Case law

  • Case Details
    • National ID: Administrative case 11797/2015
    • Member State: Bulgaria
    • Common Name:link
    • Decision type: Supreme court decision
    • Decision date: 18/08/2016
    • Court: Supreme Administrative Court
    • Subject:
    • Plaintiff: Bulgarian Consumer Protection Commission
    • Defendant: Mobiltel EAD
    • Keywords: aggressive commercial practices, cessation of contract, coercion, contract law, mobile phone services
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9 Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9, (d)
  • Headnote
    (1) A mobile operator commits an aggressive commercial practice if it terminates unilaterally existing agreements duly observed by a particular client on the grounds of breach of another contract between the mobile operator and the same client.
    (2) For establishing the existence of a framework agreement between a trader and a consumer it is necessary that the executed contract should contain the express consent of the parites the agreement to be treated as a framework agreement.
  • Facts
    On February 28, 2014 a consumer concluded with the defendant three separate agreements as follows: two agreements for provision of telecommunication services under different subscription plans and one agreement for purchase of a mobile device payable in instalments. Later on the consumer stopped paying the outstanding price instalments under the third purchase agreement due to alleged deficiencies of the purchased mobile device. On the grounds of this breach of contract the defendant unilaterally terminated not only the specific agreement for purchase of a mobile device but also the other two agreements for provision of telecommunication services concluded with the same consumer, which were duly observed by the client.

    After filing a complaint by the consumer, the Consumer Protection Commission held that the defendant has no legal grounds to stop the telecommunication services provided in accordance with valid contracts which were duly performed by the client, in order to force the same client to pay his obligations under another agreement which was subject to a dispute between the parties. Based on the above the plaintiff held that the behaviour of the defendant represents aggressive commercial practice in the form of imposing onerous and disproportionate non-contractual barriers where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader. Accordingly, the Consumer Protection Commission issued an order prohibiting this unfair commercial practice.

    The defendant appealed the above order with the main argument that the three agreements concluded with the same consumer were not separate contracts but represented one single framework agreement; accordingly the breach of even one of the contracts was a valid legal ground for unilateral termination of all other agreements. The first instance court found that the appeal is grounded and revoked the order of the Consumer Protection Commission. The plaintiff, however, appealed the first instance judgement before the Supreme Administrative Court.
  • Legal issue
    The Supreme Administrative Court analyzed the content of the three contracts signed between the defendant and the consumer and concluded that, apart from the identical contract number and the identical parties, they did not share any other common features, since each contract was signed on a separate durable medium, had its own subject matter and did not contain any references to the other agreements. For this reason the court established that in the case at hand there were three separate and independent agreements between the parties and the defendant had no legal grounds to terminate one of them on the grounds of alleged breach of the other. Such commercial behaviour qualifies as aggressive commercial practice because: (i) it constitutes an onerous and disproportionate non-contractual barrier for the consumer to exercise his rights under the contract which were duly observed by him; and (ii) it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the products- subject of the three agreements and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.

    The court also excluded the possibility for the three separate contracts to be interpreted as forming one single framework agreement with the argument that for establishing the existence of a framework agreement it is necessary that the executed contract should contain the express consent of the parites the agreement to be treated as a framework agreement.



  • Decision

    (1) Does it represent an aggressive commercial practice if a mobile operator terminates unilaterally existing agreements duly observed by a particular client on the grounds of breach of another contract between the mobile operator and the same client?

    (2) What are the criteria for establishing that a framework agreement has been concluded between a trader and a consumer?

    URL: http://www.sac.government.bg/court22.nsf/d038edcf49190344c2256b7600367606/4b74ee482ab5aa4dc225800a005b4591?OpenDocument

    Full text: Full text

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  • Result
    The court diismissed the first instance court’s judgment and confirmed the order issued by the plaintiff.