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Thursday, 28 June 2018 14:01

Abusive clauses in educational institutions

The Court of Justice of the European Union (CJEU) has handed down judgment recently, on Case C147 / 16, which refers to a credit agreement managed by an educational institution in Belgium. Through this resolution, the European Directive on unfair terms is applied (Directive 93/13 / EEC) and is extended for the first time to educational institutions.

WHAT HAPPENED AT THE BELGIAN EDUCATIONAL INSTITUTION?

In a case that has been news in the legal world, a student maintained a debt with a Belgian educational institution. The institution's "student assistance" department offered to advance the amount it needed to pay off that debt.

In return, the student committed to cancel the debt for the help in monthly installments. The interest fixed in case of non-payment was 10% per annum, without the need for a requirement, and compensation for collection costs, if applicable.

The student did not make the payments. The educational institution then decided to file a lawsuit against him before the Justice of the Peace in Antwerp, Belgium. The purpose of this lawsuit was to get the student to pay the amount owed, plus a surcharge for the 10% interest delay time. The educational institution also intended that the student pay compensation.

WHY GO TO THE EUROPEAN COURT?

The judge decided to refer the case to the European Court of Justice, to submit a preliminary question. In this consultation, the judge asked in the first place if the contract falls within the scope of application of the European Union Directive on unfair terms. The argument is that it is a procedure in which one of the parties has been declared in absentia.

Secondly, the judge questioned whether or not the educational institution should be considered as "professional" (within the scope of the Directive), when the student is granted an amortization of installment payments. Do not forget that it is an organism financed mainly with public funds.

THE RESOLUTION OF THE COURT

The Court of Justice of the European Union considered that by granting such payment facilities to a student, the educational institution acted as a "professional" within the meaning of the Directive. Among other things, because the contract signed with the student is essentially a credit agreement.

The concept of "professional" in the Directive has a broad meaning. It refers to a functional concept determined by the fact that the contractual relationship is part of the activities that a person performs professionally.

In this way, the Court ruled that the national court must assess ex officio the abusive nature of a contractual clause. and it must be analyzed if the contract has a clause of that type or not.

If you had any doubts about the possibility of applying the Directive on unfair terms, in contracts concluded with consumers at European educational institutions, now you know that it is possible.

Writings SF Lawyers

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