Dear clients and cooperation
partners,
Technological development allows
businesses and consumers to choose ever more ways to sell and buy services
and goods. In the meanwhile, new forms of goods and services appear that
clearly result from development of new technologies. Choosing and ordering
goods and services over the internet or the web has become the norm.
Likewise, ordering goods and services over the phone, e-mail or TV is still
topical. In all these cases when a buyer and a seller who are not at the
same location agree on buying a product or service and they use these
various means of distance communication, a distance contract is concluded.
When these deals are made with consumers, this field is regulated by laws
and regulations based on European Union (EU) law and that
introduce the requirements of
an EU directive. Thus on 13
June this year, amendments to the Consumer Right Protection Law and new
Cabinet Regulations of 20 May 2014 regulating distance contracts
came into force.
The new regulations1 impose
new legal obligations on sellers and service providers, including giving
additional information to the consumer before entering into a contract.
Likewise the new regulation adds to the scope of consumer rights, eg, to
receive information before entering into a contract.
1. DEFINITION OF DISTANCE CONTRACT AND SCOPE OF THE
NEW REGULATION
2. CONTENTS OF CONTRACT AND PROVISION OF INFORMATION
TO THE CONSUMER BEFORE CONCLUSION OF CONTRACT
3. MOST IMPORTANT CHANGES IN CONSUMER RIGHT OF
WITHDRAWAL FROM CONTRACT
DEFINITION OF DISTANCE
CONTRACT AND SCOPE OF THE NEW REGULATION
The definition of distance contract in
the new wording of the Consumer Right Protection Law has been specified and
made more neutral technology-wise. Namely: “A distance contract is an
agreement between a consumer and a seller or service provider made without
their being located in one and the same place, by using one or several
means of distance communication until and during conclusion of the contract,
as well as by using an organised scheme to sell goods or provide
services.” The law goes on to explain the presently available and
known means of distance communication, listing means of distance
communication as telephones, web, electronic mail, television, fax,
catalogue, published advertising with an attached order voucher. At the
same time, the definition is “open” because it allows other
distance means to transfer and transmit information. The definition in the
previous wording of the law did not stress the circumstances that the
parties were not at one and the same place upon or until final conclusion
of the contract.
The new law excludes the requirement that
the means of distance communication (telephones and the like) allowing
individual contact with the consumer can only be used by the producer,
seller or service provider where clear consent is received from the
consumer. Likewise excluded is the requirement to perform a distance
contract within 30 days if the contracting parties have not agreed on a
specific performance period.
The regulations now clearly indicate
what contracts are excluded from this requirement. These
are:
- package tourism services;
- leisure time services;
- transportation services (except car
rentals);
- services of regular supplies of food
or products intended for immediate consumption;
- financial services;
- purchases from vending machines;
- orders performed on the
consumer’s initiative through a communication operator;
- contracts on purchase or transfer of
immovable property or related rights;
- contracts on construction of new
buildings or reconstruction of existing buildings;
- tenancy agreements for residential
premises.
The new regulations are more detailed and
refer to new services and goods created as a result of technological
development. For example, the regulations specify requirements for contracts
on delivery of digital content. Under the new definition introduced in the
Consumer Right Protection Law, the regulations also apply to distance
contracts made for data created and supplied in digital form (for example,
applications and computer games).
The new regulation aims to increase
consumer rights protection by setting requirements for concluding distance
contracts. The new regulations on distance contracts cover three main
sections:
- Provision of information to consumers
before conclusion of contract.
- Information to be included in the
contract.
- Implementation of the right of
withdrawal (duration, procedure, exceptions).
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CONTENTS OF CONTRACT AND PROVISION OF
INFORMATION TO THE CONSUMER BEFORE CONCLUSION OF CONTRACT
More and more distance contracts are made
via, eg, smartphones, tablets and even TV with limited rights to provide
information; therefore the new regulations have improved the requirements
to inform consumers. Traders and service providers should verify their
systems and procedure for concluding distance contracts, especially taking
into account the requirement for the seller or service provider to prove
that the consumer has received the information indicated in the new
regulations. For example, by including the required clauses in the sales
terms available to consumers before concluding a contract (approval of
order on-line) or by including specific information in the order approval
(unless it must be provided before conclusion of the contract) to clearly
prove that the information has been provided. In case of doubt, if a seller
or service provider cannot prove that specific information has been
provided, the presumption will be that this information has not been
provided. In addition, this burden of proof must be taken into account
together with the rule that the information required in the regulations
must be provided by the seller or service provider in plain and
intelligible language and in a manner that corresponds to the means of
distance communication used. In addition, if the information is provided on
a durable medium, it must be legible. If the information is not
intelligible or readable, then the risk is that in case of a dispute the
Consumer Rights Protection Centre will consider that the information was
not provided. This, in turn, could cause legal consequences in certain
cases in that the consumer would have no obligation, eg, to cover
additional payments for supply or costs of returning the goods if it is
considered that information about these costs was not provided or it was not
provided plainly and intelligibly.
