Official Journal of the European Union

EN

C series

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C/2025/2351

28.4.2025

(Case C-872/24, Digi România and Others)

(C/2025/2351)

Language of the case: Romanian

Referring court

Parties to the main proceedings

Applicant and appellant: Digi România SA

Defendant and respondent: VK

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), (<span class="oj-super oj-note-tag">1</span>) and by Directive (EU) 2018/1972 establishing the European Electronic Communications Code, (<span class="oj-super oj-note-tag">2</span>) 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 (<span class="oj-super oj-note-tag">3</span>) (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 0.2 % 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 73 % 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 0.2 % 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 0.2 % 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?

(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/2025/2351/oj

ISSN 1977-091X (electronic edition)

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