Case law

  • Case Details
    • National ID: P/0291/05/2015
    • Member State: Slovakia
    • Common Name:link
    • Decision type: Administrative decision, first degree
    • Decision date: 28/10/2015
    • Court: Slovak Trade Inspection, Inspectorate of the Slovak Trade Inspection with its registered seat in Žilina for the Žilina Region
    • Subject:
    • Plaintiff: N/A
    • Defendant: RAPID SK, s.r.o.
    • Keywords: consumer, consumer rights, liability, right of withdrawal
  • Directive Articles
    Price Indication Directive, Article 8 Unfair Contract Terms Directive, Article 1, 1.
  • Headnote
    (1) The seller is not permitted to reduce the amount paid back to the consumer when the consumer withdraws from the consumer contract. The seller is obliged to return all payments received from the consumer contract or in connection thereto.
    (2) The fact that the seller has rewritten its commercial terms and conditions does not relieve the seller from its initial liability for using unfair terms in its commercial terms and conditions.
  • Facts
    The defendant, a legal entity, was operating an e-shop which sold goods to customers based on Act No. 102/2014 on Consumer Protection on the Sale of Goods or Provision of Services based on Distance Contracts and Off-Premises Contract, as amended.

    The subject matter of the administrative proceedings involved the commercial terms and conditions of the defendant. These commercial terms and conditions were publicly accessible on the website www.parapleta.sk, operated by the defendant.

    Article 4 of the commercial terms and conditions stipulated that a withdrawal from the contract was possible, however, if the product were incomplete or damaged, the seller would be entitled to reduce the amount paid back to the consumer accordingly. The reduced amount would correspond to the damage of a product or lack of its parts.

    The supervising administrative body, the Slovak Trade Inspection, considered this condition in the commercial terms and conditions illegal and unlawful and therefore commenced administrative proceedings against the defendant.
  • Legal issue
    The Slovak Trade Inspection decided to analyze the contractual term in the commercial terms and conditions in the light of the applicable national consumer laws and imposed a fine to the defendant.

    According to the Slovak Trade Inspection, the distance consumer contract is a consumer contract pursuant to Section 52 of Act No. 40/1964 Coll. Civil Code, as amended (implemented from Article 1 of the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts).

    Furthermore, Act No. 102/2014 stipulates that following the delivery of the withdrawal from a contract, the seller must without undue delay, within 14 days as of the delivery of such notice on withdrawal at the latest, return to the consumer all payments received from the consumer under or in connection with the contract.

    Based on the information mentioned above in connection with Section 4 (2) lit. (b) and Section 3 (1) of Act No. 250/2007 Coll. on Consumer Protection, as amended (hereinafter referred to as the "Act on Consumer Protection"), The Slovak Trade Inspection decided that the mentioned contractual term in a consumer contract cannot be reasonably accepted and is contradictory to law. Such term prevents the consumer from exercising his right to protect his economic interests.

    Moreover, the removal of the unfair term from the commercial terms and conditions does not mean that the seller is released from its liability. Thus, it is still necessary to render a punishment.

    The Slovak Trade Inspection followed Section 24 (5) of the Act on Consumer Protection (implemented from Article 8 of the Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers), regulating that, when imposing a fine, the nature of the unlawful conduct, seriousness of the breach, etc. shall be observed.
  • Decision

    (1) Is the seller permitted to reduce the amount paid back to the consumer in case of withdrawal from the consumer contract?
    (2) Does the fact that the seller provides for the reduction of the paid back amount in its commercial terms and conditions relieve the seller from its initial liability for using unfair terms in consumer contracts?

    URL: http://www.soi.sk/files/documents/pravoplatne-rozhodnutie/prvostupnove/zilinsky-kraj/za472015.rtf

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result
    The decision of the Slovak Trade Inspection was to impose a fine in the amount of EUR 300.