Enforcement

LITHUANIA

Enforcement  (165 Kb) 

I. ADMINISTRATIVE ENFORCEMENT

Which administrative mechanisms are available to enforce the Directives?

• In Lithuania, administrative enforcement procedures of national laws implementing Directives 93/13 (Unfair Contract Terms), 98/6 (Price Indication), 1999/44 (Consumer Sales and Guarantees), 2005/29 (Unfair Commercial Practices), 2006/114 (Misleading and Comparative Advertising), 2011/83 (Consumer Rights), 2008/112 (Timeshare) are mainly implemented by the Law on Consumer Protection (“LoCP”), the Law on Advertising (“LoA”) and the Law on Prohibition of Unfair Business-to-Consumer Commercial Practices (“LoPUBCP”).

• Under Lithuanian law, consumer-related enforcement is generally handled by the State Consumer Rights Protection Authority (“SCRPA”). The general website of the SCRPA can be found at http://www.vvtat.lt. The annual activity reports of the SCRPA can be found at https://www.vvtat.lt/administracine-informacija/veiklos-ataskaitos/metines-veiklos-ataskaitos/226 (only in Lithuanian).

• The administrative enforcement of the Directive 2006/114 (Misleading and Comparative Advertising) is handled by the Competition Council of the Republic of Lithuania (“Competition Council”). The general website of the Competition Council can be found at www.kt.gov.lt/en. The annual activity reports of the Competition Council can be found at http://kt.gov.lt/lt/administracine-informacija/veiklos-ataskaitos (only in Lithuanian).

• The administrative enforcement of the Directive 2005/29 (Unfair Commercial Practices) is shared between the SCRPA and the Competition Council.

Who can file administrative complaints? Can investigations be initiated ex officio?

• Administrative complaints to the SCRPA may be submitted by a consumer, state or municipal institution or body, or a consumer association. The SCRPA may also initiate investigations ex officio.

• Administrative complaints to the Competition Council in relation to Directive 2006/114 (Misleading and Comparative Advertising) and Directive 2005/29 (Unfair Commercial Practices) may be submitted by legal or natural persons, whose interests were infringed, as well as by state or municipal institutions or bodies, or consumer associations. The Competition Council may also initiate investigations ex officio.

Do any specific procedural requirements apply to filing administrative complaints?

Administrative complaints to the SCRPA:

• must be submitted within three years from the moment of possible infringement of the respective consumer protection legislation. The complaint may be submitted in writing (the form can be found at http://www.vvtat.lt/paslaugos/prasymai/vartotojo-prasymo-forma/345) or online (https://vtis.lt/portal;);

• prior to submitting an administrative complaint to the SCRPA, the consumer must submit a complaint to the trader in writing. A trader must reply within 14 days. If the consumers do not agree with the reply of the trader, they have a one-year term to file an administrative complaint to the SCRPA. A consumer must provide a copy of the trader’s reply together with the administrative complaint to the SCRPA (or a copy of the complaint, if the trader did not respond).

Administrative complaints to the SCRPA in relation to Directive 2005/29 (Unfair Commercial Practices) must be submitted within six months from the day the person became aware or should have become aware of the infringement indicated in the complaint, but in any case, within three years from the day the infringement was committed. The complaint may be submitted in writing (the form can be found at http://www.vvtat.lt/paslaugos/prasymai/vartotojo-prasymo-forma/345) or online (https://vtis.lt/portal).

Administrative complaints to the Competition Council in relation to Directive 2006/114 (Misleading and Comparative Advertising) and Directive 2005/29 (Unfair Commercial Practices) must be submitted within one year from the infringement or, in the event of a continuing infringement or where the supplier of advertising indicates the obligations extending over a certain period, within one year from finding out of the infringement. The complaint should be submitted in writing.

The applicant must submit relevant evidence, supporting the circumstances listed in the complaint.

Do the administrative authorities have an obligation to investigate the complaint?

The SCRPA has an obligation to investigate the complaint.

The Competition Council has an obligation to investigate the complaint related to Directive 2006/114 (Misleading and Comparative Advertising) and Directive 2005/29 (Unfair Commercial Practices), except situations when:

• the facts contained in the complaint are of a minor significance and do not incur damage to the material interests of persons protected by the LoA;

• the investigation of the complaint does not comply with the activity priorities of the Competition Council (e.g. there is no strategic importance, the investigation would lead to irrational use of the resources).

