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Case Details

Case Details
National ID link
Lidstaat België
Common Name link
Decision type Court decision, first degree
Decision date 26/10/2007
Gerecht Rechtbank van Eerste Aanleg Antwerpen
Onderwerp
Eiser Unknown
Verweerder Unknown
Trefwoorden ex officio, nullity, scope of the Directive, unfair terms

Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 6, 2.

(1) The stipulating of interest on arrears and liquidated damages upon default by the consumer in a services agreement, without there being stipulated a comparable sanction upon default by the trader, means that these contractual terms are contrary to Directive 93/13 and consequently are not binding upon the consumer.
(2)The fact that the sanction to nullify the unfair term is a transposition of Directive 93/13 means that it has to be interpreted accordingly. Following the jurisprudence of the Court of Justice, the judge has to raise the nullity of unfair terms of its own motion.
The defendant is the owner of a house. Because of renovation works he wanted to have performed in his house, he contacted the first plaintiff to carry out the plans and do the follow-up. The first fee sent by the first plaintiff for its work was paid by the defendant. The first plaintiff continued the project of the defendant, which included the establishment of a detailed measurement of the renovation and the interior design. The works were conducted on the basis of a measurement made by different contractors, including a measurement made by the second plaintiff.
For the fulfilment of her work, the second plaintiff handed out 3 invoices, of which the 2 first ones were paid. The last invoice, which was handed out when the work was completed, was not paid. After a reminder by the second plaintiff, the defendant protested the invoice on grounds that the amount was too high, claiming that he already paid too much. A few days later the defendant said he wanted to terminate the contract because he was dissatisfied with the follow-up by the second plaintiff, referring to unfinished or poorly executed work. The second plaintiff contested these allegations and sent its final bill to the defendant. The defendant contested the final bill and did not proceed to payment.
Consequently, the second plaintiff initiated legal proceedings against the defendant to pay the final bill plus damages and arrears.
Two months later, the second plaintiff summoned the defendant to pay its due amount increased with damages and arrears. Several months later, the defendant filed a counterclaim for the repayment of what he paid too much and to receive a credit note of this amount.
(1) Does the stipulating of interest on arrears and liquidated damages upon default by the consumer in a services agreement, without there being stipulated a comparable sanction upon default by the trader, mean that these contractual terms are contrary to Directive 93/13 and consequently not binding upon the consumer?
(2) Does the fact that the sanction to nullify the unfair term is a transposition of Directive 93/13 mean that it has to be interpreted accordingly, meaning that following the jurisprudence of the Court of Justice, the judge has to raise the nullity of unfair terms of its own motion?
According to the judge, the contractual terms in a consumer contract stipulating damages and interest on arrears in case the consumer defaults, without stipulating a comparable sanction if the trader defaults, is contrary to Directive 93/13 and needs to be nullified.

In the court's view, this nullity sanction in Belgian law is a transposition of Directive 93/13, and therefore it has to be interpreted according to this Directive. The court in its argumentation refers to European Court of Justice cases dated 27 June 2000 and 21 November 2002. The court therefore concludes that the national judge must raise the nullity of unfair on its own initiative (referred to as ex officio).
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The parts of the claim that relate to the unfair term in the contract, do not have to be paid because it has to be nullified.