Basic Fit is called to the (sports) mat by the court

On 10 October 2024, a case was at the centre of the Amsterdam District Court in which the Basic Fit had to answer to a consumer. The consumer felt that the Basic Fit was engaging in unfair commercial practices and that its general terms and conditions contained several unfair provisions in the context of consumer protection. The court ultimately ruled that the consumer was right.

Basic Fit advertised with a misleading slogan. You may have seen the slogan yourself saying ‘Sports from € 19.99 per four weeks’. Initially, it seems like a good deal for a year, until one finds out that after a month, the term fee suddenly goes up to € 24.99. Basic Fit referred to their terms and conditions which stated this increase. The consumer disagreed and felt that the advertising was misleading. The hearing also centred on four provisions of the general terms and conditions which the consumer claimed were unfair in the interest of the consumer.

For your information, as a consumer you are extra protected by the law. The law stipulates that some provisions may not simply be included in general terms and conditions to prevent you as a consumer from being powerless against large companies, such as Basic Fit in this case. There are two lists included in the law with all kinds of provisions that are ‘unreasonably onerous’ or ‘presumably unreasonably onerous’, also called the ‘black’ and the ‘grey’ list. Is a provision on one of these lists? If so, then they should not have been in the general terms and conditions.

The court addressed, first, whether Basic Fit's four provisions were on these lists and therefore unreasonably onerous for consumers and, second, whether the advertising was misleading. These will be dealt with in order, as how the court dealt with them at the hearing.

Choice of forum clause

Choice of forum means that a contract can specify which court has jurisdiction. According to the main rule of law, the court that has jurisdiction is the court where the consumer is domiciled. So if you live in Rotterdam, you will usually also go to the Rotterdam District Court. The general terms and conditions stated that disputes would be settled by the court where the consumer had designated Basic Fit as his or her home club. Usually, this will often be the place of residence because people exercise close to home. But suppose you live in Rotterdam but work in Amsterdam and exercise at Basic Fit after work there, so you would have to go to the Amsterdam court. However, such a deviation from the main rule is blacklisted. Even though this provision is not too bad, it was still considered unreasonably onerous and therefore unfair by the court. Thus, the provision was no longer allowed to be included in the general terms and conditions. 

Exclusion clause

If a party includes a clause stating that it is not liable and that the consumer cannot get compensation, this is also considered unreasonable. An exception to this is if the other party can state that the clause is justified. In this case, the Basic Fit excluded all forms of liability for e.g. personal injury suffered in the gym. Basic Fit tried to argue why the clause was included in the general terms and conditions, but could not substantiate why it was justified to include the clause in the general terms and conditions. Thus, the exception did not apply. As a result, the clause was again deemed unreasonably onerous and unfair. 

Termination clause

There was a provision in the general terms and conditions that Basic Fit was authorised to cancel memberships and refuse members access to the clubs. How was this determined? Exclusively by Basic Fit itself. Of course, this is a big disadvantage for consumers, as in principle they can't object to this, while Basic Fit has a lot of power. The legislator thinks so too, which is why this rule has also been blacklisted.  In the general terms and conditions, everything was at Basic Fit's discretion, as a result of which the court ruled that this provision too was unreasonably onerous and unfair.

Price enhancement clause

Finally, the general conditions included a clause stating that Basic Fit was unilaterally entitled to increase the price every year, without notice. However, this has no legal basis. This provision deviates from what is allowed by law to the detriment of the consumer. The court therefore ruled again that the provision was unreasonably onerous and unfair. 

Unfair tagline?

The court lastly addressed the question of whether the slogan ‘Sports from € 19.99 every four weeks’ could be considered unfair. Consumers felt they were misled as the price went up a month later. The court agreed. The court found that Basic Fit had given incorrect and incomplete information about the conclusion of the subscription and thus misled the consumer.

The provisions were annulled and should no longer be in Basic Fit's general terms and conditions. All in all, as a consumer you can still reasonably compete against a big gym!
 
Would you like to know what your rights are with regard to general terms and conditions? Or would you like to have general terms and conditions drawn up for your company? Then contact one of our corporate law lawyers!