Rättspraxis

Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3.

An agreement term between a trader and consumers regarding security services which exceeds a period of 12 months is considered unfair against consumers.

The defendant is a company with over 400 000 customers, which markets and provides security services (tracking and blocking services) to consumers.

The general terms and conditions for the defendant's services can be found on the defendant's website. The initial agreement term, extension and termination vary depending on the type of service. The services had an initial agreement term of 12, 24 or 36 months. Certain services were also sold with an initial agreement term of 39 months, however against the defendant's policy.

During 2012, the plaintiff received reports from consumers as regard the agreement term and automatic extension of the agreement term. The plaintiff initiated a matter against the defendant.

Is an agreement term between a trader and consumers regarding security services, which exceeds a period of 12 months, considered unfair against consumers?

The court prohibits the defendant, under the penalty of a fine, when offering security services to consumers, to apply contractual terms which entail an initial agreement term of more than 12 months.

The court firstly states that the terms and conditions in question are general terms and conditions that are not subject to individual negotiation. The assessment to be made concerns whether or not the term in question generally is unfair against consumers. This may be the case, inter alia, if the term is contrary to mandatory or non-mandatory laws, gives the trader a benefit or deprives the consumer a right and thereby causes an imbalance between the parties' rights and obligations in a sense that a reasonable balance between the parties no longer exists.

The court states that there are no rules under Swedish law as regard the agreement term between a trader and a consumer. However, certain guidance can be found in other consumer protection regulation where it is, inter alia, stated that initial agreement terms shall be limited to 12 or 24 months, respectively.

When assessing whether or not the term in question generally is unfair against consumers, the court considers that the consumer itself easily can take such measures as the services offer. Therefore, it is generally to the consumers' advantage if they can reconsider their need for the service and to change to another supplier of similar services, without being bound by a long agreement term.

The defendant's objections regarding the value of the service for the consumers and the money that the consumers may loose if they do not have access to the service over a longer period of time, as well as the price, which probably would be higher if the agreement term was shorter, are left without regard by the court. Instead, the court finds that the long agreement term is beneficial for the defendant at the cost of the consumers, in a sense that a reasonable balance between the parties is not upheld. Therefore, the court finds that an initial agreement term of more than 12 months is unfair against consumers.

URL: http://www.marknadsdomstolen.se/Filer/Avgöranden/Dom2015-5.pdf

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The court approved the plaintiff's first claim.