What is Act No. 378 / 2015 Coll.?

Act No. 378 / 2015 Coll., amending Act No. 634 / 1992 Coll., on Consumer Protection, as amended, and some other laws — Act amending Act No. 634 / 1992 Coll., on Consumer Protection, as amended, and certain other laws.

When it became Act No. 378 / 2015 Coll. effectiveness?

Act No. 378 / 2015 Coll. became effective 28.12.2015.

Is Act No. 378 / 2015 Coll. still valid?

Yes, Act No. 378 / 2015 Coll. is still valid and effective.

How many times was it Act No. 378 / 2015 Coll. amended?

Act No. 378 / 2015 Coll. has 3 time versions of the text.

Act No. 378 / 2015 Coll. - Act amending Act No. 634 / 1992 Coll., o...

378

THE LAW

of 9 December 2015

amending Act No. 634 / 1992 Coll., on Consumer Protection, as amended, and certain other laws

Parliament has decided on this law of the Czech Republic:

ČÁST PRVNÍ

Amendment to the Consumer Protection Act

Čl. I

Act No. 634 / 1992 Coll., as amended by Act No. 217 / 1993 Coll., Act No. 40 / 1995 Coll., Act No. 104 / 1995 Coll., Act No. 110 / 1997 Coll., Act No. 356 / 1999 Coll., Act No. 36 / 2008 Coll., Act No. 151 / 2002 Coll., Act No. 320 / 2002 Coll., Act No. 227 / 2004 Coll., Act No. 214 / 2003 Coll., Act No. 439 / 2003 Coll., Act No. 119 / 2004 Coll., Act No. 186 / 2004 Coll., Act No. 227 / 2003 Coll.

1. In footnote 1, the words "Directive 2011 / 83 / EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93 / 13 / EEC and Directive 1999 / 44 / EC of the European Parliament and of the Council and repealing Council Directive 85 / 577 / EEC and Directive 97 / 7 / EC of the European Parliament and of the Council are added at the end of the text. Directive 2013 / 11 / EU of the European Parliament and of the Council of 21 May 2013 on alternative solutions to consumer disputes and amending Regulation (EC) No 2006 / 2004 and Directive 2009 / 22 / EC (Directive on alternative solutions to consumer disputes). '

2. in Paragraph 1 (1), "European Union31), 32)" is replaced by "European Union31), 32), 36);"

footnote 36:

"(36) Regulation (EU) No 524 / 2013 of the European Parliament and of the Council of 21 May 2013 on the resolution of consumer disputes online and amending Regulation (EC) No 2006 / 2004 and Directive 2009 / 22 / EC (online consumer dispute resolution regulation).";

3. In Paragraph 1 (1), footnote 1a is deleted, including the footnote references.

4. footnote 2 shall read:

"2) § 214 et seq. of the Civil Code. '.

5. In Article 1, the words "and out-of-court settlement of consumer disputes' shall be added at the end of the text of paragraph 1.

(6) footnote 3 shall read:

(3) For example, Act No. 22 / 1997 Coll., on the Technical Requirements for Products and on the Amendment and Addition of Certain Laws, as amended, Act No. 372 / 2011 Coll., on Health Services and Conditions of Provision (Act on Health Services), as amended, Act No. 133 / 1985 Coll., on Fire Protection, as amended, Act No. 154 / 2000 Coll., on Breeding, Breeding and Registration of Economic Animals, and on the Amendment of Certain Related Laws (Act No. 119 / 2002 Coll.), Act No. 166 / 1999 Coll., Act No. 166 / 1999 Coll., on Veterinary Care, and Amendments to Certain Related Laws (Veterinary Act), Act No. 266 / 1994 Coll.

7. footnote 4:

"4) § 420 of the Civil Code. '.

8. In Article 2 (1) (c), the words "part or provided services' are replaced by" part '.

9. in Article 2 (1) (f):

"(f) the product of a product which is intended to offer to the consumer, including the rights and obligations relating to that product,";

10. in Article 2 (1) (g), the words "with the exception of activities governed by specific laws, (4a) where the supervision of consumer protection is entrusted to professional associations or other bodies of government other than those referred to in Article 23," shall be replaced by the words "including rights and obligations relating to that activity,";

footnote 4a is deleted.

