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Case Details

Case Details
National ID No. 13-pk
Member State Latvia
Common Name link
Decision type Administrative decision, first degree
Decision date 02/05/2016
Court Consumer Rights Protection Centre
Plaintiff Unknown
Defendant SIA “MP Latvija”
Keywords business premises, information requirements, off-premises contract, right of withdrawal

Consumer Sales and Guarantees Directive, Article 7, 1. Unfair Contract Terms Directive, Article 6, 1. Consumer Rights Directive, Chapter 1, Article 2, (8), (a) Consumer Rights Directive, Chapter 1, Article 2, (9), (b) Consumer Rights Directive, Chapter 3, Article 6, 1., (h) Consumer Rights Directive, Chapter 5, Article 25

(1) The place of trade cannot be regarded as the business premises of the trader, if it cannot be identified as a regular trading place and if the goods are not available to any consumer but only to specific persons.
(2) Off-premises contracts oblige the trader to inform the consumers on the right of withdrawal by providing a withdrawal form.
(3) The failure to inform on the right of withdrawal violates consumer rights and subjects the trader to liability.
(4) The right of withdrawal must not be restricted by imposing the duty upon the consumer to personally return the purchased goods.
The defendant provided a service of health and beauty procedures, which involved the option of purchasing health and beauty- related goods. The goods were only available to the consumers using the procedure, and not to other consumers. Several consumers of the defendant had requested the rescinding of the contracts on the purchase of the mentioned goods, and the defendant had mostly granted these requests. However, following numerous complaints by consumers when the defendant had not done so, the court initiated an investigation in the defendant’s actions. During the investigation the court found that the defendant’s consumers were not informed on the possibility of rescinding the trade contracts. The defendant undertook to remedy this and included a clause in their model agreement, informing the consumers that they could withdraw from the contract, provided that they personally return the purchased goods to the defendant. Additionally, the product price paid would be refunded only to the extent the goods were not damaged or used.
(1) The court stated that, contrary to the defendant’s view, salon where the beauty procedures were provided, could not be regarded as the business premises for the trading purposes, because, firstly, they could not be identified as a place where trade takes place and, secondly, the goods were not available to the general public but only to the consumers using the beauty procedure provided by the defendant. Accordingly, the trade contracts, if concluded, had to be regarded as off-premises contracts.
(2) Therefore, the court concluded that, contrary to the defendant’s views, it was obliged to inform the consumers on the right of withdrawal. Specifically, the defendant had a duty to provide a withdrawal form explaining the conditions on the exercise of this right.
(3) Furthermore, the court stated that by not fulfilling the duty to inform on the right of withdrawal the defendant was misleading the consumers – deferring them from exercising their rights and thus violating consumer rights.
(4) Last, the court stated that obliging the consumers to personally return the purchased goods as a condition for the exercise of the right of withdrawal illegitimately restricts their rights, therefore it is considered an unfair contractual term which is not binding on the consumer according to Art. 6(8) of the Consumer Rights Protection Law (which implements Art. 6(1) of the directive 93/13).
(1) When can the place of trade not be regarded as business premises?
(2) What specific informing obligations is the trader subject to when concluding off-premises contracts (contracts outside business premises)?
(3) What are the legal implications of failing to inform the consumer on the right of withdrawal?
(4) May the right of withdrawal be restricted by imposing upon the consumer the duty to personally return the purchased goods?
Full Text: Full Text

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The defendant was ordered to immediately cease its unfair commercial practice, including the practice of not informing the consumers on the right of withdrawal, and imposed a fine of EUR 50,000.00.