Enforcement fiche for Czech RepublicB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
In the Czech Republic, the Directive is implemented by the Act no. 36/2008 Coll., amending the Act no. 634/1992 Coll., on Protection of Consumers, as amended ("Act on Protection of Consumers"), Act no. 40/1995 Coll., on Regulation of Advertising, as amended, Act no. 468/1991 Coll., on Operation of a Television and Radio Broadcasting, as amended, and Act no. 513/1991 Coll., Commercial Code, as amended ("Implementation Act"). The main regulation is, however, contained in the Act on Protection of Consumers. The general enforcement of this Act is handled by the Czech Trade Inspection Authority ("CTIA"), however, in certain cases it is handled by other Czech authorities, such as State Agricultural and Food Inspection, regional hygienic stations, state or regional veterinary administration, trade offices, etc. All the aforementioned authorities are also competent for receiving administrative complaints according to the area upon which each of them focuses. The general website of CTIA can be found at http://www.coi.cz/en/.
|Who can file administrative complaints?||
Administrative complaints can be filed by any natural or legal person. There is no need to prove a legitimate interest. In addition, administrative complaints can be also filed by associations of consumers or other similar legal entities established for the protection of consumers.
|Do any specific procedural requirements apply to filing administrative complaints?||
Administrative complaints may be filed electronically at http://www.coi.cz/en/for-consumer/complaints-submissions-information-requests/, in writing at the relevant regional office of CTIA or personally at relevant regional office of CTIA during its office hours (there is usually a department of advisory services, which also accepts incentives/complaints). Filing via phone is not possible (consumer line serves only to provide information).
|Do the administrative authorities have an obligation to investigate the complaint?||
Pursuant to Section 42 of the Act. no. 500/2004 Coll., Administrative Procedure Code ("Administrative Procedure Code"), the administrative authority (i.e. CTIA) is obligated to accept inducements to commence a proceeding by virtue of office. The administrative authority is obligated, on the demand of the person who would give rise to such proceedings, to notify such person within 30 days after the reception of the inducement, stating that either the administrative authority has commenced the proceedings, or that it has not found a reason to commence the proceedings by virtue of office, or that it has transferred the inducement to the competent administrative authority.
Due to lack of evidence, it is often not possible to penalize the perpetrator for the offence reported by the complainant. However, CTIA can open an investigation by virtue of office, and in the event of the perpetrator continuing to break the law, CTIA can acquire the evidence and start proceedings against him.
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
The Act on Protection of Consumers does not contain any such requirement. In general, every complainant is obliged to provide evidence supporting his statements (otherwise he risks the complaint being dismissed). The Administrative Procedure Code states that in order to produce evidence, it is possible to use all means of evidence which are appropriate to find the facts of the case and which are not acquired or produced in violation of legal regulations. The means of proof are, in particular: public instruments (certificates, deeds, etc.); examinations or inspections; testimonies and expert reports.
Grounds for the issuance of a decision of CTIA are, in particular: petitions of the participants; evidence; facts known to the administrative authority from its official activity; sources from other administrative authorities or other public bodies.
The administrative authority (i.e. CTIA) weights the sources, particularly evidence, under its consideration except where the statute provides that a source is binding for the administrative authority; at the same time the administrative authority carefully takes into consideration everything that has transpired in the course of the proceedings including what was adduced by the participants.
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
A cease-and-desist action or a general claim for civil damages can be filed before the competent district court.
|Who can start a court action?||
The court action can be initiated by a natural person or legal entity with direct and legitimate interest in the case, including qualified associations, such as consumer associations. According to Section 25 of the Act on the Protection of Consumers, a motion to begin court proceedings for injunctions in matters concerning the protection of consumer rights may be filed by such persons or entities, who may then participate in the proceedings.
|Can court actions be initiated by competitors?||
Yes, although a competitor must prove its legitimate interest, i.e. persons whose rights have been violated or jeopardized as a result of unfair competition can demand that the offender desists from such conduct and eliminate the improper state of affairs. They can also demand appropriate satisfaction, which may be rendered in money, compensation for damage (i.e. damages) and the surrender of unjust enrichment (Section 53 of the Act no. 513/1991 Coll., Commercial Code).
Please note that as of 1 January 2014, the Commercial Code will be repealed and unfair competition will be governed by Sections 2976 to 2990 of Act no. 89/2012 Coll., Civil Code ("New Civil Code"). However, the legal means of protection against unfair competition, i.e. appropriate satisfaction, which may be rendered in money, damages and the surrender of unjust enrichment, remain the same (Section 2988 of the New Civil Code).
|Can the case be handled through an accelerated procedure?||
Act No. 99/1963 Coll., the Civil Procedure Code ("Civil Procedure Code"), enables the issuance of a payment order instead of a regular judgment (Sections 172 and subsequent of the Civil Procedure Code). The court may issue a payment order without ordering a hearing should the following conditions be met: (i) the action filed is for money; (ii) the Plaintiff states all the information needed for the court decision about the Plaintiff's right (so that the court is able to decide after reviewing such action); and (iii) the Defendant's address is known and the payment order will not be delivered abroad. If any of the conditions mentioned in the previous sentence are not met, in particular if the court does not consider the documentation submitted by the Plaintiff to be sufficient for its final decision, the court will order a hearing and the proceedings continue in the standard form. The payment order must be physically delivered to the Defendant (i.e. the presumed delivery shall not apply for the payment order). The Defendant may file an appeal within 15 days of such delivery. Such appeal means the cancellation of the payment order, whereby the court shall order a hearing and the proceedings continue in the standard form. Should no appeal be filed within 15 days of delivery, the payment order comes into legal force.
