Teodora Luca, Senior Associate Lawyer, Mihai Cătălin LUCA Law Office Consumers’ rights and online gambling
(Continued from the last issue) Consumers’ rights and online gambling
In general, there are considered abusive those contractual provisions which weren’t negotiated directly with the consumer if, by themselves or together with other provisions from the contract, they create, at the consumer’s expense and contrary to the good faith requirements, a significant imbalance between the rights and obligations of the parties, such as, but without limitation to, those provisions which:
a)give the right to the professional to unilaterally modify the clauses of the contract, without having a justified reason indicated in the contract.
b)bind the consumer to obey some contractual conditions which he did not have a real possibility of acknowledging at the signature date of the contract;
c)bind the consumer to fulfill his contractual obligations, even in the situations when the professional failed to fulfill his;
d)entitle the professional to automatically extend a contract concluded on definite term, by the tacit agreement of the consumer, if the limit term when he could have expressed his option was insufficient;
e) entitle the professional to unilaterally modify, without the consumer’s agreement, the clauses regarding the characteristics of the products and services which are to be provided or the delivery term of a product or the term of execution of a service;
f) entitle the professional to unilaterally acknowledge the compliance of the products and services provided with the contractual provisions;
g) entitle the professional to exclusively interpret the contractual clauses;
h) restrain or cancel the consumer’s right to claim compensation in the cases when the professional fails to fulfill his contractual obligations;
i) bind the consumer to the payment of some disproportional amounts in case of non-compliance with his contractual obligations, compared to the damage suffered by the professional;
j) restrain or cancel the consumer’s right to unilaterally denunciate or terminate the contract, in the situations when:
– the professional has unilaterally modified the clauses provided at let. e);
– the professional failed to fulfill his contractual obligations;
– the professional imposed to the consumer, by the contract, clauses regarding the payment of a fixed amount in case of a unilateral termination;
k) exclude or limit the professional’s legal liability in case of consumer’s injury or death, as a result of an action or omission from the professional with regard to the use of the products and services;
l) exclude the consumer’s right to initiate a legal action or to exercise another legal remedy, requesting him, at the same time, the settlement of the disputes mainly by arbitration;
m) allow unjustifiably the imposition of some restrictions in the administration of the obvious evidence the consumer disposes of or the request of some evidence which, according to the law, make the object of another part of the contract;
n) entitle the professional to transfer his contractual obligations to a third person – agent, proxy etc. – without the consumer’s agreement, if such a transfer serves to the reduction of the guarantees or of other liabilities towards the consumer;
o) forbid the consumer to compensate a debt towards the professional with a debt he would have over the professional;
p) provide that the product is determined at the moment of the delivery or allow the sellers of products or service providers the right to raise the prices, without, in both cases, giving the consumer the right to cancel the contract if the final price is higher compared to the price agreed upon the conclusion of the contract.
r) allow the professional to obtain some amounts of money from the consumer, in case of non-execution or termination of the agreement by the latter, without providing the existence of any compensations in an equivalent amount for the consumer also, in case of non-execution of the contract by the professional;
s) entitle the professional to cancel the contract unilaterally, without providing the same right for the consumer;
t) entitle the professional to terminate the contract concluded on indefinite term without a reasonable prior notice, with the exception of well founded reasons.
Consumers’ rights and online gambling
According to the provisions of art. 5 from the Law 193/2000 regarding the abusive provisions from the contracts concluded between professionals and consumers, in the case of standard pre-formulated contracts, the professional has the obligation to remit, upon request, to any interested person a copy from the contract it proposes.
Taking into consideration the fact that the gambling legislation doesn’t allow the individual negotiation of the contractual clauses, the gambling organizers can only propose to the consumers the conclusion of standard contracts, their commercial offer being contained in the Terms and conditions. The control of the compliance with the provisions of the Law 193/2000 is made by the authorized representatives of the National Authority for the Consumers’ Protection, as well as by the authorized specialists of other bodies of the public administration, in accordance with the competences given by the law.
In the context where the consumer doesn’t have the possibility to negotiate the Terms and conditions, and the National office for Gambling disposes of the prerogative of authorizing their clauses before putting them in application, the obligation of censoring the clauses which might be considered abusive from the perspective of the legislation regarding the consumers’ rights revolves to the supervisory authority in the gambling field.
According to the provisions of art. 12 from the Law 193/2000, if there is acknowledged the existence of any abusive clauses in the standard pre-formulated contract, any of the bodies with control attributions will notice the tribunal from the professional’s office, asking his obligation to modify the on-going contracts, by eliminating the abusive clauses.
If any abusive clauses are noticed in the contract, the court will bind the professional to amend the Terms and conditions, in the meaning of eliminating the abusive clauses and will sanction the company with a contraventional fine amounting between 200 and 1000 Lei.
The consumers, in their turn, have the right to appeal to the judicial courts in accordance with the provisions of the Civil code and the Civil procedure code for acknowledging the voidness of the abusive clauses.
In the recent practice, the courts have considered that putting at the consumers’ disposal the Terms and conditions (by displaying them on the gambling organizer’s website) and elaborated in an easy language are sufficient to allow the consumer to adopt the decision of contracting the applicable terms in full knowledge, the consumer having the possibility to refuse the contractual clauses by refusing the registration on the organizer’s platform, in which case the consumer’s request of acknowledgement of the voidness of the clauses being unfounded.
Therefore, in order to make sure that their interests aren’t prejudiced by accepting the Terms and conditions and the registration of the gambling account on a certain licensed platform from Romania, the consumers have the obligation to investigate their contents before accepting the organizer’s offer.
Consumers’ rights and online gambling