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Case Details

Case Details
National ID SK/0677/99/2015
Member State Slovakia
Common Name link
Decision type Administrative decision in appeal
Decision date 14/01/2016
Court Central Inspectorate of the Slovak Trade Inspection in Bratislava
Subject
Plaintiff N/A
Defendant MP BONUSKO s.r.o.
Keywords consumer, contract law, goods, terms & conditions, unfair terms, unlawful practice, withdrawal period

Consumer Rights Directive, Chapter 3, Article 14, 1.

(1) An obligation to draw up a protocol on the extent and nature of the damaged goods immediately when taking over the purchased goods shall represent an obligation imposed on the consumer without any legal basis. Such condition can only be made in the form of a recommendation to the consumer, as no legal act imposes such an obligation on the consumer.

(2) A consumer is not obliged to state the reason for withdrawal from the contract. According to Act No. 102/2014 Coll. a consumer has a right to withdraw from the contract without stating the reason for such withdrawal.

(3) A clause in the terms and conditions stating that by sending the order the buyer (consumer) expresses his consent with the terms and conditions of the seller creates an unbalance in the rights and obligations of the parties to the contract, as the consumer only has one option to become familiar with the terms and conditions of the seller, however, the consumer has no option to influence the content of such terms and conditions.
Based on the decision of the first instance administrative body, the defendant was imposed with a fine amounting to EUR 650 as multiple breaches of the respective applicable law in particular Section 6 (3), Section 4 (2) (a), Section 4 (2) (c) and Section 13 (implemented from Article 6 (7) of the Directive 2011/83/EU) of Act No. 250/2007 Coll. on consumer protection, as amended, had been discovered by the means of investigation carried out in the defendant's e-shop by the inspectors. The mentioned breaches were considered as unfair terms in consumer contracts as they created an unbalance in rights and obligations of the contractual parties and, moreover, they imposed obligations without legal grounds towards the consumers.

The e-shop of the defendant included in its terms and conditions an obligation of a buyer to state, in case of withdrawal from the contract in period of 14 days from taking over the goods, the reason for such withdrawal. Such condition is contrary to the provisions of Act No. 250/2007 Coll. on consumer protection, as a consumer is entitled to exercise his right to withdraw from the contract without stating a reason for such conduct.

(1) With respect to the obligation to draw up a protocol on the damaged goods immediately when taking over the purchased goods, the Central Inspectorate decided that such clause shall represent an obligation imposed on the consumer without any legal basis and can only be a recommendation to the consumer.

(2) The Central Inspectorate agreed with the decision of the first instance body and concluded that the clauses contained in the terms and conditions of the e-shop according to which in case of withdrawal from the contract, the buyer shall, in a period of 14 days from taking over the goods, state the reason for such withdrawal, is contrary to the provisions of Act No. 250/2007 Coll. on consumer protection, as a consumer is entitled to exercise his right to withdraw from the contract also without stating a reason for such conduct.

(3) TheCentral Inspectorate further concluded that the clause stating that by sending the order the buyer (consumer) expresses his consent with the terms and conditions of the seller creates an unbalance in the rights and obligations of the parties to the contract. Due to the fact that such clause de facto transfers the burden of proof to the consumer, it shall be contrary to consumer protection provisions.

The Central Inspectorate rejected the appeal of the defendant and confirmed the decision of the first instance administrative body in the entire extent.
(1) Is a buyer (consumer) obliged to draw up a protocol on the extent and nature of the damaged goods immediately when taking over the purchased goods?

(2) When withdrawing from a contract within the period of 14 days from taking over the purchased goods, is a consumer obliged to state the reason for the withdrawal?

(3) Is a condition in the terms and conditions of a seller stating that by sending the order the buyer (consumer) expresses his consent with the terms and conditions of the seller creating an unbalance in the rights and obligations of the parties to the contract?
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The decision of the first instance administrative body on imposing a fine amounting to 650 EUR was confirmed by the Central Inspectorate.