11. in Article 2 (1) (n), the words "or goods" shall be deleted;

12. in Article 2 (1) (n) (1), the words "or goods" shall be deleted;

13. in Paragraph 2 (1) (n) (2), the words "or goods which" are replaced by "which" and the words "copyright or related rights" shall be replaced by the words "copyright or copyright rights."

14. footnote 4c reads:

"4c) Act No. 121 / 2000 Coll., on copyright law, on copyright law and on the amendment of certain laws (copyright law), as amended. Act No. 527 / 1990 Coll., on inventions, designs and improvements, as amended. '

15. in Article 2 (1) (n) (3), the words "or goods" shall be deleted;

16. in Paragraph 2 (1) (n) (4), the words "or goods" shall be deleted;

17. in Article 2 (1), the following point (o) is inserted after point (n):

"(o) the commercial practice of the seller's manner of conduct, omission, declaration, commercial communication, including advertising and marketing related to the promotion, sale or supply of the product or service to the consumer,"

Point (o) shall be renumbered as point (p).

18. In Article 2, at the end of paragraph 1, the dot is replaced by a comma and the following points (q) to (v) are added:

"(q) an offer to purchase a commercial message which, in a way suitable for the type of commercial communication used, provides information on the product or service and price and thus enables the consumer to make a purchase,

(r) a decision on the purchase of a consumer's decision on whether, how and under what conditions he or she buys a product or service, whether he or she pays for it either at the same time or in part, whether or not he or she retains it, or whether or not he or she exercises the right under the contract, whether or not the consumer decides to act or abstain;

(s) a significant distortion of the consumer's economic behaviour by the use of a commercial practice which significantly imposes a deterioration in the consumer's ability to make an informed decision, which results in it making a decision on a purchase which it would otherwise not have taken;

(t) undue influence on the use of a stronger seller's position vis-à-vis the consumer in a way that significantly limits its ability to make an informed decision, even without the use of physical force or the threat of its use;

(u) a cross-border dispute arising from a purchase or service contract where the consumer is resident in a Member State of the European Union or a State constituting the European Economic Area other than the State in which the seller is established,

(v) consumer competition, poll or other price events organised for consumers directly in connection with the promotion, offer or sale of the product or service of the seller, where the seller or the person authorised by him undertakes to pay the participants, determined by random withdrawal of the cash or non-cash price, on which the participation of a particular product or service and supporting such purchase to the seller or the conclusion of a contractual relationship with the seller of the product, or the services or participation of the consumer in the marketing event of the seller, is subject to the participation of a particular product or service, including indirectly, through another person. ';

19.

„§ 3a

Use of a telephone number with a higher than normal price

A seller who uses a public communications service to communicate with a consumer in connection with a contract concluded may not use a service the use of which would mean charging consumers higher prices than the normal price of a call (1a).

(1a) Decree No 117 / 2007 Coll., on numbering plans for electronic communications networks and services, as amended. '

20. Paragraph 4 to 5a, including the headings and footnotes No 6b, read:

„§ 4

Unfair commercial practice

(1) The commercial practice is unfair if it is contrary to the requirements of professional care and significantly disrupts or is capable of significantly distorting the economic behaviour of the consumer to whom it is addressed or is exposed to it in relation to the product or service. Where the commercial practice is targeted at a particular group of consumers, it shall be assessed on the basis of the average member of that group.

(2) A commercial practice which may significantly undermine the economic behaviour of certain clearly identifiable groups of consumers who are particularly vulnerable to such practices or products or services because of their mental or physical weakness, age or credibility, in a manner which the seller may reasonably expect, shall be assessed from the perspective of the average member of that group. This is without prejudice to normal and legitimate advertising practices of exaggerated declarations or declarations which are not literally meant.

