Already during last year, we informed members several times, not only within the framework of legal circulars, about the planned amendment to the Act on Consumer Protection, including in connection with the adoption of the so-called harmonisation directive. Nevertheless, subsequently the legislative process in the Czech Republic largely came to a halt, so the planned changes have not been implemented to date (although this should have already occurred). However, it can be assumed that this state of affairs cannot last forever. For these reasons, we therefore consider it beneficial to address in this legal circular the proposed changes in the regulation of complaints handling, as this concerns matters with which traders come into contact very intensively. Specifically, we shall look at the proposed changes to the provisions of Section 19 of the Act on Consumer Protection.

The proposed wording of paragraph 1 of this provision does not contain any substantive changes, stating that: “With the exception of cases where another person is designated to carry out the repair, the seller is obliged to accept a complaint at any establishment where acceptance of the complaint is possible having regard to the range of products sold or services provided, or alternatively at the registered office or place of business.” Thus, to a certain degree, it should remain unclear what significance the word “alternatively” actually has in this context, including precisely how those situations are to function where a trader does not have any establishment. Paragraph 1 is also to incorporate the already existing obligation of the trader: “An employee authorised to handle complaints must be present at the establishment throughout operating hours.”

Greater changes are to occur in paragraph 2, which is to regulate only the obligation to issue written confirmation to the consumer, including regulation of the content requirements of the confirmation. “The seller is obliged to issue to the consumer written confirmation of when the consumer exercised the right, what is the subject matter of the complaint, the manner of complaint resolution requested by the consumer, and the consumer’s contact details for informing him about the complaint resolution.” Here we draw attention to the requirement of written form for such confirmation; nevertheless, this does not in itself preclude electronic form of the confirmation (provided the confirmation satisfies the requirements of the Civil Code for written form).

Within paragraph 3, a certain simplification is to occur, as the sentences “the seller or an employee authorised by him shall decide on the complaint immediately, in complex cases within three working days. This period shall not include the time reasonable according to the type of product or service necessary for expert assessment of the defect” are to disappear. The significance of these provisions for practice was not entirely clear. Conversely, no changes are to occur within this paragraph regarding the time limit for complaint resolution. “Complaints, including removal of the defect and informing the consumer of the completion of the complaint, must be resolved without undue delay, at the latest within 30 days from the date of lodging the complaint, unless the seller agrees with the consumer on a longer period.” Three basic comments may thus be made regarding the proposed wording of this provision: (a) the possibility of agreeing a longer period with the consumer should remain preserved, (b) previous case law is being incorporated that within the thirty-day period it is necessary to also inform the consumer about the complaint resolution, and (c) there will continue to be lacking an explicit statement of what effect the fact that the consumer has not delivered the complained-of goods to the trader should have on the running of this period.

Paragraph 4 is merely to state (in accordance with the existing regulation) that delay by the seller in resolving the complaint within the stipulated period constitutes a material breach of contract, from which it follows that the consumer may withdraw from such contract.

Paragraph 5 is then to regulate the obligation to issue confirmation issued by the trader to the consumer at the conclusion of the complaints “proceedings”. “The seller is obliged to issue to the consumer confirmation of the date and manner of complaint resolution, including confirmation of the performance of repair and the duration thereof, or alternatively written justification for rejection of the complaint.” It therefore appears that in this case written form will be required only for the justification of rejection of the complaint.

We draw attention to the fact that the wording commented on above is “merely” a government proposal, which may undergo various changes during the legislative process (this does not concern matters directly regulated by EU law). Likewise, it is not yet clear within what time horizon the changes will possibly be adopted and from when they will be effective.

Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the association Association for Electronic Commerce (APEK) as legal circular No. 11/2021 intended for members of this association.

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