• Detalles del asunto
    • ID nacional: Spanish Ministry of Health and Consume v “Parking Campillo and others
    • Estado miembro: España
    • Denominación común:N/A
    • Tipo de resolución: Resolución judicial, primer grado
    • Fecha de la resolución: 20/03/2004
    • Órgano jurisdiccional: Juzgado de Primera Instancia
    • Asunto:
    • Demandante:
    • Demandado:
    • Palabras clave: Jurisprudencia España español
  • Artículos de la Directiva
    Unfair Contract Terms Directive, Article 1, 2. Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, Article 4, 1.
  • Nota preliminar
    1. The Spanish law of transposition of the Directive 93/13 on unfair terms (Law 7/1998) did not implement the art. 4.2 of the Directive on the non-unfair nature of the essential elements of the contract. That rule has to be applied too in Spain, but a clause to round up the parking time in a car park on the benefit of the company (an hour minimum to pay) cannot be considered an essential element and it is unfair and void.
    2. The objective, unjustified overpricing imposed to the consumer by paying more time than what is really required implies an imbalance in the obligations of the parties, which makes this clause unfair and therefore void.
  • Hechos
    The Spanish Ministry of Health and Consumer Protection brought an action of cessation against the use of unfair clauses which damage the diffuse and the collective interests of the consumers against various companies that own parking spaces in Madrid. The Ministry was looking for the elimination of the clauses included in nearly every parking contract in Spain, whereby the parking fee is fixed by the hour, although only a fraction of an hour is needed or just a few minutes. The court accepted for the first time in Spain the unfair nature of this clause called “by the hour or fraction”.
  • Cuestión jurídica
  • Decisión

    It is the first judgment which has stated that the clauses of a parking contract, whereby a consumer has to pay by the hour although he had only parked for a few minutes, are unfair. Recently, the Commercial Court (first instance) of Alicante, in judgment of 3rd of January of 2005 has taken the same line of argument (with profuse argumentation on the applicability of art. 4.2 of the Directive 93/13/EEC, despite of not having been transposed to this day by the Spanish legislator, and the immaterial nature of this clause, for which it can be considered unfair).

    The important judgment of this court in Madrid analyzes one by one the numerous arguments alleged by the car parks the lawsuit was brought against. Thus, on the first hand, as for the allegation that this clause follows the rules of the Law 40/2002 on the parking contracts, which establishes the principle of freedom of agreement and price, the court stresses that fixing a price in connection with the parking time is not indeed reproachable, but that freedom of agreement has its limits in the mandatory rules, in the public order and in the general principles and especially in the rules of balance of contracts to protect the consumers of the Law 26/1984.

    Secondly, the judgment addresses the problem of whether the rules against unfair terms are not applicable to the essential elements of the contract, since as one part of the doctrine states, in this field the priority is the autonomy of the parties to avoid an excessive interventionism by legislation or by case-law. In this sense, the art. 4.2 of the Directive 93/13/EEC “assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other”. This Directive was transposed in Spain by the Law 7/1998, of 13th April, which did not reproduced this rule in the national norm (on this matter, more in detail, the Judgment of the Commercial Court of Alicante of 3.1.2005, cited above). It cannot be understood that the clause that is analysed is an essential clause of the contract, but incidental, so the court can establish its unfair nature. The Law 40/2002 only authorises the payment for the parking time, not for the parking time plus an addition that the company wanted to make. This artificial addition to complete the hour it is not an essential element of the contract, but “an increase of the legal equation price-time, that lacks of justification as an essential element of the business”.

    Thirdly, the clause is a standard term, because the user cannot negotiate its application, among other circumstances due to the automated system in the way parkings function.

    Fourthly, this condition is unfair because it is against the good faith and it creates an imbalance against the consumer. For the consumer the duty to pay has no return for service rendered as regards to the businessman (no consideration). This unjustified, objective overpricing, that is, to pay more for nothing, has an important economic dimension in relation to the whole set of parking contracts subscribed by the consumers.

    Finally, the judgment disregards other arguments, like a) the fact that the clause is also used for car parks exploited by the public administration, b) that the car parks are also used by people that are not consumers, c) that it is difficult to control the time in a more accurate way or d) that the mission of the court is not to control the prices, since, according to the judgment of the Supreme Court of 7th July 1994 “the free market economy system must not mean the lack of protection for the ones who operate within it as consumers and users, and that the freedom to fix prices is not the core interest that must be protected at any rate by sacrificing other personal and social interests”. Therefore, it concludes, the clause is void according to art. 10 bis of the Law 26/198, the art. 12.2 of the Law 7/1998 and by the Directive 93/13/EEC.

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