This request for a preliminary ruling has been made in proceedings between the Verein für Konsumenteninformation (Consumer Information Association, ˜the Association) and A1 Telekom Austria AG (˜A1 Telekom Austria) concerning the latters use of allegedly unlawful terms in consumer contracts.
By its question, the referring court asks, in essence, whether Article 20(2) of Directive 2002/22 must be interpreted as meaning that a change in charges for the provision of electronic communications networks or services, resulting from the operation of a price adjustment clause contained in the standard terms and conditions applied by an undertaking providing such services, the term providing that such a change applies in accordance with changes in an objective consumer price index compiled by a public institution, constitutes a ˜modification to the contractual conditions within the meaning of that provision, which grants the subscriber the right to withdraw from the contract without penalty.
Directive 2002/22 is intended to create a harmonised regulatory framework which secures, in the electronic communications sector, the delivery of universal service, that is to say, of a defined minimum set of services to all end-users at an affordable price. According to Article 1(1) of that directive, one of its objectives is to ensure the availability throughout the Community of good-quality publicly available services through effective competition and choice.
In recital 30 in the preamble to Directive 2002/22, the EU legislature stated that contracts for services for connecting to a public communications network or publicly available electronic communications are an important tool for users and consumers to ensure a minimum level of transparency of information and legal security. In recital 49 in the preamble to that directive, the EU legislature also referred to tariff transparency for consumers. It is against that background that Article 20(1)(d) of the directive lays down that the contract shall specify in a clear, comprehensive and easily accessible form, inter alia, details of prices and tariffs and the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained.
In addition, pursuant to Article 21(1) of Directive 2002/22, Member States are to ensure that national regulatory authorities are able to oblige undertakings providing public electronic communications networks and/or publicly available electronic communications services to publish transparent, comparable, adequate and up-to-date information on, inter alia, applicable prices and tariffs, on any charges due on termination of a contract and on standard terms and conditions in respect of access to, and the use of, services provided by them to end-users and consumers. Such information must be published in a clear, comprehensive and easily accessible form.
Article 20(2) of Directive 2002/22 also requires the Member States to ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications services. The Member States must ensure that subscribers be given adequate notice, not shorter than one month, of any such modification, and are informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions.
Having regard to those provisions, it can be concluded that the EU legislature recognised that undertakings providing electronic communications services may have a legitimate interest in being able to adjust the prices and charges for their services
In the present case, as is clear from the order for reference and the question referred, the term at issue contained in A1 Telekom Austrias standard terms and conditions provides for an adjustment of charges in accordance with changes in an objective consumer price index compiled by a public institution, namely, the Austrian Institute for Statistics.
It follows that price adjustments thus provided for in the contract, in so far as they are based on a clear, comprehensive and easily accessible price index, resulting from State decisions and mechanisms, cannot place end-users in a contractual situation any different from that which arises from a contract in which the term at issue is provided for in the standard terms and conditions of that contract.
Consequently, the operation of such a change in charges cannot be characterised as a modification to the contractual conditions, within the meaning of Article 20(2) of Directive 2002/22.
In the light of the foregoing considerations, the answer to the question referred is that Article 20(2) of Directive 2002/22 must be interpreted as meaning that a change in charges for the provision of electronic communications networks or services, resulting from the operation of a price adjustment clause contained in the standard terms and conditions applied by an undertaking providing such services, the term providing that such a change applies in accordance with changes in an objective consumer price index compiled by a public institution, does not constitute a ˜modification to the contractual conditions within the meaning of that provision, which grants the subscriber the right to withdraw from the contract without penalty.