Case law

Distance Selling Directive, Article 9

The Supreme Administrative Court finds that the challenged act of secondary legislation, namely a Government Regulation on heating supply issued by the Council of Ministers in 2002, is in contradiction with the Law on Energy of 2003 presently in force and cannot be applied for specifying the mode of calculating the monthly costs for central heating for individual condominium owners. The Government Regulation had been issued for the purpose of implementing an earlier Law on Energy and Energy Effectiveness that had been repealed by the new Law on Energy of 2003. Since the Regulation as an act of secondary legislation is contrary to provisions of an act of primary legislation in force, the Government Regulation cannot be applied.
Given that the regulation cannot be applied, the complainants claim to repeal the Regulation on grounds among others that it leads to forced sale of heating without the consent of the condominium owners and thus is against the prohibition of Art. 70 Law on Consumer Protection and the Rules of Trade (repealed), is left without consideration.

The challenged act of secondary legislation, a Government Regulation of the Council of Ministers for heating supply, was adopted by the Council of Ministers in 2002 to ensure the implementation of the Law on Energy and Energy Effectiveness, then in force. The Regulation envisaged a mode of calculating the monthly costs for central heating for individual condominium owners on the basis of special expert opinions to be requested by the condominium owners’ meeting or on the basis of aggregated and approximate schemes of division between condominiums following the size, flat surface and type of the condominiums and within parameters set by the Regulation.

In 2003 a new Law on Energy was introduced which envisaged calculation of heating costs on the basis of individualised consumption, to be established with the help of mandatory gauge apparatuses installed in each condominium (Art. 143 Law on Energy). An Implementing Regulation was supposed to provide more details as to the manner of application of the new provisions, but was never adopted. The Regulation of 2002 thus continued to be applied.

The petitioners, a group of condominium owners, wanted the Supreme Administrative Court to repeal the Regulation as contrary to the Law on Energy and the Law on Consumer Protection. The Court found the Regulation to be inapplicable and left the petition without consideration.

The petitioners contended that the Regulation was contrary to the new Law on Energy. They also argued that the Regulation led to forced sale of energy to consumers without the latter having agreed to enter such a transaction. The Regulation was considered consequently to contravene Art. 70 of the Law on Consumer Protection and the Rules of Trade of 1999 (corresponding to Art. 62 in the Law on Consumer Protection presently in force), which prohibited inertia selling.

The Supreme Administrative Court did not address the argument of the claimants based on Art. 70 Law on Consumer Protection and the Rules of Trade of 1999. The Court found that the Regulation was in conflict with Art. 143 Law on Energy of 2003. Since the Regulation was not applicable, the Court found no need to repeal the Regulation and left the petition without consideration.

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