Case law

  • Case Details
    • National ID: адм.д. 7044/2012
    • Member State: Bulgaria
    • Common Name:link
    • Decision type: Supreme court decision
    • Decision date: 08/01/2013
    • Court: Supreme Administrative Court
    • Subject:
    • Plaintiff: Handy-Tel EOOD
    • Defendant: Bulgarian Consumer Protection Commission
    • Keywords: cessation of contract, free movement of goods, judicial review, price reductions
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 1. Consumer Sales and Guarantees Directive, Article 3, 2. Consumer Sales and Guarantees Directive, Article 3, 3. Consumer Sales and Guarantees Directive, Article 3, 4. Consumer Sales and Guarantees Directive, Article 3, 5. Consumer Sales and Guarantees Directive, Article 3, 6.
  • Headnote
    (1) It is within the consumers’ discretion which remedy under Article 3, §5 of Directive 1999/44 (implemented into Bulgarian law by Article 113, Alinea 3 and 114, Alinea 1, 2 and 3 of the Consumers Protection Act) to choose in case of non-compliance of goods with the contract, and dissatisfaction with the resolution of the consumer claim pursuant to Article 3, §2 and 3 of Directive 1999/44 (implemented into Bulgarian law by Article 112, Alinea 1, Article 113, Alinea 3 and 114, Alinea 3 of the Consumers Protection Act) - appropriate reduction of the price or have the contract rescinded.
    (2) The powers of the competent consumers’ protection authority do not affect the other rights which the consumer and the seller are entitled to under contractual and non-contractual liability.
    (3) Consumers have a right to refer to the competent state authority with a request for assistance, which entitled the duty of the authority when it establishes that the consumers’ rights are actually violated make mandatory instructions to the seller to comply with the law. This relieved and free of charge procedure is essential part of the consumers’ rights protection and allows consumers to achieve the compliance of the product with the contract and thereby facilitate the free movement of goods and services within the European Union.
  • Facts
    The plaintiff is a trader who owns a shop in the town of Popovo, Bulgaria, selling mobile phones. On 04 May 2011 from the store a mobile phone was purchased by an individual (consumer). The handset showed defect and the consumer placed three claims with the defendant for alignment of the mobile phone with the sale contract (on 09 May 2011, 29 May 2011 and on 11 July 2011). Despite the attempts for removing the incompliance, the handset kept showing the same defect. Therefore, the consumer submitted a request to the Bulgarian Consumer Protection Commission asking for assistance with the replacement of the defective hand set or cessation of the contract and refund of the price.
    The Bulgarian Consumer Protection Commission granted the consumer’s request and issued mandatory instructions to the plaintiff. Pursuant to said instructions by 25 July 2011 the plaintiff must have fulfilled its obligations under Article 3, §5 of Directive 1999/44 (implemented into Bulgarian law by Article 113, Alinea 3 and 114, Alinea 1, 2 and 3 of the Consumers Protection Act).
    The plaintiff challenged the mandatory instructions with the Varna Regional Directorate of the Bulgarian Consumer Protection Commission but received a tacit denial. Consequently the plaintiff submitted to the Varna Administrative Court the tacit denial for judicial review but the court denied the plaintiff’s appeal and upheld the mandatory instructions of the Bulgarian Consumer Protection Commission. As a final resort, the plaintiff appealed the first instance court’s judgment to the Supreme Administrative Court.
  • Legal issue
    (1) The plaintiff’s allegation that the competent consumers’ protection authority made the choice of alternative options under Article 3, §5 of Directive 1999/44 (implemented into Bulgarian law by Article 113, Alinea 3 and 114, Alinea 1, 2 and 3 of the Consumers Protection Act) for the consumer is not proven and cannot be granted. The conclusion based on the facts proven during the first instance court’s proceedings is that the competent authority instructed the plaintiff to satisfy the claim of the consumer according to the options chosen by the latter. This is in compliance with the applicable substantive law.
    (2) Based on the evidence in the case, it is undeniable that the product does not comply with the contract and the consumer was not satisfied with resolution of the claims by the plaintiff. It is evident from the contents of the mandatory instructions that the competent authority established the violation of the obligations of the seller under Article 3, §5 of Directive 1999/44 (implemented into Bulgarian law by Article 113, Alinea 3 and 114, Alinea 1, 2 and 3 of the Consumers Protection Act)and instructed the plaintiff to fulfill them. Through the issued mandatory instructions the competent consumers’ protection authority does not resolve a civil dispute. It should be made clear that the powers of the competent authorities under Directive 1999/44 do not affect the other rights which consumers and sellers are entitled to under contractual and non-contractual liability.
    (3) One of the main purposes of Directive 1999/44 and the transposing national legislative acts is to provide the consumers with a legally guaranteed opportunity for free recovery of goods in the state, which corresponds to the contract. Directive 1999/44 and the national legislature consider that consumers’ interests are of such a nature and importance to society as they directly serve the free movement of goods and services and need to be safeguarded against the risk of not exercising due to financial inability.
  • Decision

    (1) Is the competent consumers’ protection authority empowered to impose on seller which remedy under Article 3, §5 of Directive 1999/44 (implemented into Bulgarian law by Article 113, Alinea 3 and 114, Alinea 1, 2 and 3 of the Consumers Protection Act) to apply in case of non-compliance of goods with the contract, and dissatisfaction with the resolution of the claim pursuant to Article 3, §2 and 3 of Directive 1999/44 (implemented into Bulgarian law by Article 112, Alinea 1, Article 113, Alinea 3 and 114, Alinea 3 of the Consumers Protection Act) - appropriate reduction of the price or the cessation of contract?
    (2) Is the competent consumers’ protection authority empowered to instruct the seller to remedy the consumer in case of incompliance with the sold good with the contract and do those powers represent resolution of the civil law dispute on the contractual and non-contractual liability of the seller towards the consumer?
    (3) What is the nature of the protection provided by the competent authorities to consumers under Directive 1999/44 and relevant national legislation?

    URL: http://www.sac.government.bg/court22.nsf/d038edcf49190344c2256b7600367606/0e249154d468b0bec2257ae9003fceee?OpenDocument

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  • Result
    The court upheld the first instance court’s judgment that rejected the plaintiff’s appeal.