(3) Unfair commercial practice means, in particular, misleading conduct under § 5 or misleading omission under § 5a and aggressive commercial practice under § 5b. Commercial practices which are considered to be unfair in all circumstances are listed in Annexes 1 and 2 to this Act.

(4) The use of unfair commercial practices before a decision on purchase, during and after a decision is taken shall be prohibited.

§ 5

Deception

(1) The commercial practice is considered to be misleading if it contains factually incorrect information and is therefore false, which leads or may lead the consumer to decide on a purchase which he would otherwise not have done.

(2) A commercial practice containing true information shall also be deemed to be misleading if it leads or may lead to a consumer's decision on a purchase which he would otherwise not have done, provided that he or she in any way misleads or is able to mislead the consumer about:

(a) the existence and nature of the product or service;

(b) the main characteristics of the product or service, such as data on their availability, benefits, risks, execution, composition, accessories, after-sales service and complaint handling, production process and date of manufacture or delivery, delivery, eligibility for use, possibilities for use, quantity, specification, geographical or commercial origin, expected results of their use or results and tests or checks carried out;

(c) the extent of the seller's undertaking, the motive for commercial practice and the substance of the sales process, the declaration or the symbol relating to direct or indirect sponsorship or approval of the seller or the product or service;

(d) the price or method of calculating the price or the existence of a particular price advantage;

(e) the need for service, replacement part, replacement or repair;

(f) the nature, characteristics and rights of the seller or his representative, such as his identification and property, his capacity, his status, his approval, his association or his relations, his industrial, commercial or intellectual property rights or his valuations and honours; or

(g) the rights of the consumer, including the right to a replacement supply or refund of the purchase price resulting from the rights arising from the defective performance or the risk to which it may be exposed.

(3) The commercial practice shall also be deemed to be misleading if, in the factual context, taking into account all its features and circumstances, it leads or may lead the consumer to take a decision on a purchase which he would otherwise not have taken, and where it includes:

(a) any placing on the market of a product or service, including comparative advertising leading to confusion with another product or service;

(b) any placing on the market of a product or service, including comparative advertising leading to confusion with a trade mark, a trading firm or other distinguishing features of another seller; or

(c) non-compliance with a clear undertaking contained in the code of conduct which the seller has shown to have committed himself to.

§ 5a

False omission

(1) A commercial practice shall be deemed to be misleading if, in its factual context and taking into account all its features, circumstances and restrictions on the media, it omits to disclose the essential information which the consumer needs in that context for the decision on the purchase, thereby causing or may cause the consumer to take a decision on the purchase which he would otherwise not have taken.

(2) It shall also be considered a misleading omission where the seller of the relevant information referred to in paragraph 1 conceals or provides unclear, incomprehensible or ambiguous information, or at an inappropriate time, in view of the circumstances described in paragraph 1, or does not indicate the commercial intention of the commercial practice, unless it is apparent from the context, and where, in both cases, this leads or may lead the consumer to a decision concerning the purchase which he would otherwise not have taken.

(3) If it is not apparent from the context, they shall be considered as relevant information in the case of a purchase offer

(a) the essential characteristics of the product or service to the extent appropriate to the means of communication concerned, as well as the product or service;

(b) the address and identity of the seller or person acting on his behalf or on his behalf;

(c) the price, including taxes, fees and other similar cash transactions, or, where it appears from the nature of the product or service, that the price cannot reasonably be determined in advance, the method of its calculation and, where appropriate, any other payment for transport or delivery, or, where such payment cannot reasonably be established in advance, the fact that such additional payments may be charged to the price;

(d) arrangements for payment conditions, delivery, performance and handling of complaints and complaints, where they deviate from professional care requirements;

(e) the right of withdrawal or termination of the undertaking, where such rights exist, and the conditions for their application.

(4) Information which is mandatory under the legislation implementing European Union6b) relating to commercial communications, including advertising or marketing, is considered to be material to the extent provided for by European Union law.

(5) Where the media disseminating commercial practice places restrictions on space and time, it is necessary to take into account those restrictions and any measures taken by the seller to ensure that consumers have access to information by other means when deciding whether information has been omitted.