The range of aspects of information to be
provided to the consumer is very broad. However, not all apply in every
case, so that the specifics of the service or goods provided are, of
course, important.
Traders and service providers have new
obligations in the new regulations to provide information on:
- the main specifics of
the goods or services, to the extent suitable for the durable medium
used and the respective goods or services;
- the identity of the
seller or service provider, for example, their name;
- the registered address
of the seller or service provider (or the actual address, if
different from the registered address) plus how the consumer can
quickly and efficiently contact the seller or service provider;
- the final price of the
goods or services, including taxes and duties; if the specifics of the
goods or services do not allow reasonable calculation of the price in
advance, the method of calculation must be indicated;
- costs of delivery,
postal or other costs; if the costs cannot be reasonably
calculated in advance, information must be indicated that these costs
can be expected;
- payment for one billing
period if a contract is for an unlimited period or
subscription contracts have been concluded; if a fixed sum is paid
under these contracts, the total monthly payment must be indicated; if the
total monthly payment cannot be reasonably calculated in advance, the
method of calculation must be indicated;
- payment for use of the means of
distance communication used to conclude the contract, unless
concluded in compliance with the base rate;
- conditions,
deadlines for payment, delivery of goods or performance of
services, where the seller or service provider undertakes to deliver
goods or services, and the procedure for settling
complaints;
- conditions for use of the right
of withdrawal, their duration and procedure must be given to
the consumer, as well as a withdrawal form approved by the
Cabinet;
- if the right of withdrawal is used
and the goods cannot be normally returned by mail due to their
specifics, the consumer covers the costs related to
returning the goods;
- that the consumer pays the seller or
service provider a proportional amount of full
performance of the contract that corresponds to the part of the
contact completed at the moment when the consumer informs the service
provider about use of the right of withdrawal;
- when the right of withdrawal
is not applied under the regulations, as well as information
that the consumer cannot use the right of withdrawal or information
about circumstances when the consumer loses the right of withdrawal;
- the consumer's lawful rights if the
goods or services do not comply with the contract
provisions;
- warranty,
post-sale assistance and services, and their
conditions;
- a developed code of good
business practice in compliance with the Unfair Commercial Practice
Prohibition Law and how to get a copy if it applies to the trader;
- contract duration, if
the contract was for a specific period, or contract
termination conditions if the contract duration is indeterminate or
is to be extended automatically;
- minimal contract
duration specified in the contract;
- deposit or other
financial guarantee that the consumer must pay or provide
on the seller's or service provider's demand, as well as the
conditions;
- digital
content and specifics of its use (functionality), including
measures of technical protection;
- interoperability of
digital content with devices and applications if the seller or
service provider has this information or should reasonably have known
it;
- options to review complaints
and receive compensation out-of-court and methods for
accessing these options.
As mentioned, this information must be
given to consumers plainly and intelligibly in compliance with the
functionality of the means of communication used, as well as no later than
before the moment of product delivery or service provision. This information
must be provided to the consumer in a durable medium, namely, a hard copy,
offer to print it, send by e-mail or burn on a DVD, CD and the like.
A vital condition from the legal point of
view is that the information to be provided by the trader or service
provider is an integral part of the contract. Therefore these conditions
will actually be included in the contract contents and regulations that can
be amended only if the parties clearly agree. Traders and service providers
should be aware that upon amending this information and provisions, the
amendments will apply only to new contracts. Contracts that have already
been concluded can be amended only with the parties’ agreement.
If a distance contract is made
electronically and the consumer has to pay before placing the order the
seller or service provider must provide clear and prominent information
about the goods or service specifics, delivery and postal expenses,
subscription fee, payment for use of means of distance communication to
conclude the contract, minimal contract duration, deposits or other
guarantees.
