The chairperson of KZP Maria Filipova prohibited the application of unfair aggressive commercial practice by mobile operators

The Chairperson of the Commission for Consumer Protection (CCP), Mrs. Maria Filipova, issued administrative acts that prohibited the application by mobile operators of unfair aggressive commercial practice, because through abuse of influence, the operator imposes any kind of excessive and inappropriate non-contractual obstacles to the consumer when the latter wishes to exercise his rights under the contract, including his right to terminate the contract or choose another good or service or another trader.

Many users reporting to KZP report that in case of early termination of the contract, in addition to the penalty in the amount of three standard fees, the operator additionally charges a penalty for granted discounts on the prices of monthly fees, as well as a penalty for granted discounts on the prices of terminal devices (in cases where the user has purchased at a preferential price and end device). The consumers' claims are supported by the monthly bills and invoices attached to their complaints, which show that the operator actually charges these penalties.

In accordance with the terms of the contract, upon early termination of a contract for electronic communication services due to the user's fault or initiative, the mobile operator has the right to demand the payment of a penalty in the amount of no more than 3 standard monthly fees for each of the subscription plans, in respect whose contract is terminated early.

Instead, however, in addition to the penalty stipulated in the contract, two additional clauses are provided, allowing the operator to claim the discounts from the monthly subscription fees until the end of the contract term and the difference between the standard price of the device and the price paid by the user corresponding to the remaining term until the end of the contract. In this way, as a final result, the set maximum penalty threshold of the amount of three-monthly subscription fees for individuals is circumvented.

These are stipulations to the detriment of the consumer, which violate good morals and lead to a substantial imbalance between the rights and obligations of the trader and the consumer, obliging the consumer to pay an unreasonably high compensation or penalty in case of non-fulfillment of his obligations.

In essence, these provisions constitute penalty clauses, which are compensatory in nature, regardless of the fact that they are stated as discounts on the prices of subscriptions and end devices. The right for the mobile operator to demand these penalties arises on the basis of the prematurely terminated contract due to the fault or initiative of the user. That is, on the same basis as the penalty of three standard fees. Respectively, these penalties are agreed to the detriment of the user and do not meet the requirement of good faith.

By including in the contract for mobile services several different and simultaneously due penalties for the same non-fulfillment, the collateral and compensatory function of the penalty is exceeded and it appears to be unreasonably high.

In the course of the administrative proceedings on the issuance of the orders, it was established that mobile operators abused their influence by taking advantage of the position of a stronger party in their legal relationship with the consumer to interpret exclusively in their own interest the irrevocable clause in the contract and without the presence on a legal basis, in addition to the agreed maximum amount of the penalty for natural persons-consumers, to charge additional penalties. In this way, the company imposes non-contractual obstacles on the user when the latter wishes to exercise his rights under the contract, incl. the right to prematurely terminate the contract against payment of the penalty stipulated in it in the maximum amount of three-monthly standard subscription fees for the fixed-term subscription services for which the contract is terminated.

These actions are undoubtedly likely to change the average user's behavior towards the service, causing him to forgo the decision to terminate the contract early in view of the excessively high penalties, a decision that the consumer would not have otherwise given up on or might not have given up. refuse if the operator did not apply this aggressive unfair commercial practice.