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Case detail



Directive article Article 5 1.
Article 5 4.
Article 6 1. (b)
Article 6 1. (g)
National ID Slovak Trade Inspection, 11/07/2011 ref. code: P/0167/05/2011
Country Slovakia Decision date 11/07/2011
Common name Decision type Administrative decision, first degree
Court Slovenská obchodná inšpekcia, (Žilina) Inšpektorát Slovenskej obchodnej inšpekcie so sídlom v Žiline pre Žilinský kraj Plaintiff(s)
Court translation Slovak Trade Inspection, (Žilina) Slovak Trade Inspection, Inspectorate with its registered seat in Žilina, Žilina district Defendant(s) DOSPEL SK, s.r.o.
Subject after-sales service
Keywords terms & conditionscomplaintscontract lawdistance contractingguaranteeinaccurate informationinformation requirementsprofessional diligenceright of withdrawal

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Headnote

The offering of contractual clauses, which are not in compliance with applicable law, may constitute an unfair commercial practice. 

Facts

The defendant operated an internet shop selling lamps and lights.

The following provisions were included in its terms and conditions:
  - if the consumer withdrew from the contract and delivered a used product that is damaged or incomplete, the defendant should refund the consumer with the purchase price of the product, or part of this price, less the value of wear and tear of the product, in the amount of 1% for each day of use of the product and less the value of repair executed in order to return the product to its original condition;
  - the consumer, when handling of a complaint for a specific defect of the product, irrespective of the outcome of the complaint handling, was not entitled to an additional complaint handling the same defect of the product;
  - in case of a delay caused by the defendant in the delivery of the product, the defendant was entitled to unilaterally prolong the term for product delivery, even repeatedly, and had to provide the consumer with a confirmation thereof;
 - the defendant reserved the right to change the purchase price in case of the change in the law, euro currency exchange rate towards other currencies, and of the prices of producers or suppliers of the product;
 - all rightfully claimed warranty repairs were free of charge.
 

Legal issue

Can the offering of contractual clauses, which are not in compliance with applicable law, constitute an unfair commercial practice?

Decision

With respect to the aforementioned facts, the court stated as follows:

(1) The obligation to pay duties without any legal basis (in this case the consumer was charged for the use of the product and its repair in order to return it into its original condition after withdrawing from a distance contract on sale, whereas the consumer is entitled by law to try out the purchased product and subsequently withdraw from the contract) constitutes a breach of the Art. 4 Sec. 2 letter a) of the Slovakian Consumer Protection Act.

(2) The withholding of a right to complaint according to the Art. 3 Sec. 1 of the Consumer Protection Act by specifically stating that the consumer is not entitled to any additional complaint related to the same defect on a product already handled in a complaint, constitutes a breach of Art. 4 Sec. 2 letter b) of the Consumer Protection Act.

(3) Acting against the principles of professional diligence so that it may potentially cause a harm to the consumer (in this case, prolonging the delivery term and changing the applicable price by making use of a substantial disparity between the contracting parties) constitute a breach of the Art. 4 Sec. 8 of the Consumer Protection Act ;

(4) Providing information with respect to the after-sales consumer assistance that may deceive the average consumer (in this case the defendant has stated that all rightfully claimed warranty repairs were free of charge) and may therefore cause him to take a transactional decision that he would not have taken otherwise, constitutes an unfair misleading commercial practice pursuant to Chapter 2 Sec. 1 Art. 6 letter b) of the UCP Directive. It was held that the statement of the defendant led the consumer to believe that an additional right was granted, whereas the consumer was already entitled to this right according to applicable law. By acting as such and more specifically including the term "rightfully" without its further specification, the average consumer is likely to be deceived.

(5) Failing to comply with the obligation of the defendant to duly inform the consumer on the conditions of the complaint handling, including information on where to issue the complaint, constitutes a breach of Art. 18 Sec. 1 of the Consumer Protection Act.

  URL Decision Decision full text
EN N/A
SK http://www.soi.sk/files/documents/pravoplatne-rozhodnutie/prvostupnove/zilinsky-kraj/za302011.rtf Click here

Result

The administrative body imposed a fine of € 440.

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