The Municipal Court in Prague has recently issued an interesting ruling in which it examined more closely the conditions for making complaints and so-called non-warranty repairs, in relation to a potential breach of Act No. 634/1992 Coll., the Consumer Protection Act, as amended (hereinafter referred to as the “Consumer Protection Act”). Below we present a summary of the conclusions of the Municipal Court in Prague and their impact on the complaints process.

Ruling of the Municipal Court in Prague ref. no. 5A 107/2011-38

In its ruling, the Court confirmed the conclusion of the Czech Trade Inspection Authority (hereinafter referred to as “ČOI”), according to which the trader breached the provisions of Section 13 of the Consumer Protection Act when it failed to properly inform the consumer about the scope, conditions and method of exercising the right arising from defective performance (complaint). The following errors were attributed to the trader by the ČOI:

• The trader’s terms and conditions contained a provision stating that “Complaints shall be made in writing to the Customer Centre at the registered office address of XXX”.
• The complaints procedure contained a provision stating that “The Customer shall submit a duly completed Warranty Certificate and the complete subject of the complaint when making a complaint”.
• The conditions for complaints contained a provision stating that “If it transpires during the processing of a complaint that it concerns a non-warranty repair or… . The Recipient shall notify the Customer of this fact. The Customer is obliged to confirm in writing to the Recipient immediately upon receipt of this notification whether he wishes the non-warranty defect to be remedied under the stated conditions or not, either by registered letter or by signing the relevant part of the complaints protocol during a personal visit to the Recipient or by another demonstrable means”.

The above-mentioned conduct was deemed to have resulted in misleading information being provided to the consumer about his rights and consequently led to the consumer being disadvantaged or restricted, since it follows from the Consumer Protection Act that a complaint may be made without restriction at any place of business of the trader or at his registered office, and the law does not further stipulate a requirement for the complaint to be in written form. A duly completed warranty certificate is also not a statutory condition for making a complaint. Finally, during ongoing complaint proceedings, the consumer cannot be required to confirm his decision in writing. In the opinion of the ČOI, if the claimant finds that the complaint made is non-warranty, it should deal with such a complaint by rejecting it, as it is not covered by the warranty. Any remedying of a non-warranty defect may then be the subject of separate negotiations.

The trader subsequently defended itself in the said court proceedings before the Municipal Court in Prague by arguing that none of the above-mentioned provisions contains an obligation for the consumer (i.e. that the text does not expressly contain, for example, “must” or “it is necessary” etc.), and that it cannot be inferred from the text of the above-mentioned documents that making a complaint elsewhere than at the registered office address or without a warranty certificate would result in its refusal. With regard to the possibility of non-warranty repair, it stated that by means of this institute it gives the consumer the possibility of having the item repaired beyond the scope of the statutory complaints process, to which the provisions of the Consumer Protection Act cannot be applied.

The Municipal Court in Prague did not agree with the trader’s arguments and concluded that the above-mentioned provisions are formulated in such a way that they are capable of creating a misleading impression that the consumer may only make a complaint at the stated place, only in written form and together with the warranty certificate, and as such they restrict and disadvantage the consumer, as this may deter him from making a complaint.

With regard to non-warranty repair, the Municipal Court in Prague stated that this provision also disadvantages the consumer, because if the consumer fails to fulfil the obligation set by the trader to respond to the request, the trader has constructed a presumption that the consumer, by his passivity, without further ado accepts the repair of the item under the regime of so-called non-warranty repair.

Conclusion and Recommendations

With reference also to the above-mentioned conclusions of the Municipal Court in Prague, we again recommend removing from contractual or any other documents describing the consumer’s rights any conditions that could represent a potential restriction on the consumer in making a complaint. In this context, we recommend refraining in particular from the following provisions, which could be in conflict with the information obligation under the Consumer Protection Act:

• it is not appropriate to state a written form for complaints;
• it is not appropriate to require a warranty certificate;
• it is not appropriate to impose on the consumer any obligations beyond those statutory ones and to bind the consumer to any action depending on his passivity;
• in the case of multiple branches, not to state only the trader’s registered office as the address for making complaints.

David Svoboda

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advice

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 3/2016 intended for members of this association.

This text was translated from Czech to English using an AI translator.