Traders or service providers who use the
web should definitely be aware that they need to ensure that upon placing
an order the consumer provides clear consent that the order includes the
obligation to pay. If, for example, upon placing an order the consumer must
press a button or perform another similar operation, this must be presented
in an easily legible manner with the words “order with obligation to
pay” or some other similarly clearly unambiguous formulation as to
the consumer’s obligation to pay. If the seller or service provider
fails to do so, the contract or order is not binding on the consumer under
the new regulation.
In turn, a seller or service provider who
uses telephone to conclude a distance contract must inform the consumer at
the beginning of the conversation about his identity or the identity of the
person on whose behalf he is calling, as well as about the commercial
intent of the call.
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MOST IMPORTANT CHANGES IN CONSUMER RIGHT
OF WITHDRAWAL FROM CONTRACT
The right of withdrawal was known before,
and in itself is nothing new. However, the new regulation contains
supplements and improvements. So far, the right of withdrawal was available
within 14 days. This has not changed in the new regulation. However, the new
regulation specifies the moment when this period starts running. If the
trader has not provided the specified information about the right of
withdrawal before concluding a distance contract, the consumer will be
entitled to use the right of withdrawal within a year. So far, this period
was three months.
If a service is provided, the period for
the right of withdrawal starts running from the day when the contract is
concluded. In the case of delivery of goods, the period for withdrawal
starts from the day when the consumer obtained possession of the goods. If
the consumer orders several goods in one order delivered separately, the
period of withdrawal is counted from the day the consumer obtains
possession of the final item. In turn, in the case of delivery of a product
which consists of several units or parts, the term for withdrawal is
calculated from the day when the consumer obtained possession of the last
lot or piece. In the case of contracts for regular delivery of goods, the
term for withdrawal starts running from the day the consumer obtained
possession of the first good.
The new regulation provides for a range
of cases when the right of withdrawal cannot be used. This list is quite
detailed, but the most significant cases are, for example, situations when:
- goods are manufactured upon the
consumer’s instructions or the goods are clearly personalised;
- goods are liable to deteriorate or
expire rapidly;
- the consumer has unsealed the
packaging of a product that cannot be returned for health or hygiene
reasons;
- due to their specifics, the goods have
inseparably mixed with other items after delivery;
- the consumer has unsealed the
packaging of an audio or video recording, or computer software;
- newspapers, periodicals or magazines,
except when delivered under a subscription contract;
- the contract covers delivery of
digital content that is not delivered in a durable medium, if delivery of
the digital contents started with the consumer's clearly expressed consent
and confirmation about losing the right of withdrawal.
In provision of services, specific
features apply to use of the right of withdrawal. In particular, if a
consumer starts receiving the service during the term, when the right of
withdrawal can be used, and provision is fully completed, the consumer can
no longer use the right of withdrawal. If service provision is not
completed, then the right of withdrawal can be used with regard to the
remaining part of the services. In these cases the service provider must
ask the consumer to confirm consumer intent to start using the right to
cancel service provision during the period, as well as to inform the
consumer about loss of the right of withdrawal if service provision is
fully completed. When the right of withdrawal remains in force because
services are not completed, the consumer must compensate the service
provider for the scope of services provided by the end of the term of the
right of withdrawal, before use of such right.
News regarding delivery of digital
content should be especially emphasized. These are video, audio and other
files downloaded by the consumer. The consumer loses the right of
withdrawal if downloading digital content that is not delivered in a
tangible medium has started on the consumer’s initiative. In this case
the trader must request clear consent from the consumer to start
downloading digital content before expiry of the right of withdrawal and
information that once delivery of digital content starts the right of
withdrawal can no longer be used. Unlike services of digital contents the
right of withdrawal is lost when delivery of digital contents of intangible
delivery starts (but is not finished), and the consumer cannot claim
compensation for any undelivered digital content. These regulations are
highly significant because, if the trader has not met the requirement to
request the consumer’s confirmation and to warn him, the consumer
will not lose the right of withdrawal with regard to distance contracts for
services and digital contents whose performance has been initiated before
expiry of the right of withdrawal.
1 Cabinet Regulations No. 255
“Distance Contract Regulations” adopted on 20 May 2014.
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