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Case Details

Case Details
National ID No. of protocol 10787
Member State Greece
Common Name link
Decision type Other
Decision date 29/04/2015
Court Ombudsman of the Consumer
Subject
Plaintiff Unknown
Defendant “WE ARE EJEKT Ltd”
Keywords abusive behaviour, consumer, consumer rights, good faith, terms and conditions, unfair terms

Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, Article 4, 1.

(1) Any pre-defined contractual terms (General Terms of Transactions) that have as a result the substantial imbalance of the rights and obligations of the contracting parties to the detriment of the consumer are forbidden and void.
(2) The abusiveness of a contractual term shall be assessed taking into account, not only the need to protect the presumed weaker consumer, but also the nature of the goods or services referred to in the contract, its purpose, all special conditions upon conclusion of the contract and all other clauses of the contract or of any other contract upon which the specific contract depends. The interests of the parties must be essential, while the imbalance itself must be significant in accordance with the principles of good faith. For that reason, the following should be taken into account too: the best interests of the parties, the consequences that would arise from the annulment or retention of the term (in case of abusiveness) and how could each party prevent the occurrence of the risk or protect itself with its own actions from the consequences.
(3) The law (article 2 par. 7 of law 2251/1994) provides an indicative non-exhaustive list of terms that will be regarded as abusive (per se). Among those terms are those limiting the supplier’s contractual obligations or responsibilities as well as those reserving to the supplier the unrestricted right to determine unilaterally the term within which he/she shall fulfill all his engagements in connection with the services.
The plaintiffs bought tickets for a concert, organised by the defendant. However, the concert was cancelled. The defendant only notified everyone who had bought a ticket for that concert by sms just a few hours before the scheduled time of the concert. The concert was re-scheduled and took place some days later. Due to the cancelation, the plaintiffs requested a refund of the price of the tickets; the defendant rejected their request claiming that, according to a contractual pre-formulated standard term, the organizer reserved the right to postpone the date of the concert without any refund obligation. Thus, the plaintiffs (some of which lived outside Athens where the concert was going to take place) filed a complaint against the defendant
The plaintiffs having paid the ticket in advance, had already made certain arrangements (financial, personal, professional), in order to be able to attend the concert on the scheduled date. The court held that the date that an event takes place is undoubtedly one of the essential elements of the specific contract. So, it was ruled that the organizer has acted contrary to good faith and to the consumers’ reasonable expectations given that the performance date has suddenly changed and that he notified the participants only a few hours before the event (even though it was a case of force majeure); also, in the same context, the organizer obliged the plaintiffs to accept the new date (that was unilaterally determined by the organizer) without any possibility to refund their money. As a consequence, all the above have caused a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the customers; plaintiffs were forced to fully bear the cost of the sudden cancelation. So, the court held that, given also the defendant’s position in the market and his long experience in organizing concerts, it is abusive to pass the full business risk (which the defendant should have known and fairly foreseen) to the consumers-plaintiffs. Hence, the above pre-formulated standard contractual term (General Term of Transaction) is in principle abusive, causing a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. This term is also abusive as a “per se” abusive clause (deriving from the non-exhaustive list provided in the law 2251/1994– article 2 par. 7) on the grounds that it restricts the defendant’s obligations/responsibilities arising from the contract as a supplier as well as it reserves for the defendant the right to amend the date of the event unilaterally.
(1) When is a pre-formulated contractual term prohibited and void?
(2) How shall the abusiveness of a contractual term that is not individually negotiated be assessed?
(3) Are there any specific pre-formulated terms that are always regarded as abusive?
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The court recommended to the defendant to refund the price of the concert tickets to the plaintiffs and called both parties to notify the court in written, whether they accept the present written recommendation (plaintiffs’ request was granted).