Orzecznictwo

  • Dane sprawy
    • Identyfikator krajowy: VI ACa 1571/12
    • Państwo członkowskie: Polska
    • Nazwa zwyczajowa:N/A
    • Rodzaj decyzji: Orzeczenie sądu w postępowaniu odwoławczym
    • Data decyzji: 26/04/2013
    • Sąd: Sąd Apelacyjny w Warszawie
    • Temat:
    • Powód/powódka: President of the Office of Competition and Consumers Protection
    • Pozwany/Pozwana: (…) with registered office in N. (Switzerland)
    • Słowa kluczowe: average consumer, contract law, terms and conditions, unfair terms
  • Artykuły dyrektywy
    Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, Article 6, 2.
  • Uwaga główna
    (1) A clause included in a contract may be declared unlawful only if it grossly violates consumer interests and is contrary to good morals.

    (2) A contract can be considered as contrary to good morals if it is against the socially accepted moral principles and the principle of fairness in trading.A contract is contrary to good morals if it is drawn up without respect for consumer interests and without related appropriate consideration . The entrepreneur acts unfairly and contrary to good morals if the contract clauses drafted by him threaten the balance of the legal relationship.
  • Fakty
    The President of the Office of Competition and Consumer Protection (hereinafter referred to as.: the President of the OCCP) filed the claim against the defendant to the Court of the Competition and Consumer Protection.

    The President of the OCCP questioned several clauses set out in the General Rules of the Public Sale of Tickets being a model contract prepared by the defendant.

    The Court of the Competition and Consumer Protection declared that nineteen clauses in the above-mentioned General Rules are unlawful and forbade using them in contracts with consumers.

    A part of the questioned clauses concerned the issues relating to the liability of the defendant, the refund ofadministrative fees and the changes in the conditions of providing service by the defendant.

    The defendant appealed to the Court of Appeal.
  • Zagadnienie prawne
    (1) Does the “gross violation of the consumer interest” is a sufficient condition to have a clause included in the contract declared as unlawful?

    (2) When can a contract be considered as contrary to good morals?
  • Decyzja

    The Court of Appeal (hereinafter referred to as.: “the court”) pointed out that the Court of the Competition and Consumer Protection assessed the facts properly , but the appeal should be approved only in part.

    The court emphasized that a clause included in a model contract can be declared unlawful and its application stopped if certain conditions are jointly fulfilled:

    1) The clause was not agreed individually,
    2) The rights and duties resulting from the clause are contrary to good morals,
    3) Those rights and duties grossly violate consumer interests,
    4) The clause does not apply toprincipal and explicit performances of the parties.

    In the next part of the judgement, the court pointed out that a clause is abusive if it grossly violates consumer interests. It observed that the term “gross violation” should be interpreted in the context of Directive 93/13/EEC on unfair terms in consumer contracts. Article 3 paragraph 1 of this Directive provides that a contractual term which has not been individually negotiated will be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

    The court underlined that the “gross violation of the consumer interest” is not a sufficient condition to declare a clause included in a contract unlawful . A clause included in a contract can be declared unlawful only if it grossly violates consumer interests and is contrary to good morals.

    Moreover, the court interpreted that a contract can be considered as contrary to good morals if it is against the socially accepted moral principles and the principle of fairness in trading. A contract is contrary to good morals when it is drawn up without respect for consumer interests and related appropriate consideration . The entrepreneur acts unfairly and contrary to good morals if the contract clauses drafted by him threaten the balance of the legal relationship.

    Finally, the court considered the defendant's appeal and adjudicated that the appeal is partially justified in regard to several clauses questioned by the President of the OCCP, especially those concerning local jurisdiction, changes in the General Rules and the language version. In the remaining part, the court dismissed the appeal.

    URL: http://orzeczenia.waw.sa.gov.pl/content/$N/154500000003003_VI_ACa_001571_2012_Uz_2013-04-26_002

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  • Wynik
    The Court of Appeal partially granted the defendant's appeal in part. .