6b) For example, Act No. 89 / 2012 Coll., Civil Code, Act No. 145 / 2010 Coll., on Consumer Credit and amending certain laws, as amended, Act No. 43 / 2013 Coll., Act No. 159 / 1999 Coll., on certain conditions of business in the field of tourism, as amended, Act No. 526 / 1990 Coll., on Prices, as amended, Act No. 79 / 1997 Coll., on Medicinal Products and on Amendments to Certain Related Acts, as amended, Act No. 37 / 2004 Coll., on Insurance Agreement and Amendment to the Law on Advertising and as amended by Act No. 468 / 1991 Coll. '

21. the following Sections 5b and 5c are inserted after Section 5a, including the headings:

„§ 5b

Aggressive commercial practice

(1) A commercial practice is considered to be aggressive if, in its factual context and taking into account all its features and circumstances, it significantly aggravates or may significantly impair the freedom of choice or behaviour of the consumer in relation to a product or service by harassment, coercion, including the use of physical force or undue influence, thereby causing or may cause the consumer to take a decision on a purchase that he would not otherwise have taken.

(2) When assessing whether a commercial practice is aggressive, account shall be taken of:

(a) the timing, location, nature or duration of the commercial practice;

(b) the manner in which he acts, his threats or his insults;

(c) the conscious use of an unfavourable consumer situation which leads to a deterioration of the consumer's judgement, to influence his decision in relation to a product or service;

(d) a disproportionate non-contractual barrier imposed by the seller for the exercise of the consumer's rights, including the exercise of the rights to terminate the contract or the change of the product or service or the change of the seller; or

(e) a threat to acts which are legally inadmissible.

§ 5c

Demonstration of claims

(1) The supervisory authority is entitled to require the seller to prove, in administrative proceedings, the accuracy of the factual claims relating to commercial practice where such a requirement appears reasonable in view of the legitimate interests of the seller and of any party to the proceedings in the light of the circumstances of the case.

(2) Where the seller fails to submit the required evidence referred to in paragraph 1 or where the supervisory authority considers the evidence submitted pursuant to paragraph 1 to be insufficient, the factual claims shall be considered incorrect. ';

22.

„§ 8

Prohibition on the marketing, sale and storage of products infringing certain intellectual property rights

It shall be prohibited to offer, sell and store products which infringe certain intellectual property rights or the unauthorised use of a sign protected under special legislation (4b). ';

23. In Paragraph 10 (7), "goods' is replaced by" products'.

24. in Paragraph 11 (1), the words "in Sections 9, 10, 13 and 19," shall be replaced by "in Sections 9, 10, 12, 13, 16 (1) and (3) and 19."

25. in Article 11a, "the sale of goods" is replaced by "the sale of products" and "the supply of goods" is replaced by "the supply of products."

26. footnote 11 reads as follows:

"11) Article 13 of Act No. 526 / 1990 Coll., on Prices, as amended."

27. Paragraph 12 (2) and (3) are deleted and paragraph 1 is deleted.

28.

„§ 14

Information obligation on non-judicial settlement of consumer disputes

(1) The Seller shall inform the consumer in a clear, comprehensible and easily accessible manner of an out-of-court dispute resolution body which is materially competent for the type of product, sold, supplied or brokered or services offered. The information shall also include the Internet address of that entity. If the seller operates the website, he shall also provide this information on this website. Where the contract concluded between the seller and the consumer refers to the terms and conditions of trade, it shall also indicate the information referred to in the first and second sentences in those terms.

(2) In the event of a dispute between a consumer and a seller which has not been able to settle directly between the parties, the seller shall provide the consumer with the information referred to in paragraph 1 in paper form or on another durable medium of data. ';

29. in Paragraph 14a, the following title is added: "Obligations of the market operator or market operator."

30. In Article 16 (4), the words "goods or goods' are replaced by the words" products or products' and the words "such goods' are replaced by the words" such products'.

