Case law

  • Case Details
    • National ID: Case P/0324/01/2015
    • Member State: Slovakia
    • Common Name:link
    • Decision type: Administrative decision, first degree
    • Decision date: 30/08/2016
    • Court: Slovak Trade Inspection, Inspectorate of the Slovak Trade Inspection with its registered seat in Bratislava for the Bratislava Region
    • Subject:
    • Plaintiff: N/A
    • Defendant: SAF INVESTMENT, s.r.o.
    • Keywords: administrative authority, aggressive commercial practices, coercion, consumer, false impression
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 1, Article 2, (c) Unfair Commercial Practices Directive, Chapter 1, Article 2, (d) Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8
  • Headnote
    (1) Such conduct shall be regarded as aggressive if, in its factual context, taking into account all features and circumstances, by harassment, coercion, including the use of physical force or undue influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise. A letter may amount to the aggressive commercial practice if its text amounts to the abovementioned ways of influence and it significantly impairs the average consumer's freedom of choice or conduct.

    (2) A company may not send the consumer a pre-litigation notice which resembles the legal title to enforce the receivable as such conduct constitutes unfair commercial practice in the form of aggressive commercial practice.
  • Facts
    The Slovak Trade Inspection inspected the defendant on the basis of a consumer complaint.

    The defendant sent the consumer a notice marked as “Pre-litigation notice for payment” in which the defendant states that based on the Power of Attorney with its client, the defendant as a party to the proceeding has obtained the personal data of the consumer in order to seek the enforcement of its client’s receivable in the amount of EUR 862, 33.

    In the notice, the defendant further stated that non-compliance with this notice would result in further actions in order to enforce the receivable of its client. In the bottom right corner of the notice the round stamp with the wording on the edges “District Court Registry Bratislava I, insert No. 3979/B, SAF VINDICATION” and the following wording: “THE DEPARTMENT OF RECEIVABLES ENFORCEMENT” were included.

    The Slovak Trade Inspection initiated administrative proceedings on the basis of a consumer complaint in order to inspect whether such notice may impose undue influence on the consumer and therefore constitute an aggressive commercial practice. The Slovak Trade Inspection had previously imposed a fine in the amount of EUR 12.000 to the defendant in connection with the wording of the notices it was sending to consumers.

    The defendant claimed that it had not been using the respective stamp since February 2015 and it had asked its post distributor to stop using the stamps. The defendant further claimed that it did not inspect its post and the stamp must have occurred on the notices by accident. Furthermore, the defendant argued that right next to the respective stamp there is a distinctive stamp with wording “Pre-litigation notice for payment” and therefore it was clear that the notice did not represent a legal title to enforce the receivable.
  • Legal issue
    The Slovak Trade Inspection dismissed the arguments of the defendant and concluded that the defendant’s letter is capable of misleading a consumer into thinking the letter represents a legal title to enforce the receivable.

    The defendant has therefore misused its status and imposed undue influence on the consumer as the stamp used by the defendant made false impressions that it was authorized to issue legal title to enforce the receivable. Such conduct constitutes an unfair commercial practice in the form of an aggressive commercial practice. Such practice may substantially influence the behavior of the average consumer and may cause the consumer to take a transactional decision that he would not have taken otherwise.

    The Slovak Trade Inspection stated that the average consumer cannot be expected to have professional knowledge of the enforcement proceeding and differentiate that such letter does not have the power of a legal title to enforce the receivable.

    The defendant has breached Section 4 (2) lit. c), Section 7 (1) (implemented from Article 5 (1) of the Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council ("Directive 2005/29/EC")) and Section 2 lit. q) of Act No. 250/2007 Coll. on Consumer Protection, as amended.

    In accordance with Article 2 of the Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market (implemented into Slovak law by Section 2 of Act No. 250/2007 Coll. on Consumer Protection, as amended), business-to-consumer commercial practices means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers.

    In accordance with Article 8 of the Directive 2005/29/EC (implemented into Slovak law by Section 2, lit. q) of Act No. 250/2007 Coll. on Consumer Protection, as amended), any commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.
  • Decision

    (1) When does a letter sent by a company to the consumer constitute an aggressive commercial practice?

    (2) May a company send the consumer a pre-litigation notice which resembles the legal title to enforce the receivable?

    Full text: Full text

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  • Result
    The Slovak Trade Inspection did not agree with the defendants arguments and imposed it with a fine in the amount of EUR 300.