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Information Obligations and Disinformation of Consumers: Czech Law Report

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Information Obligations and Disinformation of Consumers

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 33))

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Abstract

The text is focused primarily on the concept of informed consumers in the Czech law. In the beginning it describes general characteristics of the consumer information model, then it analyses pre-contractual information obligation and the demands focused on the transparency. As the position of the consumer is weaker than the position of entrepreneur, misleading commercial practices and unfair contract terms are examined as well. The text is then focused on sector specific rules, such as on the area of financial services and on the aspects of digital consumer including contracting, using cookies and reasonable consumer expectations. Throughout the text, some problematic aspects of Czech regulation or inappropriate implementation of European legislation are mentioned as well. The text then concludes (and it is trying to point out throughout the whole text), that the consumer could be overloaded by provided information. The aim of the chapter is to introduce national specifics within abovementioned areas and to analyse relevant questions of consumer protection connected with the topic of the informed consumer.

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Notes

  1. 1.

    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 (‘Unfair Commercial Practices Directive’).

  2. 2.

    A business practice that can substantially impair the economic behaviour of a certain clearly identifiable group of consumers who, due to their mental or physical weakness, age or credulity, are particularly vulnerable by such practice or product or service, in a way that the entrepreneur may reasonably expect, is considered from the viewpoint of the average member of that group; this does not affect the normal and legitimate advertising practices of exaggerated statements or such statements that are not meant literally.

  3. 3.

    Directive 2011/83/EU of the European Parliament and of the Council on consumer rights which amends the Council Directive 93/13/EEC and the Directive 1999/44/EEC of the European Parliament and of the Council and which repeals the Council Directive 85/577/EEC and the Directive 97/7/EEC of the European Parliament and the Council.

  4. 4.

    If the conduct of the parties aims at concluding the contract and these facts are not apparent from the context, the entrepreneur shall inform the consumer in good time before the contract is concluded or before the consumer makes a binding offer.

  5. 5.

    The decision of the Constitutional Court of the Czech Republic of 11 November 2013, file no. I. ÚS 3512/11.

  6. 6.

    To see more Loos and van Boom (2017), p. 241.

  7. 7.

    Amendment on Consumer Protection (2015).

  8. 8.

    Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

  9. 9.

    The decision of the Supreme Administrative Court of the Czech Republic of 23 October 2014, file no. 7 As 110/2014-52. The decision of the Court of Justice of the European Union CHS Tour Services (C-435/11).

  10. 10.

    To see more Loos and van Boom (2017), p. 242.

  11. 11.

    The decision of the Supreme Court of the Czech Republic of 31 August 2011, file no. 8 As 83/2010.

  12. 12.

    The decision of the Supreme Court of the Czech Republic of 1 August 2008, file no. 32 Cdo 3895/2007, the decision of the Supreme Court of the Czech Republic of 23 October 2008, file no. 32 Cdo 4661/2007, or the decision of the Supreme Court of the Czech Republic of 28 October 2011, file no. 23 Cdo 4384/2008.

  13. 13.

    To see more on the Explanatory report to the Civil Code (2015), p. 449.

  14. 14.

    Please compare with the decision of the European Court of Justice the Commission vs the Netherlands (C-144/99).

  15. 15.

    To see more on that in the commentary to the Civil Code: Hulmák (2014), pp. 503–504.

  16. 16.

    The decision of the Constitutional Court of the Czech Republic of 10 April 2014, file no. III. ÚS 3725/13.

  17. 17.

    Pelikánová (2011), pp. 15–23.

  18. 18.

    For more, see: Hruda (2012), pp. 57–62. The decision of the Constitutional Court of the Czech Republic of 10 April 2014, file no. III. ÚS 3725/13, the decision of the financial arbitrator of 13 December 2013, file no. 10425/2013, litigation no. 181/SU/2013, Financial Arbiter (2013). http://www.finarbitr.cz/galerie/tinymce/rozhodnuti/181_SU_2013_nalez.pdf. Accessed 25 September 2018.

  19. 19.

    Section 37 of the Act No. 40/1964 Sb., Civil Code. The same requirement is in the Civil Code. “The legal action must be done in a free way, seriously, definitely and intelligibly; otherwise, it shall be invalid.” See also the decision of the Supreme Court of the Czech Republic of 23 April 2014, file no. Cpjn 203/2013.

  20. 20.

    The decision of Court of Justice of the European Union Bogdan Matei a Iona Ofelia Matei v. SC Volksbank România SA (C-143/13). The decision of Court of Justice of the European Union Árpád Kásler, Hajnalka Káslerné Rábai v. OTP Jelzálogbank Zrt (C-26/13).

  21. 21.

    Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC and Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 Text with EEA relevance.

  22. 22.