31. in Article 19 (1), the words "goods sold" shall be replaced by the words "products sold."

(32) footnote 34 is deleted.

33. in Article 20 (4), the word "order" shall be replaced by "order";

footnote 37 is replaced by the following:

"37) § 37 (2) of the Administrative Regulation."

34. In Article 20 (4), the words "the price at which these products or services will be offered to consumers at an organised event shall be added at the end of the text in point (c), without taking into account any discounts individually agreed with the consumer at an organised event '.

35. in Article 20a (1), the words "indicating the price at which these products or services will actually be offered to consumers at an organised event, without taking into account any discounts individually agreed with the consumer at an organised event," shall be added at the end of the text of point (c).

36. The following Section 20b is inserted after Section 20a, including footnotes 44 and 45:

„§ 20b

(1) A seller who, in the framework of an organised action referred to in Article 20 (2), sells products or provides services may not, during that action or before the expiry of a period of seven days following the conclusion of the contract, require or accept transactions corresponding to the purchase price of the product or service offered or part of it. The prohibition in the first sentence shall also apply to the advance payment of the price or any other charge. This provision is without prejudice to the provisions on withdrawal under other legislation44).

(2) A breach of the obligation referred to in paragraph 1 shall be deemed to be a serious breach of the conditions laid down by a special legislation within the meaning of the Trade Code (45).

44) § 1829 et seq. of Act No. 89 / 2012 Coll., Civil Code.

45) Act No. 455 / 1991 Coll., on Business Business (Trade Act), as amended. '

The current Sections 20b to 20v are referred to as Sections 20c to 20y.

37. The following parts, third to fifth, shall be inserted after Part Two, including the headings and footnotes Nos 38 to 43 and 46 and 47:

„ČÁST TŘETÍ

Out-of-court settlement of consumer disputes

§ 20d

The consumer is entitled under this law to an out-of-court settlement of a consumer dispute from a sales contract or from a service contract ("consumer dispute '), with the exception of contracts concluded

(a) in the field of health services provided to patients by healthcare professionals for the purpose of providing healthcare (38), including prescribing, issuing and providing medicinal products and medical devices;

(b) services of general interest of a non-economic nature;

(c) public providers of further or higher education.

§ 20e

Dispute settlement bodies

The subject of an out-of-court settlement of consumer disputes within the meaning of this Act is:

(a) in the field of financial services, financial arbiter within the scope of the legislation governing financial arbitra39);

(b) in the field of electronic communications and postal services, the Czech Telecommunications Office, within the scope of the legislation governing electronic communications and postal services40),

(c) in the field of electricity, gas and heating, the Energy Regulatory Authority, within the scope of the legislation governing electricity, gas and heat (41);

(d) in cases where the authority of the authorities referred to in points (a) to (c) is not given, the Czech Trade Inspection Office or any other body entrusted with the Ministry of Industry and Trade; where the authorised body is a professional chamber with compulsory membership, it shall exercise jurisdiction in an area governed by another law.

§ 20f

(1) The Ministry of Industry and Trade shall entrust out-of-court solutions to consumer disputes to a person who requests this in writing and demonstrates compliance with the conditions laid down in Part Three and Part Four of this Act. The delegation shall be decided by the Ministry of Industry and Trade no later than 2 months after the submission of the application.

(2) The delegated body may be the person who:

(a) is a legal person established or established to protect the consumer or a professional body with a compulsory membership;

(b) has a dedicated budget for the out-of-court settlement of consumer disputes, which is separate from that person's budget;

(c) demonstrate that a natural person intended for the out-of-court settlement of consumer disputes is fully competent, has expertise, is independent and impartial; a natural person shall be considered to be professionally qualified, independent and impartial if at least he meets the requirements set out in Sections 20g and 20h;

(d) ensure that out-of-court dispute resolution is free of charge for consumers;

(e) satisfy the conditions laid down in the legislation on the protection of personal data.

