BTC AD (Vivacom) engaged in an unfair commercial practice by charging penalties for the “early termination” of fixed-term distance contracts that did not exist, had never been concluded and therefore could not be terminated early. This was the finding of the Supreme Administrative Court, which upheld a decision of the Commission for Consumer Protection and an order prohibiting the practice in future.
The practice, contrary to the requirements of good faith and professional competence, followed this pattern: after a telephone call and the consumer’s agreement to a distance service contract, the customer was not given a timely opportunity to read the written terms, including the start date. This could cause the customer to miss the withdrawal period, which was seven working days under the earlier version of the Consumer Protection Act and fourteen days after its amendment. Consumers often did not realise that the operator regarded a contract as valid because they had not signed one, while withdrawal would cost them the monthly fees for the remainder of the term.
Only after complaints and intervention by the Commission did the operator agree to terminate these purported contracts without penalties and refund customers, explaining that the contracts resulted from a “technical error”.
One consumer had to seek the Commission’s assistance twice. He said a Vivacom operator had proposed a distance transaction by telephone. He understood that he would receive a written contract to sign only after reading its terms. Problems receiving the written information prevented him from reviewing it, and the withdrawal period passed.
When he tried to close his telephone line, the trader told him that a valid twenty-four-month distance contract existed and that cancellation would incur a penalty equal to the remaining monthly fees. During the Commission’s investigation, the operator established that no valid contract had been concluded and that a “technical error” had occurred. It undertook to correct the account and provide the service under an indefinite-term contract terminable on one month’s notice.
The same consumer later submitted a second complaint. After transferring his telephone number to another provider, he received a bill containing a BGN 137 penalty for early termination of the distance contract. He would not have owed that sum if the operator had honoured its undertaking to provide the service under an indefinite-term contract. The consumer said that he notified the company, but it maintained that the distance contract was valid and the penalties were payable.
Following the Commission’s second intervention, the operator again cited a “technical error”, this time in closing the telephone number during its transfer to another provider. Only then was the account actually corrected and the improperly charged sums refunded.
The practice took place when the Consumer Protection Act permitted distance contracts without the consumer’s signature on paper. At the time of the original publication, oral acceptance of an offer alone no longer concluded a contract. The trader had to provide the customer with full information about the offer, together with the contract and its general terms. The contract was considered concluded only once the consumer signed it or sent written acceptance.
The Commission’s experts advised consumers visiting mobile operators’ offices to examine carefully the document they were asked to sign and its contents. They also recommended checking monthly bills and requesting an explanation if charges differed substantially from earlier months despite normal usage.