    Recital 23, Article 14 (6), the Directive 2014/17/EU on Credit Agreements for Consumers.

  23. 23.

    Section 1849. Civil Code.

  24. 24.

    Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC.

  25. 25.

    Please compare the transposition. Recital 50, Article 7 (3), Article 8 (3), 2011/83/EU Directive which regulates distance contracts and obligations arising from contracts negotiated away from business into the Section 1834. Civil Code. “If a consumer withdraws from a contract for the provision of services and the entrepreneur, at an express request of the consumer, began to perform before the end of the time limit for withdrawal from contract, the consumer shall pay to the entrepreneur a part of the agreed price proportional to the performance provided until the time of withdrawal from contract.”

  26. 26.

    Ondřej and Selucká (2013), p. 32; Domurath (2013).

  27. 27.

    Kotásek (2010), pp. 31–34.

  28. 28.

    Domurath (2015).

  29. 29.

    We are dealing with the question of extensive disclosure of the information to the consumer also further in this text.

  30. 30.

    Act No. 480/2004 Sb., Certain Information Society Services, as amended.

  31. 31.

    Act No. 634/1992 Sb., Consumer Protection Act, as amended.

  32. 32.

    Section 1812. Civil Code.

  33. 33.

    Section 1820. Civil Code.

  34. 34.

    “If the means of distance communication does not allow the consumer to be provided with all the information, he shall receive at least the information under Section 1811(2), (a), (b), (c) and (g) and the information under Section 1820 (1) (b), (c) and (h). The entrepreneur shall provide the consumer with the other information in textual form no later than by the time of the performance.” Section 1824 (2). Civil Code.

  35. 35.

    Requirements of that form are set forth in the Government Regulation No. 364/2013, Sb.

  36. 36.

    To see more on that in the commentary to the Civil Code: Hulmák (2014), pp. 503–504.

  37. 37.

    Section 1822. Civil Code.

  38. 38.

    Section 1826. Civil Code.

  39. 39.

    Section 1827 (1). Civil Code.

  40. 40.

    “This does not apply when a contract is concluded exclusively by exchange of electronic mail or equivalent individual communication.” Section 1827 (1). Civil Code.

  41. 41.

    The failure of the entrepreneur to do so will not, however, affect the validity of the contract.

  42. 42.

    The Civil Code does not use the term “written form” consistently and sometimes it uses the term “textual form.” This could seem confusing. In our opinion, these are similar terms (using a logical interpretation), although the wording is unfortunate. This supports also the statement that “the textual form is observed if the information is provided in such a way that it can be kept and displayed repeatedly.” Section 1819. Civil Code.

  43. 43.

    Section 1827 (2). Civil Code.

  44. 44.

    “If, in the ordinary course of business, a party concludes contracts with a number of persons and such contracts oblige the parties to provide a long-term recurrent performance of the same kind with reference to standard commercial terms, and the nature of the obligation already indicates in the course of the contract negotiations that subsequent changes thereto will be reasonably necessary, the parties may stipulate that a party may amend the standard commercial terms to an appropriate extent. The stipulation is valid if at least the manner in which the change is to be notified to the other party is stipulated in advance, and if the party becomes entitled to refuse the changes and, as a result, terminate the obligation with a notice period sufficient to procure similar performances from another supplier; however, a stipulation which links the termination to a special duty encumbering the terminating party is disregarded.”

  45. 45.

    Section 1823. Civil Code.

  46. 46.

    Section 1825. Civil Code.

  47. 47.

    Such possibility thus does not apply e.g. to the situation when the consumer purchased the goods physically in the store.

  48. 48.

    However, it is not possible for the consumer to withdraw from the contract in the cases listed in Section 1837 (such as customized goods, accommodation, transport, repair or maintenance work, digital content, etc.) or if the scope of the contract itself falls outside the legal regulation of distant sales described under Section 1840 (such as health care, gambling, social services, etc.).

  49. 49.

    “If an entrepreneur allows a consumer to withdraw by completing and dispatching a standard withdrawal form on a website, he shall provide the consumer with a confirmation of its receipt in textual form without undue delay.” Section 1830. Civil Code.

  50. 50.

    Section 1829 (1). Civil Code.

  51. 51.

    Section 1829 (2). Civil Code.

  52. 52.

    Some aspects are, however, not cancelled such as a contractual penalty, dispute settlement or interests on arrears.

  53. 53.

    Section 1831. Civil Code.

  54. 54.

    Section 1834. Civil Code.

  55. 55.

    Section 1820 (1) (g). Civil Code.

  56. 56.

    Sections 1832 and 1834—increased costs to deliver the goods, etc.

  57. 57.

    Section 1834 (4). Civil Code.

  58. 58.

    Section 1833. Civil Code.