Are there any specific requirements regarding the provision of evidence to the competent authorities?

• National laws do not contain any specific requirements for the provision of evidence. Consequently, the applicants are asked to provide all the evidence they possess, which is relevant to the investigation. If the applicant didn’t submit enough information, the SCRPA or the Competition Council may request the applicant provide additional information.
• The SCRPA or the Competition Council, during the examination of administrative complaints, may request the trader provide all the evidence material to the investigation. Failure of the trader to submit such information as well as submission of incorrect or incomplete information may lead to the imposition of a fine.

II. ENFORCEMENT THROUGH COURT ACTION

Which court actions are available to enforce the Directives?

• All procedural decisions made by the SCRPA in the course of examination of the dispute (i.e., refusal to settle the dispute, suspend or terminate the settlement of dispute) may be appealed to the courts of general competence within 7 days after the decision is delivered (Art. 29(3) of LoCP).

• Final decisions of the SCRPA or the Competition Council may be appealed to the administrative courts (Art. 49 of LoCP, Art. 23 of LoPUBCP, Art. 27 of LoA).

• A general claim for damages (general delict) is available for any person who sustained damage with regard to the unlawful act of another person (Art. 6.263 of Civil Code). A consumer and/or other person, in relation to whom unlawful actions are carried out, may also submit a general claim for an injunction (Art. 1.138 of Civil Code). A claim can be submitted to a court of general competence. Territorial competence of the court is determined by the habitual residence of a consumer or the respondent.

• Qualified entities of other EU Member States are entitled to apply for injunctions in the areas of consumer law that are part of Annex I of the Injunctions Directive 2009/22.

• The SCRPA, consumer associations and other state or municipal institutions or bodies, as well as the prosecutor, may file a claim for the protection of public interests of consumers with the aim to recognise or change legal relationships, prohibit (terminate) actions (failure to act) of the trader which infringe the lawful public interests of consumers and are unfair from the point of view of consumers, are incompatible with fair business practices or are in violation of the national law (Art. 30 of LoCP). As for national entities, the law does not limit the scope of ‘consumer public interest’ only to Annex I of the Injunctions Directive 2009/22.

• Persons whose rights and law-protected interests were violated by the use of misleading or unpermitted comparative advertising, have a specific right to apply to a court with a claim to: 1) cease the use of the advertising; 2) compensate damages; 3) order an obligation to publish one or more statements correcting the misleading advertising (Art. 28 of LoA).

• A claim for collective redress as set out in Part XXIV(1) of the Code of Civil Procedure (“CoCP”) may also be used. The aim of this procedure is to provide redress for a group of persons that have suffered damage on account of the same cause and similar factual circumstances.

Who can start a court action?

• A general claim for damages and/or an injunction may be submitted by any person whose rights and law-protected interests were violated.

• Decisions of the SCRPA or Competition Council may be appealed to the court either by the trader or the complainant.

• A claim to: 1) cease the use of the advertising; 2) compensate damages; 3) order an obligation to publish one or more statements correcting the misleading advertising may be submitted by persons whose rights and law- protected interests were violated by the use of misleading or unpermitted comparative advertising, as well as the organisations representing traders or consumers and advertising self-regulatory institutions (Art. 28 of LoA).

• A claim for the protection of consumer public interest can only be filed by

(i)   the SCRPA;

(ii)   consumer associations and

(iii)  prosecutor; and

(iv)  other state or municipal institutions or bodies.

• A claim for Intra-Community injunction may be filed by qualified entities of other EU Member States.

• A claim for collective redress may only be filed by a group representative, represented by an attorney-at-law, and subject to compliance with the obligatory out-of-court negotiations. According to Art. 441-4(1-2) of CoCP, a group representative may either be (i) a member of the group or (ii) an association, other public legal person or trade union, in cases where requirements established in the claim arise from the legal relationship directly related to the association’s, other public legal person’s or trade union’s activities, provided that at least 10 group members are also members of such association of trade union iii) a specialised consumer protection association that is recognised by the state as independent of business and other non-consumer interests (LoCP Art. 13-1).

