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Case Details

Case Details
National ID Court decision number 801/2013 (Α1, Civil Cases)
Member State Greece
Common Name link
Decision type Supreme court decision
Decision date 23/04/2013
Court Areios Pagos (Supreme civil and criminal court of Greece)
Subject
Plaintiff 1. Unknown, 2. Unknown, 3. Unknown, 4. Unknown
Defendant Ιντερλάϊφ Ανώνυμη Ασφαλιστική Εταιρεία Γενικών Ασφαλίσεων (Interlife Insurance Company S.A.)
Keywords good faith, insurance policy, standard contract, supplier, unfair terms

Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 3, 3.

(1) Any pre-formulated standard contractual terms for future contracts (General Terms of Transactions), are not binding if the consumer was not aware of them, without any fault from his/her part.

(2) In addition, any other term of a contract that has not been individually negotiated (namely a term that the consumer did not influence its content) is also subject to the general abusiveness principle (assessment) that applies for the General Terms of Transactions. The validity and the abusiveness of such terms is assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. The supplier bears the burden of proof whether a term has been individually negotiated or not.

The plaintiffs who were family members of the insured person who had signed an insurance policy agreement with the defendant (insurance company), filed an appeal before the Supreme Court against the decision no. 86/2009 of the court of First Instance of Heraklion, Crete – which in this case convened as a court of Second Instance. They claimed that the insured person was not aware of the pre-formulated standard term (General Term of Transaction) in the insurance agreement which had set an exception from the right to receive compensation in the event of a car accident if the insured person was not wearing his safety belt. The plaintiffs further argued that this term is in principle abusive (under the abusiveness principle assessment that apply to the General Terms of Transactions) since it disturbs the balance of the rights of the contracting parties to the detriment of the consumer; it is also automatically regarded as abusive (without any abusiveness assessment) since it is included in the list of the “per se” abusive clauses laid down in the law 2251/1994 (in specific in article 2 par. 7b of that law – “a clause that restricts the contractual obligations and responsibilities of the supplier”).
The court ruled that the specific General Term of Transaction in the insurance policy that laid down that no compensation is granted in case the insured person was not wearing his belt on in the event of a car accident, cannot be regarded as abusive because it did not cause a significant imbalance to the rights and the obligations of the contracting parties to the detriment of the consumer. In addition it cannot be held as a “per se” abusive clause (under the list provided in article 2 par. 7 of the law 2251/1994) since it did not restrict the contractual obligations of the supplier. Further the court also held that in case that a term is characterized as a pre-defined standard contractual term (General Term of Transaction) as set in article 2 par. 1 of the Law 2251/1994, there is no need to further examine whether that term has been individually negotiated too or not (as set in article 2 par. 10 of the same law). The court shall proceed immediately to the abusiveness principle assessment subject to the provisions applicable in the law for the pre-defined standard contract terms.
(1) In which case pre-formulated standard contractual terms do not bind a consumer?

(2) How should a contractual term that has not been individually negotiated be assessed for abusiveness and who bears the burden of proof?

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The court rejected the plaintiffs’ requests and their claims regarding abusiveness of the pre-formulated standard contractual clause included in the insurance policy agreement and awarded the judicial costs to the defendant as the successful party (plaintiffs’ appeal was dismissed).