Case detailB a c k
Article 6 1.
Article 6 1. (c)
Article 6 1. (g)
|National ID||Decision no. DDK-8/2011|
|Common name||Decision type||Administrative decision, first degree|
|Court||Prezes Urzędu Ochrony Konkurencji i Konsumentów w Warszawie||Plaintiff(s)||The President of the Office of Competition and Consumer Protection in Warsaw|
|Court translation||The President of the Office of Competition and Consumer Protection in Warsaw||Defendant(s)||Media Markt Polska sp. z o.o. Olsztyn sp.k. with its registered office in Warszawa|
|Keywords||complaints, proof of damage, repair, replacement|
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Under certain circumstances it is an unfair commercial practice not to accept or to reject a consumer complaint submitted by consumers more than 6 months after purchasing the products concerned, in case the consumer does not prove the nonconformity between the good purchased and the contractual specifications.
The defendant, is an entrepreneur which conducts a business activity consisting of the sale of electrical devices for households, radio and television goods, computers, telecommunication and photographic devices. The defendant also offers after-sale services, consisting of accepting and considering complaints submitted due to guarantee.
As a principle of law, a trader is responsible for the nonconformity of a product which existed at the moment of purchase of the product by the consumer, and this for a period of two years. In case such nonconformity is disclosed within 6 months from the issuance of the product, it is assumed that the nonconformity existed at the moment of the issuance of the product. For nonconformities established outside such 6 months period, the consumer must prove that the nonconformity existed at the moment of purchase.
It was proved during the proceedings that the defendant almost automatically rejected consumers' complaints, due to the lack of evidence that the nonconformity of the product with the contract was notified by a consumer within the aforementioned 6 months period.
Is it an unfair commercial practice not to accept or to reject a consumer complaint submitted by consumers more than 6 months after purchasing the products concerned, in case the consumer does not prove the nonconformity between the good purchased and the contractual specifications?
Based on the following reasoning, the President of the Office of Competition and Consumer Protection ruled that the defendant infringed the prohibition on unfair commercial practices.
The defendant, the President held, when rejecting the complaints did not give any merits-related reasons for rejecting the complaint and did not give its opinion relating to the essence of the complaint, especially of the kind of fault concerned. It was repeated by the court that the defendant's response to a complaint was limited to a reference to the relevant legal provisions which require to prove that the nonconformity of the product existed at the moment of purchase of the product. This was especially the case in events were the nonconformity was communicated by the consumer outside of the 6 months period, relevant for the burden of proof.
The court subsequently ruled that the result of this conduct of the defendant is that consumers may have resigned from withdrawing from the contract. It was also emphasized by the court that the defendant is a respectable player on the market on which it operates. By providing maintenance and repair services relating to products sold, the defendant arouses the consumer's trust and expectation that the defendant will professionally handle complaints and repairs and thus, consumers are likely to be more eager to choose the defendant as the supplier of the mentioned products.
In the opinion of the court, the concerned practice therefore distorts or is likely to distort the economic behavior of the average consumer whom it reaches or to whom it is addressed. Hence, the activity of the defendant was found to be unlawful.
In determining whether the defendant's practice violated the collective interests of the consumers, the court repeated that the collective interest of consumers does not need to refer to an unlimited number of consumers which cannot be individualized since the lack of individualization does not make it impossible to create a group of consumers who are characterised by the same feature. In the case at hand, the defendant violated the interest of a potentially unlimited group of consumers, i.e. all consumers, as potential consumers of the defendant, which could be exposed to the defendant's unfair practice.
The practice used by the defendant was found to be unfair. Defendant was ordered to discontinue the challenged practices, and in particular to organize regular audits of complaint proceedings, to carry out additional staff trainings, not to suggest consumers that expert opinion is required to prove the nonconformity of the product with the contract.
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