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Case Details

Case Details
National ID link
Lidstaat België
Common Name link
Decision type Court decision in appeal
Decision date 19/04/2012
Gerecht Hof van Beroep Antwerpen
Onderwerp
Eiser Test-aankoop
Verweerder Inter-Energa
Trefwoorden burden of proof, forum, liability, trader

Unfair Contract Terms Directive, ANNEX I, 1., (b)

(1) A distribution manager is a seller in the sense of Directive 93/13 because it pursues a sustainable economic goal.

(2) A clause limiting the liability of a professional party, both by imposing the burden of proof on the consumer and by imposing a maximum liability, as well as including a general franchise, is contrary to article 3 of the Directive 93/13.

(3) A clause stipulating that a consumer, in case of non-payment at the due date, should automatically pay an interest at an interest rate higher than the standard one, and which interest is due without notice, while there is no reciprocal obligation imposed on the seller, constitutes an infringement on article 3 of the Directive 93/13.

(4) A choice of forum clause which provides that disputes must be brought before the courts where the headquarters of the operator are established, does not automatically infringe article 3 of the Directive 93/13 when it is demonstrated that the contractual commitments are always performed in the relevant territory of said courts.
The defendant is a distribution system operator which concludes agreements with consumers. The defendant does so on the basis of a regulation concerning the connection to the low voltage distribution network, which contains standard clauses which the consumer must accept to conclude the contract.

The plaintiff, an organisation which protects the interests of consumers, asked for an injunction to use certain contractual terms of the regulation which the plaintiff considered contrary to the interests of consumers, as stipulated in the Belgian Code of Economic Law (implementing, amongst others, the Directive 93/13).

More concretely, the plaintiff argued that these contractual terms are contrary to the rules on unfair term in consumer contracts as stated in Directive 93/13 and implemented in Belgian legislation in the Code of Economic Law.
(1) Is a distribution manager a seller in the sense of Directive 93/13?

(2) Does a clause limiting the liability of a professional party, both by imposing the burden of proof on the consumer and by imposing a maximum liability, as well as including a general franchise, infringe article 3 of the Directive 93/13?

(3) Does a clause stipulating that a consumer, in case of non-payment at the due date, should automatically pay an interest at an interest rate higher than the standard one, and which interest is due without notice, while there is no reciprocal obligation imposed on the seller, constitute an infringement on article 3 of the Directive 93/13?

(4) Does a choice of forum clause which provides that disputes must be brought before the courts where the headquarters of the operator are established, automatically infringe article 3 of the Directive 93/13 when it is demonstrated that the contractual commitments are always performed in the relevant territory of said courts?
First, the court ruled on the issue of the applicability of the rules at hand. Although the defendant disputed to fall within the ambit of the relevant legislation, the court ruled it should be regarded as an undertaking in the sense of the Belgian Code of Economic Law (also implementing the provisions of the Directive 93/13). Therefore, the rules on unfair terms in consumer contracts also apply to the defendant.

Next, the court passed judgment on a number of clauses contained in the standard agreement. First, it stated that a clause limiting the liability of the defendant, both by imposing the burden of proof on the consumer and by imposing a maximum liability, as well as including a general franchise, is contrary to article 3 of the Directive 93/13.

Following, the court ruled that a clause stipulating that a consumer, in case of non-payment at the due date, should automatically pay an interest at an interest rate higher than the standard one, and which interest is due without notice, while there is no reciprocal obligation imposed on the seller, constitutes an infringement on article 3 of the Directive 93/13.

Finally, the court decided on the issue of a choice of forum clause. In the court's view, a choice of forum clause which provides that disputes must be brought before the courts where the headquarters of the operator are established, does not automatically infringe article 3 of the Directive 93/13 when it is demonstrated that the contractual commitments are always performed in the relevant territory of said courts.
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The court declared several of the contractual clauses unfair.