Case law

  • Case Details
    • National ID: 190/2005
    • Member State: Romania
    • Common Name:link
    • Decision type: Other
    • Decision date: 04/10/2005
    • Court: Inalta Curte de Casatie si Justitie (Appellate court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 6, 1.
  • Headnote
    By applying article 6 of the Law no. 193/2000 on abusive clauses in the contracts concluded between traders and consumers (which transposes art 6 para 1 of the Unfair Terms Directive 93/13) the High Court of Cassation and Justice held that the claimant was not liable for not paying the counter value of the used natural gas for a certain period of time, due to the fact that non payment was grounded on the intention of the claimant to compensate such counter value with the amounts of the guarantees illegally held by the defendant (i.e. the guarantees where held in accordance with a clause in the contract which was considered as abusive).
  • Facts
    The claimant physical person asked the court of law to oblige the defendant, a gas supplier company, to connect him again at the street connection for supply of natural gases and to compensate the quantity of consumed gases with the anticipated payment performed during the period 1994-2000. Also, the claimant requested that the court oblige the defendant to supply a certain quantity of natural gas for which he would have received subventions from the state for the years 2002-2003, and damages of Ron 150,000,000 for the prejudice produced.
    By the civil decision no. 1032 of May 24, 2004 the Bacau Tribunal rejected the above mentioned request as not being grounded.
    In order that the above mentioned decision is issued, the Bacau Tribunal ascertained that the claimant failed to comply with the obligation to pay in full the supplied natural gases therefore no compensation can operate for reciprocal receivables, and the value of the invoices for the period January 2002-december 2002 was calculated by deducting the guarantee of Ron 732,600.
    After the above mentioned decision was issued, the claimant filed appeal. His appeal was allowed by the Appeal Court of Bacau by means of the decision no. 252 of November 16, 2004 and the court obliged the defendant to connect the claimant at the connection for supply of natural gases. However, the appeal court rejected the request for damages, for the reason of lack of payment of judicial taxes and for reason that such request was not solved by the first court of law.
    Against the above mentioned decision of the appeal court both parties declared second appeal (recourse).
    As such, the claimant argued that the decision of the appeal court is not legal as regards the damages, and asked the high court to allow the requested damages.
    On the other side, the defendant argued that the appealed decision is not legal due to the fact that a conversion of money in delivered natural gas quantities can not be realized, and the deposited guarantee has the nature of covering potential debts of the beneficiaries and they such amounts are returned at the moment the contract ends; moreover, the contract provides no restitution to the beneficiary of the amounts deposited by compensation with the supplied quantity of gas.
    The high court of cassation and justice rejected the second appeal filed by the defendant and allowed the second appeal filed by the claimant.
  • Legal issue
    (i) As regards the reasons for the high court of cassation and justice for allowing the second appeal filed by the claimant, such court held that in a wrong manner the appeal court did not issue a decision with respect to damages, in accordance with the provisions of the civil procedural code and by doing so it breached a fundamental right of the parties in the civil trial.
    (ii) As regards the reasons of the high court of cassation and justice for considering that the second appeal of the defendant is not grounded and for rejecting the same, the high court held that in the contract for supply of natural gases, concluded under the provisions of the Government Decision no 942/1995, the cases where the supplier had the right to stop the supply were provided, and one of such cases was represented by non payment by the consumer of the gas.

    The high court also held that the Law no. 193/2000 regarding abusive clauses in contracts concluded between the traders and consumers provided in article 6 the lack of effects of such clause in case the contract could be further performed.

    Also, the high court held that the refuse of the claimant to pay the value of the natural gases used in the year 2000 it was not grounded on bad faith of the debtor, but on the intention of the debtor to compensate the value of the supplied gases with the guarantees which the trader took by means of an abusive clause.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result