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Case Details

Case Details
National ID Provvedimento n. 24959
Member State Italy
Common Name CV101 - SICURITALIA-CONTRATTI SETTORE DELLA VIGILANZA PRIVATA
Decision type Administrative decision, first degree
Decision date 05/06/2014
Court Antitrust Authority
Subject
Plaintiff Autorità Garante della Concorrenza e del Mercato (AGCM)
Defendant Sicuritalia Group Holding Spa and Sicuritalia Spa
Keywords consumer rights, unfair terms

Unfair Contract Terms Directive, Article 2, (a) Unfair Contract Terms Directive, ANNEX I, 1., (b) Unfair Contract Terms Directive, ANNEX I, 1., (h) Unfair Contract Terms Directive, ANNEX I, 1., (q)

The object of evaluation clauses in these provisions have as their object or effect of:
(1) limit the right of withdrawal by the consumer as well as the shares or rights in case of total or partial non-performance or inadequate performance by the trader and establish the responsibility of the consumer forfeitures, limitations right to oppose, adduction of evidence, or reverse the burden of proof modifications;
(2) establish a too early termination of the expiry of the contract for your cancellation in order to avoid the tacit extension or renewal;
(3) impose as the seat of the jurisdiction in any dispute place other than that of residence or elective domicile of the consumer.
AGCM investigated some clauses contained in three contractual standards which had as their object or effect of:
(1) limiting the right of withdrawal by the consumer as well as its legal actions or rights in case of total or partial non-fulfillment or inadequate fulfillment of its obligations by the trader and stating against the consumer limitations in relation to his right to file oppositions, adduce evidence, or reversion and modifications of the burden of proof;
(2) establishing an early term to communicate the termination of the agreement in comparison to its expiry term so as to avoid the tacit extension or renewal of the agreement;
(3) imposing as competent court in case of disputes the court of a place other than that of residence or elective domicile of the consumer.
(1) The clause related to the right of withdrawal provided for a period of seven days for the exercise of this right rather than the ten-day period indicated in Article 64, paragraph 1, of the Consumer Code and thus causes a significant imbalance in
rights and obligations arising under the contract, where the contract is concluded outside of business premises, in breach of Article 33, paragraph 1, of the Consumer Code, as well as the clauses aimed at limiting the actions or the rights of the consumer in case of total or partial failure or inexact fulfillment of the trader's obligations and establishing limitations of the right to oppose, adduce evidence, or inversions or modifications of the burden of proof for the consumer.
(2)The parties proposed a new version of the clause according to which the term to exercise the termination's right is reduced from six months to two months and also reduced the period of the contract renewal, from five to three years. That said, the new version of the clause does not integrate an unfair term under Article 33, paragraphs 1 and 2, letter i) of the Consumer Code.
(3) The indication of the court of the place where the trader reside as the competent local court in case of disputes is in breach of Article 33 of the Consumer Code, bu the parties agreed on a modification so as to eliminate the unfairness of the term.
(1) Is the clause limiting the right of withdrawal by the consumer as well as its legal actions or rights in case of total or partial non-fulfillment or inadequate fulfillment of its obligations by the trader and stating against the consumer limitations in relation to his right to file oppositions, adduce evidence, or reversion and modifications of the burden of proof an unfair term pursuant to Article 33 of the Consumer Code?
(2) Is the clause establishing an early term to communicate the termination of the agreement in comparison to its expiry term so as to avoid the tacit extension or renewal of the agreement an unfair term pursuant to Article 33 of the Consumer Code?
(3) Is the clause imposing as competent court in case of disputes the court of a place other than that of residence or elective domicile of the consumer an unfair term pursuant to Article 33 of the Consumer Code?
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the plaintiff's request was granted.