Case C-909/24, Investcapital and Others: Request for a preliminary ruling from the Tribunalul Arad (Romania) lodged on 16 December 2024 – InvestCapital Ltd v PN
Date: 2024-12-16
Institutions: Court of Justice
Subjects: Internet, consumer, damages, fine, freedom to provide services, mobile communication, provision of services, termination of a contract, unfair terms of contract








C_202502355EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/2355


28.4.2025






Request for a preliminary ruling from the Tribunalul Arad (Romania) lodged on 16 December 2024 – InvestCapital Ltd v PN


(Case C-909/24, Investcapital and Others)

(C/2025/2355)
Language of the case: Romanian

Referring court

Tribunalul Arad

Parties to the main proceedings


Applicant and appellant: InvestCapital Ltd

Defendant and respondent: PN

Questions referred







1.


Does the fact that a national rule – which imposes a certain limitation on default damages in respect of legal relationships that do not arise from the operation of a business – with regard to legal relationships that arise from the operation of a business has a different normative content, with the result that it does not set a limit on the corresponding penalties applicable to legal relationships between an operator of electronic communications services (mobile telephony and internet provision) and a consumer but does set such a limit for other relationships, such as banking activities, mean that it must be regarded as a constituent element of the freedom to [provide] services laid down in Article 56 et seq. of the Treaty on the Functioning of the European Union, as that right is regulated in the electronic communications sector by Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), (1) and by Directive (EU) 2018/1972 establishing the European Electronic Communications Code, (2) or, on the contrary, can a limitation of the corresponding penalties in favour of consumers be achieved by judicial means, on the basis of the provisions of Article 3(3) of Directive 93/13/EEC on unfair terms in consumer contracts (3) (and in particular point (e) of the Annex to that directive), according to which a term may be regarded as unfair if it grants the trader the right to require from any consumer who fails to fulfil his or her obligation the payment of a disproportionately high sum in compensation?










2.


Do the interpretation and application of the provisions of Article 3(3) of Directive 93/13/EEC on unfair terms in consumer contracts (and in particular point (e) of the Annex to that directive) imply, in the context of the analysis of the potentially unfair nature of a penalty clause that sets the amount of default damages payable by a consumer for non-payment on the due date of invoiced amounts for electronic communications services (mobile telephony and internet provision) at 0.5 % for each day of delay:










—


an obligation on the part of the court to refer to the amount of those damages calculated for one year, that is to say, at the rate of 182.5 % per annum, with the result that the determination of the unfair nature of those penalties can be made exclusively by means of a comparative analysis of those penalties against the amount of statutory interest that would be applicable if the parties had not themselves set a specific amount of default damages,




or alternatively






—


is the court also obliged to take into account the actual period of time for which the penalty payment of 0.5 % is demanded, that is to say, the number of days relating to that demand, and to take into account in its assessment the actual amount demanded by way of penalty payment in relation to the amount of the principal charge?










3.


In the context of the analysis of the potentially unfair nature of a penalty clause that sets the amount of default damages payable by a consumer for non-payment on the due date of invoiced amounts for electronic communications services (mobile telephony and internet provision) at 0.5 % for each day of delay, do the interpretation and application of the provisions of Article 3(3) of Directive 93/13/EEC on unfair terms in consumer contracts (and in particular point (e) of the Annex to that directive) require the court to take into consideration, in addition to the sums owed by the consumer, the possible damage suffered by the trader which, in turn, is locked into legal relationships under which that trader has similar obligations in terms of the amount of the default damages it would be liable to pay as a result of failure to meet the associated payment obligations?










4.


Can a specifically determined quantum of penalties for late payment be regarded as unfair in so far as it exceeds the amount of the principal charge payable by a consumer?










5.


Can the classification made by the [Court in its judgment of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C-295/17, EU:C:2018: 942)] of the predetermined amount received by an economic operator where a contract for the supply of services with a minimum commitment period is terminated early by its customer or for a reason attributable to the customer, which corresponds to the amount that the operator would have received for the remainder of that period if that contract had not been terminated, to the effect that that amount should be regarded as payment for a supply of services for consideration and, as such, subject to value added tax, be construed as autonomous, with the result that that classification is only relevant with regard to the interpretation and application of the VAT directives, or can it also be considered in the interpretation and application of Article 4(2) of Directive 1993/13/EEC on unfair terms in consumer contracts, in order to exclude from the scope of that directive a clause establishing such costs, after it has been determined as relating to the definition of the subject matter of the contract and to the adequacy of the price or remuneration in relation to the services or goods supplied in exchange for them, in so far as that clause is deemed to be worded in plain, intelligible language?










6.


If the answer to [the preceding] question is that the interpretation given by [the Court] in the judgment cited is autonomous in nature and, therefore, that interpretation is applicable only in relation to the VAT directives, does – and, if so, to what extent – the interpretation of the provisions of Article 3(1) and (3) of Directive 93/13/EEC on unfair terms in consumer contracts, in conjunction with the provisions of Article 20 of Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), and with those of Articles 101, 105 and 107 of Directive (EU) 2018/1972 establishing the European Electronic Communications Code, and with the content of point 3(iv) of Part A of Annex VIII and point 2.4 of Annex IX to that directive, make it possible to classify as unfair a contractual term included in a contract for electronic communications services (mobile telephony and internet provision) falling within the scope of Directive 2002/22/EC or Directive (EU) 2018/1972 which establishes an amount that can be received by way of compensation by an economic operator and that corresponds to the amount that the operator would have received for the remainder of that period if that contract had not been terminated, in the situation in which that contract is terminated early by its consumer customer, or for a reason attributable to the customer, for a contract with a minimum commitment period which, in terms of its duration, complies with the 24-month limit imposed by Article 105 of Directive (EU) 2018/1972:










—


in relation to the quantum of that amount and on the basis of its assessment as disproportionate to the damage suffered by the communications service provider, or respectively










—


on the basis of the finding that a legal imbalance exists between the rights and obligations of the parties as a result of the fact that it is only the consumer, and not also the communications services provider, that is liable for such a penalty, in a context in which the same contract requires the provider to pay compensation equal to the fee for the service not provided or improperly provided in the event that the latter does not comply with the quality parameters laid down?










7.


In the context of the examination in the previous question, what is the relevance of the fact that a consumer who has concluded a contract for electronic communications services (mobile telephony and internet provision) for a minimum period of 24 months has benefited from certain offers of a promotional nature consisting of price reductions on the purchase of a device or services, when the factual situation established in the present case shows that the value of the discounts is included in the subscription charge calculated for the entire contractual period?






(1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).

(2)  Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).

(3)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).


ELI: http://data.europa.eu/eli/C/2025/2355/oj
ISSN 1977-091X (electronic edition)