In the majority of previous legal circulars we have dealt primarily with legal issues related to the sale of goods. However, Directive 2011/83/EU of the European Parliament and of the Council on consumer rights (hereinafter referred to as the “Consumer Rights Directive”) and the new Civil Code (Act No. 89/2012 Coll.) (hereinafter referred to as the “Civil Code”) have brought some important changes to the area of provision of services as well. In cases where contracts are concluded without the physical presence of the parties, the most interesting issues in practice tend to be those related to the possibility of withdrawal from the contract by the consumer. We shall therefore address this issue in relation to contracts for the provision of services in the August legal circular.

At the outset, it is necessary to mention that the regulation of certain services is excluded from the scope of the Consumer Rights Directive, whilst other services have special legal regulation. By way of example, it is possible to mention the special legal regulation of the distribution of digital content, which we addressed in legal circular No. 7/2012, or the special legal regulation of the provision of financial services.

The general regulation of contracts for the provision of services provides, as in the case of contracts of sale, that the consumer may withdraw from the contract within a period of fourteen days, on the basis of the provisions of Section 1829(1) of the Civil Code. Unlike in the case of contracts of sale, however, the Czech legislator failed to implement into the Civil Code the commencement of the running of this fourteen-day period. In our opinion, however, it is beyond doubt that the running of this period should commence from the moment of conclusion of the contract for the provision of services. The provisions of Article 9(2)(a) of the Consumer Rights Directive speak explicitly in this spirit: “… the withdrawal period … shall expire after 14 days in the case of service contracts from the day of the conclusion of the contract…” In the case of contracts for the provision of services as well, the period for withdrawal is extended in cases where the trader fails to fulfil his information obligations towards the consumer (including the obligation to provide a model withdrawal form).

However, it is not possible to withdraw from a contract for the provision of services which has already been fully performed with the prior consent of the consumer. This is expressly enshrined in the provisions of Section 1837(a) of the Civil Code: “the consumer cannot withdraw from a contract for the provision of services if they have been performed with his prior express consent before the expiry of the period for withdrawal from the contract and the trader informed the consumer before the conclusion of the contract that in such a case he does not have the right to withdraw from the contract…” The impossibility of withdrawal from such a contract for the provision of services is therefore conditional upon the fulfilment of the trader’s obligation pursuant to the provisions of Section 1820(1)(l) of the Civil Code and in particular upon the consumer’s consent pursuant to the provisions of Section 1823 of the Civil Code. The provisions of Section 1823 of the Civil Code state that “where the subject matter of the contract is the provision of services, the trader shall commence performance of his obligation within the period for withdrawal from the contract only on the basis of an express request by the consumer made in textual form.”

Failure to provide consent to the commencement of the provision of services before the expiry of the fourteen-day period for withdrawal from the contract by the consumer has further consequences for the trader. Specifically, the provisions of Section 1836(1)(a) of the Civil Code provide that “if the consumer withdraws from the contract, he shall not bear any costs if it concerns a contract the subject matter of which is the provision of services and … the trader commenced performance before the expiry of the period for withdrawal from the contract, although the consumer did not expressly request this…” In such a case, all costs associated with the provision of the service are borne entirely by the trader.

The situation where the consumer has consented to the commencement of the provision of services (before the expiry of the fourteen-day period for withdrawal from the contract) is governed by the provisions of Section 1834 of the Civil Code: “if the consumer withdraws from a contract the subject matter of which is the provision of services and the trader commenced performance on the basis of an express request by the consumer before the expiry of the period for withdrawal from the contract, the consumer shall pay the trader a proportionate part of the agreed price for the performance provided up to the moment of withdrawal from the contract. If the agreed price is disproportionately high, the consumer shall pay the trader a proportionate part of the price corresponding to the market value of the performance provided.” In this case, therefore, the consumer pays at least a proportionate part of the trader’s remuneration from such a contract for the provision of services which has been terminated by withdrawal.

Josef Aujezdský

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – online legal advisory services

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. 8/2014 intended for members of this association.

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