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Slovakia / Regional Court Prešov / 10Co/51/2017

Plaintiff Orange Slovensko, a.s. against the defendant Z. H. for the payment of €198,46 eur in addition to penalities, on appeal of the plaintiff against the Judgment of the district court Kežmarok No 2C/249/2014-32, 10 November 2014

Policy area:
Deciding Body type:
National Court/Tribunal
Deciding Body:
Regional Court Prešov
Decision date:

Key facts of the case:

Plaintiff – mobile network provider  - seeks to annul the judgment of the first distance court that did not confirm its right to request its contractual penalty from the defendant. The contractual penalty was included as a flat amount in the General Contractional Terms, included in the appendix to the contract on providing telecommunication services between the mobile network provider and the customer.  According to the plaintiff, the provision on the contractual penalty became active after the defendant failed to pay the bills for the use of the mobile services and monthly installments for the cell phone.

According to the court, the provision on the contractual fine was inacceptable. The Court argued that it created unequal contractual relationship between the service provider and consumers, disadvantaging the latter. The court argued that the flat rate of the fine’s amount did not take into consideration already made payments during the duration of the contract. The court pointed out that the defendant during the duration of the contract already contributed in monthly installments payments towards the price of the cell phone. Moreover, according to the court, such flat rate fine was higher than the actual debt.

The court noted that the contractual penalty was inacceptable. The Court argued:  „If the Court would accept fulfilment from the unacceptable contractual conditions, it would tolerate the ongoing illegal activity by the court and ignore important interests of the EU and laws of the EU protecting rights of the consumers “. The Court relied on the following provisions:

  • Art 6 Council Directive No 93/13/EHS 
  • Art 53 (1), Art (4) Civil Code;
  • Art 53a (1) Commercial Code;
  • Art 38 of the Charter.

Key legal question raised by the Court:

Whether flat contractual penalty set out in the standard customer contract disadvantaged costumers in relation to the service provider. The court clarified whether such flat rate penalty should be considered as void.

Outcome of the case:

The court decided that the contractual penalty was unacceptable and the defendant was not obliged to pay beyond the agreed actual debt and agreed interest.

The court confirmed the ruling of the first instance court and awarded the plaintiff the right to seek reimbursement only of the actual debt and interests, not the standard contractual penalty.