Case law

  • Case Details
    • National ID: Recourse 2016/05
    • Member State: Cyprus
    • Common Name:link
    • Decision type: Administrative decision, first degree
    • Decision date: 23/06/2016
    • Court: Competition and Consumer Protection Service
    • Subject:
    • Plaintiff: Competition and Consumer Protection Service
    • Defendant: Y. Liasides Developers Ltd (in liquidation)
    • Keywords: consumer, contract relating to immovable property, immovable property, information requirements, investments, material distortion, transparency, unfair terms
  • Directive Articles
    Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, Article 2, (b) Unfair Contract Terms Directive, Article 2, (c) Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 4, 1. Unfair Contract Terms Directive, Article 4, 2. Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, ANNEX I, 1. Unfair Contract Terms Directive, ANNEX I, 1., (b) Unfair Contract Terms Directive, ANNEX I, 1., (e) Unfair Contract Terms Directive, ANNEX I, 1., (i) Unfair Contract Terms Directive, ANNEX I, 1., (o)
  • Headnote
    (1) The investment purpose of a transaction does not impact on the buyer's status as a 'consumer'.
    (2) The burden of proof of individual negotiation of contractual terms lies with the seller, and the proof of individual negotiation of some terms does not exclude examination of all the other terms.
    (3) Terms burdening a consumer with costs which are not specified in detail, or conferring a right on the consumer in a vague manner, are regarded as unfair.
    (4) Terms setting out the consumer's obligations disproportionately in relation to the seller, are regarded as unfair.
  • Facts
    On the basis of a contract signed on the 6th of October 2003, the defendant sold in the context of its commercial activity immovable property in Paphos, Cyprus to the complainant consumers (the "Contract"). The consumers submitted a complaint to the director of the Competition and Consumer Protection Service against, amongst others, the defendant, for the contracts and/or his actions and/or practice in relation to the properties they bought and/or for the lack of notice about the existence of a mortgage charge over the land on which the property was built and/or for the non-issuance of titles of ownership in their name and they requested, inter alia, that the above be examined under the Directive 2005/29/EC (implemented into national law by the Unfair Commercial Practices of Businesses to Consumers Law 103(I)/2007). The director replied that he has no authority to intervene in a transaction when the date of signing of the Contract precedes the date of coming into effect of the above law, that is, the 12/12/2007.

    Therefore, the transaction was examined under the Directive 93/13/EEC (implemented into national law by the Unfair Terms in Consumer Contracts Law 93(I)/1996).
  • Legal issue
    The court examines the unfairness of contract terms in the following order: Firstly, it examines whether the case falls within the scope of application of the Law in accordance with article 2 and article 3(2) of Directive 93/13/EEC (implemented into national law by article 2 and article 3 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), especially whether the complainants and the defendant fall within the definition of 'consumer' and 'seller' respectively. Secondly, the court examines whether the terms have been subject to individual negotiation. Thirdly, the court examines the clarity of the contractual terms in accordance with article 5 of Directive 93/13/EEC (implemented into national law by article 7 of the Unfair Terms in Consumer Contracts Law 93(I)/1996) since any vagueness gives rise to unfairness and fourthly, the court examines the terms' unfairness on the basis of article 3(1) of the Directive 93/13/EEC (implemented into national law by article 5§1 of the Unfair Terms in Consumer Contracts Law 93(I)/1996).

    (1) As follows from the evidence in hand, the complainants at the time of the conclusion of the contracts were acting outside the context of their professional activity. In any case, even if the question was posed in the present case that the purchase of the immovable property had a nature of investment that would be immaterial. An essential element for the affirmation of the status of 'consumer' is that the complainants were acting outside the context of their professional activity. The possible investment purpose of a transaction does not demonstrate a professional activity, as long as it is not accompanied by the systematic carrying out of similar transactions for purposes of livelihood. In the present case there is no evidence that the complainants were doing so, so as to be considered as acting within the context of their professional activity. In any way, there is no challenging of the complainants' status as consumers and of the defendant company as 'seller', or of the contract in question being used exclusively for transactions with businesses or professionals.

    (2) The opportunity and possibility of the complainants to influence and to freely agree to the terms of the contract is not proved by the evidence at hand, since identical or similar terms with the terms under examination have been included in all contracts for the purchase of immovable property of the seller which have been presented to the court. From article 3(2) of the Directive 93/13/EEC (implemented into national law by article 3§4 and 3§5 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), it follows that even if, for the sake of argument, there has been some individual negotiation, any such individual negotiation of some terms does not exclude the examination of the remaining terms, since the whole examination leads to the conclusion that this is a pre-formulated contract. The burden of proof is on the party who contends that the terms have been subject to individual negotiation, that is, the seller. This means that in case of doubt it is presumed that the terms were pre-formulated. Therefore, taking into account all mentioned above, it is deemed that the terms of the contract were pre-formulated and were intended for use in an unlimited number of contracts during or around that period.

