Under No. 36/2008, a significant amendment to the Act on Consumer Protection and other related acts was published in the Collection of Acts. The official designation of this regulation is: “an Act amending Act No. 634/1992 Coll., on Consumer Protection, as amended, Act No. 40/1995 Coll., on Regulation of Advertising and on the Amendment and Supplementation of Act No. 468/1991 Coll., on the Operation of Radio and Television Broadcasting, as amended, as amended, and Act No. 513/1991 Coll., the Commercial Code, as amended”.
The amendment in question had no vacatio legis period and thus entered into force upon promulgation in the Collection of Acts on 12 February 2008. This contribution is devoted to general information relating to this amendment, with the intention that in further circulars we would address in more detail the individual changes made in the above-mentioned legal regulations.
The amendment incorporates the provisions of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market into the Czech legal order, and in interpreting these provisions it is therefore always necessary to have regard to the wording of this Directive (Euro-conforming interpretation). The fundamental objective of the Directive on unfair commercial practices is the harmonisation of the laws of the Member States concerning commercial practices which harm the economic interests of consumers.
From the effective date of the amendment, a general prohibition on unfair commercial practices which distort the economic behaviour of consumers and which directly influence the consumer’s decision concerning a commercial transaction has been expressly established within the Czech legal order. The general prohibition on unfair commercial practices applies both to the offer phase and to the actual sale of products or provision of services. The amendment brings, inter alia, the definition of certain important legal concepts and a change in the legal regulation of administrative punishment in the area in question.
The Act on Consumer Protection establishes in Section 4(3) a general prohibition on the use of unfair commercial practices: “The use of unfair commercial practices in offering or selling products, in offering or providing services or rights is prohibited.” Section 4(1) of the Act on Consumer Protection then defines in which case a commercial practice is unfair: “A commercial practice is unfair if the trader’s conduct towards the consumer is contrary to the requirements of professional diligence and is capable of materially distorting his decision-making so that he may make a commercial decision which he would not otherwise have made.” The Act also newly defines what is meant by professional diligence of a trader under this provision: “Professional diligence means the standard of special skill and care which can reasonably be expected of a trader in relation to the consumer and which corresponds to honest market practices or the general principles of good faith in his area of activity” (Section 2(1)(s)).
The unfairness of a commercial practice must be assessed in relation to the characteristics of the subject (consumer) at whom the commercial practice is targeted. This issue is expressly regulated by Section 4(1) of the Act on Consumer Protection: “Where a commercial practice is directed at consumers who are particularly vulnerable by reason of their mental or physical infirmity or age, its unfairness shall be assessed from the perspective of the average member of that group; this is without prejudice to the common practice of legitimate advertising exaggeration.”
The Act on Consumer Protection newly defines two basic types of unfair commercial practices, namely misleading commercial practices (Section 5) and aggressive commercial practices (Section 5a), and further specifies their basic features. We will address these provisions in more detail in one of the forthcoming legal circulars.
This text was translated from Czech to English using an AI translator.