The Plaintiff may also submit an action for the electronic payment order (Section 174a of the Civil Procedure Code). The court may issue an electronic payment order if the following conditions, along with the conditions for a "regular" payment order mentioned above, are met: (i) the action is filed in the prescribed electronic form (available on-line); (ii) such form is signed by a secured electronic signature; and (iii) the claim does not exceed the amount of CZK 1,000,000 (approx. EUR 40,000). The provisions on delivery, appeal and legal force are the same as for a "regular" payment order.
The Civil Procedure Code also provides for European payment orders, in accordance with Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure.
|Are there any specific requirements regarding the provision of evidence to the court?||
According to the Civil Procedure Code (Section 120), parties to the proceedings are obliged to provide evidence for all of their statements. However, the court decides which evidence will be used.
Section 54 of the Commercial Code states that if a consumer makes a claim under the right to require that the offender desists from its illicit conduct or eliminates the improper state in cases of Misleading Advertising, Misleading Marking of Goods and Services, Conduct Contributing towards Mistaken Identity or Endangering the Health of Others and the Environment, the offender must prove that it did not behave in a way contrary to the provisions on unfair competition. The same shall apply to the obligation of the offender to damages and to the other party's right to appropriate satisfaction and the surrender of unjust enrichment.
As mentioned above, the Commercial Code will be repealed as of 1 January 2014. However, the New Civil Code (Section 2989) stipulates the same obligation as Section 54 of the Commercial Code.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
The possible outcomes from the civil proceedings are mainly the obligation to refrain from unlawful conduct and damages. In matters of unfair competitive practices and protection of consumer rights the court may grant to the successful party, on its demand, the right to publish the judgment at the expense of the unsuccessful party (Section 155 of the Civil Procedure Code).
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
According to Act no. 40/2009 Coll., Criminal Code, the following sanctions may be imposed for the infringement:
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
Pursuant to the Act on Protection of Customers, fines up to CZK 50,000,000 (approx. EUR 2,000,000) may be imposed by CTIA as follows:
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
Contractual consequences of an administrative order or a judgment relating to an unfair commercial practice only applies only to the consumer who brings an action and the entrepreneur who concluded the contract. For instance, a court may declare the invalidity of such contracts as have been concluded in violation of the respective legal regulation.
|How can consumers get redress/compensation (e.g. through collective actions)?||
Czech law does not recognize a collective action. However, there are some provisions in the Civil Procedure Code relating to the "consumer actions" with respect to the possibility of the higher amount of actions regarding the same issue. According to Section 83 of the Civil Procedure Code initiation of procedures (i) dealing with refraining from unlawful conduct in matters of protection of the rights infringed or threatened by acts of unfair competition acts, and (ii) in matters of consumer rights, prevents initiation of any other further proceedings before the court against the same Defendant regarding the same issue. Furthermore, the final judgment in these cases is binding for the other persons exercising the same claims (Section 159a of the Civil Procedure Code).
|Can the administrative authorities or the courts require the publication of their decisions?||
As already mentioned above, Section 155 of the Civil Procedure Code states that in respect of the protection of rights violated or threatened by unfair competition conduct, protection of intellectual property and the matters of protection of consumer rights, the court may grant to the successful party, on its demand, the right to publish the judgment at the expense of the unsuccessful party. With respect to the facts of the case, the court also determines the scope, form and manner of such publication.
CTIA publishes results of inspections at its internet site http://www.coi.cz/en/for-consumer/results-of-inspections/.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
Ministry of Trade and Industry jointly with the Economic Chamber of the Czech Republic and consumer associations launched from 1 April 2008 a Project of Alternative Dispute Resolution relating to consumer disputes (disputes arising from the contractual relationship between entrepreneur and consumer). In the event that the entrepreneur and consumer want to solve their dispute by alternative means, it is sufficient to fill out a simple form and send it to the appropriate point of contact. Officers shall provide qualified information and recommend methods of dispute resolution. If the dispute is not resolved soon thereafter, the officer shall arrange all essential steps necessary to initiate mediation or arbitration. Mediation is free of charge (remuneration of the mediator is paid by the Ministry). In the case of arbitration, a fee of 3% of the amount of the dispute must be paid (remuneration of the arbitrator is covered by the Ministry).
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
Yes, there is a system of the so-called "consumer ombudsman" (http://www.mpo.cz/dokument141062.html) that enables consumers to effectively and gratuitously enforce their consumer rights.