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Unfair Consumer Contract Terms Under Macedonian Law: How the Old and the New Function in Practice

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Abstract

This article analyses the functioning in practice of the system of substantive regulation of unfair terms in consumer contracts, introduced into Macedonian law as part of the harmonization obligations of the EU accession process. Specifically, the article seeks to establish the possible reasons for the absence of substantial evidence of application of the rules on unfair contract terms in consumer contracts in Macedonian practice. In providing an explanation, the focus is on the transposition of the consumer acquis and the Unfair Contract Terms Directive into national law, the enforcement structure for consumer law, and the relationship with the pre-existing civil law. In sum, the inconsistencies and incompleteness of the transposition, the weak and complex enforcement structure, as well as the unsettled relationship with the already existing civil law rules on similar topics have all contributed to weaken the practical significance of the special law on unfair contract terms.

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Notes

  1. Official Journal L 95, 21.4.1993, pp. 29–34.

  2. Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, Official Journal L 304, 22.11.2011, pp. 64–88.

  3. See, for example, Case C-372/99 Commission of the European Communities v Italian Republic [2002] ECR I-00819.

  4. Official Gazette of the Republic of Macedonia, No. 38/04, 77/07, 103/08 and 24/11.

  5. Official Gazette of the Republic of Macedonia, No. 63/00 and 04/02.

  6. Official Gazette of the Socialist Federal Republic of Yugoslavia, No. 29/78, 39/85 and 45/89.

  7. Official Gazette of the Republic of Macedonia, No. 18/01, 78/01, 04/02, 59/02, 05/03, 84/08, 81/09, 161/09 and 23/13.

  8. Official Gazette of the Republic of Macedonia – International Treaties, No. 28/01.

  9. Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) [2010] ECR I-04785.

  10. Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on Injunctions for the Protection of Consumers’ Interests, Official Journal L 110, 1.5.2009, pp. 30–36.

  11. Those rules entered into force on 5.3.2011, but started to apply 1 year from their entry into force (5.3.2012).

  12. Official Gazette of the Republic of Macedonia, No. 79/05, 110/08, 83/09 and 116/10.

  13. The qualified entities, defined as bodies that have a common interest for consumer protection, are determined by the Government of the Republic of Macedonia, on a proposal of the Ministry of Economy. Until the closing of this article (end of February 2013), this has not been done.

  14. Official Gazette of the Republic of Macedonia, No. 62/06, 69/06, 157/09 and 51/11.

  15. The competent inspectorate should be the State Market Inspectorate, although a clear provision to that effect does not exist in the Act.

  16. Interestingly enough, there have been misdemeanour proceedings with regard to unfair commercial practices, although the defendants were found not guilty (judgment of the Basic Court in Vinica, PRK. No. 94/2012 from 20.6.2012). The case concerned the fact that the defendant advertised to be holding a furniture fair in the defendant’s furniture stores at the same time as the official fair for furniture held at the Skopje Fair.

  17. Official Gazette of the Republic of Macedonia, No. 97/12.

  18. Official Gazette of the Republic of Macedonia, No. 13/11 and 136/11.

  19. The proceeding were primarily initiated because of a provision contained in the thermal energy Rules, according to which individual consumers who have cancelled their agreements for the supply of thermal energy are nonetheless obliged to pay the supplier for power engaged (fixed part) of the compensation for thermal energy, which is determined according to the tariff system for thermal energy. In other words, in collective housing objects, individual consumers who have cancelled the agreement for supply of thermal energy are obliged to pay lump sum compensation to the supplier due to the thermal energy which is transported to their neighbours using existing pipes for supply of thermal energy.

  20. Legally, the terms considering interest rates are considered core terms to the contract. Nevertheless, the court can disregard contractual terms on the agreed interest rate without holding the whole contract as null. This was done, for example, in the judgment of Supreme Court of the Republic of Macedonia, Rev. No. 1326/94 from 18.4.1995. The case was decided on the basis of the 1978 LO and related to a case where the interest rate was to be determined by internal regulation of the bank.

  21. Directive of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, Official Journal L 171, 7.7.1999, pp. 12–16.

  22. These rules were acknowledged in the 2001 LO, as was also the case with the previous 1978 LO, as general contract law rules, even before the passing of European directives.

  23. Case C-144/99 [2001] ECR I-03541.

  24. Judgment of the Basic Court in Kumanovo, P. No. 319/2009 from 26.11.2009, and judgment of the Basic Court in Kumanovo, P. No. 1049/2010 from 16.2.2011.

  25. The author is a member of the Commission for Housing and Energy, the Commission for Financial Services, and the Commission for Public Services of the Consumers’ Organization of Macedonia.

  26. Such was the case with provisions contained in the general conditions of contract of a telecommunications services provider regarding terms for tacit renewal of an agreement following its expiration.

  27. Judgment of the Basic Court Skopje 2 in Skopje, P. No. 4209/08 from 9.4.2009.

  28. Joined cases C-240/98 Océano Grupo Editorial SA v Roció Murciano Quintero and C-241/98 Salvat Editores SA v José M. Sánchez Alcón Prades, C-242/98 José Luis Copano Badillo, C-243/98 Mohammed Berroane and C-244/98 Emilio Viñas Feliú [2000] ECR I-04941.

  29. Case C-40/08 Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira [2009] ECR I-09579, Case C-137/08 VB Pénzügyi Lízing Zrt. v Ferenc Schneider [2010] ECR I-10847, and Case C-76/10 Pohotovosť s.r.o. v Iveta Korčkovská [2010] ECR I-11557.

  30. Official Gazette of the Republic of Macedonia, No. 58/06, 62/06, 35/08, 61/08, 118/08, 16/09, 150/10 and 39/12.

  31. It is worth pointing out in this context that the rules on liability for defective products are also inconsistently regulated in the 2004 LPC, and in this case also Macedonian courts mostly apply the provisions of the 2001 LO instead.

  32. The reasoning of the CJEU in Case C-472/10 Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt. 26.4.2012 is relevant in this context.

  33. SWD(2012) 332 final.

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Acknowledgments

The author wishes to thank Yane Svetiev for his useful comments on an earlier version of this article and also for the help in the English editing of the text.

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  1. Faculty of Law “Iustinianus Primus”, boul, Goce Delcev 9b, 1000, Skopje, Republic of Macedonia

    Nenad Gavrilovic

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  1. Nenad Gavrilovic
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Correspondence to Nenad Gavrilovic.

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Gavrilovic, N. Unfair Consumer Contract Terms Under Macedonian Law: How the Old and the New Function in Practice. J Consum Policy 36, 315–328 (2013). https://doi.org/10.1007/s10603-013-9232-2

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