(3) The Ministry of Industry and Trade checks that the entrusted entity fulfils the conditions for the out-of-court settlement of consumer disputes under this Act. If it finds that the entrusted entity does not meet any of these conditions, it shall invite it to be rectified immediately. If no correction is made within three months at the latest, the Ministry of Industry and Trade shall withdraw the mandate from the entity concerned and remove it from the list. It shall inform the European Commission of the relevant amendment. Re-entrustment shall be possible not earlier than three years after removal from the list.

(4) Where a professional chamber with compulsory membership is concerned, the control body of the professional chamber shall carry out the checks referred to in paragraph 3 under another law; paragraph 3, second sentence, shall apply mutatis mutandis. If no correction is made within the time limit referred to in paragraph 3, the supervisory authority shall notify the Ministry of Industry and Trade which shall withdraw the mandate from the body concerned and remove it from the list.

(5) The Ministry of Industry and Trade will remove the non-judicial dispute resolution body from the list in the event of its annulment.

(6) The Ministry of Industry and Trade keeps a list of non-judicial dispute resolution bodies. The list shall contain the following information:

(a) the name, contact details and Internet address;

(b) fees, if any,

(c) the language (s) in which the application may be submitted to initiate and conduct out-of-court dispute settlement;

(d) the types of disputes to which out-of-court settlement of consumer disputes may be used;

(e) the sectors and categories of disputes discussed by the non-judicial dispute resolution body;

(f) whether the physical presence of the parties is necessary and whether the out-of-court settlement of consumer disputes is or may be conducted orally or in writing;

(g) the nature of the outcome of the non-judicial settlement of consumer disputes;

(h) the reasons on the basis of which the non-judicial dispute settlement body may refuse to resolve the dispute.

(7) The Ministry of Industry and Trade shall send the list referred to in paragraph 8 to the European Commission and publish it on its website, together with a reference to the relevant website of the European Commission. The list shall also be available on a durable medium.

(8) The Ministry of Industry and Trade updates the list without undue delay and informs the European Commission of the relevant information.

§ 20g

Specialty

A natural person designated to conduct out-of-court consumer disputes shall have sufficient professional knowledge if he has obtained a university degree in law and if he has the necessary knowledge and skills in the field of judicial or extrajudicial dispute resolution.

§ 20h

Independence and impartiality

(1) The term of office of a natural person designated to conduct out-of-court dispute resolution shall be at least 3 years. A person shall not be deprived of his or her duties without justification and shall be remunerated in a manner which is not linked to the outcome of an out-of-court dispute settlement.

(2) A natural person designated to conduct an out-of-court settlement of consumer disputes may not take instructions from the parties to the dispute or their representatives.

(3) Where a natural person designated to conduct an out-of-court settlement of consumer disputes finds at any time during his or her course any circumstance which may affect his or her independence or impartiality, or could trigger a conflict of interest with a party to the dispute, he or she shall notify the entrusted entity without undue delay.

(4) In the event of notification of the facts referred to in paragraph 3, the delegated body shall designate another natural person to conduct the out-of-court settlement of a consumer dispute or propose to the parties to the referral of the dispute to another competent body pursuant to Article 20e. Otherwise, a natural person may continue to settle a dispute out of court only if the parties have been informed of the facts referred to in paragraph 3 and have not raised objections.

Obligations of out-of-court dispute resolution bodies

§ 20i

An out-of-court dispute resolution body shall publish on a website or by other appropriate means on a durable medium of data, clear and understandable information on:

(a) their contact details, including postal and e-mail addresses;

(b) being on a list kept by the European Commission;

(c) persons designated to conduct out-of-court dispute resolution and, in the event of their appointment, the method of appointment and the duration of the mandate;

Citation	Act No. 378 / 2015 Coll., amending Act No. 634 / 1992 Coll., on Consumer Protection, as amended, and some other laws
Regulation Type	Law
Author	-
Collection	Code of Laws

Date of Promulgation	28.12.2015
Effective from	28.12.2015
Effective until	-
Status	Valid

Act No. 378 / 2015 Coll.

Act amending Act No. 634 / 1992 Coll., on Consumer Protection, as amended, and certain other laws

Contents