Within the European Union, a proposal for a directive on certain aspects of contracts for the sale of goods (hereinafter also referred to as “the proposal”) is currently under consideration. Given that the adoption of this directive may, in the medium term, have impacts on online traders (following its incorporation into our legal order), we have decided to devote this legal circular to the anticipated future regulation.

The purpose of the directive’s regulation is to be the removal of certain differences in the contract law of individual EU Member States, and thus the achievement of full harmonisation in certain precisely defined legal issues related to the sale of goods in trade (to consumers). This means that Member States should not have the possibility to adopt different legal regulation (whether stricter or less strict). The advantage of this concept should be that the legal regulation will be identical in all EU countries. However, there will be no harmonisation of the entire contractual framework between trader and consumer (nor harmonisation of the entire issue of liability for defects), which means that substantial national specificities will still persist.

The directive is primarily to regulate the area of relationships referred to in the previous Civil Code as “conformity with the contract of sale” (shoda s kupní smlouvou) and related consumer claims in the event that a lack of conformity with the contract of sale occurs (including the manner in which these claims are asserted). The proposal does not regulate the provision of services, whilst contracting states may possibly exclude the impacts of the directive also on the sale of second-hand goods. The last discussed version of the proposal also applied to the sale of goods in brick-and-mortar establishments (which should mean that traders in the online environment will not be disadvantaged in this area).

Compared to the current legal regulation of so-called quality upon taking over pursuant to the provision of Section 2161 of the Civil Code (občanský zákoník), the implementation of the directive would apparently lead to an extension of the range of cases which may be considered as lack of conformity with the contract. Specifically, it is possible to mention the provision of Article 5(c) of the proposal, which stipulates that “the goods must be of such quality and performance as are normal in goods of the same type and which the consumer may expect having regard to the nature of the goods and taking into account any public statement made by the seller … or other persons in previous links in the chain of transactions, including the producer …” The trader would thus be “liable” even for statements about the characteristics of the goods sold which were made by another person, i.e. not only the seller or producer of the goods, but also “other persons in previous links in the chain of transactions”. The trader’s claims against persons who made such public statements regarding the goods are then regulated by Article 16 of the proposal. APEK will strive to achieve an amendment to this provision, which we consider to be potentially problematic.

The proposal also contains more detailed regulation of situations involving the installation of goods. Specifically, it is possible to state that even deficiencies in the installation instructions (even in the case of installation of goods by the buyer) may cause a lack of conformity with the contract. In this connection, it is also possible to mention the provision of Article 10(2) of the proposal, that in the event that installed goods do not conform to the contract, the trader bears the costs of its possible uninstallation and reinstallation. However, this is not a significant difference compared to the existing regulation in the area of compensation for costs related to the seller’s liability for defects.

A further potential change is then contained in the provision of Article 8(3) of the proposal, which states that “any lack of conformity with the contract which becomes apparent within two years … shall be presumed to be a lack of conformity with the contract …” Thus, the period enshrined in the provision of Section 2161(2) of the Civil Code would be extended from 6 months to 2 years. However, given that in Czech practice the two-year statutory warranty (zákonná záruka) according to the previous Civil Code is still quite ingrained and there are doubts regarding the interpretation of the current legal regulation in this area, we would not see this as a fundamental difference.

Josef Aujezdský, advocate

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – online 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. 03/2018 intended for members of this association.

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