Can court actions be initiated by competitors?

• A general claim for damages or an injunction can be initiated by a competitor if he suffered damages and/or the unlawful actions were directed at him.

• A decision by the SCRPA or the Competition Council cannot be appealed in court by the competitor, if the competitor did not participate in the proceedings before these institutions.

• A claim for the protection of public interest cannot be filed by a competitor.

• Competitors may be members of the group of claimants in the collective redress action, if material standing conditions are fulfilled (i.e., they are members of a group of persons that suffered damage on account of the same cause and similar factual circumstances).

 

Can the case be handled through an accelerated procedure?

National laws implementing the Directives do not contain any specific provisions on this matter. Thus, general rules and standard procedures laid down in the CoCP would apply.

 

Are there any specific requirements regarding the provision of evidence to the court?

National laws implementing the Directives do not contain any specific provisions on this matter. Thus, general rules laid down in the CoCP would apply. Only the evidence related to the case is investigated by the court (Art. 180 of CoCP). Upon the request of an interested party, the court can order any party to disclose all evidence which is at their disposal (Art. 199 of CoCP). Failure to comply with the order of the court may lead to a fine.

 

Are there specific procedural reliefs for consumers or consumer associations?

• A claim relating to a consumer contract may also be brought according to the consumer’s place of residence (Art. 30(11) of CoCP).
• Consumers are released from payment of the official state fee in disputes arising from unfair contract terms (Art. 83(1)(1) of CoCP).

 

III. SANCTIONS

What are the possible civil sanctions and remedies for the infringement of the provisions of the Directives?

Damages can be awarded by the competent civil court in the framework of a claim for damages. However, damages must correspond to the objective estimate of loss and not be regarded as a punitive sanction (Art. 6.263 of Civil Code).

Injunction may be issued against a respondent in the framework of a claim for an injunction (Art. 1.138 of Civil Code).

For the breach of provisions concerning misleading and comparative advertising, upon the request of an interested party, the following civil sanctions may be ordered by the competent court: (i) cessation of use of the advertising; (ii) compensation of the damages; (iii) obligation to publish one or more statements correcting the misleading advertising (Art. 28 of LoA).

Lithuanian law does not provide for specific civil sanctions and remedies related to unfair commercial practices. However, general private law instruments may be used by the consumers in practice. For example, a consumer may apply to a court and seek to void a contract in accordance with:

• Art. 1.91 of the Civil Code, which provides that a transaction may be declared voidable by a court on the action of the aggrieved party if it was entered into due to fraud, duress, economic pressure or real threatening, or if it was formed by a malicious agreement of the agent of one party with the other party, likewise if, by entering into the transaction by reason of abusive circumstances, one party assumes obligations under unfair conditions;

• Art. 1.90 of the Civil Code, which may be used to claim that the contract is void by reason of concluding it under the influence of a mistake;

• Art. 1.80(1) of the Civil Code, which provides that the contract is void for not corresponding to the requirements of mandatory statutory provisions.

Consumers may apply to the court with a claim and request the court invalidate unfair terms of their consumer contract.

What are the possible criminal sanctions for the infringement of the Directives' provisions?

No criminal sanctions are foreseen for the infringement of the Directives in scope.

What are the possible administrative sanctions for the infringement of the Directives' provisions?

If the SCRPA finds that the trader infringed consumer rights, the SCRPA is entitled to obligate the trader to discontinue unlawful acts (Art. 46(2)(1) of LoCP).

After adoption of a decision on the merits, the SCRPA and the Competition Council announce the fact of infringement of consumer rights publicly on their website (Art. 47 of LoCP; 25(18) of LoA).

During the examination of a complaint concerning unfair commercial practices and/or misleading and unpermitted comparative advertising, the SCRPA or Competition Council can order an interim measure – obligate the trader to suspend an allegedly unfair commercial practice / dissemination of advertising until the end of the administrative procedure (Art. 21(1)(4) of LoA; Art. 17(1) of LoPUBCP).

