Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (g)

Stating that the repairing of each product defect occurring after a factory warranty period must be paid for by the customer, regardless of whether this defect falls under the provisions of non-conformity to which an additional warranty mandatorily applies, constitutes a misleading commercial practice.

The defendant established (through discussions with employees and directors and the use of mystery shoppers) that in the period of October 15, 2008 until November 2009, the plaintiff violated article 8.8 of the Act on Enforcement of consumer protection in conjunction with article 6.1g UCP on account of providing misleading information to consumers by means of making incorrect statements during sales talks or when a consumer submitted a product for repair. It was established that the plaintiff communicated to its customers that when a consumer product had gone defect after the factory warranty term had lapsed, repairs of the product were always paying.

As a result of its findings, the defendant fined the plaintiff with 90.000 EUR. Equally, it announced that it would make public its decision.

The plaintiff appealed to this decision.

Does stating that the repairing of each product defect occurring after a factory warranty period must be paid for by the customer, regardless of whether this defect falls under the provisions of non-conformity to which an additional warranty mandatorily applies, constitute a misleading commercial practice? 

The court first held that as a basic principle of law no misleading information may be provided to consumers regarding their legal rights, including the right to repair or replacement.

In the court's view, the plaintiff evades the discussion with the consumer whether a defect constitutes a "non-conformity" which falls under the mandatory provisions on a right to repair or replacement free of charge, or reimbursement of the repair costs paid to the repairer.

In the court's opinion, consumers are insufficiently informed as a result of the plaintiff’s practices as the consumer will automatically deem that charges for repair of a defect established after the factory warranty period (and in absence of additional warranty) will always be validly charged to the consumer, regardless of whether the defect constitutes a "non-conformity". In this way, consumers are misled with respect to their legal rights which constitutes an unfair commercial practice.

 

URL: http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BT6751

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The court dismissed the plaintiff’s claim.