  59. 59.

    See more on that in Section 1836. Civil Code.

  60. 60.

    Section 1838. Civil Code.

  61. 61.

    Section 1839. Civil Code.

  62. 62.

    Section 1840. Civil Code.

  63. 63.

    Section 1753. Civil Code.

  64. 64.

    The decision of the Supreme Court of the Czech Republic of 26 February 2009, file no. 33 Odo 1560/2006.

  65. 65.

    The decision of the Supreme Court of the Czech Republic of 29 June 2010, file no. 23 Cdo 1201/2009.

  66. 66.

    As it was already mentioned the Constitutional Court was dealing with the font size as well and it stated that “The content of the contract is to be legible to the average consumer, clearly and logically arranged. For example, contractual arrangements must be of sufficient font size, they may not be in a significantly smaller size than the surrounding text, and they may not be placed in sections that give the impression of an insignificant character.” The decision of the Constitutional Court of the Czech Republic of 11 November 2013, file no. I. ÚS 3512/11.

  67. 67.

    It is however always necessary to analyse the source of the information. For example, it is stricter when the information was presented to the consumer using television broadcasting (the consumer has less time to read and absorb the information)—the text has to be presented for sufficient time in readable size, colours (etc.). When the information is presented to the consumer using e.g. leaflet, then some information presented to the consumer can be smaller and e.g. in the footnote. The situation is thus decided on the ad hoc basis. The decision of the of the Supreme Administrative Court of 25 August 2011, file no. 7 As 12/2011 – 65, the decision of the Municipal Court in Prague, of 25 June 2012, file no. 7 Ca 42/2009 – 51-53.

  68. 68.

    Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).

  69. 69.

    This does not, however, apply to the session cookies which are deleted immediately after closing the page.

  70. 70.

    Act No. 127/2005 Sb., Electronic Communications Act, as amended.

  71. 71.

    Section 89 (3). Electronic Communications Act.

  72. 72.

    Section 1811. Civil Code.

  73. 73.

    In the Consumer Protection Act, there are however no specific conditions on distant sales (as it is in the Civil Code). In Section 9 and 10 there is however general information duty on how to inform the consumer, which is rather same as it is stated in the Civil Code—the information about goods or services has to be clear, it has to describe characteristics of the goods etc. In Section 11a it states that “When selling products or providing services by electronic means through websites, the entrepreneur is obliged to clearly inform the consumer in advance of any restrictions on the delivery of products or the provision of the service, and what payment methods are accepted.”

  74. 74.

    Such as information proving quality of offered services which promotes the trust in the entrepreneur.

  75. 75.

    “A consumer is any individual who, outside his trade, business or profession, enters into a contract or has other dealings with an entrepreneur.” Section 419. Civil Code.

  76. 76.

    “A consumer is any natural person who is not acting in the course of the business or as part of a separate exercise of the profession”. Section 2 (1) (a). Consumer Protection Act.

  77. 77.

    The decision of the Supreme Court of the Czech Republic of 24 April 2013, file no. 23 Cdo 3845/2012.

  78. 78.

    Information Obligations, Section 9 et seq., Consumer Protection Act.

  79. 79.

    Section 2 (1) (s), (t). Consumer Protection Act.

  80. 80.

    Section 3 et seq. Consumer Protection Act.

  81. 81.

    Ondřej and Selucká (2013), p. 32.

  82. 82.

    The decision of Court of Justice of the European Union Bogdan Matei a Iona Ofelia Matei v. SC Volksbank România SA (C-143/13). The decision of Court of Justice of the European Union Árpád Kásler, Hajnalka Káslerné Rábai v. OTP Jelzálogbank Zrt (C-26/13).

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Authors and Affiliations

  1. Masaryk University, Faculty of Law, Department of Civil Law, Brno, Czech Republic

    Markéta Selucká

  2. Czech National Bank, Financial Market Supervision, Consumer Credit Supervision Division, Prague, Czech Republic

    Iva Šťavíková Řezníčková

  3. Masaryk University, Faculty of Law, Institute of Law and Technology, Brno, Czech Republic

    Pavel Loutocký

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  1. Markéta Selucká
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  2. Iva Šťavíková Řezníčková
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  3. Pavel Loutocký
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Correspondence to Pavel Loutocký .

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  1. Faculty of Law, University of Antwerp, Antwerp, Belgium

    Gert Straetmans

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Selucká, M., Řezníčková, I.Š., Loutocký, P. (2019). Information Obligations and Disinformation of Consumers: Czech Law Report. In: Straetmans, G. (eds) Information Obligations and Disinformation of Consumers. Ius Comparatum - Global Studies in Comparative Law, vol 33. Springer, Cham. https://doi.org/10.1007/978-3-030-18054-6_9

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