2023-06-25 04:00:00
Nicole feels aggrieved: she wants to cancel her subscription to her gym for medical reasons, but the fitness center demands heavy fees from her. She wonders if it’s legal since she has been declared unfit to practice sports. For Test Achats, this is an abusive practice. Explanations.
Nicole contacted us via the orange Alert us button to denounce a practice she considers abusive. On February 1, it joined the Stadium sports hall in Schaerbeek via an annual subscription. On May 9, she learns that her knee prosthesis has come to light and that it will have to be replaced. “It will be more restrictive, I will no longer be able to practice sport”, she writes.
Supporting evidence, Nicole goes to the gym. She submits a medical certificate from her surgeon, and a little later, a second certificate, attesting that she will no longer be able to practice sport for life, from her attending physician. Documents that we have been able to consult.
Problem: despite the medical certificates, the Stadium is asking him for a fee in order to be able to terminate his subscription. “They are asking me for €186! I have a small pension, and heavy unreimbursed medical expenses. It’s not in my budget, I don’t know how I’m going to cope”worries Nicole.
An “unfair” practice
Nicole suffers from osteoarthritis. From the age of 56, a surgeon placed a prosthesis in his right knee. Next comes the left. Today, Nicole is 69 years old. “And I’m disabled like I was 80,” she laments.
Because of a bone problem, even an infection, she has already had to change her prosthesis twice: “They are sealed with cement except that for me it does not hold, and we do not know why“, she explains. At the beginning of May, her surgeon tells her that one of her prostheses has come out again, and that she will have to have another operation for the third time. “It will be a lot harder on me, and the doctor told me that if it falls back, I won’t be able to put it back on because there are no more bones, so they will have to cut my leg up to the knee… “
I have never asked to be declared physically unfit to practice sports
Reason why Nicole wishes, logically, to terminate her subscription to the Stadium gym. “I find it unfair because I liked going to sport. I did not ask to be operated on again. It’s double punishment, I would like them to make a gesture and take my personal case into account, they could show some compassion”she believes.
Today Nicole feels wronged. And above all, she wonders if this practice is legal: “Are they entitled to claim this amount when I never asked to be declared physically unfit to practice sports?”.
To try to answer this question, we met Etienne Mignolet, spokesperson for the FPS Economy, who recalls the basic rules in terms of terminating a contract with a sports hall for medical reasons. And Julie Frère of Test Achats, who considers that the clause is clearly abusive.
Reminder of the rules in terms of termination of contract with a gym for medical reasons
Etienne Mignolet of the FPS Economy recalls that there are two possibilities in terms of contract termination for fitness centers:
First scenario: the room is a signatory of the fitness industry code of conduct. “In this code it is stated that a consumer must be able to terminate a fixed or indefinite term contract, free of charge, without delay, for medical reasons and on the basis of a medical certificate”, he says; Second scenario: the cinema is not a signatory to this code of conduct. “You have to then refer to the general conditions of the contract of the sports hall in question and see what they stipulate”.
In Nicole’s case, Stadium has not signed the industry code of conduct. You must therefore refer to their sales contract.
Stadium’s response
So let’s try to understand what Stadium is basing itself on to claim €186 in termination fees from Nicole. According to their explanations, it is necessary to refer to point 4a of the sales contract signed by Nicole, which states that “in the event of termination of a fixed-term contract due to illness, the termination costs will be calculated according to the financial benefit perceived in comparison with a permanent contract plus administrative costs”.
In other words, Nicole had subscribed to an annual subscription (and therefore for a fixed term), which cost her 65€ per month. In order to be able to cancel its subscription, Stadium must convert it into a monthly subscription (and therefore for an indefinite period), which costs €99 per month. Nicole must therefore pay the difference in order to be able to cancel her subscription.
The fees that Nicole must pay are calculated from the day of her registration, i.e. February 1, 2023. She has therefore already paid €310 at the gym for the period from February 1 to May 31, i.e. €65 per month . However, since Nicole’s subscription must be converted into a monthly subscription in order to be able to cancel it, she would have had to pay €596 for the same period.
Stadium therefore deducted the €310 paid from the €596 it should have paid after converting its subscription. There is therefore a balance of €186 to be paid in order to close his contract.
For Test Achats, this is clearly an abusive clause
Julie Frère, spokesperson for Test Achats warns: “We are clearly in a case of an abusive clause”. In economic law, an abusive clause is defined as such: “Any term or condition in a contract between a business and a consumer which creates a manifest imbalance between the rights and obligations of the parties to the detriment of the consumer constitutes an unfair term”.
She is unable to fulfill her contractual obligations and it is beyond her control
Julie Frère specifies: “Here, we are in this scenario: Nicole is no longer able to go to the gym, medical certificate in support. Demanding that she pay in these circumstances is abusive. We believe that this clause must be considered null and void”.
According to Test Achats, Nicole could win her case. Especially since the case of force majeure can also be invoked: “She is unable to fulfill her contractual obligations and it is beyond her control. In this case, we must consider that she is released from her obligation for the time of her incapacity.“, explains Julie Frère.
In other words, since Nicole must terminate her subscription for medical reasons, and therefore beyond her control, her payment obligation should be lifted.
What to do in case of litigation?
In the event of a dispute, it is possible to appeal to the Consumer Mediation Service, specifies the FPS Economy. Consumers who believe they are victims of an abusive practice can also report this to the Economic Inspection contact point. through their website.
Nicole could use both of these tools. But ultimately, only a judge can decide, recalls the FPS Economy.
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