Case law

  • Case Details
    • National ID: 448/2005
    • Member State: Romania
    • Common Name:link
    • Decision type: Other
    • Decision date: 31/05/2005
    • Court: Inalta Curte de Casatie si Justitie (Appellate court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2.
  • Headnote
    By applying articles 2 and 4 of the Law no. 193/2000 on abusive clauses in the contracts concluded between traders and consumers (which transposes art 3 para 1 and 2 of the Unfair Terms Directive 93/13) the High Court of Cassation and Justice held that certain clauses in a service contract are null and void due to the fact that such clauses providing for the right to terminate the contract and to perceive penalties are provided only in the benefit of the trader and therefore are abusive. Also the High Court of Justice held that the contract was a standard and the trader did not prove that the mentioned clauses were negotiated with the consumer.
  • Facts
    The complainant legal person filed a request with the Arad Tribunal against the defendant, asking the court to ascertain the termination of the contract concluded between the claimant and the defendant with the consequence of exonerating the claimant of the payment of the contracted internet services.
    The claimant showed that the defendant was compelled to supply the internet access in dial up system for a period of 12 months but after few months after the contract was concluded, the claimant realized that supplied services did not comply with the agreed terms. Having in mind this, the claimant refused to pay the invoices and as a result, the defendant stopped the supply of the services.
    Also, the claimant invoked as a nullity reason, the abusive nature of the clauses of the contract regarding the penalties and the termination of the contract.
    The Dolj Tribunal (further invested) rejected the claim of the claimant and held that the claimant requested that the termination of the contract is ascertained after a period of 2 years from the moment when the contract was concluded and in the same time he did not perform his obligations, and it is not ready to perform such, and moreover, it did not comply with the provisions of the contract providing for the conditions to unilaterally terminate the contract.
    Against the above mentioned decision the claimant filed an appeal. The appeal court allowed the request of the claimant in the sense that it declared null and void the invoked clauses of the contract and rejected the termination request. As such, the court held that the termination sanction could not operate since the contract was already ended, by reaching its term.
    As regards the abusive clauses invoked in the contract, the appeal court held that such clauses regarding the termination and penalties are abusive because are provided only in favor of the defendant and therefore they create a significant disadvantage between the rights and obligations of the parties in the detriment of the claimant which is a consumer in the sense of the Law no. 193/2000.
    Against the decision of the appeal court the defendant filed a second appeal (recourse) claiming that such decision is not legal since the mentioned legal provisions are not applicable to the claimant, as legal person and because the contractual clauses are not abusive considering the fact that the claimant had the right to unilaterally terminate the contract, and moreover the claimant knew form the beginning the contractual conditions.
    The High Court of Cassation and Justice rejected the second appeal filed by the defendant; therefore, the decision of the appeal court was maintained.
  • Legal issue
    In order to give its decision, the High Court of Cassation and Justice held that:
    - according to article 2 para 1 from the Law no 193/2000 (the version in force at the time of concluding the contract) the notion of the consumer included also the legal persons, therefore, the claimant has the right to exercise its rights conferred by the provisions of the law;
    - the decision of the appeal court was correct as regards the clauses considered abusive, as they give the right to the trader to perceive penalties for delay of 1/% per day of delay for non payment in term of the tariffs and the right of the same trader to terminate the contract without notice of delay or any other prior means. As such clauses are provided only in the benefit of the trader, in our case the defendant, such clauses create a significant gap between the rights and obligations of the parties.
    Also, the High Court of Cassation and Justice held that from the global assessment of the contract it results that such contract was unilaterally drafted by the trader, being a standard contract, and the trader had the obligation to prove that the contract was negotiated in order to avoid the sanction provided in the Law no 193/2000.
  • Decision

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