As has already been mentioned in the previous legal circular, a significant amendment to the Consumer Protection Act and other related acts was published in the Collection of Acts under No. 36/2008, and last time we addressed the basic information concerning this amendment, in particular the general prohibition of unfair commercial practices which distort the economic behaviour of consumers and which directly influence the consumer’s decision about a commercial transaction.
The Consumer Protection Act establishes in the provision of Section 4(3) a general prohibition on the use of unfair commercial practices and newly defines two basic types of unfair commercial practices, misleading commercial practices (Section 5) and aggressive commercial practices (Section 5a). In this circular we would briefly address the definition of misleading commercial practices, which may be important for traders inter alia in the respect that conduct which bears the characteristics of a misleading commercial practice is subject to considerable administrative sanctions.
Pursuant to the provision of Section 5 of the Consumer Protection Act, a commercial practice is misleading:
if an untrue statement is used therein,
if an important statement is true in itself, but may mislead the consumer with regard to the circumstances and context in which it was used,
if the trader omits to provide an important statement which, having regard to all the circumstances, can fairly be required of the trader; an omission shall also be deemed to include the provision of an important statement in an unintelligible or ambiguous manner,
if the manner of presentation of a product or service, including comparative advertising, or their placing on the market leads to confusion with other products or services, or the distinguishing marks of another trader,
if a commitment contained in a code of conduct is not observed, to the observance of which the trader has committed himself, where this is an unequivocal commitment which can be verified, and the trader states in the commercial practice that he is bound by the code – for example, Standard of the Czech Banking Association No. 19/2005 “Code of Conduct between Banks and Clients”.
A misleading commercial practice shall also be deemed to include the offering or selling of products or services infringing certain intellectual property rights, as well as the storage of such products for the purpose of their offering or sale, and further the unauthorised use of a designation protected under a special legal regulation in business dealings.
A relatively detailed list of misleading commercial practices is contained in Annex No. 1 to the Consumer Protection Act. These are, for example, cases where a trader presents as an advantage of his offer such rights of the consumer as arise to the consumer directly from law, or promotes a product in a manner which may give the consumer the impression that it was manufactured by a certain manufacturer, although this is not the case, or the trader uses in relation to a product or service the words “gratis”, “free of charge”, “complimentary” or words of similar meaning, if the consumer must incur any costs for the product or service. In our opinion, it may certainly be beneficial for traders if they familiarise themselves with the wording of this Annex to the Consumer Protection Act.
In the next circular we would address the new statutory definition of aggressive commercial practices and related questions.
This text was translated from Czech to English using an AI translator.