Unfair Commercial Practices Directive, Chapter 2, Article 5, 1.

ECLI: ES: TS: 2019: 2795.

The contract that gives place to the  judgement is a contract classified as "at all risks". It has a duration of five years, which was tacitly extended for equal periods, unless one of the parties denounced ninety days in advance and/or in the event that some of the parties desisted from the contract, outlining a 50% penalty of the outstanding fees until the established date of its termination. The Chamber considers that such a long term of the contract  with those associated consequences is contrary to the regulations on unfair terms. The risk to the company of unsubscribing customers cannot be eliminated by unduly restricting the legitimate economic rights of consumers.

The community of owners of A Noia had a lift maintenance contract with a duration of five years which they wanted to interrupt before the deadline to replace it with another offer at a more competitive in price.

The company then alleged that if the contract was terminated early, the contract stipulated in its favour a penalty of 50% of the outstanding installments until the end of the 5-year term. The company valued this amount at 10,264 euros and filed a lawsuit against the community of owners.

Can a duration clause that exceeds three years be considered abusive in elevator maintenance contracts?

The risk posed to the company by unsubscribing customers cannot be eliminated by unduly restricting the legitimate economic rights of consumers, says the High Court. It must be fixed on its fair terms, by establishing reasonable deadlines that allow the employer to organise the provision of the service and consumers to benefit from the best offers made by other entrepreneurs in the sector. The Plenary of the Chamber considers that the elevator maintenance company has not justified the occurrence of exceptional circumstances that justify a duration of more than three years.

This term of three years fixed by the Supreme Court is the usual one maintained by an important sector of the Provincial Courts in sentences for similar contracts and the one maintained by the National Competition Authority, which considers it reasonable for a contract of this nature, given that it is of a contract that includes the obligation of the maintenance company to replace, at its expense, the damaged parts.

URL: http://www.poderjudicial.es/search/documento/TS/8889156/derecho%20mercantil/20190923

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The Supreme Court, correcting the sentence handed down on appeal, reaffirms itself in the ruling favourable to the community of owners in the first instance, which dismissed the claim of the elevator maintenance company against the community of owners.