As has already been mentioned, under No. 36/2008, a significant amendment to the Consumer Protection Act and other related acts was published in the Collection of Acts, and last time we addressed misleading commercial practices (in connection with the general prohibition of unfair commercial practices). The Consumer Protection Act defines two basic types of unfair commercial practices, namely the aforementioned misleading commercial practices (Section 5) and aggressive commercial practices (Section 5a).

In this circular, we would briefly address the definition of aggressive commercial practices, which may be important for traders, inter alia, in the respect that conduct which bears the characteristics of aggressive commercial practices is subject to equally significant administrative sanctions as the previously mentioned misleading commercial practices.

According to the provisions of Section 5 of the Consumer Protection Act, a commercial practice is aggressive if, having regard to all the circumstances, by its harassment, coercion, including the use of force, or undue influence, it significantly impairs the consumer’s ability to make a free decision. In assessing whether a commercial practice is aggressive, particular regard shall be had to the following circumstances:

1. the timing, place and duration of the commercial practice,

2. the manner of conduct, its threatening and offensive nature,

3. the deliberate exploitation of the consumer’s adverse situation,

4. disproportionate obstacles to the exercise of the consumer’s rights, or

5. the threat of unlawful conduct.

In the second paragraph of Section 5 of the Consumer Protection Act, it is further provided that an aggressive commercial practice shall always be a practice set out in Annex No. 2 to the Consumer Protection Act. These are, for example, cases where a trader

1. makes repeated unsolicited offers to a consumer by telephone or electronic mail,

2. directly encourages children through advertising to purchase the products or services offered or to persuade an adult to purchase them,

3. demands that the consumer return or store products which he has supplied to him, even though the consumer has not ordered them,

4. creates a false impression that the consumer has won or will win a prize if he acts in a certain manner, whilst in order to obtain such a prize the consumer must incur financial costs or other expenses,

5. states that if the consumer does not purchase the product or service, this will jeopardise his business, job or livelihood.

In conclusion of our contributions devoted to the amendment to the Consumer Protection Act, it may be stated that this amendment to a certain extent replaces the original wording of Sections 6 and 8 of the Consumer Protection Act and at the same time clarifies the definitions of key concepts such as unfair, or misleading and aggressive, commercial practices. It may be useful for traders that the annexes to the Act contain a detailed list of conduct which must always be regarded as unfair commercial practices. The amendment also affected the amount of fines that may be imposed for breach of the prohibition on the use of unfair commercial practices, namely up to a maximum of CZK 5,000,000. Last but not least, it is worth mentioning the fact that, as a result of the amendment to Section 6 of the Consumer Protection Act, conduct by a trader cannot be subject to sanctions solely on the grounds that it is contrary to good morals.

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