopted. It was not executed at the time when the claim was brought – the claimant did not pay all the instalments and the defendant did not transfer the property of the car onto the claimant. Unfortunately it was not specified what clauses in the contract were deemed prohibited. It was, however, clear that at the time when the Act came into force (1 July 2000) the defendant ceased using the said clauses. For this reason the Court struck down the claim (brought in March 2001), without considering whether the clauses were indeed prohibited or not.
The gist of the judgement was approved by the commentators, but its reasoning was criticised as inconsistent. Agnieszka Świstak, who wrote a commentary of the judgement, noticed that the Court drew on the provisions applying to incidental control of contractual clauses together with those applying to abstract control of standard clauses. The Court held that the provisions of the Act on the Protection of Certain Consumer Rights and Liability for Damage Caused by an Unsafe Product of 2 March 2000 which amended the Civil Code (introducing to it the provisions implementing the Unfair Contract Terms Directive) apply not only to contracts concluded after 1 July 2000 when the Act came into force, but also to contracts concluded (but not executed) earlier (according to Article 21 of the Act). However, the Court also pointed out that by virtue of Article 479.39 of the Code of Civil Procedure amended by the Act on the protection of certain consumer rights and liability for an unsafe product, proceedings cannot be brought after the period of 6 months since the defendant ceased the use of the clauses has passed. It was clear that in this case the proceedings were brought after the deadline. The problem is that, according to Agnieszka Świstak, Article 21 of the Act applies only to incidental control, and Articles 479.36 to 479.45 of the Code of Civil Procedure apply only to abstract control of standard clauses.
Although this confusion does not affect the interpretation of any provisions which implemented the Unfair Contract Terms Directive, it indicates lack of understanding of the differences between the incidental control (known before the implementation) and the abstract control (introduced by the Act on the protection of certain consumer rights and liability for an unsafe product).
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