    (3) Term 6 of the Contract, does not set out a specific date for the transfer of the property by the trader for purposes of issuance of titles of ownership in the name of the consumers by the competent authority. It also does not specify in which way and/or with which criteria and/or by whom the time of transfer of the property is to be determined. It is thus in violation of article 5 of Directive 93/13/EEC (implemented into national law by article 7 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), being written in a vague manner, with no effort by the trader to ensure that it is clear and unambiguous. Similarly, terms 7, 8 and 10 of the Contract provide that "all taxes from the date of completion of the property, for offer and transfer of the property to the complainants", shall be borne by the complainants. The consumers were also burdened with "all costs and expenses that relate to the transaction and transfer of ownership of the property", without specifying the type of taxes, responsibilities, general charges and expenses that are referred to in the contract and without determining the criteria based on which the said charges shall be calculated and/or the price of the amount which the complainants are undertaking to pay. In addition to the above, the terms did not determine the time period within which the consumers must submit any requests or in what way and/or with what criteria and/or by whom such period could be specified. Therefore, terms 7, 8 and 10 are deemed unfair because they contradict the principle of clarity and are in violation of article 5 of Directive 93/13/EEC (implemented into national law by article 7 of the Unfair Terms in Consumer Contracts Law 93(I)/1996).

    (4) Terms 3 and 6 of the Contract are unfair on the basis of article 3(1) of Directive 93/13/EEC (implemented into national law by article 5§1 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), because they cause, to the detriment of the consumer, a significant imbalance between the parties’ rights and obligations arising under the Contract. The seller obliges the consumers to pay off the entire sum agreed as the property's price, before he transfers ownership and/or the title to the property to the consumers. Furthermore, the above terms are deemed unfair based on the provisions of article 3(3), paragraph (1)(o) of the Annex to the Directive 93/13/EEC (implemented into national law by article 5§4, paragraph (1)(o) of the Annex to the Unfair Terms in Consumer Contracts Law 93(I)/1996), since they are obliging the consumer to fulfill all his obligations, that is, to pay off the entire value owed to the trader, before the trader performs his obligations, i.e. transferring the ownership and/or the title to the property onto the consumers.
  • Decision

    (1) Does the investment purpose of a transaction impact on the buyer's status as a 'consumer'?
    (2) Does the burden of proof of individual negotiation of contractual terms lie with the seller, and if so, does the proof of individual negotiation of some terms exclude examination of all the other terms?
    (3) Are terms burdening a consumer with costs which are not specified in detail, or conferring a right on the consumer in a vague manner, regarded as unfair?
    (4) Are terms setting out the consumer's obligations disproportionately in relation to the seller, regarded as unfair?

    URL: http://www.mcit.gov.cy/mcit/cyco/cyconsumer.nsf/All/826B59F36CB7D5FCC2257FE1002BD440/$file/%CE%91%CF%80%CF%8C%CF%86%CE%B1%CF%83%CE%B7%2005-2016-%20Y%20Liasides%20Developers%20Ltd.pdf?OpenElement

    Full text: Full text

  • Related Cases
    Sorted by
    • Member State: European Union
    • National ID: C 472/10
    • Common Name: Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt
    • Directive Articles: Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 6, 2. Unfair Contract Terms Directive, Article 7 Injunctions Directive, link
    • Decision Date: 26/04/2012

    European Union C 472/10 Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 6, 2. Unfair Contract Terms Directive, Article 7 Injunctions Directive, link Thu Apr 26 00:00:00 CEST 2012
    • Member State: European Union
    • National ID: C 618/10
    • Common Name: Banco Español de Crédito SA v Joaquín Calderón Camino
    • Directive Articles: Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 6, 2. Unfair Contract Terms Directive, Article 7 Injunctions Directive, link
    • Decision Date: 14/06/2012

    European Union C 618/10 Banco Español de Crédito SA v Joaquín Calderón Camino Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 6, 2. Unfair Contract Terms Directive, Article 7 Injunctions Directive, link Thu Jun 14 00:00:00 CEST 2012
  • Legal Literature

    No results available

  • Result
    The court found that terms 3, 6, 7, 8 and 10 of the Contract are unfair because they violate article 3(1) of Directive 93/13/EEC (implemented into national law by article 5§1 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), article 3(3) of Directive 93/13/EEC (implemented into national law by article 5§4 of the Unfair Terms in Consumer Contracts Law 93(I)/1996), paragraph (1)(o) of the Annex to the Directive 93/13/EEC (implemented into national law by article 5§4, paragraph (1)(o) of the Annex to the Unfair Terms in Consumer Contracts Law 93(I)/1996), and article 5 of Directive 93/13/EEC (implemented into national law by article 7 of the Unfair Terms in Consumer Contracts Law 93(I)/1996).