The SCRPA may impose the following administrative fines on a trader (Art. 40(1) of LoCP):

• A fine amounting from EUR 500 EUR to EUR 5000 in case of: (i) unjustified geo-blocking and other forms of discrimination as set out in Regulation (EU) 2018/302; (ii) a failure to provide consumer with all relevant information prior to the conclusion of a contract; (iii) infringements of provisions on delivery and passing of risk (iv) an infringement of the consumer’s right of withdrawal; (v) an infringement of the provisions on timeshare, long- term holiday product, resale and exchange contracts. This fine is not linked with the trader’s turnover; (vi) infringements of temporary measures prescribed by the consumer protection authority to avoid serious damage to the collective interests of consumers. This fine is not linked with the trader’s turnover.

• A fine amounting from EUR 250 to EUR 2500 in case of: (i) failure to provide information on any delivery limitations and possible payment methods prior to ordering goods or services; (ii) failure to consider consumer’s complaint free of charge and, if not accepting the consumer’s requirements, present the consumer with a detailed grounded written reply supported by documents and information on the body for out-of-court settlement of consumer disputes which is competent to examine a complaint. This fine is not linked with the trader’s turnover.

The SCRPA may impose the following fines on traders for unfair commercial practices (Art. 13(1-2) of LoPUBCP):

• A fine of up to 3% of the annual income of a trader during the previous financial year, but not exceeding EUR 100 000. In the event that an infringement is repeated within one year, a fine of up to 6% of the annual income of the trader during the previous financial year, but not exceeding EUR 200 000. If the trader has been operating for less than one year, a fine of up to 3% of the annual income of the trader in the current financial year, but not more than EUR 100 000. In the event that an infringement is repeated within one year and the trader has been operating for less than one year, a fine of up to 6% of the annual income of the trader during the previous financial year, but not exceeding EUR 200 000.

• If a trader fails to provide information on his annual income, he shall be fined up to EUR 100 000 for unfair commercial practices, and if the violation is repeated within one year from the imposition of a fine or warning for an infringement under this provision, up to EUR 200 000.

• Where the infringement of provisions concerning unfair commercial practices is minor and no substantial damage to consumer interests is done, the SCRPA may, in compliance with the criteria of fairness and reasonableness, issue a warning without imposing a fine.

• A fine of EUR 300 for failure to enforce or inadequate enforcement of the SCRPA decision on the application of an interim measure for each day of failure. This fine is not linked with the trader’s turnover.

• Failure to comply with or improper compliance with the SCRPA requirement to provide information and documents necessary to investigate a violation, if the trader has been previously notified of non-compliance or improper compliance with this requirement, may result in a fine of up to EUR 3000.

For the use of misleading or unpermitted comparative advertising, the Competition Council may: (i) obligate traders to cease the use of misleading or unpermitted comparative advertising; (ii) obligate traders to issue a corrective statement regarding misleading or unpermitted comparative advertising; (iii) impose the following administrative fines (Art. 24, 25(17) of LoA):

• A fine of up to 3% of the annual income of a trader during the previous financial year, but not exceeding EUR 100 000. In the event that an infringement is repeated within one year, a fine of up to 6% of the annual income of the trader during the previous financial year, but not exceeding EUR 200 000. If the trader has been operating for less than one year, a fine of up to 3% of the annual income of the trader in the current financial year, but not more than EUR 100 000. In the event that an infringement is repeated within one year and the trader has been operating for less than one year, a fine of up to 6% of the annual income of the trader during the previous financial year, but not exceeding EUR 200 000.

• If a trader fails to provide information on his annual income, he shall be fined up to EUR 100 000 for unfair commercial practices, and if the violation is repeated within one year from the imposition of a fine or warning for an infringement under this provision, up to EUR 200 000.

• Where the infringement of provisions concerning unfair commercial practices is minor and no substantial damage to consumer interests is done, the SCRPA may, in compliance with the criteria of fairness and reasonableness, issue a warning without imposing a fine.

• A fine of EUR 300 for failure to enforce or inadequate enforcement of the SCRPA decision on the application of an interim measure for each day of failure. This fine is not linked with the trader’s turnover.

• Failure to comply with or improper compliance with the SCRPA requirement to provide information and documents necessary to investigate a violation, if the trader has been previously notified of non-compliance or improper compliance with this requirement, may result in a fine of up to EUR 3000.

