News

20 April 2023

The Ministry of Economy and Industry requested the Commission for Consumer Protection (CCP) to carry out an analysis and assessment on whether the clause for indexing the prices of mobile services in contracts with general terms and conditions offered to consumers are unequal within the meaning of the Consumer Protection Act (CPA).  This is clear from the answer of the Deputy Minister of Economy Yanko Topalov to the Ombudsman Diana Kovacheva. It is in response to Prof. Kovacheva’s letter of 28 March this year to the Acting Minister of Economy and Industry Nikola Stoyanov, with a copy also to the Chairman of the Commission for Consumer Protection Stoil Alipiev, in which she points out unequal clauses and unfair commercial practices of mobile operators, which simultaneously increased their monthly tariffs by 15.3%.

The Ombudsman then once again warned that mobile users were not protected by the control body under the Consumer Protection Act and recommended that the CCP’s opinion on the absence of unequal terms and unfair commercial practices of mobile operators be revised.

          “In the context of what was stated in the Ombudsman’s letter, we consider that the reference by the Commission for Consumer Protection only to the provision of Art. 144, para. 4 of the CPA that the clause on the indexation of monthly fees of mobile operators is not unequal, is not sufficient. The provision of Art. 143, para. 2, item 13 of the CPA stipulates as unequal any clause that gives the trader or provider the right to increase the price, without the consumer in these cases be entitled to withdraw from the contract, if the finally determined price is considerably higher in comparison with the price agreed upon the conclusion of the contract,“ writes the Deputy Minister to the Chairman of the CCP.

He also points out that it should be borne in mind that the provision of Art. 143, para. 2 of the CPA contains a list of agreed clauses that are automatically considered unequal. He notes that these clauses do not require an analysis by the control body for the presence of inequality.

 “It is important to note that the list under Art. 143, para. 2 of the CPA does not exhaust all possible cases of unequal clauses in contracts with general terms and conditions. When the clause in a contract with general terms and conditions concluded with a consumer is not included in the list under Art. 143, para. 2 of the CPA, and when the regulatory body has doubts that the clause is unequal, it is necessary to carry out an analysis of whether the contract contains unequal clauses”, emphasizes the Acting Deputy Minister of Economy and Industry.

He also draws attention to the fact that pursuant to Art. 143, para. 1 of the CPA, the analysis for an unequal clause includes the examination of whether the clause is detrimental to the consumer, i.e. whether it does not meet the good faith requirement and leads to a significant imbalance between the rights and obligations of the trader or provider and the consumer.

 “I request the Commission for Consumer Protection to carry out an analysis and assessment of whether the clause for indexing the monthly fees of mobile services in the contracts of mobile operators concluded with consumers, which is not included in the list under Art. 143, para. 2 of the CPA, is unequal, taking into account the above criteria specified in Art. 143, para. 1 of the CPA. The fact that a given clause is not explicitly included in the list under Art. 143, para. 2 of the CPA does not automatically mean that it is not unequal,” said Yanko Topalov definitively.

Therefore, he insists that the CCP rule on two specific issues in order to clarify what was stated in the letter of Ombudsman Diana Kovacheva – whether the mobile operators offer an unfair commercial practice within the meaning of the CPA in connection with the applied indexation of the prices of mobile services and whether the indexation clauses of mobile services in the contracts with general terms and conditions offered to consumers are unequal in terms of the CPA.