• A fine of EUR 3000 for non-compliance with the requirements for outdoor advertising.

In addition for non-compliance with statutory requirements of price indication (implementing Directive 98/6), a fine ranging from EUR 60 to EUR 300 (in case of repeated offence - from EUR 60 to EUR 560) may be imposed by the SCRPA (Art. 155 of Code of Administrative Offences (hereafter - CoAO). This fine is not linked with the trader’s turnover.

The are no differences in the amount of the monetary fines depending on whether the trader who acted in breach of the Directive’s provisions is a natural or a legal person.

Lithuanian laws do not decide on the purpose to which the monetary fines are dedicated. All fines discussed above are paid to the State Budget.

The amount of the fine imposed is determined according to the average of the minimum and maximum fine and taking account of the mitigating and aggravating circumstances, as well as the nature of an infringement, its duration and scope.

Applicable laws provide a wide list of mitigating and aggravating circumstances, which are taken into account when imposing a fine on the trader, for instance:

• Actions of the trader, taken on its own initiative to prevent the harmful consequences of the infringement, acknowledgement of the commission of the infringement and its assistance to the supervisory authorities in the course of the investigation, compensation for losses or elimination of the damage done as well as other circumstances are considered to be mitigating circumstances.

• Aggravating circumstances are circumstances in which the traders who have committed an infringement have obstructed the investigation, concealed the infringement, continued the infringement despite imposed temporary measures or the obligation to stop unfair commercial activities

The court hearing a complaint concerning the fine imposed by the supervisory authority, taking into account mitigating and any other circumstances and acting in compliance with the criteria of fairness and reasonableness, has the right to impose a fine smaller than the minimum fine.

What are the contractual consequences of an administrative order or a judgment on an individual transaction under the Directives?

A decision produces effects between the parties to the procedure. Individual transaction will therefore not be affected by a cease-and-desist decision issued in a different case. A court’s decision in an individual case cannot be extended to all contracts of the trader or the contracts of other traders.

However, in proceedings initiated for the protection of consumer public interest (abstract control), if the court satisfies the claim, the res judicata effect of the judgement applies to all the consumers with unfair clauses in their contracts that have been declared void. The judgement becomes a legal precedent meaning that firstly, consumers cannot bring individual actions and secondly, the facts settled in the judgement become prejudicial facts and cannot be contested – therefore persons with the same or very similar factual circumstances may benefit from the decision of the court. Even though the court in its judgement declares the terms and conditions of the standard consumer contract as unfair, due to the contractual nature of the standard consumer contract, it would have to be amended individually. For example, a consumer may demand an amendment of the contract with reference to the judgement of the court declaring the particular terms and conditions unfair.

Can authorities order the trader to compensate consumers who have suffered harm as a result of the infringement?

Where no contractual relationship between the trader and the consumer exists, the consumer may file a general claim for damages (Art. 6.263 of Civil Code). The claimant must prove unlawful actions and fault of the trader, the factual size of damage sustained and causal link therewith.

In case there is a contractual relationship between the consumer and the trader, the consumer may file a claim for damages under the rules of contractual liability (Art. 6.256(4) of Civil Code).

The claim for collective redress may also be filed by the group of consumers in order to obtain compensation.

Can the administrative authorities or the courts require the publication of their decisions?

After adoption of a decision on the merits, the SCRPA or Competition Council announce the fact of infringement of consumer rights publicly in their website (Art. 47 of LoCP; 25(18) of LoA).

In addition, persons whose rights and law-protected interests were violated by the use of misleading advertising, have a right to request the court to order the defendant to publish one or more corrective statements (Art. 28 of LoA).

IV. OTHER TYPES OF ENFORCEMENT

Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the Directives?

Lithuania does not have any self-regulatory bodies with regards to the Directives in scope.

Are there any out-of-court dispute settlement bodies available that deal with aspects of the Directives (e.g. mediation, conciliation or arbitration schemes ombudsmen)?

On the basis of a written agreement between a consumer and a trader, consumer disputes may also be settled in accordance with the out-of-court procedure by mediators following the procedure established by the Law on Mediation. Settlement agreements concluded in the course of mediation may be submitted to court for approval. An effective settlement agreement approved by a court ruling is treated as a final judgement and is enforceable.